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Kamang v Tumu [2011] PGNC 335; N4313 (9 June 2011)

N4313

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CIA NO 165 0F 2010

PAUL KAMANG
Appellant

V

NAMBA TUMU
First Respondent

TUNAMB AGENTS & DISTRIBUTORS LIMITED
Second Respondent

Madang: Cannings J
2011: 20 May, 9 June

APPEAL

LAND – whether District Court erred in restraining appellant from interfering in respondents' occupation and enjoyment of land – whether District Court erred in failing to take into account a prior court decision that the appellant's tribe was customary owner of the land – whether there was a bona fide dispute about title.

The registered proprietor of a State Lease (the second respondent, a company owned and controlled by the first respondent) filed a complaint in the District Court alleging interference by the appellant in quiet enjoyment of its land. The appellant argued before the District Court that the land was customary land and that his tribe's ownership of it had been confirmed in 1932 by a court decision, which the District Court had no power to ignore. The argument failed and the District Court ordered that the appellant be restrained from interfering in the respondent's occupation and enjoyment of the land. The appellant appealed to the National Court.

Held:

(1) The land in question was no longer customary land. It was Government land the subject of a State Lease and the second respondent was the registered proprietor, holding indefeasible title.

(2) The order made by the District Court was in the nature of an injunction and involved a proper exercise of the Court's equitable jurisdiction under Sections 21(1) (civil jurisdiction) and 22 (general ancillary jurisdiction) of the District Courts Act.

(3) The District Court was not obliged to hear argument as how the second respondent had obtained title to the land and whether its title was in conflict with the 1932 court decision; and therefore made no error of law by not upholding the appellant's argument in that regard.

(4) There was no bona fide dispute as to title to the land as there was no formal, legal process initiated by the appellant challenging the second respondent's ownership of the land that was pending at the time the District Court made its decision.

(5) All of the appellant's grounds of appeal (which ran together and raised the same argument about failure to give effect to the 1932 court decision) were dismissed, there was no miscarriage of justice and the appeal was accordingly dismissed.

Cases cited

The following cases are cited in the judgment:

Custodian of Expropriated Property v Commissioner of Native Affairs (Re Jomba Plain) [1971-72] PNGLR 501
Hi-Lift Company Pty Ltd v Miri Setae [2000] PNGLR 80
Jack Amu v Kingiko Kokowa (2008) N3703
Mudge v Secretary for Lands [1985] PNGLR 387
Nakun Pipoi v Viviso Seravo (2008) SC909
Tony Yandu v Peter Waiyu (2005) N2894

APPEAL

This was an appeal from a decision of the District Court ordering the appellant not to interfere in the respondents' enjoyment of a piece of land.

Counsel

P Kamang, the appellant, in person
T M Ilaisa, for the respondents

9 June, 2011

1. CANNINGS J: This is an appeal against an order of the Madang District Court (Mr S W Seneka SPM presiding) which was granted against the appellant, Paul Kamang.

2. The order was made on 6 October 2010 in proceedings commenced by the respondents. It restrains the appellant, his friends, relatives and agents from inciting or causing any more interference in the occupation, development and enjoyment by the respondents of a block of land in Madang town, Section 64, Allotment 33. The land is covered by a State Lease. The second respondent, a company called Tunamb Agents and Distributors Ltd, is the registered proprietor. The first respondent, Mr Namba Tumu, owns and controls the company. The respondents' complaint to the District Court was that they were attempting to move on to the land to develop it but Mr Kamang and his people kept harassing them and telling them to stay away as it was customary land. The respondents argued before the District Court that the land was theirs, that it did not belong any more to Mr Kamang and his tribe and that a court order was necessary to prevent Mr Kamang interfering with their enjoyment of it. The argument succeeded and the order, which is in the nature of an injunction, was granted.

3. The land is on the edge of town, near Yabob village. Mr Kamang claims that his tribe, the Matulon Tribe, is customary owner of the land, which forms part of the Bidamen land area. The tribe continues to use the land and has food gardens on it. He says that his tribe's right of customary ownership was confirmed by a decision of the Central Court of the Territory of New Guinea, constituted by Justice Phillips, on 25 May 1932, which has been reported as Custodian of Expropriated Property v Commissioner of Native Affairs (Re Jomba Plain) [1971-72] PNGLR 501. He put that argument to the District Court, to no avail, and it is the argument that underpins all his five grounds of appeal to the National Court.

ISSUES

4. The grounds of appeal run together. They all make the argument that the District Court erred by failing to have regard to the 1932 decision of Justice Phillips. That decision is said to have confirmed that members of the Matulon Tribe have free and unrestricted rights of ownership over the land that is now covered by Section 64, Allotment 33. The 1932 decision has never been appealed against or set aside. The land, it is argued, has remained customary land ever since. It does not fall within the area of Madang town land that was declared by the Minister for Lands in 1988 under the National Land Registration Act to be National Land, which became the subject of the Supreme Court case of Nakun Pipoi v Viviso Seravo (2008) SC909. To the extent that it might appear to have fallen within that area of land, there was a corrigendum published in National Gazette No G142 of 30 October 2003 that makes it clear that it is not National Land.

5. Additional arguments have been raised in submissions that strictly speaking do not fall within the grounds of appeal but as they are arguments worthy of consideration and Mr Ilaisa, for the respondents, did not object to them being raised I will consider them. They are: that there was a bona fide dispute as to title to the land and therefore the District Court had no jurisdiction to deal with the matter and that there was evidence of fraud in the granting of the State Lease to the second respondent.

6. The appeal thus raises three issues. Did the District Court err by:

(1) failing to have regard to the 1932 decision of Justice Phillips?

(2) exercising jurisdiction despite there being a bona fide dispute as to title to the land?

(3) upholding the respondents' interest in the land despite there being evidence of fraud in the granting of the State Lease to the second respondent?

1 FAILURE TO HAVE REGARD TO THE 1932 DECISION OF JUSTICE PHILLIPS

7. It is true that the District Court failed to have regard to the 1932 decision but it is not correct to say that that was an error of law. It was not necessary for the District Court to have regard to the 1932 decision and it would have been wrong in law for the District Court to have enquired into that issue. The only matter of which the District Court had to be satisfied was that the land was the subject of a State Lease. It clearly was. This means that it was no longer customary land. It was Government land. It was also clear on the evidence before the District Court that the second respondent was the registered proprietor, holding indefeasible title.

8. Papua New Guinea has adopted a Torrens Title system of land registration for alienated government land. We apply the principle of indefeasibility of title. Registration of leases vests an indefeasible (unforfeitable) title in the registered proprietor subject only to the exceptions in Section 33(1) of the Land Registration Act (Mudge v Secretary for Lands [1985] PNGLR 387).

9. Section 33(1) (protection of registered proprietor) of the Land Registration Act, relevantly states:

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

(a) in the case of fraud; and

(b) the encumbrances notified by entry or memorial on the relevant folio of the Register.

10. These principles of law are a fundamental part of land law and there is no reason to believe that the District Court was unaware of them or misapplied them. The District Court was not obliged to hear argument as how the second respondent had obtained title to the land and whether its title was in conflict with the 1932 court decision. The District Court made no error of law by not upholding the appellant's argument in that regard.

2 FAILURE TO RECOGNISE BONA FIDE DISPUTE ABOUT TITLE

11. Mr Kamang argues that the District Court had no jurisdiction to make an order concerning Section 64, Allotment 33 in view of Section 21(4)(f) of the District Courts Act, which states:

A [District] Court has no jurisdiction in the following cases: ...

when the title to land is bona fide in dispute.

12. He argues that there is a bona fide (ie genuine) dispute over title to the land as he and his tribe have been maintaining for years that Section 64, Allotment 33 is not Government land or National Land: it is and always has been customary land. There is no doubt that Mr Kamang genuinely believes that. But that does not mean that title to the land is bona fide in dispute for the purposes of Section 21(4)(f). For there to be such a dispute one of the parties to the District Court proceedings or some other person with an interest in the land must have taken some distinct, formal, legal step to challenge the registered proprietor's title and that challenge must be unresolved at the time that the District Court exercises jurisdiction (Tony Yandu v Peter Waiyu (2005) N2894, Jack Amu v Kingiko Kokowa (2008) N3703). There is no evidence of such a challenge in the present case. Therefore Section 21(4)(f) of the District Courts Act did not prevent the District Court from exercising jurisidiction.

13. The order made by the District Court was in the nature of an injunction and involved a proper exercise of the Court's equitable jurisdiction under Sections 21(1) (civil jurisdiction) and 22 (general ancillary jurisdiction) of the District Courts Act. The appellants' argument on this issue is rejected.

3 UPHOLDING RESPONDENTS' INTEREST DESPITE EVIDENCE OF FRAUD

14. Mr Kamang argues that different versions of the State Lease were put before the District Court, one version had certain signatures on it, another version omitted the signatures. This suggested that proper procedures were not followed and that the land may not have been advertised for lease in accordance with the Land Act; which is evidence of fraud according to the wide definition that the National Court has given to "fraud" in Section 33(1) of the Land Registration Act in cases such as Hi-Lift Company Pty Ltd v Miri Setae [2000] PNGLR 80.

15. I see no merit in this argument. I have considered the apparently different versions of the State Lease that were before the District Court. The differences are slight and do not appear to be evidence of fraud. The question of whether there was evidence of fraud can only be properly determined in the National Court. The question of whether the provisions of the Land Act were breached in the grant of the lease to the second respondent was not something that the District Court was obliged to inquire into. If Mr Kamang wishes to pursue these sorts of arguments he should perhaps consider commencing proceedings, challenging the granting of the State Lease, in the National Court.

CONCLUSION

16. All grounds of appeal and the further arguments raised by the appellant in submissions have been dismissed. There has been no miscarriage of justice so I will under Section 230(1)(c) of the District Courts Act affirm the decision appealed from.

17. As to costs, it is appropriate to award costs of the appeal to the respondents, who are the successful parties. Having regard to Section 234 of the District Courts Act and the power of the National Court to make an order for a specific sum of costs (Egga Pua v Otto Benal Magiten (2005) N2892) I will direct that the appellant pay K400.00 costs, which shall be paid within 14 days of the date of this judgment to the Registrar of the National Court, who shall forthwith pay over that sum to the respondents.

ORDER

(1) The appeal is dismissed.

(2) The order of the Madang District Court of 6 October 2010 in DC No 49 of 2010 is confirmed and shall be respected and enforced.

(3) The appellant shall within 14 days of the date of this judgment pay costs of the appeal in the sum of K400.00 to the Registrar of the National Court who shall forthwith pay over that sum to the respondents.

(4) Time for entry of the order is abridged to the date of settlement by the Registrar, which shall take place forthwith.

__________________
Lawyers for the appellant: Nil
Thomas More Ilaisa Lawyers & Attorneys: Lawyers for the respondents