N10061 

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS 493 OF 2021

BETWEEN
HIGHLANDS PRODUCTS LIMITED
Plaintiff

AND
TOM ARON & 32 Others
Defendants

Lae:  Dowa J
2022:    6th & 12th April
PRACTICE AND PROCEDURE-application to set aside ex parte/default judgment-consideration of relevant requirement-failed to provide reasonable explanation for default and defence on the merits
LAND LAW – state lease -––Indefeasibility of title under section 33 of Land Registration Act- defendants dispute ownership of land based on fraud-actual and constructive fraud discussed- court has no jurisdiction to deal with disputes over alienated customary land– the appropriate body to hear disputes over alienated customary land is the Land Titles Commission. Defendant’s application refused.
       
Cases Cited:

Mudge -v- Secretary for Lands (1985) PNGLR 387
Niugini Tablebirds Pty Ltd v Nasap (2000) N2018
Pius Tikili -v- Home Base Real Estate Ltd (2017) SC1563
National Council of Young Men’s Christian Association of PNG -v- Firms Services Ltd (2017) SC1596 
Albert Camilus -v-David Mota & others (2022) SC2210
Leo Duque vs Paru (1997) PNGLR 378
Godowan Investment Ltd v Wambea (2018) N7263
Kimas v Oala (2015) SC1475 
Katumani & Ors v Elijah Yawing & Ors (2020) N8481
Urban Giru v Luke Muta and others (2005) N2877 

Counsel

A. Paru, for the Plaintiff
P. Batimai, Defendant in person
DECISION
12th April, 2022 
1.	DOWA J:	This is a ruling on an application by Patrick Batimai, one of the Defendants, to set aside the ex parte judgment entered on 10th December 2021.
2.	The Defendant, Patrick Batimai, is listed as No.4 in the Schedule of Defendants in the Writ of Summons. He applies by Notice of Motion filed 11th March 2022 seeking amongst others, an order that the default judgment for possession made 10th December 2021 against the Defendants be set aside.  The Defendant relies on his own affidavit filed 11th March 2022.
Background
3. 	The Plaintiff is the registered proprietor of land described as Portions 407 and 417, Markham, Morobe Province being land contained in State Lease Volume 58 Folio 154. The land is fenced and being predominantly used for cattle grazing. In recent times the defendants have moved into the land and started cultivating parts of the land and constructing makeshift dwelling homes without the Plaintiff’s knowledge and consent. Despite numerous requests and notices to vacate, the defendants have not moved out of the property. As a result, the Plaintiff commenced proceedings for possession.
Ex parte Judgment
4. 	The proceedings were filed on 9th August 2021.  Copies of the Writ of Summons was served on all the Defendants individually including Patrick Batimai on 23rd August 2021 by Senior Constable Yakimbo Yoropo. The Defendants did not file a Notice to defend nor a defence.  On application by the Plaintiff, Judgment for possession was entered against the Defendants with other consequential orders on 10th December 2021. The orders were made ex parte.

Issues
5. 	The issue for consideration is whether the ex parte orders of 10th December 2021 should be set aside.
Law

6.	The Defendant applies under Order 12 Rule 8 (3) of the National Court Rules. Order 12 Rule 8 (3) provides that the Court may, on terms set aside or vary an order where the order has been made in the absence of a party. An application made under Rule 8 is like an application made under Rule 35 for setting aside default judgment. I note in the present case the application for judgment was sought under Order 12 Rule 25 of the National Court Rules for default. In any case the Court’s jurisdiction was correctly invoked. The relevant rule is Order 12 Rule 35 of the National Court Rules.  Rule 35 reads:
“Setting aside judgement.
The Court may, on such terms as it thinks just, set aside or vary a judgement entered in pursuance of this Division.”
7.	The law on applications to set aside Judgment whether ex parte or by default is settled. Refer; Urban Giru v Luke Muta and others (2005) N2877.  The Court has unfettered discretion to set aside a regularly entered default Judgment.  However, in considering an application, the Court must be satisfied as to the following:

a)	Reasons for default.
b)	If there is a delay, an explanation for the delay.
c)	Any defence on the merits,
d)	Prejudice to the other party
e)	Justice of the case.

Reasons for Default/Absence   

8.	The Defendant, Patrick Batimai, deposes that he was not present at Gomagu when Constable Yoropo delivered the Writ of Summons. He says he attended a meeting of the defendants where he was informed by the lead defendant, Tom Aron, that the Summons was meant for eviction of people who were not employees of the Plaintiff and that he would be allowed to stay. He said that Tom Aron would act for him and others in defending the matter if need be. He learnt of the eviction orders in March 2022 and was surprised that Tom Aron and one Johnson Malo who promised to help them did nothing. He submitted that if he was properly advised then he and other affected villagers would have defended themselves.

9.   	Mr Paru of counsel for the Plaintiff submitted that copies of the writ were served in a public gathering of the defendants on the same day. Nearly all defendants have since complied with the orders and vacated the property. I am satisfied from the Affidavit of service of Senior Constable Yoropo that the defendant Patrick Batimai was served on 23rd August 2021. During the hearing it became clear that some of Mr Batimai’s relatives were also served on the same day. No other defendants named in the proceedings filed any affidavits supporting the application by Mr Batimai although he says he is making this application on behalf of the defendants. I find his reasons for default are not good enough.  There is no evidence of a resolution of some sort appointing Tom Aron to act for the defendants. Relying on Tom Aron to act for him and other defendants is not a valid reason as he (Tom Aron) is not a lawyer. Even where a lawyer is involved, a lawyer’s negligent conduct in allowing his client to suffer default judgment is not a valid reason for setting aside default judgment:  Refer Leo Duque vs Paru (1997) PNGLR 378.

Undue Delay

10.	Ex parte/Default judgment was entered on 10th December 2021. The Defendant became aware of the Orders in early March 2022. The defendant filed his application on 11th March 2022.  In my view, the delay period is not unreasonable.

Defence on the Merits

11.	The Defendant says he has a good defence on the merits of the case. The defendant disputes ownership of the subject land. He deposes that he and other defendants are customary landowners of the land known as Gomagu land which is described as Portions 407 and 417 the subject of the State lease Volume 58 Folio 165. He submitted that the Plaintiff requested use of the land for grazing cattle. The customary landowners allowed the Plaintiff to use the land for grazing only and are surprised that it has a registered title over it. He submitted that their customary land was fraudulently acquired. 

12.	The Plaintiff, on the other hand, maintains that it has an indefeasible title over Portion 354 under section 33 of the Land Registration Act.  The only exception to indefeasibility of title is fraud.  
  
13.	The law on section 33 (1) of the Land Registration Act is settled.  A registered proprietor has indefeasible title under section 33 of the Land Registration Act, except for fraud and other exceptions listed in subsection (1). Fraud can be either actual or constructive fraud. Refer:  Mudge -v- Secretary for Lands (1985) PNG LR 387, Niugini Tablebirds Pty Ltd v Nasap (2000) N2018, Pius Tikili -v- Home Base Real Estate Ltd (2017) SC1563, National Council of Young Men’s Christian Association of PNG -v- Firms Services Ltd (2017) SC1596 and Albert Camilus -v-David Mota & others (2022) SC2210.

14.	Whilst the allegations are serious, the Defendant has not deposed relevant facts he seeks to rely on. He has not attached a draft defence to the Notice of Motion or his Affidavit. He has not shown he has taken any proper or appropriate action or steps to challenge the title in some tangible ways to raise the issue of bona fide dispute as to title. The Defendant and the other customary landowners have not commenced any proceedings challenging the title obtained by the Plaintiff.  The title was issued many years back.  The Defendants and the other customary landowners have been aware since. The validity of the title was not challenged so far, in a Court of competent jurisdiction or the Land Titles Commission. The onus of challenging the validity of title rests on the defendants. See Godowan Investment Ltd v Wambea (2018) N7263.

15.	Secondly, where customary land is alienated, the process of determining customary ownership and land rights is now vested with the Land Titles Commission. I say this because the allegations concern customary land rights and interests. The allegations are raised by Patrick Batimai, holding himself out as a customary landowner for and on behalf of the customer landowners. In Kimas v Oala (2015) SC1475, the Supreme Court settled the law. At paragraphs 6 and 7 of its judgment the Court said, and I quote:

“6. 	It is settled law that the National Court has no jurisdiction to hear and determine disputes concerning ownership by custom of any land, including a dispute as to whether any land is or is not customary land. Such disputes fall within the exclusive jurisdiction of the Land Titles Commission under section 15 (determination of Disputes) of the Land Titles Commission Act, which states:
The Commission has, subject to this Act, exclusive jurisdiction to hear and determine all disputes concerning and claims to the ownership by custom of, or the right by custom to use, any land, water or reef, including a dispute as to whether any land is or is not customary land and may make all such preliminary inquiries and investigations as it deems necessary for the purpose of hearing and determining the disputes and claims.
7.	 Section 15 has been given full effect by the courts over many years. As soon as it becomes apparent that a case involves a dispute about whether a land is or is not a customary land, the court should divest itself of jurisdiction. Such disputes fall within the exclusive domain of the Land Titles Commission.”

16. 	Applying the reasonings in Kimas v Oala, I have expressed a similar view in Katumani & Ors v Elijah Yawing & Ors (2020) N8481. At paragraph 28 of my judgment, I said:
“28. Since the Defendants have raised substantial dispute over ownership, I will address them as well, so the parties have proper and informed understanding of the process involved in furthering their interests. It is trite law that both the district and National Courts have no jurisdiction to deal with disputes over customary land. Such disputes can be dealt with in the first instance by following the procedures and processes in the Land Dispute Settlement Act. Where a title is issued over customary land as in the present case, a disputing party can mount a case with the Land Titles Commission pursuant to section 15 of the Land Titles Commission Act”.
17.	In the circumstances, the National Court does not have jurisdiction to deal with the issues the defendant proposes to raise as a defence to the proceedings. 

Prejudice to the Plaintiff 

18.	Will the Plaintiff suffer any prejudice if the default judgment is set aside.  The Managing Director of the Plaintiff company filed an affidavit in response to the application.  He opposes the application for the simple reason that the Plaintiff is the registered proprietor of the property and is entitled to quiet use and enjoyment of the property. A grant of the application will prejudice the legitimate interest and rights of the Plaintiff.

Interest of Justice

19.   The next question I ask is would the interest of justice be best served if the Court refuses the application.  In my view, interest of justice would be best served by refusing the application for the reasons given above.

Defendant’s Interests 

20.	The Defendant, Patrick Batimai, made allegations of fraud in the acquisition of the subject land. This disturbs the peace and quiet enjoyment of the alienated land by the registered owner. If the claim by the defendant is genuine, he can use proper forums to challenge the title. For now, the orders issued on 10th December 2021 are binding on all parties unless it is set aside by the Supreme Court. 

Cost

21.	Cost is a matter of discretion. The defendant failed in his application. He will pay the cost of the application.

ORDERS

22.       The Court orders that:

a)	The defendant’s application to set aside the orders of 10th December 2021 is refused.
b)	The Defendant, Patrick Batimai, shall pay the Plaintiff’s cost of the application.
c)	Time be abridged.
___________________________________________________________________
O’BRIENS: Lawyers for the Plaintiff
Patrick Batimai: The Defendant in Person