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Dumpu Oil Palm Estates Ltd v Konamb [2023] PGNC 354; N10523 (13 October 2023)

N10523

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS NO. 14 OF 2023

BETWEEN:
DUMPU OIL PALM ESTATES LIMITED
-Plaintiff-

AND
ONA KONAMB & 125 others whose names appear at the schedule attached to the Originating Summons who are settlers at Portion 47 Milinch of Dumpu, Madang Province
-First Defendant-

AND
RAYMOND MAKIVE ASINEHA
-Second Defendant-

AND:
HIGHLANDS FARMERS AND SETTLERS ASSOCIATION INC.
-Third Defendant-

Lae: Dowa J
2023: 20^th September & 13^th October

LAND LAW – state lease -– plaintiff seeking declaratory relief of ownership of state lease under section 32 of the Land Registration Act- –Indefeasibility of title under section 33 of Land Registration Act- Seeking orders for possession- where process involving forfeiture and grant of state lease is disputed, onus is on defendant to initiate own proceedings -evidence disclosing no bona fide dispute as to title-unauthorized occupants only entitled to equitable relief of a reasonable period to deliver up possession- Orders granted in favour of the Plaintiff.

Cases Cited:
Mudge -v- Secretary for Lands [1985] PNGLR 387
Godowan Investment Ltd v Wambea (2018) N7263
Kimas v Oala (2015) SC1475
Robinson v Airlines Corp [1983] PNGLR 476
Medaing v Ramu Nico Management (MCC) Ltd (2011) SC1144
Lae Rental Homes Ltd v Seravo (2003) N2483.
Yandu v Waiyu (2005) N2894
Jure Investment v Conlife (2018) N7286
Paga Hill Development Company v Daure Kisu (2014) N5683
Laka v Nui (2013) SC1223
Evangelical Lutheran Church of PNG v Jack David (2022) N10060

Counsel:
C. Joseph, for the Plaintiff
E. Tienare, in person for the first and third Defendants
R. Asineha, second Defendant in person,

RULING

13th October 2023

1. DOWA J: This is a ruling of the Plaintiff’s application for orders amongst others, a declaration that it is the registered proprietor of Portion 47, Milinch of Dumpu, Fourmil of Madang, Madang Province registered as State Lease Volume 20, Folio 157.
   
2. By Originating Summons, the Plaintiff seeks the following orders:
   
   1. A declaration, pursuant to section 32 of the Land Registration Act, that it is the registered proprietor of a 99-year Agricultural Lease on a property described as Portion 47, Milinch of Dumpu, Fourmil of Madang, in the Madang Province registered as State Lease Volume 20, Folio 157.
   2. A declaration pursuant to Section 155(4) of the PNG Constitution, that it as the registered proprietor of the property, is entitled to vacant possession of the property from the defendants, their families, relatives, wantoks, servants, agents and other settlers on the property described as Portion 47, Milinch of Dumpu, Fourmil of Madang, Madang Province, contained in Volume 20 Folio 157.
   3. An order, pursuant to Order 12 Rule 30(1) of the National Court Rules 1983 that the Defendants, their families, relatives, wantoks, servants, agents, and other settlers on the property deliver vacant possession of Portion 47, Milinch of Dumpu, Fourmil of Madang, Madang Province, contained in Volume 20 Folio 157.
   4. Pursuant to Order 13 Rule 3(2) of the National Court Rules 1983, leave be granted to the Plaintiff to issue a Writ for Possession followed by a issuance of a Writ of Possession to be executed within thirty (30) days of this order.
      

Background facts

3. The Plaintiff is a company and the registered owner of the property described as Portion 47, Milinch of Dumpu, Madang, Madang Province. The land contains 235 hectares and is situated at Dumpu, Madang Province. The First and Third Defendants are farmers and settlers currently occupying on portions of Portion 47. The second Defendant is the son of late Robert Makive Asineha, the previous title holder of Portion 47. The late Asineha’s State Lease, Volume 59 Folio152 was forfeited in 2006 and a new State Lease, Volume 20 Folio 157. was granted to Kaure Investments Ltd in 2013. In February 2014, the Plaintiffs purchased the property, Portion 47 from Kaure Investments Limited and is the current registered owner. The Plaintiff intends to develop the land but is hampered by the presence of the Defendants who are currently occupying parts of the land. Despite notices being given, the Defendants have not moved out of the property resulting in the current proceedings. The Defendants claim on the other hand that they are farmers on state lease Volume 59 Folio 152 granted to late Robert Makive Asineha who has permitted them to occupy and farm the land. They dispute the Plaintiffs title to the property, Volume 20 Folio 157.
   

Evidence

4. The Plaintiff relies on the following affidavits:
   
   1. Affidavit of Michael Beirne sworn 6^th and filed 18^th February 2023.
   2. Affidavit of Gary Litz sworn 22^nd and filed 25^th July 2023
      
5. The First Defendant relies on the following affidavits:
   
   1. Affidavit of Silas Mohane sworn and filed 15^th June 2023.

ii. Affidavit of Silas Mohane sworn 18^th and filed 19^th September 2023.

iii. Affidavit of Agus Lubua sworn and filed 18^th August 2023.

6. The Second Defendant relies on the following affidavits:
   
   1. Affidavit of Raymond Asineha sworn 6^th and filed 11^th April 2023

ii. Affidavit of Raymond Asineha sworn 10^th and filed 17^th August 2023.

3. Affidavit of Wilson Thompson sworn 18^th and filed 12^th May 2023.
   

The Plaintiffs Claim

7. Based on the facts sworn in the affidavits filed, this is the summary of the Plaintiffs claim. The Plaintiff says it is the registered proprietor of Portion 47. It purchased the land from Kaure Investments Ltd and the title was transferred to it in February 2014. The land contains 235 hectares. The land is currently occupied by the Defendants and other settlers. In response to the second Defendant’s claim, he too has a State Lease over the property, Mr. Gary Litz explains that the second Defendant’s father, late Robert Makive Asineha and one Isembo Asineha were issued a State Lease Volume 59 Folio 152, as joint tenants, over Portion 47 in 1975. In August 2006, the Minister for Lands, by publication in the National Gazette, forfeited the State lease held by the Asinehas. In May 2013, the PNG Land Board granted a new State Lease, Volume 20 Folio 157, over Portion 47 to Kaure Investments Limited. The title held by Kaure Investment Ltd was then transferred to the Plaintiff in February 2014. The Plaintiff submits that the Title issued in 1975 is forfeited more than 17 years ago and does not exist and that the Defendants do not have a legal or equitable interest over the property, Portion 47.
   

The Defendants Claim

8. The Defendants oppose the application. The main gist of their evidence and submission is that the property, Portion 47 was used for rural farmers to graze cattle and for agricultural training set up by the government. They submit, late Robert Makive Asineha, a member of the Highlands Farmers and Settlers Association, was granted a state lease over the property in 1975. Since his death the estate has been submitted to the Public Trustee of Papua New Guinea for management. Meanwhile they were surprised to learn that a second State lease over the same property was issued and subsequently transferred to the Plaintiff. In response to the claim that the first State Lease was forfeited in 2006, the defendants submit that the title holder was not notified of the intention to forfeit as prescribed under section 122 of the Land Act. They rely on the decision in Lae Rental Homes Ltd v Seravo (2003) N2483. The Defendants therefore dispute the legality of the forfeiture and the validity of the second State Lease on the basis that it is issued irregularly and contrary to law.
   

Issues

9. The issues for consideration are:
   

i. Whether the Plaintiff is the proprietor of Portion 47.

2. Whether the Plaintiff is entitled to the reliefs sought.
   

Consideration of the Issues

(i) Whether the Plaintiff is the registered proprietor of Portion 47

11. The main issue to determine is whether the Plaintiff is the owner of Portion 47. The Plaintiff has produced, a certificate of title, issued under State Lease, Volume 20 Folio 157 over the subject land, Portion 47. The Title shows the Plaintiff as the current registered owner. Section 32 of the Land Registration Act provides that where an instrument of title describes a person as the proprietor of an estate or interest, that person is the registered proprietor of the estate or interest. Section 33 of the Land Registration Act provides that a registered proprietor of an estate or interest holds it absolutely free from all encumbrances except for fraud and other exceptions set out in (1)(a) to (f). (Mudge -v- Secretary for Lands (1985) PNG LR 387)

12. The defendants dispute that the Plaintiff is the registered as proprietor of Portion 47 because of duplicity of titles. However, there is evidence that the 1975 State Lease Volume 59 Folio 152 relied on by the defendants was forfeited in August 2006 and a new State Lease Volume 20 Folio157 was issued seven years later in May 2013 to Kaure Investments Limited. In February 2014, Kaure Investments Limited transferred the title to the Plaintiff who is now the registered owner by virtue of section 32 of the Land Registration Act.

13. I find from the evidence that the Plaintiff is the registered proprietor of land described as Portion 47, Milinch of Dumpu, Fourmil Madang, Madang Province under State Lease, Volume 20 Folio 157. As stated earlier in the judgment, 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 one (1).

14. It is however worth noting that the Defendants are raising serious allegations disputing the Plaintiffs title on grounds of duplicity and irregularity. The defendants seem to be arguing that the circumstances surrounding the forfeiture of the first State Lease and the grant of the second over the same land, Portion 47 is unsatisfactory, irregular, and/or unlawful. They are questioning the compliance of the processes under the Land Act especially section 122 and the decisions of the Lands Department. The defendants are indirectly seeking a review of the various administrative decisions.

15. Whilst the allegations are serious, the Defendants have not taken any proper and appropriate action or steps to challenge the title in some tangible ways to raise the issue of bona fide dispute as to title. The First Defendants have not commenced any proceedings challenging the title obtained by the Plaintiff. The title was issued many years back. The Defendants have been aware since. The validity of the title was not challenged so far, in a Court of competent jurisdiction.

16. The onus of challenging the validity of title rests on the defendants. Refer: Yandu v Waiyu (2005) N2894, Godowan Investment Ltd v Wambea (2018) N7263, Evangelical Lutheran Church of PNG v Jack David (2022) N 10060.

17. In Yandu v Waiyu (2005) N2894, the National Court (Cannings J) in dealing with an eviction matter held that:

“2. If the registered proprietor of a State Lease commences proceedings in the District Court to enforce their interest in the land there is no bona fide dispute about title to the Land unless some other person demonstrates that they have taken some distinct, formal, legal steps to disturb that title.”

18. Again, in Godowan Investment Ltd v Wambea (2018) N7263, Cannings J said this at paragraph 9 of his judgment:

“The fact that the leases were granted to and registered in the name of the plaintiff gives rise to the presumption that it has good and indefeasible title subject only to the exceptions prescribed by Section 33(1) of the Land Registration Act (Mudge v Secretary for Lands [1985] PNGLR 387). The onus of proving a case of fraud or that any of the other exceptions in Section 33(1) applies rests with the person who challenges the title of the registered proprietor (Niugini Properties Ltd v Londari (2014) N5727).”

19. In the present case, I find the defendants have not appropriately challenged the Plaintiff’s title to the property, Portion 47 up to now and are therefore not entitled to any reliefs not appropriately sought.

2. ii. Whether the Plaintiff is entitled to the reliefs sought in the Originating Summons
   

20. The Plaintiff seeks several reliefs in the Originating Summons. I will deal with them together. Firstly, the Plaintiff seeks a declaration that it is the registered proprietor of Portion 47. From the evidence provided, it is clear the Plaintiff is the registered proprietor of Portion 47, Milinch of Dumpu, Fourmill Madang, Madang Province, State Lease, Volume 20 Folio 157, containing an area of 235 hectares.

21. The second and third reliefs sought is for a judgment for possession and for the Defendants to deliver up vacant possession. This will involve the demolition and removal of any buildings, homes, structures, and improvements done on the property. As I have found, the Plaintiff is the registered owner of the property, Portion 47. There is no bona fide dispute as to title. The Defendants and other unauthorised persons are illegally settling on the property. It appears the Defendants, relatives and other persons have been residing on the land for many years. They have built homes and farms on the land. Is it unreasonable to grant an order for vacant possession. The evidence shows the Plaintiff has taken steps, requesting the Defendant to stay clear off the land. The Defendants were asked to give up possession in February 2022 and again in December 2022. Despite the Notice to vacate was served on the Defendants, they have not moved out and continue to occupy the land. The Plaintiff is therefore entitled to take up possession of the property and there is no good reason for refusing it. This may be difficult for the defendants, but it should not be a surprise as the defendants knew or ought to have known the consequences of settling on someone’s land without their consent.

22. In the case of Godowan Investment Ltd v Wambea (2018) N7263, Cannings J, in dealing with a similar case said this at paragraphs 19-20 of his judgment:

“19. I have no hesitation in granting orders generally in terms of paragraphs 3 and 4. Such orders follow naturally from the declaration that the plaintiff is the registered proprietor of the State Leases over Section 173, Allotments 6, 7 and 8. The person who will be directly affected by such orders is the second defendant. He has erected buildings and other structures on the subject properties and conducts his businesses there. He invested in and improved the properties without the consent of the registered proprietor. That is a risk he voluntarily took and he has to bear the consequences of taking such a risk.

20. There is no evidence or suggestion that the plaintiff by its conduct acquiesced in the second defendant’s conduct. In fact the evidence shows the contrary. The plaintiff warned him on several occasions that he was acting unlawfully. He took no notice and continued to develop the properties. There is no good reason for refusing the relief sought in the originating summons.”
    

23. I am of the same view as that of his honour in the above case. If a person moves in and settles on someone else’s land and builds homes and structures, he does it at his own peril. Such persons are entitled to an equitable interest of being granted a reasonable time to remove their structures and vacate the property. Refer: Jure Investment v Conlife (2018) N7286, Paga Hill Development Company v Daure Kisu (2014) N5683, Laka v Nui (2013) SC1223 and Evangelical Lutheran Church of PNG v Jack David (2022) N10060. In my view, a period of three (3) months is reasonable for the Defendants, their families and servants or agents to remove their homes and structures and deliver up vacant possession.

24. The final relief is for an order for leave to issue a Writ for Possession. The Court has upheld the application for vacant possession. For the same reasons and as a matter of course, leave to issue a Writ for Possession, and if necessary, to be followed by a Writ of Possession.

Costs

25. Finally, as to cost, it is discretionary matter. Generally, an order for cost is awarded to a successful party in a contested hearing. The proceedings have been vigorously defended and substantial cost is incurred. In the circumstances, cost shall be awarded to the Plaintiff to be taxed, if not agreed.

ORDERS

26. The Court orders:

1. By way of a declaration that it is the registered proprietor of a 99-year Agricultural Lease on a property described as Portion 47, Milinch of Dumpu, Fourmil of Madang, in the Madang Province registered as State Lease Volume 20, Folio 157.
   
2. By way of a declaration that it as the registered proprietor of the property, is entitled to vacant possession of the property from the defendants, their families, relatives, wantoks, servants, agents and other settlers on the property described as Portion 47, Milinch of Dumpu, Fourmil of Madang, Madang Province, contained in Volume 20 Folio 157.
   
3. That the Defendants, their families, relatives, wantoks, servants, agents, and other settlers on the property deliver vacant possession of Portion 47, Milinch of Dumpu, Fourmil of Madang, Madang Province, contained in Volume 20 Folio 157 within three months from the date of this order.
   
4. That leave is granted to the Plaintiff to issue a Writ for Possession followed by an issuance of a Writ of Possession to be executed after three months from date of this order.
   
5. That the Defendants shall pay the costs of the proceedings to be taxed, if not agreed.
   
6. Time be abridged.
   

_________________________________________________________________
Ashurst Lawyers: Lawyers for the Plaintiff
Public Solicitor: Lawyers for the First & Third Defendants
Raymond Makive Asineha: Second Defendant in person