N11273
PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

WS NO 937 OF 2017

BETWEEN
FOXIE KAEAKA
As Chairman of the Behori Land Incorporated Group REG ILG No. 552
 First Plaintiff

AND
VICKY KOVER & MAZ TOM 
As Representatives of occupants of Portion 2210
Second Plaintiffs

AND
FELIX KANGE
First Defendant
 
AND
PUNDIA KANGE
Second Defendant

AND
HENRY WASA
As the Acting Registrar of Titles, Department of Lands & Physical Planning
Third Defendant

WAIGANI: MAKAIL J
5, 22 JULY 2024; 6 MAY 2025  

STATE LEASES – State Lease – Agriculture Lease – Transfer of title – Validity of title – Fraud – Proof of – Gift – Requirements for gift – Deed of Gift in form of Statutory Declaration form – Signing as Commissioner for Oaths – Practicing law in country – Holder of current practicing certificate – Oaths, Affirmation and Statutory Declarations Act, 1962 – Sections 11 & 12A – Lawyers Act, 1986 – Section 108 – Land Registration Act – Sections 33(1)(a) & 162(2)(a) 

Cases cited

Mudge v Secretary for Lands [1985] PNGLR 387
Emas Estate Development Pty Limited v John Mea & Ors [1993] PNGLR 215 

Counsel

Mr P Daime, for plaintiffs
Mr B S Lai for first & second defendants 
No appearance for third defendant 

JUDGMENT

1.	MAKAIL J: Pursuant to a statement of claim endorsed to a writ of summons filed on 12th September 2017 the plaintiffs allege that the first defendant procured title to a piece of land identified in a State Lease as Portion 2210, it being an Agriculture Lease was procured by fraud and seek to set it aside under Section 33(1)(a) of the Land Registration Act.  

Brief Background 

2.	The plaintiffs allege that they are the original owners of the land by custom.  The land is owned by the Behori clan, and they have been living on it since the ancestral days.  The land was acquired by the State for Agricultural purpose and a State Lease was subsequently granted by the State to the second defendant.  The second defendant passed it to the first defendant by way of a gift.  They rely on three major grounds to contest the validity of the first defendant’s title: 

(a)	the original acquisition of land from the customary landowners by the State was in breach of the process of acquisition under the provisions of the Land Act 1996;

(b)	there was no Deed of Gift from the second defendant to the first defendant because the Statutory Declaration form dated 15th April 2016 relied upon to form the Deed of Gift was signed by the first defendant when he was the intended grantee or beneficiary and as Commissioner for Oaths contrary to Section 12A of the Oaths, Affirmations and Statutory Declarations Act 1962 because the first defendant did not have a practicing certificate to practice law under the Lawyers Act 1986; and

(c)	the Statutory Declaration form dated 15th April 2016 relied upon by the defendants to transfer title from the second defendant to the first defendant was not signed by the second defendant and was signed by the first defendant as Commissioner for Oaths contrary to Section 12A of the Oaths, Affirmations and Statutory Declarations Act 1962 because the first defendant did not have a practicing certificate to practice law under the Lawyers Act 1986.

3.	The plaintiff relies on the following:

(a)	affidavit of Vicky Kover sworn on 21st June 2018 and filed on 26th June 2018 (exhibit “P1”), and
	
(b)	affidavit of Konima Tom sworn on 21st June 2018 and filed on 26th June 2018 (exhibit “P2”).

4.	The first and second defendants rely on the following:  		

(a)	affidavit in support of first defendant sworn on 29th September 2021 and filed on 30th September 2021 (exhibit “D1”), and
	
(b)	affidavit in support of Derrick Dusava sworn on 25th August 2021 and filed on 30th August 2021 (exhibit “D2”).

5.	I have read the above affidavits including the account given by the first defendant in response to questions by the counsel for the plaintiffs during cross-examination and the oral and written submissions of respective counsel and find as follows:

Breach of process of acquisition of land from customary landowners

6.	While I note the strong submissions by the counsel for the plaintiffs and the accounts by Vicky Kover and Konima Tom that they are customary landowners and lived on the land and were not informed by the State officials of the State’s intention to acquire the land, this ground is flawed for three major reasons:

(a)	there are no allegations of fact pleaded in the statement of claim identifying the actions/omissions by State officials that breached the provisions of the Land Act 1996 regarding the process of customary land acquisition by the State.  Moreover, the accounts by Vicky Kover and Konima Tom failed to identify the specific breaches of the law in the process of customary land acquisition by the State under the Land Act 1996.  As the counsel for the first and second defendants submitted at paragraphs 42 and 43 on page 6 of his written submissions

“42.	In the said paragraphs identified above, the Plaintiffs make general assertions which is not evidence that can be relied on by the Court to uphold the allegations against the First and Second Defendant(s)(sic).  The Plaintiffs assert that “The Defendant says he has a State Lease over Portion 2210 but we say the State never acquired Portion 2210 and it still remains customary land.

43.	The Plaintiffs’ assertions do not articulate clearly what they mean by the assertion that the State never acquired Portion 2210 and it remains customary land.  The evidence is too general and fails to prove anything.  It can be said to be just a general statement and not evidence.”

(b)	except for the third defendant, the plaintiffs did not name and bring into this proceeding the State and State officials they allege were responsible for the illegal acquisition of the customary land.  Because of this, the Court did not receive information from them in relation to how the land was originally acquired from the customary landowners.

(c)	without any strong evidence or proof that the land is still customary land, the State Lease for Portion 2210 prevails and must be upheld by the Court as Government or State land.

7.	For these reasons, this ground is dismissed.

Validity of Deed of Gift  

8.	Again, I note the strong submissions by the counsel for the plaintiffs that the Deed of Gift in the form of a Statutory Declaration dated 24th March 2016 from the second defendant to the first defendant is invalid because it is not permissible for the first defendant who is the grantee or beneficiary of the property conveyed as a gift to him, to sign it.  However, there is no statutory provision prohibiting a grantee or beneficiary under a Deed of Gift to sign it.  This ground is dismissed.

9.	In any case, the first defendant was commissioning the Deed of Gift in a form of a Statutory Declaration.  As is required by Section 11(b) (Form of Statutory Declaration) of the Oaths, Affirmations and Statutory Declarations Act 1962 a Statutory Declaration may be made before a Commissioner for Oaths.  

10.	Section 12A (Commissioners for Oaths Appointed under Lawyers Act 1986) of the same Act states:

“Notwithstanding Section 108 of the Lawyers Act 1986, a lawyer shall not perform the duties of a Commissioner for Oaths unless he is a holder of a current practising certificate issued under the Lawyers Act 1986.”

11.	Section 108 of the Lawyers Act 1986 recognises that “every lawyer admitted to practise in the country is, by this Act, appointed a Commissioner for Oaths.”

12.	There is no dispute that the first defendant is a lawyer by profession and was admitted to practice law in this country.  By operation of Section 108 (supra) he is a Commissioner for Oaths. Further, by operation of Section 12A (supra), it was open to the first defendant to sign the Statutory Declaration as Commissioner for Oaths.  

13.	Where the plaintiffs contest the first defendant’s right to practice law and holder of a current practicing certificate, the onus of proof is on them to call evidence from the Secretary of Papua New Guinea Law Society (PNG Law Society) to prove the allegation that the first defendant was not a holder of a practicing certificate at the material time to sign the Statutory Declaration form as a Commissioner for Oaths.

14.	In the absence of such evidence, this ground must fail.

Validity of Statutory Declaration 

15.	Again, I note the strong submissions by the counsel for the plaintiffs that the Statutory Declaration form dated 15th April 2016 where the first defendant signed as Commissioner for Oaths for the transfer of title of the State Lease from the second defendant to the first defendant is invalid because the first defendant was not a practising lawyer and a holder of current practising certificate under Section 12A (supra).    

16.	However, for the reasons already given at [9] to [13] supra, this ground is dismissed.

Conclusion 

17.	I conclude that the evidence in support of the grounds fall short of proving fraud, whether actual or otherwise, under Section 33(1)(a) of the Land Registration Act: see Mudge v Secretary for Lands [1985] PNGLR 387 and Emas Estate Development Pty Limited v John Mea & Ors [1993] PNGLR 215. 

18.	It follows that the plaintiffs have failed to prove that the first defendant procured the title to Portion 2210 by fraud and the proceeding is dismissed forthwith.

Order

19.	The orders I make are as follows:

	1.	The proceeding is dismissed forthwith.

2.	The plaintiffs shall pay the first and second defendants’ costs of the proceeding on a party/party basis, to be taxed, if not agreed.
		
	3.	Time shall be abridged.
________________________________________________________________
Lawyers for plaintiffs: Peter Daime Kaii Lawyers	
Lawyers for first & second defendants: B S Lai Lawyers