THE COURT REPORT
Fraudulent land titles continue to rot the nation
In the words of one land expert Papua New Guinea is full of ‘bull**** titles’.
Systemic corruption in the Lands Department means it is virtually impossible anymore to know whether land titles are authentic, or fraudulent, free of corruption, or riddled with corruption.
To use an analogy, what kind of food market could operate, when half the products are laced with arsenic. Our land markets of course don’t function. So we have a court system clogged with litigation, and a chaotic system of urban development marked by cowboys and sky high prices.
One case that typifies the chaos at the heart of this illicit economy in land titles is TST Holdings Ltd v Wavik.
In 1995, the owner of 12 portions of land at Hohola in the National Capital District sold the titles to T.S.T Holdings Limited.
Unbeknown to the purchaser, the vendor then conspired with the Registrar of Titles to regain ownership of the land by claiming the title documents had been lost or destroyed and obtaining replacements. When the purchaser discovered the fraud, he went to court and obtained orders cancelling the replacement titles; but that was far from the end of the saga. The original vendor and the Registrar then doubled down and again conspired to fraudulently reissue the replacement titles.
In today’s PNGi Court Report, we examine the facts of the case and ask why those responsible for the fraud, Russell Wavik and the Registrar of Titles, have not been investigated and held accountable by the police.
The twelve portions of land in question are Lots 16-27, Section 39, Hohola. The lots were originally owned by the company Simon Wavik and Family (WGATAP) Pty Limited.
The company was registered in 1985, with four shareholders; Russell Wavik (2 shares), Tom Wavek (2 shares) Jimmy Wavik (1 share) and Kone Varika (1 share). In 2013, Russell Wavik bought out his fellow shareholders to became the sole owner.
In February 1995, T.S.T purchased the titles to the 12 lots of land from Simon Wavik and Family Pty. The transfer of ownership was registered by the Department of Lands in September 1999.
Despite T.S.T now being the legally registered owner of the 12 plots of land, Simon Wavik and Family Pty applied to the Registrar of Titles for replacement titles to the 12 plots on the basis the originals had been lost or destroyed. The Registrar complied with the request, issued the replacement titles and updated the Lands Department record to show the family company was the registered owner.
When it discovered what the Registrar had done, T.S.T applied to the courts to overturn the replacement titles. In October 2016, the National Court quashed the decision of the Registrar of Titles to issue the replacement titles, ruling the Registrar had acted unlawfully by not advertising the hearing of the application and denying T.S.T an opportunity to be heard.
The court also ordered the application for the issue of replacement titles be remitted back to the Registrar for rehearing after publication of the appropriate public notices.
At the time of its deliberations, the court did not have the benefit of seeing any of the official documents relating to the ownership of the lots as the Department of Lands file had been ‘lost’.
T.S.T Holdings was therefore unable to prove its claim to be the rightful title holder. Hence the court refused its request for an order restoring its title and instead referred the matter back to the Registrar for rehearing.
However, the Courts instructions were not faithfully followed and the Registrar and Russell Wavik again conspired, says the court, to pervert the process.
Although the Registrar did, as instructed, publish a notice advising a date for a rehearing in both the National Gazette, on December 15th, and in the National newspaper, on December 20th, he only did so after his office had already closed for the Christmas holiday.
When an agent for T.S.T tried to deliver a letter to the Registrar on 23rd and 24th December 2016, they found the office shut. They were able though to deliver the letter on 4th of January 2017 when the office reopened.
That letter enclosed copies of documents that proved T.S.T was the rightful owner of the 12 plots of land. These included stamped contracts of sale, Ministerial approvals, transfer instruments and registration documents, all of which had been found by a Lands officer in the property file which he had managed to locate after the first court case had been concluded.
The Registrar never replied to the letter. Instead they proceeded to hold a rehearing of the Wavik’s application on 9th January, without inviting T.S.T to attend. Despite the documents clearly showing the Wavik company had sold the land to T.S.T, the Registrar again decided to issue the Wavik’s with replacement titles and updated the Register of Lands accordingly.
Completely unaware that the rehearing had already been held and replacement title already reissued, lawyers for T.S.T continued to write further letters and attended the Registrar’s office to try and get a hearing. They were not informed until 22 May that the rehearing had been held on 9th January and that the replacement titles had been issued and the Land Register updated to show the Wavik’s as the registered proprietors.
Unsurprisingly, T.S.T decided to take the matter back to court. This time it was able to present all the documents proving its title to the 12 lots. The judge, Justice Makail, had no hesitation in finding Russell Wavik had conspired with the Registrar of Titles to obtain the replacement titles by fraud.
The judge also ruled that the timing of the publication of the notices for the rehearing, during a holiday period when the Registrar’s office was closed, was ‘unreasonable and unfair’. As a result, T.S.T had been ‘adversely prejudiced’.
The court also noted that the Registrar had proceeded to grant the replacement titles to Simon Wavik Limited, despite having been provided with copies of the documents proving T.S.T’s title. This was ‘illogical and unreasonable’ and ‘contrary to the overwhelming evidence’ supporting T.S.T’s claim; it was a decision ‘which no reasonable person could have made’.
The Registrar’s conduct was ‘dilatory of his duty’ and ‘unsatisfactory and appalling’ and there was ‘a strong case of fraud’ being perpetrated by Wavik and the Registrar, said the judge.
The court found that the loss of the Lands Department file had been part of a ‘deliberate collusion’ to ‘conceal the evidence in order to destroy the plaintiff’s case’.
Russell Wavik and his company ‘having been paid for the land is now attempting to get back a double benefit by fraudulently stealing the land back’.
The court upheld the application by T.S.T for judicial review of the Registrars decision based on fraud and ordered that the decision to grant replacement titles to Simon Wavik Limited be quashed, together with the entries in the Register of Lands recording the company as the owner of the plots of land.
With this evidence now a matter of public record, along with the Judge’s conclusion describing this as a strong case of fraud, will the police initiate a criminal investigation? Will the Lands Minister, John Rosso, take any internal action against the Registrar for his ‘unsatisfactory and appalling’ conduct’?
The illicit economy in land titles is a festering wound on the political economy of this nation. Whether it be houses for families, or premises for business, there is no rational system in PNG for allocating land to meet social need and national economic objectives; all the nation has is anarchy, where cowboys win and the rest suffer.