Home | Databases | WorldLII | Search | Feedback National Court of Papua New Guinea

Wabag District Development Authority v Lemban (trading as KTL Hardware) [2019] PGNC 194; N7919 (19 July 2019)

N7919

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS NO. 362 OF 2018

BETWEEN:
WABAG DISTRICT DEVELOPMENT AUTHORITY
Plaintiff

AND:
KENNEDY LEMBAN trading as KTL HARDWARE
Defendant

Waigani: Thompson J
2019: 09^th & 19^th July

LAND TITLE - Registered Proprietor - indefeasibility of title – mis-description of land

Cases Cited

Masive v Kenderop (1985) PNGLR 105
Tigam Malewo and others v Keith Faulkner and others (2009) PGSC 3

Counsel

Lhyrn Lawyers, for the Plaintiff
Mr. G Lau, for the Defendant

19^th July, 2019

1. THOMPSON J: The Plaintiff has issued an Originating Summons, seeking
Declarations and Orders relating to the land at Section 13, Lot 2 Wabag. The Plaintiff seeks a Declaration that it is the current proprietor, that the Defendant's property is on the Plaintiff s land, and orders that the Defendant give vacant possession or be evicted.

2. The Plaintiff produced evidence that it was the duly registered proprietor of a
State Lease for the whole of the land on Volume 57 Folio 112, Lot 2, Section 13,
Wabag, with an area of 0.823 hectares. The plan forming part of the State Lease
shows Lot 2 as sharing a common boundary with Lot 1, with no other land between
them, and vacant government land adjacent to the northern boundary.

3. The Defendant does not dispute that the Plaintiff is the owner of Section 13 Lot
2. The Defendant is asserting that Section 13 Lot 2 does not include the land which he says was formerly known as Portion 363C, which is where he is situated.

4. This case does not concern a challenge to title of either customary land or state
land. It only concerns a claim by the Plaintiff that it owns the land which includes the land occupied by the defendant, and is therefore entitled to possession. The burden of proof in civil proceedings is on the balance of probabilities.

Preliminary Issue

5. The Defendant has submitted that the Originating Summons fails to disclose a
cause of action, relying on the case of Tigam Malewo and others v Keith Faulkner and others (2009) PGSC 3, to say that an OS must disclose the elements of the claim and the facts in support.

6. In the present case, the Plaintiff is not seeking damages or any other cause of
action based on tort or fraud. It is only seeking Declarations. Pursuant to Order 4
Rules 2 and 3, the proceedings are appropriate to be commenced by OS. Pursuant to Order 4 Rule 7, the OS shall state the relief sought by the Plaintiff. No other
requirements are imposed by Order 4 Division 4.

7. The OS sets out the Declaratory Orders and relief sought by the Plaintiff, which includes the factual basis relating to its title to the land, and the occupation of part of its land by the Defendant. An application by way of OS should be accompanied by an affidavit of facts - see Masive v Kenderop (1985) PNGLR 105. The Plaintiffs
application by way of an OS was accompanied by an affidavit of facts, including facts of it being the duly registered proprietor of the land, and the occupation of part of it by the Defendant.

8. There has been no breach of the Rules relating to the filing of the OS, and the proceedings sufficiently disclose a cause of action.

Evidence

9. The Defendant has produced a copy of a plan, annexed to his affidavit. He
simply says that "I have been provided with" the plan, but does not say by whom or
for what purpose it was prepared, or from what document it was taken. The plan has coloured in green a Section showing Portion 363C overlapping a Portion of Section 13 Lot 2 with a small part extending beyond the northern boundary. The document does not provide any information as to why part of Section 13 Lot 2 has been separately shown as Portion 363C. In his affidavit, the Defendant says that he has settled on and his business is on Portion 363C which he describes as customary land between Section 13 Lots 1 and 2.

10. In evidence was a judgement of the National Court in Wabag made on 11
October 2010 in WS 698 of 2010. In those proceedings, the Court proceeded on the
basis that Portion 363C was the same land as Section 13 Lot 2. The Plaintiffs
predecessor in title was a party to those proceedings, but the Defendant was not a
party. The plaintiff in those proceedings claimed that Portion 363C was customary
land, and that title to that land had been illegally obtained because compensation had not been paid for it. It appeared from the judgement that it had been alleged that the Land Titles Commission had identified Portion 363C as customary land, with a list of customary land owners. There was no evidence of how it could be found that part of the land subject of a State Lease could have been declared customary land. There was no evidence of this being recorded on the State Lease. In any event, the Court found that compensation payments were properly made to the land owners in 2001, for both the land and the improvements, and that title to the area described as Portion 363C was legally acquired by the Provincial Government, which was the Plaintiffs predecessor in title.

11. There was no evidence of how the disputed area came to be known as Portion
363C or how it came to exist, or of what happened to it after the 2010 Court decision. There was no evidence of the decision of the Land Titles Commission, and in any event, even assuming that there was such a decision which declared Portion 363C to be customary land, it was subsequently superseded by the legal acquisition of the land by the Provincial Government as confirmed in WS 698 of 2010.

12. The plan produced by the Defendant was not evidence of the legal status of
Portion 363C. It appears from WS 686 of 2010 that the plan may have merely been
part of an Urban Development application which was refused, which the Court in WS 686 of2010 found to be irrelevant, and went on to find that the area had been properly acquired by the Provincial Government.

13. The original State Lease was issued to the Plaintiffs predecessor in title, in
1968. It makes no reference to Portion 363C, which the Defendant says is the area
allegedly determined to be customary land in 2001.

14. The only valid evidence of the area of land in Section 13 Lots 1 & 2, is as shown in the plan which forms part of the State Lease, which makes no reference to
Portion 363C.

15. There is undisputed evidence that the Plaintiff is the registered proprietor of that land shown as Section 13 Lot 2.

16. The Defendant does not dispute that he occupies an area which was part of the
area shown on the State Lease plan as being Section 13 Lot 2. He says that after the
title was issued, the part of the land which he occupies must have been somehow
separated from the title and declared to be customary land owned by various land
owners. He says that after the Court found in 2010 that the customary land had been
legally acquired by the Provincial Government, there is no evidence of what happened to the title. He says that the part which was formerly described as Portion 363C could have become part of Lot 1 or Lot 2 or allocated to a completely different party. He therefore asserts that there is no evidence that the part he occupies forms part of Lot 2.

Findings

17. There is no evidence that, after the judgment in 2010, the formerly disputed
area was allocated to Lot 1 or to a third party. There is evidence that Section 13 Lot 2 includes this area in the State Lease. No evidence has been provided to show that a portion was separated and created, or of any Land Title Commission decision then excising it from the title, there is no evidence that it was excised, and there are no entries on the State Lease to that effect.

18. The evidence conclusively shows that in 1968, section 13 lot 2 originally
included the whole of the land. The evidence is sufficient to show that if a small part may have later been declared to be customary land in 2001, it ceased being customary when it was acquired by the Provincial Government, and reverted or remained as the whole of the land on the State Lease, without ever being legally separated from the title.

19. Under Section 33 of the Land Registration Act, the registered proprietor holds title absolutely free from all encumbrances except, relevantly;

1. The estate or interest of a proprietor claiming the same land under a prior instrument of title.
2. In case of the wrong description of the land or of its boundaries.

20. The Defendant has not asserted or shown that he is a proprietor claiming the
land under a prior instrument of title. He has not shown that the land or its boundaries have been wrongly described.

21. At its highest, the Defendant has asserted that the description of the land and its
boundaries in the State Lease is wrong, because it should not include the land he refers to as Portion 363C. However, he has not produced any evidence to prove on the balance of probabilities that the description on the title is wrong.

22. The Plaintiff did not produce any evidence such as a survey plan, showing the
area occupied by the Defendant within Section 13 Lot 2. However, the plan produced
by the Defendant is sufficient, when taken together with the Defendant's statement
that he occupies that land shown in green on that plan as Portion 363C, to show that
this is the area which he occupies and is in dispute.

23. The plan produced by the Plaintiff which forms part of the State Lease, is
sufficient evidence that Section 13 Lot 2 includes all the land to the common
boundary with Lot 1, and that it therefore includes the area occupied by the
Defendant, which he refers to as Portion 363C in his plan.

24. There has been a reference to other legal proceedings issued by the Defendant
against the Plaintiff s predecessor in title, on WS 615 of 2011. In those proceedings, it has been said that the current Defendant sought orders that he not be evicted from the land, until he was paid reasonable compensation, and that this has not yet been paid. It has not been made clear whether or not there is an injunction still in effect, restraining the current Defendant from being evicted until compensation has been paid.

Conclusion

25. I make the following orders:

1. A Declaration is granted that the Plaintiff is the registered proprietor of the land on State Lease Volume 57 Folio 112 Section 13 Lot 2 Wabag with an area of 0.823 hectares.
   2. The Defendant is to give vacant possession of the land which he occupies
      within Section 13 Lot 2 Wabag, within 14 days.
   3. The Defendant is to pay the Plaintiffs costs on a party/party basis, to be agreed or taxed.
4. Order No.2 is stayed for 14 days, to enable the Defendant to provide
   satisfactory evidence showing the existence or otherwise of any orders made for a stay or injunction in the proceedings on WS 615 of 20 11.
   5. The matter will return to Court on Monday 29 July 2019 at 9:30am to
      determine whether or not order 2 is to continue to be stayed.

__________________________________________________________________
Lhyrn Lawyers: Lawyer for the Plaintiff
Niuage Lawyers: Lawyer for the Defendant