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Dei v Nomale and Pangia Constructions Pty Ltd [1995] PGNC 2; N1286 (6 January 1995)

Unreported National Court Decisions

N1286

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

WS 46 OF 1993
RUMINTS DEI - Plaintiff
V
MOSES NOMALE - First Defendant
PANGIA CONSTRUCTIONS PTY LTD - Second Defendant

Mount Hagen

Woods J
5 December 1994
6 January 1995

LAND - lease of customary land - agreement for lease - parties - void under Land Act - disposal of customary land.

Counsel:

P Kunai for the Plaintiff

First Defendant in Person

D Frank for the Second Defendant

6 January 1995

WOODS, J: The Plaintiff is claiming for unpaid rents due under an Agreement for the lease of some land known as Repi or Minjigina near Gumanch River and the Bukapena road. The Plaintiff is claiming as a landowner of the subject land and is alleging that the first defendant was an agent or servant of the Second Defendant and as such entered into a 10 year lease of the land from March 1987 at a rental of K5,000 per year. The Plaintiff claims that the Defendants have breached the lease by vacating the land before the expiry of the term of the lease and without giving prior notice and have failed to pay up rental arrears. The Plaintiff is claiming K10,000.

The Plaintiff has produced a document headed ‘An agreement made this 2nd day of April 1987’ between all those persons named in Schedule One whose representatives are those persons described in Schedule two and the party named in Schedule 3.

Schedule one lists 52 names.

Schedule two lists five names who are the signatories to the Agreement.

Schedule three is Moses Nomale the first defendant in this matter. The agreement contains no mention nor reference to the second defendant.

The Agreement recites that the lessors, those named in Schedule one, are the owners of the land the subject of the lease.

There is no properly surveyed description of the land the subject of the lease merely a sketch by reference to natural objects and features.

So what is the status of this Agreement under the Law.

Firstly of course it is only between the 5 named representatives and the first defendant Moses Nomale. There is nothing binding the second Defendant to the agreement, the fact that the second defendant may have paid some rental monies on the first defendant’s behalf does not bind it to any obligation to the lessors, it is purely a matter between the first and second defendants. I must therefore find at this stage that there is no liability in the second defendant.

It is clear from the evidence that the land is customary land. The Land Act Ch 185 states in Section 73: “Subject to Sections 15 and 15A, a native has no power to sell, lease or dispose of customary land otherwise than to natives in accordance with custom and a contract or agreement made by him to do so is void”.

Sections 15 and 15A refer to the disposal otherwise than to natives through the Minister and this does not apply here as there has been no intervention by the State or the Minister for this.

There is no evidence to support that this has been a lease by custom, there is no evidence to confirm any enquiry or resolution as to the customary practice nor as to who actually are the proper customary owners. Without all of this this court cannot accept such a document as a Lease Agreement enforceable in any Court. The witnesses were confusing as to the customary ownership. The Plaintiff saying he was the sole owner, then another witness saying he was a co-owner.

The Lease Agreement may be relevant as a statement of the intention of the parties but can only have moral binding value on the basis of the all parties acting in good faith. To be actionable in a court of law such must comply with the modern laws such as the Land Act and other appropriate legislation such as the Stamp Duties Act.

It is not necessary to go much further into aspects of the agreement such as that there is no evidence to show that the Plaintiff has any rights under the Agreement as his name is different from the names of the lessors although he has indicated one of the signatures as being his, but also does he have any authority from the other lessors to pursue this action.

The Agreement for Lease whilst it may be relevant as embodying some agreement between the parties it can only really rely on the good faith of the signatories, it is not an agreement that can be recognised by the Courts. There is no evidence to show any actual occupation of the land by the first defendant for which any amount is owing to the five lessors they have not claimed any. There was rentals paid for a number of years.

I dismiss the claim and order Judgement for the defendants.

Lawyer for the Plaintiff: P Kunai

Lawyer for the Second Defendant: Gadens Ridgeway