Helai v Samson [2024] PGSC 90; SC2625 (6 September 2024)

SC2625

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCA 14 OF 2022

BETWEEN:
RAKA MERIAN HELAI
Appellant

AND:
BENJAMIN SAMSON, in his capacity as Registrar of Titles
First Respondent

AND:
THE HONOURABLE JOHN ROSSO, in his capacity as Minister for Lands and Physical Planning
Second Respondent

AND:
DEPARTMENT OF LANDS AND PHYSICAL PLANNING
Third Respondent

AND:
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Fourth Respondent

AND:
RACHEAL AVUTI & STANLEY MANIEAT
Fifth Respondents

Waigani: Logan J, Dowa J and Carmody J
2024: 6^th September

LIMITATIONS OF ACTIONS – where fraud cause of action is pleaded – where alleged fraud involved forfeiture of State lease and subsequent registration of new State lease to alleged fraudsters – where defendants applied to strike out claim based on time limitation – whether s 16(1) of the Frauds and Limitations Act 1988 applies – whether fraud cause of action accrued upon forfeiture of State lease or later registration of new State lease – held: fraud cause of action accrued on forfeiture – appeal dismissed

LAND LAW – where alleged fraud involved forfeiture of State lease and subsequent registration of new State lease to alleged fraudsters – where defendants applied to strike out claim based on time limitation – consideration of Torrens system of title by registration – whether damage occurred when title, in the form of a State lease, was lost or when new indefeasible interest was registered – held: damage occurred when title was lost – appeal dismissed

Facts:

The appellant is the administrator of her deceased parents’ estates. Her parents held a State lease as joint tenants. In 2017, prior to her death in 2020, the appellant’s mother discovered that the State lease had been forfeited in 2013 and that a new State lease had been registered to the fifth respondents in 2016. In 2021, the appellant commenced proceedings in the National Court alleging fraud in both the process of forfeiture and the registration of the new State lease. The proceedings sought declaratory relief to the end of restoring the appellant’s State lease.

The fifth respondents brought a motion to have the proceedings struck out due to the time limitation in s 16 of the Frauds and Limitations Act 1988. The primary judge granted the application on the basis that the appellant’s cause of action had accrued in 2013 on forfeiture of the State lease and the institution of proceedings in 2021 was time barred.

Held:

1. [By the Court]: In assessing when a fraud cause of action has accrued, it is critical to discern when the damage was suffered: see Derry v. Peek (1888) LR 14 App Cas 337. In this case, the damage was first suffered, at the latest, when the State lease was forfeited because the appellant lost her indefeasible title.
   
2. There is no provision in Papua New Guinean legislation allowing for the time limitation for fraud actions to be extended where the fraud has been concealed or not discovered: approving Mamun Investments v Ponda [1995] PNGLR 1 and Nodepa Plantation Ltd v Balat [2020] PGSC 25; SC1927, disapproving Tau Gumu v Papua New Guinea Banking Corporation (2001) N2288.
   

Cases Cited

Papua New Guinean Cases:
Fly River Provincial Government v Pioneer Health Services Ltd [2003] PGSC 4; SC705
Keindip v The State of Papua New Guinea [1993] PNGLR 28
Kiso v Otoa [2013] PGSC 3; SC1222
Mamun Investment Ltd v Nixon Koi (2015) SC1409
Mamun Investments v Ponda [1995] PNGLR 1
Mudge v The Secretary for Lands [1985] PNGLR 387
Nodepa Plantation Ltd v Balat [2020] PGSC 25; SC1927
Paga No 36 Ltd v Eleadona [2018] PGSC 17; SC1671
Pololi v Wyborn (2013) N5253
Soto v Our Real Estate Ltd [2018] PGSC 55; SC1701
Tau Gumu v Papua New Guinea Banking Corporation (2001) N2288
Timano v Timano [1993] PNGLR 334
Timothy v Timothy [2022] PGSC 82; SC2282

Overseas Cases:
Asset Co Ltd v Mere Roihi [1905] UKLawRpAC 11; [1905] AC 176
Breskvar v Wall (1971) 126 CLR 376
Darley Main Colliery Co v Mitchell [1886] UKLawRpAC 2; (1886) 11 App Cas 127
Derry v. Peek (1888) LR 14 App Cas 337
Frazer v Walker [1976] 1 AC 569
Loke Yew v Port Swettenham Rubber Co Ltd [1913] UKLawRpAC 11; [1913] AC 491
Potter v Canada Square Operations Ltd [2023] UKSC 41; [2023] 3 WLR 963
Waimiha Sawmilling Co Ltd (in liq) v Waiane Timber Co Ltd [1926] AC 101
Wicks v Bennett ([1921] HCA 57; 1921) 30 CLR 80
Wilkinson v Verity [1871] UKLawRpCP 18; (1871) LR 6 CP 206

Legislation Cited

Papua New Guinean Legislation:
Frauds and Limitations Act 1988
Land Act 1962
Land Act 1996
Land Registration Act 1981

Overseas Legislation:
Limitation Act 1980 (UK)

Counsel:
Mr. Wanis, for the Appellant
Ms. Ngomba, for the Fifth Respondents
No appearance for the First to Fourth Respondents

6^th September 2024

1. THE COURT: Pauline Maria Helai and Moeka Morea Helai, each of whom is now deceased, were once the registered proprietors, as joint tenants, of a State lease issued under s 61 of the Land Act 1962 in respect of land described as Portion 1085, Granville in the National Capital District (the subject land).
   
2. Mr. Helai predeceased Pauline Helai. In turn, their daughter, Raka Marina Helai is the executor of her late mother’s estate. Her mother died in 2020.
   
3. Upon Mr. Helai’s death, Pauline Helai became by survivorship the sole beneficial owner of the State lease in respect of the subject land. In the result, for reasons which follow, her sole ownership by survivorship was not registered on the title to the then State lease. Had her interest been so registered, upon her death her registered leasehold interest in the subject land would have formed part of the estate which Raka Helai is administering.
   
4. However, by a decision at least purportedly under s 122(1) of the Land Act 1996, dated 26 April 2013 and published in the National Gazette (No G247), a delegate of the Minister for Lands and Physical Planning forfeited the State lease in respect of the subject land on the grounds that:
   
   • (a) the improvement conditions specified in respect of that land had not been fulfilled; and
   • (b) the lessee had failed to comply with a notice given under s 122(2) of that Act.
     
5. Raka Helai alleges that her late mother became aware in November 2017 that a then unknown female and her husband had entered the subject land and attempted to evict a caretaker (whom her mother and her late husband had permitted to reside on the subject land). It is further alleged that, later that year, upon coming to know that the female was the then Rachael Avuti (now Rachel Avuti Manuet), then but not since 2015 a lawyer within the Department of Lands and Physical Planning, she advised the Registrar of Titles, Mr Benjamin Samson, of this attempt both by telephone and later in writing.
   
6. In June 2020, Raka Helai’s sister conducted a search of the Register. This disclosed, and the fact is, that Rachel Avuti Manuet and her husband Stanley Maniet are the registered proprietors of a new State lease which has been issued in respect of the subject land.
   
7. The new State lease is dated 14 July 2016. It was registered the following day, 15 July 2016.
   
8. The signing and registration of that new State lease was a sequel to the forfeiture of the State lease originally held by Raka Helai’s parents. Upon that forfeiture, the issuing of a State leasehold interest was put to tender (Tender No 120/2014), via a notice published in the National Gazette on 6 August 2014. There were two formal applicants for the State lease in response to the tender. One was Rachel Avuti Manuet and Stanley Maniet as joint tenants. In 2015, they were determined to be the successful applicants by the Land Board. An appeal was made against this decision (presumably by the unsuccessful, other applicant). By a decision published in the National Gazette (No G 55) dated 23 March 2016, that appeal was dismissed. The signing and registration of the new State lease were a sequel to this appeal outcome.
   
9. On 11 June 2021, in her capacity as executor, Raka Helai instituted proceedings by writ in the National Court naming Mr Samson in his capacity as Registrar of Titles and various other State parties as well as Rachel Avuti Manuet and Stanley Maniet as defendants.
   
10. The essence of the claim made against the defendants is found at paragraph 37 of the statement of claim indorsed on the writ:
    

“The [Fifth] Defendant used her position as a lawyer within the Department of Lands to provide legal advice to the first and second defendants that resulted in the cancellation of the existing title and ended up registering it under her own name and that of her husband as joint tenants.”

11. Although the allegation made in this paragraph of the statement of claim does not expressly allege fraud on the part of Rachel Avuti Manuet, that, inescapably, is the implication in respect of her alleged conduct. The allegation has been so regarded by the parties in their conduct of the proceedings in the National Court and on the appeal.
12. This allegation is denied in the defence of Rachel Avuti Manuet and Stanley Maniet.
    
13. It was always necessary for Raka Helai to allege and prove fraud. That is because fraud was the only applicable exception to the indefeasibility of title acquired by Rachel Avuti Manuet and Stanley Maniet upon the registration of the new State lease in their names: s 33(1)(a), Land Registration Act 1981. There is a considerable and consistent line of overseas authority at ultimate appellate level, taken up in Mudge v The Secretary for Lands [1985] PNGLR 387, that the fraud exception to indefeasibility means actual fraud: see, as to the overseas authorities: in the Privy Council, Asset Co Ltd v Mere Roihi [1905] UKLawRpAC 11; [1905] AC 176; Loke Yew v Port Swettenham Rubber Co Ltd [1913] UKLawRpAC 11; [1913] AC 491; Waimiha Sawmilling Co Ltd (in liq) v Waiane Timber Co Ltd [1926] AC 101; Frazer v Walker [1976] 1 AC 569; see also, in the High Court of Australia, Wicks v Bennett ([1921] HCA 57; 1921) 30 CLR 80 and Breskvar v Wall (1971) 126 CLR 376. Mudge has been frequently later cited with approval: Keindip v The State of Papua New Guinea [1993] PNGLR 28; Timano v Timano [1993] PNGLR 334; Mamun Investments v Ponda [1995] PNGLR 1; Kiso v Otoa [2013] PGSC 3; SC1222; Paga No 36 Ltd v Eleadona [2018] PGSC 17; SC1671; Soto v Our Real Estate Ltd [2018] PGSC 55; SC1701; Timothy v Timothy [2022] PGSC 82; SC2282. However, it must be acknowledged that, this notwithstanding, a competing line of authority has developed in this jurisdiction, which allows that fraud may also be constructive fraud. The cases concerned are collected in Timothy v Timothy and need not be detailed. Although that notion has been consistently rejected in the overseas authorities mentioned, the position in Papua New Guinea has not finally been resolved. It is unnecessary in this case to resolve that question, because it was not submitted for the appellant that, if the statement of claim were to be read as alleging constructive, rather than actual, fraud that it had any material impact on when the cause of action in question accrued for limitation of actions purposes.
    
14. In the National Court, Rachel Avuti Manuet and Stanley Maniet succeeded in an application to strike out the proceedings on the basis that the applicable limitation period had expired prior to the issuing of the writ. The learned primary judge accepted their submission that the applicable limitation period under the Frauds and Limitations Act 1988 was six years, by virtue of the application of s 16(1)(a) of that Act, in circumstances where the action was one for fraud and where the cause of action had accrued in 2013 upon the forfeiture of the previous State lease, because that is when damage was suffered by the registered proprietor via the loss of title.
    
15. Raka Helai has appealed against the order dismissing the proceedings. It is convenient hereafter to refer to her as “the appellant”.
    
16. The only active party respondents to the appeal were Rachel Avuti Manuet and Stanley Maniet, to whom it is convenient hereafter to refer by their assigned status as the fifth respondents. As they likewise did not in the National Court, the various State parties have not adopted the role of contradictor.
    
17. Before proceeding further, it is convenient to set out the material terms of s16(1) of the Frauds and Limitations Act:
    

16. LIMITATION OF ACTIONS IN CONTRACT, TORT, ETC.

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

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

...

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

18. Section 17 of that Act is inapplicable. As to s 18, neither the appellant nor the fifth respondents suggest that the claim advanced by the appellants was an equitable claim such that the limitation period specified in s 16(1)(a) was inapplicable. Instead, it is common ground that the claim was one for fraud and a species of tort. We have approached the determination of the appeal on that basis.
    
19. There is, undoubtedly, a foundation in prior authority for so approaching the case. An observation made by David and Yagi JJ in their joint judgment in Nodepa Plantation Ltd v Balat [2020] PGSC 25; SC1927, at [27] and with reference to Mamun Investment Ltd v Nixon Koi (2015) SC1409 and Pololi v Wyborn (2013) N5253, is apt, “the primary basis for the declaratory relief claimed is not in equity, but is actually based on the tort of fraud”. Apt, too, is their Honours’ consequential observation in that case, also at [27], “the principal claim and relief claimed in the statement of claim cannot be categorised as “other equitable relief” which would necessarily be saved under Section 18”.
    
20. The fifth respondents placed considerable reliance on statements made in Nodepa Plantation and in Mamun Investment, in each of which (like the present) the cause of action was grounded in fraud, that the cause of action accrued, at the latest, upon the registration of the title in respect of the State leasehold interest in the land in question.
    
21. These statements proceeded from the recognition of a fundamental feature of any Torrens system in respect of interests in land, of which that found in Papua New Guinea’s Land Registration Act is an orthodox example. Any Torrens system in respect of interests in land creates a system of title by registration, not a system of registration of title. This feature of the Land Registration Act is evident in ss 26 to 28, which provide:
    

26. EFFECT OF REGISTRATION.

(1) On registration of an instrument–

(a) the estate or interest specified in the instrument passes or ceases; or

(b) the land becomes liable as security; or

(c) the land is encumbered,

in the manner and subject to the covenants and conditions set out in the instrument or declared by this Act to be implied in instruments of that nature.

(2) As soon as a memorial of an instrument has been entered on the appropriate folio of the Register, the instrument shall be deemed to be embodied in the Register.

27. EFFECTIVE DATE OF REGISTRATION.

(1) An instrument, when registered, takes effect from the date when it was produced to the Registrar for registration which date shall be specified in the certificate of title or other instrument issued by the Registrar.

(2) The date of production of an instrument to the Registrar for the purpose of registration shall be deemed to be the date of registration of the instrument.

28. STATUS OF REGISTERED INSTRUMENT.

(1) In this section–

“interest holder” means a purchaser of the reversion, lessee, mortgagee, chargee or encumbrancee;

“tenancy document” means–

(a) an unregistered lease; or

(b) an agreement for a lease; or

(c) a lease for a term not exceeding three years.

(2) A registered dealing with land is subject to a prior tenancy document where a tenant is in actual occupation under the document.

(3) No right or covenant contained in a tenancy document–

(a) to purchase the freehold the subject of that document; or

(b) for the renewal of the tenancy, the subject of that document,

is valid against a subsequent interest holder, unless the tenancy document is registered or protected by caveat.

(4) An instrument referred to in Subsection (2) imposes the same obligations on the persons signing it, and for the same period of time, as if it had been sealed and delivered.

22. This feature of title by registration underpinned the Court’s observations, in the respective circumstances of those cases (Nodepa Plantation and Mamun Investment) that, having regard to s 27 of the Land Registration Act, the cause of action in fraud accrued, at the latest, upon the registration of the transfer concerned.
    
23. The appellant embraced these observations in support of a submission that the cause of action accrued not upon the registration of the forfeiture of the earlier leasehold interest in 2013, but rather upon the registration of the fifth respondents’ new leasehold interest in 2016.
    
24. At this point, it is necessary to refer to another provision of the Land Registration Act, s 39, which aligns the system of title by registration with the system for the forfeiture of a State leasehold interest. Section 39 provides:
    

39. REGISTRAR TO ENTER FORFEITURE.

Where a notification appears in the National Gazette that a State lease has been forfeited, the Registrar shall make an entry to that effect in the Register of State Leases.

25. The appellant’s amended statement of claim (paragraph 33) recites that such an entry in the Register was made as a sequel to the forfeiture.
    
26. Faced with these earlier judicial observations and the appellant’s related submission, the fifth respondents’ response was that Nodepa Plantation and Mamun Investment were each distinguishable on the facts. That was because the alleged fraud concerned a transfer of a registered interest, whereas the alleged fraud in the present case concerned the forfeiture of a registered interest with a later acquisition of a new registered interest. The damage, it was submitted, first occurred on forfeiture and, at the latest, upon the consequential noting on the Register of that forfeiture. This having occurred in 2013, they submitted the primary judge was correct to conclude that the appellant’s action was statute-barred.
    
27. The appellant’s riposte to this was that the damage was not complete until the new leasehold interest was registered, which was in 2016; hence, the action was not statute-barred, because more than six years had not elapsed by the time it was instituted in 2021.
    
28. Resolving the controversy thus exposed requires that we answer the question: when does a cause of action in fraud accrue?
    
29. Unlike many overseas limitation statutes, Papua New Guinea’s Frauds and Limitations Act offers no precise answer to this question.
    
30. Typical of provisions in many overseas statutes in relation to when a cause of action in respect of fraud accrues is s 32 of the Limitation Act 1980 (UK), which provides, so far as material:
    

(1) . . . where in the case of any action for which a period of limitation

is prescribed by this Act, either–

(a) the action is based upon the fraud of the defendant; or

(b) any fact relevant to the plaintiff’s right of action has been deliberately concealed from him by the defendant; or

(c) the action is for relief from the consequences of a mistake;

the period of limitation shall not begin to run until the plaintiff has discovered the fraud, concealment or mistake (as the case may be) or could with reasonable diligence have discovered it. . . .

(2) For the purposes of subsection (1) above, deliberate commission of a breach of duty in circumstances in which it is unlikely to be discovered for some time amounts to deliberate concealment of the facts involved in that breach of duty.

31. A most erudite and enlightening history of the rationale for, and related authorities concerning, this and like earlier provision in the United Kingdom in respect of the specification of such a limitation period for a cause of action grounded in fraud can be found in the judgment of Lord Reed PSC (with whom Lord Hodge DPSC, Lord Sales and Lord Lloyd-Jones JJSC and Lord Kitchin agreed) in Potter v Canada Square Operations Ltd [2023] UKSC 41; [2023] 3 WLR 963, at [35] and following. The resultant statutory provision in that country, and in other jurisdictions where there is like provision, might be described as a balance struck by the legislature between not assisting stale demands and recognising that the very nature of a fraud can, and often does, involve an element of concealment; hence, the express provision that the period of limitation does not begin to run until the plaintiff has discovered the fraud, concealment or mistake (as the case may be) or could with reasonable diligence have discovered it.
    
32. The distinction between the position under United Kingdom limitation of actions statute law and the provision in the Frauds and Limitations Act was recognised by Sakora and Hartshorn JJ (with whom Poole J agreed) in a most thorough discussion of authority in Mamun Investment. The conclusion reached in that case, at [29], was that a cause of action in fraud accrued, and time begins to run, irrespective of a plaintiff’s lack of knowledge. In reaching this conclusion, the Court expressly disapproved the decision in Tau Gumu v Papua New Guinea Banking Corporation (2001) N2288, where the National Court observed that in an action based on fraud, the period of limitation does not begin to run until the aggrieved party has discovered the fraud. In Nodepa Plantation, at [29], David and Yagi JJ expressed their concurrence with this conclusion and with the reasoning which led the Court to that conclusion in Mamun Investment. So, too, with respect, do we. The text of the Frauds and Limitations Act just does not admit of a construction which would yield a result akin to the very different text of, for example, s 32 of the Limitation Act 1980 (UK).
    
33. It was not necessary in either Nodepa Plantation or in Mamun Investment for the Court to identify when, generally, a cause of action in fraud accrues, only to identify, in the circumstances of those cases, when, at the latest, the cause of action had accrued. However, as to when a cause of action in fraud accrues, the reference in Nodepa Plantation, at [29] to the judgment of Hartshorn J in Pololi v Wyborn does offer a pathway to answering that question. In Pololi v Wyborn, at [30], Hartshorn J recognised, with reference to the root authority, Derry v. Peek (1888) LR 14 App Cas 337, that fraud or deceit is a tort. The position in relation to such a tort was pithily expressed as follows in Derry v. Peek, by reference to much earlier authority, "‘fraud without damage or damage without fraud’ does not give rise to such actions”: Derry v. Peek, at 242 per Lord Halsbury LC; see also, at 363 per Lord Herschell.
    
34. The fraud here alleged is pervasive but it allegedly commenced in the procuring of the forfeiture. That the forfeiture or, at the latest, the registration thereof occasioned damage to the registered titleholder of the earlier State lease is patent. Did the cause of action accrue then, in 2013, or only later upon the culmination of the alleged fraud upon registration of the new lease in the names of the fifth respondents?
    
35. The answer is provided by yet another basal feature of the intersection between limitation of action provisions and the law of torts. The general position was long ago stated by Willes J in delivering the judgment of the Court of Common Pleas in Wilkinson v Verity [1871] UKLawRpCP 18; (1871) LR 6 CP 206, at 209:
    

It is a general rule that, where there has once been a complete cause of action arising out of contract or tort, the statute begins to run, and that subsequent circumstances which would but for the prior wrongful act or default have constituted a cause of action are dis­regarded.

36. Later, in Darley Main Colliery Co v Mitchell [1886] UKLawRpAC 2; (1886) 11 App Cas 127, at 132–3, Lord Halsbury stated:

No one will think of disputing the proposition that for one cause of action you must recover all damages incident to it by law once and for ever. A house that has received a shock may not at once shew all the damage done to it, but it is damaged none the less then to the extent that it is damaged, and the fact that the damage only manifests itself later on by stages does not alter the fact that the damage is there; and so of the more complex mechanism of the human frame, the damage is done in a railway accident, the whole machinery is injured, though it may escape the eye or even the consciousness of the sufferer at the time; the later stages of suffering are but the manifestations of the original damage done, and consequent upon the injury originally sustained.

37. In that same case, and to like effect, Lord Bramwell, at 144, explained that a man who is beaten or wounded “cannot maintain an action for a broken arm, and subsequently for a broken rib, though he did not know of it when he commenced his first action”.
    
38. Provisions such as s 32 of the Limitation Act 1980 (UK) alter this general position by making express, different position in relation to when a cause of action in fraud accrues.
    
39. What follows from this discussion is that the cause of action upon which the appellant sues accrued, at the latest, when the alleged damage was first suffered, in 2013, upon the noting on the Register of the forfeiture at the latest, not from when, as the appellant alleges, that damage was compounded by the registration in 2016 of the new State leasehold interest in respect of the subject land in the names of the fifth respondents. Nodepa Plantation and Mamun Investment are, indeed, distinguishable, because in those cases the damage essential to the accrual of the cause of action in fraud only occurred, at the latest, on the registration of title as a consequence of the alleged fraud. There was no anterior damage.
    
40. In turn, it necessarily follows, given that more than six years had elapsed from when the cause of action accrued in 2013, that the appellant’s action was statute barred by s 16(1)(a) of the Frauds and Limitations Act. The learned primary judge was, therefore, correct to dismiss the proceedings.
    
41. For completeness, it should be recorded that the appellant also sought to overturn the result in the National Court because of alleged procedural deficiencies, neither of which was raised as an issue before the primary judge. One such basis was said to be that the limitation defence was not pleaded in the fifth respondents’ defence; the other such basis was said to be that, having regard to O 12, r 37 of the National Court Rules, summary judgment should not have been permitted where fraud was alleged. One answer, perhaps even a complete answer to these alleged procedural deficiencies, is that it was incumbent upon the appellant to raise them below and she should not now be permitted on appeal to do so: Fly River Provincial Government v Pioneer Health Services Ltd [2003] PGSC 4; SC705. As to the raising of the limitation of actions issue, it was clearly identified by the fifth respondents in their application for the dismissal of the proceedings. The appellant had and took up the opportunity to meet that issue on the merits before the primary judge. There was thus no denial of procedural fairness. Strictly, the fifth respondents ought also to have applied to amend their defence accordingly but, in the absence of objection, the appellant waived any such requirement. The purpose of O 12, r 37 of the National Court Rules is to ensure that a grave allegation against a defendant such as fraud is proved by evidence at trial, not occasioned by some default on the part of a defendant. It was not applicable in circumstances where the defendant was seeking to have the proceedings dismissed, as opposed to a plaintiff attempting to obtain summary judgement. In any event, it was always open to the primary judge to have given leave to bring the application. It is too late now for the appellant to object to the course adopted.
    
42. For the avoidance of any doubt, we emphasise that the appeal has been disposed of on an assumption that the appellant’s claim of fraud is capable of being proved as alleged, not that it has been proved. To be clear, there is no proven claim of fraud whatsoever against the fifth respondents. Moreover, the proof of such a claim is no light thing, even on the balance of probabilities: Timothy v Timothy. The appellant’s claim of fraud, had it proceeded to trial, would necessarily have involved proving serious misconduct on the part not just of Rachel Avuti Manuet (to which her husband was privy) but also of the multiple public servants involved in the many steps from the process of forfeiture of the earlier lease, through to the tender process, the Land Board decision, the decision on the subsequent appeal and finally in the registration of title to the new State lease. One only need to recite that to realise the considerable task which a trial would have entailed for the appellant in the proof of actual fraud.
    
43. However that may be in the circumstances of the present case, the potential for the present provision in respect of the limitation period applicable to fraud to work injustices in particular cases, such as in the case of concealed fraud, is obvious, as it has been so regarded in many other jurisdictions. The response in other jurisdictions has been, as law reform measures, to insert into limitation of actions statutes provisions such as s 32 of the Limitation Act 1980 (UK). Whether to do so in Papua New Guinea is, of course, a matter for the Parliament. As others have done in similar cases in the past, we respectfully commend that subject for Parliament’s consideration.
    
44. On the hearing of the appeal, the parties were agreed that, in the event that the appeal were dismissed, costs should follow that event.
45. Accordingly, the order of the Court is:
    
    1. The appeal be dismissed.
    2. The appellant pay the fifth respondents’ costs of and incidental to the appeal, to be taxed if not agreed.
    3. There be no order as to costs in respect of the other respondents.
       

Orders

1. The appeal be dismissed.
2. The appellant pay the fifth respondents’ costs of and incidental to the appeal, to be taxed if not agreed.
3. There be no order as to costs in respect of the other respondents.

__________________________________________________________________
Solomon Wanis Lawyers: Lawyers for the Appellant
Tamutai Lawyers: Lawyers for the Fifth Respondents