Kentabul v Anton [2023] PGNC 258; N10451 (22 August 2023)

N10451

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

O.S NO. 110 OF 2020

BETWEEN:
ANTON KENTABUL
Plaintiff

AND:
GREG ANTON AS CHAIRMAN OF BUKBUK ELEMENTTARY SCHOOL AND MANAGEMENT TEAM
First Defendant

AND:
BUKBUK ELEMENTARY SCHOOL
Second Defendant

Madang: Narokobi J
2022: 9^th September
2023: 22^nd August

LAND LAW – Land Registration Act – Section 33 – Indefeasibility of Title-whether title should be set aside on account of fraud

The Plaintiff sues the Defendants claiming indefeasibility of title to a property.

Held:

The Defendants have shown fraud on the face of the record, and therefore actual fraud for purposes of s 33(1)(a) of the Land Registration Act 1977 which means the title to the property must be cancelled and the Registrar of Title is ordered to correct the records.

Cases Cited:
Mudge v. Secretary of Lands [1985] PNGL 387.

Statutes Cited:

Land Registration Act 1981.

Counsel:
Mr. D. Wa’au, for the Plaintiff
Mr. A. Daugl, for the Defendants

JUDGMENT

22^nd August 2023

1. NAROKOBI J: The Plaintiff filed an Originating Summons on 17 March 2020 seeking the following orders:
   
   1. An order by way of Declaration the Plaintiff is the legal owner of the property described as Section 105 Allotment 98, Bukbuk Street, Madang Town, Madang Province.
      
   2. An order declaring that the Defendants their servants and agents and such other persons are trespassing, and they are illegally and unlawfully occupying and establishing improvement on the said property and the Defendants, and their servants and agents and such other persons be evicted forthwith giving vacant possession and peaceful occupation of the property to the Plaintiff.
      
   3. An order permanently restraining or injunction against the Defendants and their agents or servants and such other persons from threatening, harassing and intimidating the Plaintiff and his agents and such other person at any time and give peaceful occupation and enjoyment to the Plaintiff to occupy the properties and carry on business thereon.
      
   4. Costs of this proceedings.
      
   5. Any other Orders.
      
2. The Plaintiff relied on his own affidavits in support of his claim.
   
3. The Defendants filed two (2) Affidavits, which were admitted into evidence and marked as exhibits D1 and D2 respectively:
   
   1. The Affidavit of Francis James Irara filed 11^th December 2020; and
   2. The Affidavit of Greg Anton filed 11^th December 2020.
      
4. The Plaintiff claims that he is the legal owner of the property described as Section 105 Allotment 98, Bukbuk Street, Madang (also variously referred to as “the property” throughout the judgment). He says that he applied for the land in 2005 and after his application was processed, he managed to obtain title to the property on 16 March 2019.
   
5. He claims that the land was vacant, and he obtained it through proper applications to the Lands Board and he was granted title to the property by the Department of Lands.
   
6. The Plaintiff further claims that in 2019, he had an agreement with the Board of Management of Bukbuk Elementary School to set up the school there and pay rentals to him. That agreement did not work out.
   
7. The Plaintiff claims that the Elementary School operated on the land with his consent, but he has decided to cancel their agreement.
   
8. The Defendants on the other hand, claim that the Plaintiff obtained the title to the property through fraudulent means.
   
9. They say the property is a public recreational land and the Lands Department arranged with the Madang Provincial Education Board to establish the Elementary School there.
   
10. The Defendants claim that the school was established prior to Mr. Anton Kentabul’s arrival and settling on the land and even before the Plaintiff obtained title. That is clearly stated in Mr. Greg Anton’s affidavit and supported by Mr. Irara, the Director Lands and Physical Planning in Madang.
    
11. The Defendants also claim that the property is a public recreational land and should not be given to anyone without the knowledge of Madang Urban Local Level Government and Madang Provincial Lands Office.
    
12. The Defendants claim that given the fact that the title was obtained through fraudulent means, it should be cancelled or revoked forthwith, and the Plaintiff be ordered to vacate the land.
    
13. The issue that I have to determine is whether I can confirm the orders being sought in the originating summons or revoke the title held by the Plaintiff?
    
14. The Plaintiff says that he has title to the property and he should be recognized as the registered proprietor of the property the subject of the claim.
    
15. The Defendants in this case submit that the title issued to the Plaintiff, Anton Kentabul, should be set aside, cancelled or revoked as it was obtained through fraudulent means.
    
16. It is trite law that under Papua New Guinea’s Torrens System of land registration, the general principle is that once a lease of land from the State is registered, an indefeasible title is conferred on the registered proprietor, subject only to the exception in 33(1)(a) of the Land Registration Act 1981 which states: “ The registered proprietor of an estate or interest holds it absolutely free from all encumbrances except...... in the case of fraud.” The seminal case which confirmed the application of this doctrine in Papua New Guinea was the case of Mudge v. Secretary of Lands [1985] PNGLR 387.
    
17. The Supreme Court is divided on whether fraud means actual fraud or constructive fraud (see Saba v Kaiange (2023) N10243). Constructive fraud exists as the Defendants submits in “...circumstances where the grant or transfers of title are so unsatisfactory, irregular or unlawful, it is paramount to fraud, warranting the setting aside of registration of title.” Actual fraud in order to be sustained must be proved on the balance of probability.
    
18. Mr. Anton Kentabul says he has title to Section 105 Allotmet 98, Bukbuk Street Madang. To support his claim, he has produced a copy of the title deed itself. He also annexed a document titled Application for Tender Form” (Annexure “B”) to his affidavit filed 28 February 2020 which shows an application lodged by a Ngan Electrical Maintenance Consultant Services Ltd. The Application by Ngan Electrical Services Ltd is a proposal for a “Advanced Technical Training Centre and Conference Room Facilities.”
    
19. The Defendants submit that there is nothing in evidence, produced by the Plaintiff to support his application to be granted the title to the property in his own name. The Defendants submit that if the title was to be legally and properly issued, then it should have been issued to Ngan Electrical and Maintenance Consultant Services Limited and not to Anton Kentabul. I agree with the Defendants’ submission. This is because the property is clearly earmarked for a public purpose. Annexure B of Anton Kentabul’s affidavit filed 11 December 2020 has correspondence from the Madang Provincial Government depicting the public nature of the land. It is not clear how it fell into private hands. In order for the title to be valid it has to be for “public or institutional purposes” and not as the Defendants correctly submits, for a “residential lease.”
    
20. I also place much weight on the evidence of Francis James Irara who is the Director of Natural Resources with the Madang Provincial Administration. He is responsible for land matters in Madang Province. He says that for Anton Kentabul to have a valid title, he must have an inspection report from the Madang Provincial Lands office, a registered survey plan, the gazettal notice of the property being listed for allocation, and the gazette of the decision of the Land Board awarding the property to the Plaintiff. Since this is a case where the property originally designated for public purpose is now allocated for private use, I consider that it is absolutely necessary for these documents to be produced to verify the legitimacy of the Plaintiff’s title.
    
21. Due to the absence of these documents, and the long history of the public use of this land from the correspondence of the Madang Provincial Administration, I find that there is fraud the on face of the record, and therefore actual fraud for purposes of s 33(1)(a) of the Land Registration Act. As I have found that there was actual fraud in the issuance of the title, the title to the subject property issued to Anton Kentabul should be set aside forthwith.
    
22. The consequences of this is that the interim restraining orders issued against the Defendants should now be discharged.
    
23. From the evidence, the Bukbuk Elementary School was established with approval of relevant Government authorities (Education Department, Madang Urban Local Level Government, and the Department of Lands). I endorse the Defendants’ position that it is for a good cause and serves the future generation of the country.
    
24. I will therefore also order that a Certificate Authorising Occupancy be issued to Bukbuk Elementary School after satisfying all due process with the Department of Lands and Department of Education under all relevant and applicable legislation.
    
25. The Plaintiff is also ordered to vacate the said property and be restrained from interfering with the operation of the Second Defendant.
    
26. Finally, I order that the Plaintiff pay the costs of the proceedings to be taxed if not agreed.
    
27. The formal orders of the court are therefore as follows:
    
    1. The title to the property described as Allotment 98, Section 105, Madang, Madang Province issued to Anton Kentabul is canceled pursuant to s 33(1) of the Land Registration Act.
       
    2. Bukbuk Elementary School commence processes under relevant laws with the Lands Department and Education Department to be issued a Certificate Authorising Occupancy for the property described as Allotment 98, Section 105, Madang, Madang Province.
       
    3. The Registrar of Titles is ordered to cancel the title issued to Anton Kentabul in Allotment 98, Section 105, Madang, Madang Province, and have the property re-designated for public purposes.
       
    4. All interim orders made in respect of this matter are discharged forthwith.
       
    5. Anton Kentabul and his servants and agents is ordered to vacate the property described as Allotment 98, Section 105, Madang, Madang Province within 14 days from today, and is further restrained from interfering with the operations of the Defendants.
       
    6. Plaintiff pays the Defendants costs of the proceedings to be taxed if not agreed.
       
    7. File is closed.
       
    8. Time is abridged.
       

Judgement and orders accordingly.
________________________________________________________________
DFW Lawyers: Lawyers for the Plaintiff
Kuria Lawyers: Lawyers for the Defendants