SC2777
PAPUA NEW GUINEA
[SUPREME COURT OF JUSTICE]

SCA NO. 44 OF 2020

BETWEEN:
MICHAEL MOSKO AILI
First Appellant

AND:
S & B ENGINEERING LIMITED
Second Appellant

AND:
MAINLAND PLUMBING SUPPLIES
Third Appellant

AND:
THE SHERIFF
Fourth Appellant

AND:
JENNY MOSKO AILI
Respondent

WAIGANI:   POLUME-KIELE J, COATES J, CROWLEY J
 29 SEPTEMBER 2025

 LAND REGISTRATION – transfer of land purportedly by statutory declaration – statutory declaration not a registerable instrument in circumstances here – appeal upheld. 

Facts
The registered owner of land purportedly passed title to his former wife using a statutory declaration. Upon the registered owner and his company being successfully sued for unpaid debts, a Writ of Levy was obtained against them. The respondent wife claimed she had an equitable interest in the land created by the statutory declaration. Under the Land Registration Act 1981, title cannot pass in this manner.

Counsel
J Kais, for the third appellant
D Levi, for the respondent 

JUDGEMENT

1.	BY THE COURT: This an appeal concerning title to land.

2.	The background facts have a very long history but need to be stated to understand the context of the matter.

3.	The first appellant and the respondent’s marriage was dissolved on 9 February 2006.

4.	One and a half months before that, the first appellant purportedly transferred his ownership of a block of land at Mt Hagen, Allotment 25, Section 11, Volume 1231, Folio 194, Newtown (the land), to the respondent as part of a property settlement.

5.	The first appellant had run his business, S & B Engineering, the second appellant, from the land. They continued to occupy the land and run the business after the purported transfer.

6.	On 10 November 2006, Mainland Plumbing Supplies, the third appellant, obtained judgment against the first and second appellants in the sum of K50,838.29 with interest at 18 per cent per annum, for unpaid goods and services it had supplied.

7.	On 17 March 2008, a Writ of Levy was issued against the first and second appellants property for payment of the judgment debt, the land being the asset from which the debt could be recovered.

8.	On 29 September 2008 the respondent to this appeal, Jenny Mosko Aili, began proceedings against her former husband, the first appellant, his company S & B Engineering, the second appellant, Mainland Plumbing, the third defendant and the Sheriff of the National Court, the fourth appellant. The Sheriff became involved as he or she would exercise powers under the Writ of Levy.

9.	The respondent sought orders reflecting that the land had been transferred to her, and injunctions preventing the appellants from interfering with her interests, her possession and her occupation of it. Her orders sought her title be entered on the Register of Titles. 

10.	Obviously, the first appellant seeks to retain the property and the third appellant seeks that he retain the property – to satisfy its debts owed by the first and second appellants.

11.	The respondent tried to have the Writ of Levy stayed in 2008, but that was refused, and she subsequently moved to Australia, where she is resident now. 

12.	In 2010 Mr Samson Wiai Timini offered to buy the land from the Sherriff, even though it had not been seized, for K98,000. 

13.	On 25 June 2013, the respondent granted Mr Timini her power of attorney to act for her in relation to all matters concerning the land.

14.	 In 2016, by way of Notice of Motion, Mr Timini sought to be substituted in place of the respondent and not long after, the first appellant, by way of Notice of Motion, sought to have the matter dismissed for want of prosecution.

15.	These were the applications heard in the court below.

16.	The orders made were that both applications were refused, but of its own accord the court made other orders which would see the title pass to the respondent because of an equitable interest in the land. 

17.	The appeal seeks to set aside the decision only with regards to the Notice of Motion seeking the matter dismissed for want of prosecution and the orders dealing with the land. The appeal does not disturb the order dismissing Mr Timini’s action. 

18.	To be specific, a finding for the appellants would mean that the title had always vested in the first appellant and that no interest in the land capable of registration vests in the respondent. 

19.	The respondent seeks that the decision in the Court below be upheld.

20.	The grounds of appeal list errors of law by the trial judge, although reading them, most appear to be errors of fact including that mistakes were made as to default in prosecuting the proceedings, that there was no explanation of delay in prosecuting proceedings, that no prejudice would be suffered by the appellants and that the matter could be expedited without a hearing. However, the main ground, an error of law, is that a self-executing order was made that the first appellant may challenge the effect of his purported transfer by statutory declaration, otherwise the respondent may have the title registered in her name. 

21.	We consider that apart from stating that expediting the hearing appeared to be a decision that the respondent had no case to answer, we hold that there was an appealable error, being the purported orders allowing for transfer of the property based on the statutory declaration, and the making of a self-executing order placing the onus on the first appellant to challenge the meaning of the statutory declaration, as stated at paragraph 13 of the judgment.

22.	That paragraph accepts that the Registrar of Titles has power to register the land by way of statutory declaration purportedly transferring it.

23.	What needed to occur was that the Land Registration Act 1981, and its clear statement of indefeasibility of title, be considered.

24.	Section 32 of that Act requires the existence of an instrument of title, stating who the registered proprietor is. The instrument has to be registerable or registered. 

25.	Upon being satisfied that there is such an instrument, Section 33, often referred to as the section of indefeasibility, which means the owner’s title is secure unless there is some act such as fraud, or encumbrances, or misdescription or some other stated matter, required consideration. 

26.	There was no claim here that challenged the first appellant’s title. What was claimed was that the respondent acquired an equitable interest in the land, with no reference to any exception as stated in section 33. 

27.	No submissions on the law was given showing how such an interest could be gained by the respondent, simply by the first appellant signing a statutory declaration. The Transfer of Land Act relies on signed documents capable of being an instrument which may perfect transfer from one person to another. Any intention to transfer must be addressed in an instrument capable of registration, not in what is otherwise a mere document. 

28.	If the statutory declaration is considered an instrument of title, s.17 of the Land Registration Act states that it must be registered or registrable, and it would have to be in the form of a deed or a similar document. We do not consider a statutory declaration, at least in the circumstances here, to be such an instrument, or be able to convey intention to transfer. A statutory declaration has a purpose of swearing to facts, not a purpose of proving title to property, and competent legal advice would have made that clear to both the first appellant and the respondent. Had she also attended to have it registered, the Registrar of Titles would have refused registration. 

29.	Nothing further needs to be stated.

30.	The first appellant is the registered proprietor, and in plain language, the owner of the land.

31.	As the applications on foot do not properly challenge his title, there is no case the court can uphold for the respondent.

32.	We therefore uphold the appeal, both on its facts and pursuant to s.16 of the Supreme Court Act by raising issues pertaining to indefeasibility of title under the Land Registration Act, and dismiss that part of the judgment appealed, allowing any other matters which are properly before the courts below, to proceed. 

33.	We make it clear that the order of the dismissal of the Notice of Motion by Mr Timini to be substituted for the respondent, is not disturbed. 

ORDERS
1.	The appeal is upheld.

2.	The Judgement and Orders of the National Court given on 30 April 2020 in proceedings OS No. 567 of 2008, refusing the First Defendants Motion filed 13 October 2016 and Summarily determining the Plaintiffs substantive relief, are set aside. 

3.	In lieu thereof, judgement be entered for the Appellants against the Respondent for dismissal of proceedings OS No. 567 of 2008 for want of prosecution.

4.	Consequently, the stay order made on 30 April 2020 of enforcement of judgement in WS No. 370 of 2006 is dismissed.

5.	Costs in OS No. 567 of 2008 be awarded to the First, Second, Third and Fourth Defendants against the Plaintiff.

6.	Costs in this Appeal be awarded to the First, Second, Third and Fourth Appellants against the Respondents.

________________________________________________________________
Lawyers for the third appellant: Huon Lawyers
Lawyers for the respondent: Livingstone Lawyers