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Chow v Omba [2026] PGSC 4; SC2841 (8 January 2026)

SC2841

PAPUA NEW GUINEA
[SUPREME COURT OF JUSTICE]

SCM NO. 35 OF 2025 (IECMS)

BETWEEN:

FABIAN CHOW as the Executor of the Estate of Late HENRY FABIAN CHOW
Appellant

AND:
TOBIAS OMBA
First Respondent

AND:
MARTIN MUSOM, PAUL MUS & AKAS KAMDRING
Second Respondent

AND:
BENJAMIN SAMSON as the SECRETARY FOR THE DEPARTMENT OF LANDS
Third Respondent

AND:
ALE ANE as the REGISTRAR OF TITLES
Fourth Respondent

AND:
HON. JOHN ROSSO as the MINISTER OF LANDS & PHYSICAL PLANNING
Fifth Respondent

AND:
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Sixth Respondent

WAIGANI: FRANK J, CAREY J, CROWLEY J
25 NOVEMBER 2025; 8 JANUARY 2026

SUPREME COURT - Appeal – s. 10, 11 and 102 Land Act - Special Agricultural and Business Lease (SABL) – Land Registration Act - Notion of an Appeal

ADMINISTRATIVE LAW — Appeal against decision of the National Court upholding the judicial review – ground not pleaded in originating process -

The Appellant sought to have the matter appealed on the basis that the trial judge erred in law and fact in relation to findings that the First Respondent was the owner of a piece of customary land, portions 699C and 103C are parts of one land when they are both distinct, the Appellant arranged for the Second Respondents to apply for the Special Agricultural Business Lease (SABL), there is evidence to support fraud against the Appellant for the SABL and the Memorandum of Understanding amounts to fraud. The First Respondent indicated that the trial judge found fraud to invalidate the SABL due to errors in procedure and that there was no identifiable error by the trial judge, hence the appeal should be dismissed.

Held:
By the majority (per Carey J and Crowley J):

1. There was no identifiable error by the trial judge in the conduct of the proceedings in the National Court.
2. The Appeal is dismissed in its entirety.
3. The Appellant shall pay the costs of the First Respondent to be taxed if not agreed.
4. Time for entry of these Orders be abridged to the time of settlement by the Registrar which shall take place forthwith.
   

Cases cited
Administration of the Territory of Papua and New Guinea v Tirupia, In Re Vunapaladig and Japalik Land [1971-72] PNGLR 229
Camilus v Mota [2022] PGSC 17; SC2210
Heni Totona and Ors v Alex Tongia and Ors (2012) SC1182
Jaro Investment Ltd v Ane [2022] PGSC 5; SC2192
Kewa v Kombo [2016] PGSC 60; SC1542
Mudge v The Secretary for Lands [1985] PNGLR 387
Nimbituo & Anor v Commissioner of the Correctional Service & Anor [2025] PGSC 35; SC2729
Pololi v Wyborn [2013] PGNC 65; N5253
Re Vunapaladig and Japalik Land [1971-72] PNGLR 229
Tikili v Home Base Real Estate Ltd [2017] PGSC 1; SC1563
Tzen Plantation Ltd v Mukurramainga Land Group [2025] PGSC 50; SC2746

Counsel
Mr. J Langah, for the appellant
Mr. D Levy, for the first respondent

JUDGMENT

1. CAREY J AND CROWLEY J: This is the ruling on the appeal of a decision of the National Court on 16^th July 2025 in proceedings styled OS(JR) 302 of 2020.
   

BACKGROUND

2. In early 2008, Martin Musom, Paul Mus and Akas Kamdring (the Second Respondents) offered to sell the portion of land described as Portion 699C, Milnich Lae, Fourmil Markham Morobe Province (the Land) to the Appellant.
   
3. At that material time the land was customary land.
   
4. On 1 November 2008, Fabian Chow (the Appellant) entered into an agreement with the Second Respondents to purchase the Land once it was converted to a State Lease.
   
5. On 29 October 2009, the Second Respondents were granted a Special Agricultural & Business Lease (SABL) over the Land.
   
6. The Appellant then purchased the Land from the Second Respondents for K1 000 000.00 and the SABL title was transferred to him on 2 December 2009.
   
7. On 29 September 2020, Tobias Omba (the First Respondent) filed proceedings in the National Court challenging the grant of the SABL to the Second Respondents.
   
8. It must be noted that the transfer of the title of the SABL from the Second Respondents to the Appellant was not a subject of the National Court proceedings.
   
9. On 18 February 2021, leave to review the decision of the Minister for Lands and Physical Planning (the Fifth Respondent) granting the SABL to the Second Respondents was granted.
   
10. On 3 March 2021, the First Respondent filed a substantive notice of motion. The motion was heard on 13 September 2022 where the Appellant defended the judicial review proceedings by raising the following grounds:
    
    1. the transfer of the SABL title to the Appellant by the Second Respondents was not pleaded in the Originating Summons and neither was leave granted to challenge the transfer,
       
    2. the First Respondent was barred by a Deed of Release which he signed with his brothers on 25 March 2011, and
       
    100. no fraud was established against the Appellant to set aside his SABL title.
         
11. On 16 July 2025, the trial judge made a decision upholding the judicial review and thereby cancelled the Second Respondent’s SABL title over the Land.
    
12. The trial judge’s decision to uphold the judicial review is the subject of this appeal.
    

Grounds of Appeal

13. There are fourteen grounds of appeal (several having sub-grounds). At the hearing counsel for the Appellant decided not to pursue one ground and one sub-ground of appeal. This was hardly a concession to the workload the Appellant was imposing on the Court particularly considering that one of the grounds abandoned was a “catch all”. It was designed to allow the appellant to increase his grounds of appeal should the need arise. It read; “Such other grounds of appeal, as may be introduced by amendment with leave of the Court as may become necessary upon a study of the transcript of proceedings when it is available”. We observe that such a ground of appeal is unnecessary because the Appellant would need leave to amend, in any event.
    
14. Many of these grounds were an attack on the declaration by the trial judge that the transfer and registration of the SABL to the Appellant was unlawful and void ab initio. Those grounds ((d), (e), (f), (g), (i) (k)), though differently expressed were centered around the indefeasibility of title, so that a registered title can only be set aside by proof of fraud (See s32 and 33 of the Land Registration Act 1981 below).
    
15. The other grounds were complaints that the trial judge:
    
    1. found the Second Respondents were owners of the land when the National Court has no jurisdiction to make such a determination (Ground (a));
    2. made an error in relation to the boundaries of the land (Ground (b));
    100. the trial judge found Henry Chow arranged for the Second Respondents to apply for the SABL when there was no evidence to support this (Ground (c));
    4. determined Henry Chow not to be a bona fide purchaser for value without notice. (Grounds (j), (k));
    5. did not find that the First Respondent was estopped from pursuing the litigation because he had signed a deed of release (Ground l)) and
    6. found that the pleadings and grant of leave to judicially review were sufficient when the First Respondent actually argued on the substantive judicial review (Ground (i) & (m)).
       

Law

16. As identified above much of the Appellant’s complaints centered around the indefensibility of title and the fraud exception in s33(1)(a) of the Land Registration Act 1981. That section provides that “The registered proprietor of an estate or interest holds it absolutely free from all encumbrances except– in the case of fraud...”. This provision has been subject to judicial interpretation around the definition of the word “fraud”.
    
17. Originally this Court followed a long line of Australian and English authorities which, held that fraud meant, “proof by the registered owner or their agent of actual fraud” (See Mudge v The Secretary for Lands [1985] PNGLR 387). That remained the common law of this country until 2017 when this Court in a series of decisions broadened its interpretation to include constructive fraud (see for example Tikili v Home Base Real Estate Ltd [2017] PGSC 1; SC1563, Jaro Investment Ltd v Ane [2022] PGSC 5; SC2192 and Camilus v Mota [2022] PGSC 17; SC2210). Rather than these cases becoming a consistent line of authority demonstrating an evolution from a strict interpretation of actual fraud to a broad one, this Court also produced recent decisions reaffirming actual fraud as the proper construction of s33(1)(a) of the Land Registration Act 1981 (See for example Tzen Plantation Ltd v Mukurramainga Land Group [2025] PGSC 50; SC2746.
    
18. What is also important to keep in mind on an appeal, particularly in relation to the overturning a judges’ exercise of discretion, is that the onus is on the appellant to show that it is clearly wrong or an identifiable error has occurred (Heni Totona and Ors v Alex Tongia and Ors (2012) SC1182 at [2], recently expressed in Nimbituo & Anor v Commissioner of the Correctional Service & Anor [2025] PGSC 35; SC2729.
    

Grounds 3(d), (e), (f), (g), (i) (k) constructive or actual fraud

19. A central theme of the Appellant’s case is that the learned trial judge should have followed the line of authority from this Court that hold that only actual fraud by the registered owner or their agents can defeat a registered title. The Appellant submits that, as the registered leaseholder of the SABL, the fact that the original lease was granted in breach of the process set out in section 10, 11 and 102 the Land Act 1996 is not sufficient to dislodge them.
    
20. The primary judge was aware of the conflicting authorities and set out the various opposing cases in paragraph 61 to 68 of his decision. His Honour correctly noted that the divergence of opinion of this Court “...would be best resolved by a five-men panel bench of the Supreme Court” (at [66]).
    
21. In choosing to follow one line of authority rather than another, the primary judge was exercising his discretion. On appeal therefore it is incumbent on the Appellant to show that the decision was clearly wrong. With respect, it is not. A single judge of the National Court is bound to follow a decision of this Court. But where there is conflicting authority, a National Court judge is entitled to do what the primary judge did here; consider the conflicting case and choose which to follow based on that consideration. We cannot see that he fell into appealable error.
    
22. A second aspect to these grounds is findings of fact the primary judge made in relation to fraud. Section 9, 10, 11 and 102 of the Land Act 1996 establishes a regime that the Minister must adhere to in deciding whether to acquire customary land grant a state lease over customary land. This regime includes ascertaining who the owners are (s9(1), being satisfied that the land is not required by the customary landowners now or in the future) and these steps must be authenticated by “such instrument and in such a manner as are approved by the Minister” (s10(1)). In relation to a SABL it is incumbent on thew Minster to produce a Land Investigation Report.
    
23. It is not in dispute that the Land Investigation Report was not produced by the Lands Department (see para [53]). The evidence given by the Secretary for Lands and Physical Planning was that:
    

the lease lease back instrument pursuant to section 11(2) of the Land Act 1996 and the Land Investigation Report verifying the customary land owners are unfortunately not on file and could not be produced to this honourable court at this time as the Land File for the subject land which should contain these documents is currently unavailable at our Records Unit. (emphasis added)

24. One inference to be drawn from this statement is that the Land Investigation Report existed but could not be produced. That is certainly the implication the Secretary sort to convey by his evidence. However, an equally plausible inference is that the Land Investigation Report never existed. The learned primary judge certainly concluded that the fact that this report could not be produced was evidence of a failure on the part of the Minister to follow the process set out in sections 9, 10, 11 and 102 of the Land Act 1996. That was a conclusion that was available on the evidence (or lack of evidence) before him.
    
25. This fact, plus:
    
    1. the speed at which the lease-leaseback occurred;
    2. the fact that customary landowners were not consulted about the SABL and
    100. the credibility of the witnesses as assessed by the primary judge,

convinced him that constructive fraud was made out (see para [53] to [60]). This again is an exercise of discretion.

26. It is not correct to say, as the Appellant does, “there was no evidence” (Ground (c)) or “the evidence did not support” Ground (b)(i)) in circumstances where the primary judge set out the evidence he relied on (see para [59] (a) to (h)) and was entitled to draw inferences from those facts to reach the conclusion that he did. The Appellant again has not demonstrated an appealable error in the reasoning of the primary judge.
    
27. Essentially, the Appellant is asking this court to affirm that indefeasibility is only defeated by proof of actual fraud. We decline to do so. However, we also decline to decide that section 33(1)(a) of the Land Registration Act 1981 encompasses both actual and constructive fraud. As this case demonstrates, there are competing lines of authority that need to be resolved by a five-person bench of this Court. We do not intend to add to the conflicting jurisprudence by choosing one line of authority over another. The primary judge made a rational and reasonable choice of which authorities to follow and in doing so has not erred in law. Therefore these grounds of appeal are dismissed.
    

Gound 3(a) deciding who were the customary land owners

28. The Appellant complains that:
    

The trial judge erred in law and in fact in paragraph 43 of the judgment in finding that Tobias Omba and his brothers are (part or full) owners of the customary land described as Agayokoc land (Portion 699C) the subject of the Special Agricultural and Business Lease (hereinafter “SABL”) when his Honor did not have the jurisdiction to make such a finding relating to interests in customary land ownership.”

29. The primary judge at paragraph 43 of his judgment said; “I find as a fact the applicant and his brother have substantial rights as part owners, if not whole, of Agayokoc land, Portion 699C the subject of the SABL, volume 17 Folio 180”.
    
30. This is just poor wording. It is clear from his Honour’s orders that he was not deciding who the customary land owners were. Order 7 reads:
    

“The issue of ownership over the land described as Agaykoc, Portion 699C, Lae Morobe Province between the Applicant and the first Respondents be referred to the Local Land Court for fresh mediation under the Land Dispute Settlement Act”.

31. Self-evidently, that primary judge was not exercising power that he did not have. He rightly referred the question of ownership to the Local Land Court. As such this ground is dismissed.
    

Gound 3(b) the trial judge made an error in relation to the boundaries of the land

32. The Appellant asserts that:
    

The trial judge erred in law and fact in paragraph 41 and 42 of the judgment when he ruled that the land described as Portion 699C, Lae Markham Morobe Province (hereinafter “Portion 699C’), (or part of it) was part of the land described as portion 103C when:

(i) The evidence did not support such a finding.
(ii) No such clear admissions were made in the affidavits of the respondents in the court below.
(iii) Portion 699C was distinct to Portion 103C which are two (2) different portions of land.

33. Two things are of note; first no map or survey plan of the land was produced either at trial or on the appeal (though there was a survey plan of Portion 103C). In the absence of a map, it is difficult for a court to conceptualize the different blocks and their boundaries. Second, had the issues of the boundaries of the land been in serious contention the parties should have produced a map. The fact that one was not, indicates that this was not a significant issue in the trial.
    
34. Moreover, the Appellant has failed to show how the primary judges finding were material to his decision on the judicial review. That, on its own, is enough to dismiss this ground of appeal but it also suffers from the problem of interpretation of evidence.
    

In deciding this issue, the primary judge identified in paragraph [40], [41] and [42] what evidence he relied on. The Appellant merely asserts that that evidence does not support the conclusions of the primary judge by drawing difference inference from that evidence. The Appellant does not identify why the trial judge was not entitled to draw the inferences that he did. In effect, the Appellant does not demonstrate appealable error merely and alternative way the facts could be perceived. As such this ground is dismissed.

Ground 3(c) the trial judge found Henry Chow arranged for the Second Respondents to apply for the SABL when there was no evidence to support this

35. The Appellant submits that:
    

“The trial judge erred in law and in fact when he ruled in paragraph 56 of his decision that the Appellant arranged for the Second Respondents (Martin Musom, Paul Mus & Akas Kamdring) to apply for the SABL when there was no evidence to support this”.

36. Like several of the grounds raised by the Appellant this asserts an error “in law and fact” when what is a complained of are the facts found by the trial judge. There is no legal error identified.
    
37. In paragraph [56] of his decision the learned primary judge said:
    

“The evidence from the second Respondent [appellants] is that they bought the customary land first from the first Respondents [second respondent on the appeal]. They then surveyed the land and thereafter entered the land. They then arranged for the first Respondents to apply for SABL. The SABL was facilitated by the first Respondents to make way for the sale of the land to the second Respondent. This is clear from the swift transactions. The SABL was granted on 10 November 2009. As soon as they entered the land in 2010, they faced opposition from the applicant and his brothers and the residents.” (emphasis added)

38. The primary judge identifies that the evidence he relied on came from the second respondents (now the appellant). Clearly there was some evidence on which the primary judge relied. His Honour did not specify what in the Appellant’s (second respondent at trial) evidence he was referring to when he said “[t]hey then arranged for the first Respondents to apply for SABL” but a fairly cursory look at the affidavit of Martin Caberio filed on 22 March 2022 in the appellant’s case, provides examples of what the primary judge may have been referring too. For example, in paragraph [6] of Martin Caberio’s affidavit it says “When this opportunity to buy Portion 699C arose, Sir Henry Chow agreed to purchase the and asked the customary landowners to convert the customary land into State Lease (SABL) before he can purchase the land” (Emphasis added).
    
39. And later at paragraph [10]:
    

“When Sir Henry Sir [sic] agreed to purchase the land on his terms, the former Customary landowners (First respondents and their family and clan members) agreed and applied through the Department of Land & Physical Planning and had the land converted into Special Agricultural and Business Lease (SABL) on 10th November 2009” (Emphasis added).

40. As the Memorandum of Understanding signed between the Appellant and the Second Respondent Makes clear, Sir Henry Chow’s terms were that the land was to be converted to a SABL for the sale, or more accurately the transfer of lease (see for example MOU dated 1 November 2008 at paragraph [3(iv)]) and MOU dated 14 May 2009 at paragraph [3(iv)] Annexures A & F respectively to the Affidavit of Martin Caberio filed 22 March 2022).
    
41. It is not accurate to say that there was no evidence to support the finding that the Appellant arranged for the Second Respondents to apply for the SABL. Clearly there was. The Appellant has not demonstrated why the primary judge should not have relied on this evidence and therefore as failed to identify an appealable error. As such this ground is dismissed.
    

Grounds 3(j), (k)- the determination that Henry Chow was not a bona fide purchaser

42. The primary judge considered the submission that the appellant was “a bona fide purchaser” (paragraph [69] to [72]). The learned primary judge found:
    

“While there is no clear evidence of fraud, the second respondent, the late Sir Henry Chow was involved from the beginning. He signed a Memorandum of Understanding with the first Respondents for the purchase of the land in November 2008 even before it was converted into a SABL. Under clause 3 (v) of the MOU, Late Sir Henry agreed to apply to the Department of Lands and Physical Planning for the conversion of the existing Freehold Lease in Portion 103C into State Lease, SABL. When the SABL was granted on 29 October 2099, it was transferred to late Sir Henry chow on 26th November 2009. Even before the land was converted to SABL, the Respondent knew, there were many people occupying the land at the invitation of the applicant and his late father, Omba Kamdring. Clearly, it cannot be said that the second Respondent was innocent bona fide purchaser.”

43. The primary judge clearly sets out the evidence on which he relied to reach the conclusion that the Appellant was not a bona fide purchaser. What these grounds of appeal misapprehend is what a bona fide purchaser is. The full equitable principle is “bona fide purchaser for value without notice”. It is a claim “...that the plaintiff was a purchaser who became a registered proprietor by transfer; that it was a bona fide purchaser for value without notice of any other right title or interest...” (Administration of the Territory of Papua and New Guinea v Tirupia, In Re Vunapaladig and Japalik Land [1971] PGSC 1; [1971-72] PNGLR 229 per Minogue CJ Clarkson Kelly JJ).
    
44. To succeed in such a claim, the Appellant would have to establish that they bought the property “for value” (i.e. market value). There is no suggestion that the K100,0000 kina was not market rate. Secondly the Appellant must establish that Sir Henry Chow was “without notice” of the any other rights or interests. The primary judge found that there were people occupying the land when MOU was signed by Sir Henry Chow in 2008 ,Thus he aware that. these people may have a right or interesting in the land. This convinced the primary judge considered that the appellant had “notice” and therefore did not satisfy the equitable principle of being a bona fides purchaser.
    
45. In any event, though this Court has considered bona fide purchaser for value defence in relation to land purchases (see Kewa v Kombo [2016] PGSC 60; SC1542 at [32]) there is a decision of the National Court that found such an argument cannot defeat the statutory right established under s33(1) of the Land Registration Act 1986 (see comments of Hartshorn J in Pololi v Wyborn [2013] PGNC 65; N5253 at [46]). As such, the bona fide defence may not have assisted the appellant had the trial judge found in existed.
    
46. However, his Honour was entitled to find that the evidence did not support the Appellant’s bona fide purchaser for value equitable defence. The Appellant has not demonstrated why this conclusion was in error beyond asserting that it was wrong. As such these grounds must fail.
    

Ground 3(l) the primary judge should have found that the First Respondent was estopped from pursuing the litigation because he had signed a deed of release

47. The Appellant contends that the First Respondent was estopped from bringing the judicial review application because he had signed a deed of release in favour of the Appellant. It is asserted that because the First Respondent did not challenge or seek to have the deed set aside his Honour was wrong not to enforce it.
    
48. Further, it is asserted that none of the requirements for setting aside a deed were met.
    
49. These arguments ignore what the primary judge said in paragraphs [78] and [79] of his judgment. The primary judge rightly pointed out that the case before him was a judicial review of the decision of the Minister of Lands and Physical Planning (the Fifth Respondent) who was not a party to the Deed. Neither were the 3rd, 4th and 6th Respondents. The Appellant was only a party to the judicial review because they had an interest in the land but it was not their decision that the First Respondent was seeking to overturn. As such the Deed was not enlivened. Clearly this ground must fail.
    

Ground 3(m) & (i) the primary judge should not have found that the pleadings were sufficient when the First Respondent argued different issues on the substantive hearing than he had pleaded or was granted leave for

50. Finally, the Appellant claims that because fraud was not pleaded it cannot be argued (Ground 3(m) & (i)) and the grant of leave did not cover some of the relief sought by the First Respondent.
    
51. In relation to the leave issue, His Honour said:
    

“The main relief in Term 1 sought in the proceedings is for the review of the decision of the fifth Respondent made on 10 November 2009 granting the SABL and the subsequent transfer to the second Respondent on 2 December 2009. Leave is only required for the main decision sought to be reviewed. The balance of the reliefs sought in the Notice of Motion are consequential reliefs and they don’t require leave”. (at [84]).

52. The Appellant does not identify why this finding is wrong, they merely assert that it is. These findings seem inherently reasonable. The application for leave to judicially review a decision need not identify, “chapter and verse” all the orders that a party may seek assuming they ultimately succeed. At the leave stage the Court need only be convinced of certain basis criteria. Leave is a filtering process to determine that the applicant is not wasting the court’s time with review that does not satisfy the most basis criteria of standing, lack of delay and exhaustion of other remedies.
    
53. We note that the Appellant did not raise this issue at their initial pre-trial attempt to have the judicial review dismissed (see Notice of Motion filed 25 March 2021 page 446 Appeal Book). It is disingenuous to raise such an argument in an appeal. Particularly considering it is one of 13 other grounds. It smacks of a party throwing as much mud as possible hoping that some will stick.
    
54. A further argument not raised in the Appellant’s Notice of Motion in March 2021 but appearing for the first time in this appeal is the claim that the First Respondent needed to plead fraud. There is no dispute that fraud was not pleaded in the First Respondent’s Notice of Motion filed 4 March 2021. Certainly, if fraud is alleged as a matter of fact, it should be pleaded. Fraud is a serious accusation and should not be asserted without a good faith basis. However, we cannot find where in the First Respondent’s affidavit material he asserts fraud. That is not surprising since the primary judge could not find evidence of actual fraud, merely constructive fraud. Constructive fraud is where the evidence does not directly establish fraud, but the most likely explanation is that fraudulent conduct was involved. That is a judicial finding not one that emanates from one of the parties.
    
55. The first assertion of fraud in the current case that we can find is in the Appellant (and Second Respondents) written submissions filed in their Notice of Motion on 4 April 2022 seeking summarily dismissal of the judicial review (see page 444 of the Appeal Book). In those submissions at paragraph [15] the Appellant (and second respondent) say “Unless fraud, under Section 33, of the Land Registration Act, is established against the current registered holder of SABL, which we submit there is none, the SABL title registered to the Second Respondent is an indefeasible one.”
    
56. On our reading of the material, it was the Appellant who raised fraud as a hurdle the First Respondent to clear. Having cleared it, the Appellant now complains that the First Respondent was not entitled to assert it. It was not the First Respondent who raised it. It was the Appellant. They have been hoisted by their own petard. This ground must also fail.
    

Conclusion

57. The Appellant has misunderstood the notion of an appeal. He has merely rerun arguments that had been heard and determined by the trial judge and dressed them up as an appeal. It is incumbent on an appellant to demonstrate where the judge at trial has erred. It is not enough to say that the National Court got the wrong answer. An appeal is not a rehearing. The Appellant has merely asserted either that there was no evidence or that there was insufficient evidence to support the primary judge’s findings. This assertion was, in many cases, wrong, and in other cases, misunderstood the fact-finding process. A trial judge is entitled to draw inferences from a set of facts. The court at trial does not need direct evidence to be satisfied of on the balance of probabilities. On an appeal, it is not sufficient to claim that the judge has “erred in law and fact” without identifying the error not just positing an alternative inference to be drawn.
    
58. Finally, this appeal centered around the question of s33(1) of the Land Registration Act 1986 and whether it encompasses both actual and constructive fraud exception. As we identified, different combinations of judges of this Court have found both that it does, and it does not. That is the common law of Papua New Guinea at this time. Until this Court definitively decides the question through a five-person bench, a judge of the National Court can exercise their discretion as to which line of authority they will follow.
    

ORDER

59. By the majority:
    
    1. The Appeal is dismissed in its entirety.
    2. The Appellant shall pay the costs of the First Respondent to be taxed if not agreed.
    3. Time for entry of these Orders be abridged to the time of settlement by the Registrar which shall take place forthwith.

Ordered accordingly.
Lawyers for the appellant: Albright Lawyers
Lawyers for the first respondent: Berem Lawyers