Kewa v Kombo [2016] PGSC 60; SC1542 (13 October 2016)

SC1542

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCA No. 141 OF 2014

BETWEEN:

MICHAEL KEWA, MICHAEL UA PONING, MACDONALD PONING & OTHERS
First Appellants

AND:
PANGUMB BUSINESS GROUP INCORPORATED
Second Appellant

AND:
ELIAS MAI KOMBO
Respondent

Waigani: Gavara-Nanu J, Hartshorn & Higgins JJ
2016: 29^thAugust & 13^th October

REAL PROPERTY – purchase of State Lease – whether for purchaser’s benefit or as representative of a clan group – constructive trust for clan group

FRAUDS & LIMITATIONS ACT 1988 – s.18 imposes no time bar on claims for equitable relief

LAND REGISTRATION ACT – Title obtained by fraud on beneficiaries of trust – meaning of fraud

EQUITY – allegation of breach of trust – fraud on beneficiaries – equitable remedies sought

PNG Cases Cited:

Aihi v The State (no.1) [1981] PNGLR 81
Comrade Trustee Services Ltd v Dangle [2011] PNGSC 5; SC 1105
Mamun Investment Ltd v Koim [2015] PGSC 9; SC 1409
Mereke v PNG Federation of Cooperative Associations Ltd [2007] PGNC 98, [19] & [20])
Mudge&Mudge v Secretary for Lands &ors [1985] PNGLR 387
Papua Club Inc v Nasaum Holdings Ltd &ors [2004] PGNC 178; N2603
Raka v Maimu [2013] PGNC 285

Overseas Cases Cited:

AON Risk Services Australia Limited v Australian National University [2009] HCA 27
Barry v Heider [1914] HCA 79; (1914) 19 CLR 197
Cassegrain v Gerard Cassegrain& Co Pty Ltd [2015] HCA 2
Cohen v Cohen [1929] HCA 15; (1929) 42 CLR 91
Commonwealth of Australia v Cornwell [2006] ACTCA 7
Corin v Patton [1990] HCA 12; (1990) 169 CLR 540
Dalton v Christofis [1978] WAR 423
Harris v Digital Pulse Pty Ltd [2003] NSWCA 10
Mulcahy v Curramore Pty Ltd [1974] 2 NSWLR 464
Re Vandervilles Trust [1971] AC 912
Re Warren (deceased) [1918] ArgusLawRp 12; [1918] VLR 209
The Bell Group (in liq) v Westpac Banking Corporation (no.9) [2008] WASC 239

COUNSEL:

Mr.J. Talopa, for the 1^st& 2^ndAppellants
Mr.J. Poya, for the Respondent

DECISION

13^th October, 2016

1. BY THE COURT: This is an appeal from a decision of Poole J delivered on 14 October 2014 in the National Court at Mt Hagen.
   
2. The proceedings related to land known as Allotment 1 Section 57, City of Hagen (the land), alleged to have traditionally belonged to the members of the Mogei Pangumb Clan (the clan). However, the clan had no title to it. It had long before become State land. It then became available for leasing. The then members of the clan decided, it was alleged, to incorporate their group. This they ultimately did under the name Pangumb Business Group Incorporated (see Business Groups Incorporation Act 1974).
   
3. In 1987, the clan members allegedly resolved to delegate to the respondent the task of applying for and obtaining for them a State Lease over the land. The respondent obtained the lease but in his own name. His Defence asserted that he obtained the lease on his own behalf and not on behalf of the clan.
   
4. By motion notified on 19 December 2003, the respondent sought to rely on the Frauds and Limitations Act 1988 (cited incorrectly as “Statute of Fraud and Limitation Act”) to defeat the appellants’ claim. On 11 August 2004, that leave was refused by Salika J (as he then was) on the ground that it had not been pleaded in the Defence.
   
5. Thus the respondent sought to amend his Defence to rely upon that statute. In an affidavit to support a fresh application, his lawyer deposed that the proceedings to dispute the issue of the State Lease were barred by virtue of s.12 of the Frauds and Limitations Act.
   
6. That application came before Cannings J at Mt Hagen on 13 October 2004. On 15 October 2004 his Honour ruled that the proposed amendment was ineffective as it referred to an inapplicable provision. The Frauds and Limitations Act 1988 s.12 related to a different subject matter. His Honour noted, in passing, that, perhaps, s.16 was relevant.
   
7. Following that decision the respondent made a further application in the National Court to strike out the Statement of Claim. This time it came before Lay J. That application sought to rely on s.16 of the Frauds and Limitations Act 1988. Lay J delivered his decision on 17 June 2005.
   
8. His Honour acknowledged that the Statement of Claim was defective but was capable of asserting a viable cause of action if amended. That, he suggested, could be by seeking a declaration that the respondent held the State Lease in trust for the appellants.
   
9. The Writ of Summons was duly amended pursuant to leave granted by Lay J. The amendment sought that the Certificate of Title “be declared null and void and of no effect or be deleted”. It further sought that the Title be “transferred to or reissued to Pangumb Business Group Incorporated”.
   
10. It failed overtly to take up the suggestion to state expressly that the defendant held the State Lease in trust for the clan group but it did seek an amendment of the identity of the lessee which would follow from that trust if it was found to exist.
    
11. By a Defence dated 7 March 2005 the respondent continued to rely on “Section 12 of the Statutes of Fraud and Limitation Act”. It was asserted that the “cause of action” arose, at the latest,on 2 September 1993 and current proceedings were time-barred.The respondent further asserted that he applied for and obtained the State Lease, not on behalf of the clan, but for his own personal benefit “as a private citizen”.
    
12. On 8 February 2007 the respondent filed a further affidavit asserting that the second appellant had been “dissolved”. The respondent had also been granted, on 3 December 2003, a right to subdivide the subject land.
    
13. That, however, if the original State Lease and the rights thereunder were held on trust, merely transferred the trust to the individual leases.
    
14. On 31 August 2008, Simon Kama, a clan member it seems, swore an affidavit deposing, inter alia, that the first appellant, Michael Kewa, had admitted to him that he was pursuing this claim for his personal benefit and would concede the respondent’s claim if the latter gave him a small portion of the land. However, he also attested that, though deregistered, the second appellant had been reregistered on 30 November 2007. It was formed in 1988 to acquire rights to an adjoining block of land being Allotment 4 Section 56 Mt Hagen. We note the dissolved corporation was Pangumb Business Group. The corporation registered in 2007 is Pangamb Business Group (Inc.). The discrepancy is not explained and is, doubtless, immaterial.
    
15. On 20 August 2009 the respondent sought two orders. First that the appellants’ proceedings against him be dismissed as ‘Statute Barred’ alternatively that the reference to an unidentified “7 others” be struck out.
    
16. One of the annexures to an affidavit of Rev. Joe Pentipa, filed on behalf of the appellants, is a letter, signed by the respondent (and 5 others) on behalf of “MogeiPangumb Clan”, claiming the land (Section 57 Allotment 1) as ancestral land. Their claim to ownership was disputed by another group of MogeiPangumb clan members, including some of the named appellants. One of the signatories to that letter of dispute, Mr Leo Mek, sought to withdraw his support for it because, he said, the respondent was “officially authorised by our village leaders”, to apply for the State Lease over the land.
    
17. This does not suggest any doubt over the status of the respondent as a trustee, though the beneficiaries plainly would require further identification.
    
18. On 23 October 2009 the respondent again applied to dismiss the proceedings, this time under s.16 of the Frauds and Limitations Act 1988. The matter came before Yalo AJ. His Honour was critical of the process leading to the State Lease being granted to the respondent, the land originally having been communal land used for recreation. He noted the serious allegations of fraud against the respondent and concluded that the case of the appellants (then the first appellantsonly) was arguable.
    
19. By way of reply to the respondent’s affidavits, the appellants annexed certain letters apparently written or signed by the respondent. On 18 July 1990, re the land the subject of this dispute, he had signed a letter to the authorities contemplating the issue of the State Lease as “Spokesman for the MogeiPangumb Clan”. On 12 May 1991, he signed a letter to the Lands Department complaining of the lack of land for the MogeiPangumb clan and claiming Allotment 1 Section 57ie the land, on its behalf. That letter was dated 18 February 1992. It is true that others including the first appellants disputed his right to represent them but that did not detract from the capacity in which he held himself out. (see letter 9/8/93 parts of those annexures).
    
20. On 1 April 1996, Mr Kombo, the respondent, wrote to the Papua New Guinea Land Board seeking waiver of rental on Allotment 1Section 57 and reissue of the Lease for “business purposes”.
    
21. He recited:

“... it is through personal perseverance that the lease was eventually granted in my name on behalf of my Mogei Clansmen.”

(emphasis added)

22. Further the application by the respondent for the State Lease was advertised by him in the Gazette in similar terms.
    
23. On 14 October 2014, Poole J delivered a decision after a contested hearing. He rejected, quite rightly in our view, the respondent’s contention that his role as ‘spokesman’ for the clan was otherwise than in respect of Allotment 1Section 57 (the land).
    
24. Nevertheless his Honour found that although the Statement of Claim referred to an intent to defraud leading to the respondent obtaining the State Lease, it was not “proper pleading of fraud” ([29]).
    
25. That then raised the question of the defence pleaded by the respondent that the action by the appellants was statute barred. That would seem to us to be the essence of the defence. We cannot see what more could have been done by the appellants to allege fraud on the part of the respondent in obtaining title to the State Lease over the land.
    
26. The question of what is fraud, particularly in relation to acquiring title to land, was considered by Gavara-Nanu J in Papua Club Inc v Nasaum Holdings Ltd &ors [2004] PGNC 178; N2603.
    
27. His Honour was dealing with a claim that the title of the registered proprietor was vitiated by fraud. It was not a case in which the second defendant to the action held the property in trust for the plaintiff. The land in question was to be redeveloped by the second defendant with a subsequent sub-lease to the plaintiff of one floor of the building to be erected. Under the original State Lease, the plaintiff had the right to apply for its renewal and for compensation for improvements if the lease was not renewed.
    
28. The plaintiff’s claim was that those rights were still vested in it or that those rights were obtained by the second defendant by fraud. “Fraud”, his Honour found, meant actual dishonesty by the registered proprietor, not mere constructive or equitable fraud. That is not to say that a prior equity binding on the registered proprietor may not be enforced if no prior equitable or a legal interest has intervened.
    
29. In fact, of course, by alienating the lease the plaintiff had, by operation of law, alienated the residual rights. The second defendant had not made any representations concerning those rights. There could, therefore, have been no fraud on the plaintiff. It was simply an incident of the transaction that neither party had considered. Nor was there any “gross or serious violation of the mandatory procedures as set out in the Land Act”.
    
30. The present case is very different. Having obtained the State Lease by representing that he was seeking it on behalf of the clan, the respondent now seeks to use the land as if it was unencumbered by that purpose. By so holding himself out the respondent had obtained the rights so acquired in trust for the clan.
    
31. The cause of action thus engaged is neither tort nor contract. It is a vesting in the clan of the equitable ownership of the rights acquired by the respondent in the land. (SeeegRe Vandervilles Trust [1971] AC 912).

32. Such rights can be lost by the intervention of a bona fide purchaser for value without notice of the prior equity. That does not arise here. Adverse possession may also suffice to divest a true owner of an interest in land. The respondent,in declaring that he held the land only for his own benefit and refusing to acknowledge the equitable rights of the clan members,was in breach of his trust obligations (see eg Mulcahy v Curramore Pty Ltd [1974] 2 NSWLR 464). Even if he was in adverse possession, the extinguishment of prior ownership rights would require a longer period of such possession than elapsed here.
    
33. We note, in passing, that this is not a case of adverse possession by a clan or group though the principle can apply against a clan or group but only where a period of 12 years or more has elapsed. (see Raka v Maimu [2013] PGNC 285).
    
34. The system under the Land Registration Act 1981(LRA) is that of the Torrens system. Its provisions incorporate the underlying law as to interpretation as, for example, applicable to the Real Property Act (1900) (NSW) (RPA). -see Mudge & Mudge v Secretary for Lands &ors [1985] PNGLR 387.
    
35. That is important becausea party registered as proprietor of a stated estate or interest in land has the benefit of s.11ie that the register is ‘conclusive evidence’ of possession of the estate or interest so recorded in the registered proprietor. Further, that party has the benefit of s.33 which relevantly provides:
    

“The registered proprietor of an estate or interest holds it absolutely free from all encumbrances except –

(a) in the case of fraud;”

36. As there has been no transfer of title to the land,s.45 has no application (transferee not affected by notice).
    
37. It may also be noted that under s.160 (LRA), the Registrar may require a person who has fraudulently or wrongly obtained an instrument to deliver it up for cancellation or correction under s.161.
    
38. Further, save in the case of customary lands, no trust may be overtly recorded on the Register (s.104). That does not prevent an equitable interest from being asserted where that interest binds the registered proprietor in equity. (seeBarry v Heider [1914] HCA 79; (1914) 19CLR 197; Corin v Patton [1990] HCA 12; (1990) 169 CLR 540.
    
39. More recently in Cassegrain v Gerard Cassegrain& Co Pty Ltd [2015] HCA 2, the High Court of Australia has affirmed the limits of indefeasibility of title conferred under the Torrens System. Importantly, there is the fraud exception. Section 42(1)(RPA) there considered is the equivalent of s.33(LRA).
    
40. In that case, the husband of the appellant had fraudulently procured a transfer of title to them as joint tenants. The husband was, and the wife was not, aware of the fraud. The husband then transferred his interest to the wife. The question was which, if any, of those titles was defeasible notwithstanding s.42(1) of the RPA.
    
41. The fraud deprived the company (respondent) of legal title to the land. It did not extinguish the equitable rights of the company to obtain relief by reason of the wrongful transfer of title procured by the husband. The acts of the husband were contrary to his fiduciary duty as a director of the Company.
    
42. The fundamental point common to the various manifestations of the Torrens System is that it is “title by registration, not a system of registration of title” [16].
    
43. The fraud that procured the registration of the husband’s interest was not that of the wife. The fact that he obtained his title by fraud was said by the company to render defeasible the title obtained by the wife. The title obtained by the husband was clearly defeasible at the suit of the company. He had sought to avoid that consequence by transferring his interest to the wife, though for nominal consideration.
    
44. The Court of Appeal of New South Wales was divided. Beazley JA (as she then was) and Macfarlan JA held that the wife held the entire interest on trust for the company and should transfer it accordingly to the company. Basten JA dissented. He held that only the interest the husband had taken which was transferred to the wife should be burdened with the resulting trust for the company but not that transferred directly to her.
    
45. The High Court (Per French CJ, Hayne, Bell&Gageler JJ) held that Basten JA was right. The fraud by the husband, of which the wife was unaware, meant that, though husband and wife took as joint tenants, only his title was defeasible at the suit of the company. His fraud could not be attributed to the wife even though he acted as agent for her in completing the transaction.She had not been any more than a passive recipient of the interest.
    
46. Further, the interest taken by joint tenants is capable of severance and disposal by any one of the tenants without the concurrence of the other (see [48]). It follows that the exception for fraud under s.42(1)RPA did not render the title of the innocent title holder defeasible even though it was a joint interest.
    
47. In the result, however, whilst that was so, the wife obtained the title the husband had acquired by fraud otherwise than for valuable consideration, albeit she had no notice of the fraud. Thus s.118(1)(d)(ii) of the RPA was engaged enabling the company to recover the interest so acquired:
    
48. S.118of RPA relevantly provides:
    

“(1) Proceedings for the possession or recovery of land do not lie against the registered proprietor of the land, except as follows

(d) proceedings brought by a person deprived of land by fraud against:

(i) a person who has been registered as proprietor of the land through fraud, or

(ii) a person deriving (otherwise than as a transferee bona fide for valuable consideration) from or through a person registered as proprietor of the land through fraud.”

49. The LRA equivalent is s.146.
    
50. Keane J dissented holding that the transfer of the joint interest was obtained through fraud. He stated his conclusion at [109]. Pointing out, consistently with the majority view, thats.118 (1) (d) (ii) RPA renders defeasible a title acquired by a non-fraudulent transferee who acquires that title otherwise than as “a transferee bona fide for valuable consideration”, his Honour concluded thats.118 (1) (d) (i) did not preclude an action against a joint tenant where the title has been acquired by the fraud of one of them without the knowledge or acquiescence in it of the other or others of them.
    
51. However that still supports the view that, in this case, joint tenancy not being an issue, the claim of the respondent to beneficial as well as legal ownership of the interest conferred by the State Lease is a breach of trust and a fraud on the true beneficiaries. It is, therefore, defeasible upon action taken by them.
    
52. That engages the Trustees and Executors Act 1961. The trust here is an implied or constructive trust (sees.1).
    
53. The National Court has power over the duties and responsibilities of a trustee. Section 53 deals with limitations on such actions as may be brought for breach of trust. It equates a trustee with any other litigant. That, in turn, enables reference to be made to the Frauds and Limitations Act 1988, to which his Honour referred. There is no doubt that, if the time limit was 6 years, the appellants had been aware of the breach of trust by the respondent for about 7 years before this suit was commenced.
    
54. Section 16 of the Frauds and Limitations Act 1988 provides:
    

“(1) Subject to Sections 17 and 18, an action –

(a) that is founded on simple contract or on tort; or

(b) to enforce a recognizance; or

(c) to enforce an award, where the submission is not by an instrument under seal; or

(d) to recover any sum to recoverable by virtue of any enactment, other than a penalty or forfeiture or sum by way of penalty or forfeiture,

shall not be brought after the expiration of six years commencing on the date upon which the cause of action accrued.”

55. S.16(3) provides that the limitation period for “an action on a specialty” eg. a deed, shall be 12 years from the date of accrual of the cause of action.
    
56. Section 16 does not, by virtue of s.18, apply to “any claim for specific performance of a contract or for an injunction or for other equitable relief”. Further, the requirement under s.2 for writing in respect of the creation of interests in land does not apply, by virtue of s.2(2), to “the creation or operation of resulting, implied or constructive trusts.”
    
57. This claim relies on a resulting or constructive trust following from the assumption by the respondent of the task of securing for the clan, title to the land from the State.
    
58. Does s.16 apply?
    
59. In Mamun Investment Ltd v Koim [2015] PGSC 9; SC 1409, the dispute concerned the acquisition of property, again at Mt Hagen, known as the YMCA Hall, by fraud.
    
60. Sakora & Hartshorn JJ noted that the claim was for a declaratory order. That they held, was based on a breach of a contract of sale and the tort of fraud. The limitation period thus began to run from the date of accrual of the cause of action, there being no provision in the Frauds& Limitations Act postponing the bar because of concealment of the cause of action from the claimant, Poole J agreed.
    
61. It is thus important to identify not only when the cause of action arose but the nature of it. As to the first aspect, see Comrade Trustee Services Ltd v Dangle [2011] PNGSC 5; SC 1105 (rights to invalidity benefit accruing at time of assessment not cessation of service). There was a similar finding in Commonwealth of Australia v Cornwell [2006] ACTCA 7. A negligent misstatement as to eligibility to join a Commonwealth pension scheme vested a cause of action in the plaintiff only on his retirement though the wrongful advice was given in 1965. The plaintiff retired in 1994. An appeal by the Commonwealth to the High Court of Australia in that matter was unsuccessful ([2007] HCA [2007] HCA 16; 16; (2007) ALR 148; 81 ALJR 933):
    
62. At [8] their Honours noted on that appeal:
    

“...in cases of “concealed fraud” courts of equity refused to apply by analogy statutes of limitations which operated upon actions at law. Secondly, this doctrine of “concealed fraud” did not furnish an answer on equitable grounds to a plea in a common law court of the 1623 Act or other limitation statute to, for example, an action in tort; it was not possible to plead by way of replication on equitable grounds that the existence of the plaintiff’s cause of action had been fraudulently concealed from the plaintiff by the defendant” [:Hunter v Gibbons [1856] Eng R947; [1856] EngR 947; (1856) 1 H&N 459; 156 ER 1281]

63. The point of this is that the doctrine of concealed fraud, recognized by equity, is not dependant on the terms of the statute. What later Limitation Acts achieved by,egs.33 Limitation Act 1985 (ACT) (fraud & concealment), was to apply by express statutory provision the usual time limitation after discovery of the concealment. The original Statute of Limitations, replicated in the Frauds and Limitations Act 1988, had no such time bar.
    
64. Indeed, the initial limitation statute of 1623 (21 Jac 1c 16 (UK)) did not in terms apply to an equitable claim. Although some equitable claims were included, generally equity relied on the discretion inherent in the doctrine of laches and acquiescence to bar dilatory suits. An article by Natalie Skead in (2009) UNDAU Law Rev 2 traces the history of this legislative encroachment. That encroachment is less in PNG than in Australia. An example of it is s.33 Limitation Act 1985 (ACT) (supra).
    
65. The general result of the more modern Limitation Acts is to apply to equitable estates or interests in land the same limitations as apply to actions to recover land pursuant to a legal estate or interest (see s.36 Limitation Act 1969 (NSW)).
    
66. Absent such legislative interference, no limitation period applies to a claim for relief, (by virtue of s.18, Frauds& Limitations Act) where the claim is by a beneficiary against a trustee founded on fraud, fraudulent breach of trust or to recover property retained or converted by a trustee to his or her own use (see Re Warren (deceased) [1918] ArgusLawRp 12; [1918] VLR 209; Cohen v Cohen [1929] HCA 15; (1929) 42 CLR 91; Dalton v Christofis [1978] WAR 423; see alsoLaw Reform Commission of WA – Limitations and Notice of Actions [1997] WALRC 90).
    
67. In that context fraud includes equitable fraud. For an explanation of that concept see The Bell Group (in liq) v Westpac Banking Corporation (no.9) [2008] WASC 239. The essence of it is conduct that amounts to imposition and deceit [4294], [4840] and, particularly, [4842] – [4917]. It is a result of unconscionable dealing.
    
68. It would be unconscionable for a person to obtain property for the benefit of others and then use the property as his or her own. The fraud here perpetrated, on the appellants’ case, is not the acquisition of a legal estate from the appellants nor a breach of any contract with them. It is by depriving them of their equitable ownership of the land. It is a breach of a trust relationship. The Frauds & Limitations Act does not impose time limits on claims for equitable relief. Such claims are time limited by reference to the equitable defences of laches and acquiescence.
    
69. His Honour, it must be acknowledged, received no assistance from counsel on these important principles.
    
70. The pleadings did allege the material facts on which the equitable rights of the appellants were based and sought what were, in law, equitable remedies. Those remedies are mandatory injunctions (to deliver up certificates of title) and declarations (of entitlement to beneficial ownership) as well as specific performance (registration of title in the clan by its incorporated entity). Section 18 therefore applied not s.16. It follows that there was no defence applicable and the pleading of atime bar under s.16 of the Frauds & Limitations Act was erroneous.
    
71. What then of the contention that there was no proper pleading of the cause of action being asserted?
    
72. The general principle is that a pleading defect which is curable by amendment is not fatal to the proceedings (seeegMereke v PNG Federation of Cooperative Associations Ltd [2007] PGNC 98, [19] & [20]). In that context, the Constitution s.163(2) declares the National Court to be:
    

“... a superior court of record.”

(see also Aihi v The State (no.1) [1981] PNGLR 81)

73. It is not a court of pleading. That concept was abolished in the UK in 1875 and, even in New South Wales, its last bastion, in 1970. (see Harris v Digital Pulse Pty Ltd [2003] NSWCA 10.
    
74. It follows that whilst strict compliance with the rules of pleading is to be encouraged, a failure to correctly label the available cause of action that the facts as pleaded constitute should not be fatal. The considerations relevant to allowing or refusing an amendment to pleadings under the jurisdicature system was fully discussed by the High Court of Australia in AON Risk Services Australia Limited v Australian National University [2009] HCA 27. The ratio of the case is succinctly summarised by French CJ at [4] – [6]. Basically, it was held that, whilst amendments should be allowed to enable the true merits of the dispute to be addressed, with costs as the appropriate remedy for an opposing party, case management considerations, the effective and efficient use of court resources, the prejudice that may be occasioned by delay and any explanation for it may outweigh those other considerations so that leave to amend pleadings should be denied. It may be observed too that the result of the denial of leave to amend in that case did not leave the respondent without a remedy.

75. In the present case, the issue of restoration of ancestral lands is of great importance. It is also of great importance that a trustee should not be allowed to profit from his own wrongdoing.
    
76. It is true that there has been both delay and confusion in concluding this matter. That has, in part, been due to the failure of lawyers correctly to analyse their clients’ claim. It partly relates to intra-communal unrest occasioned by support for and opposition to the respondent’s conduct. Some clan members believed he was acting within his rights, others, including the appellants, did not.
    
77. It must be appreciated too that the issue remains as to whether, as the respondent alleges, he acted at all times on his own behalf notwithstanding the correspondence attributed to him. That should be determined on the facts by the trial judge.
    
78. The appeal should be allowed with costs and the appellants should have leave to amend their Statement of Claim, the matter then to be remitted to the trial judge for finalisation.
    
79. The respondent is to pay the appellants’ costs, to be taxed if not agreed.
    

_____________________________________________________________
Jason Talopa Lawyers : Lawyers for the 1^st& 2^ndAppellants
Poya Legal Services : Lawyers for the Respondent