Stettin Bay Lumber Company Ltd v Pacific Development Contractors Ltd [2023] PGNC 368; N10537 (20 October 2023)

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LAND LAW – Doctrine of Accretion – Accretion follows the owner of the root title – Accretion – New land added to dry land or foreshore above high water mark- Belongs to the owner of the dry land.

LAND LAW – Doctrine of Accretion – Accretion – New land added to dry land or foreshore above low water mark- Belongs to the owner of the foreshore.

LAND LAW – All land in the country other than customary land is the property of the State – Section 4 Land Act 1996.

PRACTICE AND PROCEDURE – Whether a party has standing to seek declaratory orders over foreshore reserve land – whether a party has standing to seek declaratory orders to permanently restrain a party not named in the originating summons.

Cases Cited:
Amos Ere v NHC and another (2016) N6515
Gesring Gabing Bob v Stettin Bay Lumber Company Ltd (2008) N3440
Pius Pundi v Chris Rupen (2015) SC1430
Zachary Gelu v Francis Damem (2004) N2762

References:
Halsbury’s Laws of England 2^nd Edition Vol. 33 pp.522 523.
Hunter’s Introduction to Roman law 7^th Ed. 53:

Counsel:
Mr. Felex Kua, for the Plaintiff
Mr. George Akia for the First Defendant

1. GEITA J: By way of introduction both parties consented to conducting this trial by way of affidavit evidence pursuant to s.35 Evidence Act 1975.

No	Type	Deponent	Sworn	Filed
03	Affidavit in support	Yui Sing Chai	19^th May 2022	2^nd June 2022
17	Affidavit in support	Yui Sing Chai	14^th November 2022	15^th November 2022
55	Affidavit in support	Yui Sing Chai	11^th August 2023	21^st August 2023

No	Type	Deponent	Sworn	Filed
03	Affidavit	David Holmes	31 October 2022	4^th October 2022
13	Affidavit	David Holmes	25^th October 2022	4^th October 2022
24	Affidavit	David Holmes	23^rd November 2022	6^th December 2023
48	Affidavit in support	Stanis More	25^th July 2023	27^th July 2023
52	Affidavit in support	Bernard Mabubu	25^th July 2023	4^th August 2023

1. A declaration that the plaintiffs are the legal title holder of portions 183, 184 and 186,1667 and 1668 including the foreshore reserve, a stretch of land along the shoreline at Buluma beach for all purposes.

2. A declaration that the use of the foreshore reserve land along the shoreline at Buluma beach by the defendants with their shipping activities are actions of encroachment to the plaintiffs' underwater lease of portion 1041, Milinch of Megigi, Fourmil Talasea, unlawful and illegal for all purposes.

3. A consequential declaration that the Plaintiffs underwater lease of Portion 1041, Milinch of Megigi, Fourmil Talasea covered the foreshores reserve shoreline at Buluma beach and the defendant’s occupation is unlawful for all purposes.

4. An order that the Defendants be permanently restrained from conducting any shipping activities on the foreshore reserve shoreline.

. 5. Pursuant to Order 14, Rule 10 of the National Court Rules, an Order that the Defendants, their agents, and servants whosoever be restrained in the interim from conducting any shipping activities, including related activities on the foreshore reserve shoreline covered under the Plaintiffs underwater lease of portion 1041, Milinch of Megigi, Fourmil Talasea until further orders from this court.

5. The Plaintiff Company holds State Lease/Title to portions 183, 184,186 and portion 1041, an adjacent land containing an area of 0.197 hectares including all that piece of land below the high-water mark of Stettin Bay in Megigi, Talasea in West New Britain. A sum total of approximately 3.35 hectares. Of those stretch of land, 3.0422 hectares lie horizontal to the foreshore reserve and the shoreline of Buluma beach, which is adjacent to the Stettin Bay Lumber Company property, particularly portions 183,184 and 186.

6. The Plaintiffs' submission is predicated on their original Originating Summons and their amended Originating Summons filed on 29th May 2023 seeking declaratory orders.

7. The Plaintiff alleged that the Defendant is using the foreshore area for their shipping activities including carrying out repairs and maintenance on its boats, which he claims is reserve land. He claims there is constant hammering, banging, and welding activities including the constant movement of heavy vehicles to and from the fore shoreline. Its barges and tugboats are also using the foreshore reserve shoreline. He claims these activities to be illegal and further causing nuisance and disturbing the peaceful settlements of residents on Portions 183,184 and 186 at Milinch of Megigi at Talasea which is about 50 meters away and adjacent to the foreshore reserve shoreland.

8. That there is a foreshore reserve, a stretch of land along the shoreline at Buluma beach which is about 50 meters away and adjacent to the Plaintiffs state lease/title particularly portion 183, 184 and 186 at the Buluma beach.

9. The Plaintiff also alleged that Beli Land Group customary landowners have claimed the foreshore land to be unrestricted land for marine operations and have entered into a land rental agreement with the 1^st Defendant on 17^th September 2017.

10. The Plaintiff Company claims to have an underwater lease described as Portion 1041 which is directly adjacent to the foreshore reserve and has legal rights to that lease for activities as intended as Gazetted on 20^th March 1984 by the then Minister of Lands, Mr. B. Korowa. Portion 1041 is situated in the Milinch of Megigi, Talasea. The land is designated for a special wharf and ancillary purposes. It includes viz: ....

“All that piece of land below the High Water Mark of Stettin Bay containing an area of 0.197 hectares or thereabouts, being part Of Portion 1041 Situated in the Milinch of Megigi Fourmil of Talasea West New Britain Province commencing at a point on the said High Water Mark of Stettin Bay bearing 279 degrees 14 minutes for 34 meters from the most eastern corner of Portion 1041 thence...30 meters to the point of commencement be the said several dimensions all a little more or less m and all bearings Fourmil Standard as delineated on plan catalogued M/15/166 in the Department of Lands and Surveys Port Moresby.”

11. That the Defendants activities are directly causing interferences and disturbance to the Plaintiffs peaceful settlement at their residence on Portion 183, 184 and 186 Milinch of Megigi, Fourmil Talasea just about 50 meters away and adjacent to the mentioned foreshore reserve shoreline as stated in paragraph I of the submission.

12. That the affidavit of David Holmes filed 04th November 2022 clearly confirmed that the foreshore reserve land at the Buluma beach is State land and not a customary land for the customary landowners to claim ownership over it.

13. That the Rental Agreement by the purported Beli Land Group customary landowners with the First Defendants on the 15th September 2017 claiming the foreshore reserve land as an unrestricted land for marine operation at the Buluma beach and waterfront areas is inconsistent with the principals of foreshore reserve land.

14. The Plaintiff has an underwater lease describes as Portion 1041 that is directly adjacent to the foreshore reserve and we submit that it has legal right to that lease for activities as intended and gazetted. The Plaintiff submitted that although the foreshore reserve had never been paid for and claimed as a customary land the customary owners have never made any claim or objection to the property and therefore the property remains public and may be used for public purposes.

15. The Plaintiff never intended to claim ownership of the foreshore reserve as it is understood that the foreshore reserve is designated for public beach or for public recreational purposes and not for industrial activities and especially when it is directly adjacent to the Plaintiffs' residential areas/leases as in Portions 183, 184 and 186.

16. The Plaintiff is the title holder of Portion 1668 and it is a state lease and Stanis More including Bernard Mabubu are not the lease owners or title holders of Portion 185, 187. It is illegal for Stanis More and Bernard Mabubu to be using the foreshore reserve for their current industrial business activities with the First Defendant.

d) That the Plaintiff lacked standing to file and maintain these proceedings against the 1st Defendant and has no right in law or equity to seek relief against the 1^st Defendant in respect of the Foreshore Reserve Land.

18. He is a local from Buluma village, Hoskins LLG in the Nakanai District of West New Britain Province. He restates the history of this dispute between the Plaintiff and the 1^st Defendant dating back to 2017. That the use of the foreshore land by the 1^st and 2^nd Defendants were solely authorised by locals of Nile Community at Buluma and claims that the foreshore area remains customary land since time immemorial and were not included in any of the State Leases. The reliefs sought by the Plaintiff must be dismissed.

19. He is a local from Buluma village, Hoskins LLG in the Nakanai District of West New Britain Province. That the underwater lease was not covered in the land lease arrangements. State Lease Portions 185, 187 and 188 were trading and logging leases. Portions 187 and 188 were returned to the Buluma Landowners of which title is yet to be secured. That the foreshore/reserve land at Buluma is not owned by Stettin Bay Lumber Company and they have no right to lay claim. That the use of the foreshore land by the 1^st and 2^nd Defendants were solely authorised by locals of Nile Community at Buluma and claims that the foreshore area remains customary land since time immemorial and were not included any of the State Leases. The reliefs sought by the Plaintiff must be dismissed.

20. That in proceedings seeking declaratory orders, the Supreme Court in Pius Pundi v Chris Rupen (2015) SC 1430 held that:

"A declaration is a discretionary remedy that should only be granted where there exists a real controversy between the parties to the proceedings, a legal right is at issue, the party seeking it has a proper or tangible interest in obtaining it, the controversy is within the court's jurisdiction, the defendant has a proper or tangible interest in opposing the plaintiff's claim and the issues involved are real, and not merely of academic interest or hypothetical. "

21. Further in Zachary Gelu v Francis Damem (2004) N2762 the Court held as follows:

"A declaration also known as declaratory judgment is a discretionary order made by a high court declaring what the law is. It merely defines and declares the rights of parties and their legal relationship and is not accompanied by any sanction or means of enforcement, The declaration will be granted only if the claim relates to some legal right or interest recognised by law.”

22. In order to obtain a Declaration, the factors which are required to be established are well-settled and summarized in numerous cases including Amos Ere v NHC and another (2016) N 6515. The Plaintiff must show:

(e) the Defendant must be a person having a proper or tangible interest in opposing the Plaintiffs claim

(f) the issue must be a real one, not merely of academic interest, hypothetical or one whose resolution would be of no practical utility.

23. Based on the above case laws, the Court needs to be satisfied that the considerations or factors in the case of Amos Ere v NHC exist before it can grant the declarations sought. The first three (3) factors are of importance in this case.

24. Furthermore, in annexure B to the Affidavit of David Holmes filed 4 October 2022 [Court Document # 12] is a letter dated 25 September 2012 from the Acting Lands Advisor Kasen Dumi from the Office of the Provincial Administrator, West New Britain Province to the Plaintiff advising them that they do not have any right at all to occupy the Foreshore Reserved Land. Therefore, it can be safely concluded that the Foreshore Reserve Land the subject of this proceedings is a government land and belongs to the State and not the Plaintiff.

25. The 1^st Defendant submitted that the evidence from all parties is quite overwhelming in regard to how the process of accretion has taken place due to the buildup of sedimentation by the Ko Creek. Annexure B to the Affidavit of David Holmes filed 4 November 2022 which is the letter dated 25 September 2017 from the Acting Lands Advisor confirmed that position. Also, the Boundary Survey Report by Mr McKibben annexed as Annexure B to the Affidavit of David Holmes filed 4 November 2022 Court Doc # 13 also confirms the accretion.

26. Therefore, the Plaintiff is not entitled to or does not have any right to the Accreted Land either to occupy or purchase the Accreted Land for the following reasons as the Plaintiff has not met first three tests set out in Amos Ere v NHC a Anr (2016) N6515. The Plaintiff’s failure to meet the first three requirements set out in Amos Ere v NHC & Ars (2016) N6515 is fatal to the Plaintiff's case and warrants dismissal of the entire proceeding pursuant to Order 12 Rule 40 & (c) of the National Court Rules.

27. In the case of Gesring Gabing Bob v Stettin Bay Lumber Company Ltd (2008) N3440, the Court decided that for the tort of trespass to land to survive, the following five elements must be successfully made out. They include:

28. Therefore, going by the above case principle the Plaintiff does not have any right to lawful possession of neither the Foreshore Reserve Land nor the Accreted Land. Furthermore, the Plaintiff has failed to prove that its enjoyment of the foreshore and accreted land was interfered with by the First Defendant.

29. The cardinal point in question, vix., was there an accretion or not. This is a question of fact to be determined from the evidence in the first instance.

30. The Plaintiff claims that the accreted land was back then deposited to the shoreline thereby increasing the extension of boundaries as claimed by the First Defendant but it is the same land declared as the foreshore reserve land owned by the state the subject of the current proceeding.

31. The 1^st Defendant rebuts that the boundary survey of the Foreshore Reserve Land was done in 1968 however overtime, large area of land has accreted (built up) and it resulted in extension of the shoreline. The Accreted Land has not been acquired by the State through the set acquisition processes under the Land Act 1996 hence the boundaries of the Foreshore Reserve Land were not extended over the Accreted Land.

32. The Plaintiff claims that the foreshore reserve land is part of the land adjacent to the sea which is alternatively covered and left dry by the ordinary flow of the tides and makes up the foreshore prima facie is vested in the State and not the self-claimed Beli Land Group customary landowners.

33. The First Defendant rebuts that the Accreted Land, which is outside of the Foreshore Reserve Land, remains customary land. The Accreted Land has not been compulsory acquired by the State hence it is vested in the customary landowners of the Buluma Beach who now have an incorporated land group called Beli Land Group. The ownership of the Accreted Land is vested on the customary landowners of Buluma Beach. On 15 September 2017, the customary landowners of Buluma Beach through Beli Land Group signed a Land Rental Agreement with the First Defendant for the latter to use the Accreted Land for its business operations in consideration of K2, 500.00 monthly rental.

34. From the evidence there is an assumption by the 1st Defendant’s Registered Surveyor Mr W.D. McKilbben in 2022, that there was a large area of land that has accreted since the boundary survey was carried out in 1968. In his opinion he stated that the built-up land was an extension to the original Forest Reserve and is State Land and not customary land. Since this piece of evidence was from an expert witness, its introduction into court as part of evidence and its authenticity was queried by court. This expert evidence was not introduced into court properly as a testimony, save as an annexure by the 1^st Defendant. Upon exchange between court and counsel of 1^st Defendant this evidence was abandoned.

35 Other than that, there were no oral evidence from Buluma village community who live along the Buluma Foreshore of any known changes in their landscape over time to show that Ko-creek by alluvion or dereliction added to the dry land or foreshore, so that it became situated over the high-water mark. The evidence of Bernard Mabubu and Stanis More of Buluma village makes no mention of any significant change to the Buluma Foreshore during their lifetime or the lifetime of the Nile Community and from other witness or forefathers save to claim that they own the accreted land as customary land from time immemorial.

36. I cannot admit that from the evidence from the Plaintiff or the Defendant that the land in dispute was caused by accretion save for some photographs in their attempts to show that there indeed was land build-up of some sort beyond the foreshore, which is adjacent to the Plaintiff’s properties at Portions 183, 184 or 186. Similarly, some photographs in evidence show signs of shipping activities and some ships moored at the waterfront, some 50 meters away from the Plaintiff’s three properties. There is also a public road, measuring 20 meters wide along the waterfront separating the Plaintiff’s properties.

37. In the absence of crucial evidence of what happened a long time ago to the Buluma Foreshore land, no records of survey made at the appropriate time including the evidence of the expert witness which was conflicting. NB. This evidence however has been abandoned. In the result I think the question of avulsion or accretion becomes one of fact unassisted to any material extent by presumption of law or considerations of onus.

38. To this end the status of the existing supposed accretion invites consideration of the original title of Portion 183, issued to the Plaintiff on 26 June 1970; Portion 186 for the Plaintiff issued on dated 26 June 1970 and Portion 184 on 2 September 1971. Under Section 61 of The Land Ordinance 1962 the three portions of land were deemed to be owned by the Plaintiff and had the force and effect of a State Lease – It follows that “the ultimate root of title to the land is the State of Papua New Guinea.” From all the evidence canvassed thus far the Plaintiff’s three portions of land, 183,184 and 186 do not lend support to any accretion either within or near its lease boundaries.

39. The term accretion has been pleaded and raised in submissions and so this word should be defined so that its significance shall be appreciated in this decision.

“Where tidal water recedes gradually and imperceptibly from the land or land by alluvion or dereliction is added to the dry land or foreshore so that it becomes situate above the high-water mark of ordinary tides or above the low water mark it belongs if above the high-water mark to the owner of the dry land to which it is add and if above the low water mark to the owner of the foreshore.” Halsbury’s Laws of England 2^nd Edition Vol. 33 pp.522 523.

“ All that piece of land below the High Water Mark of Stettin Bay containing an area of 0.197 hectares or thereabouts being part of Portion 1041 situated in the Milinch of Megigi Fourmil of Talasea, West New Britain Province commencing at a point on the said High Water Mark of Stettin Bay bearing 279 degrees, 14 minutes for 34 metres from the most eastern corner of Portion 1041 thence bounded on the south-east by the said High Water Mark south-westerly for approximately 88 metres to a point on the north-eastern boundary of Portion 2058 in the Milinch of Megigi thence bounded on the south-west north-west and north-east by straight lines bearing 330 degrees 24 minutes for 40 metres 4 degrees 48 minutes 50 seconds for 57.48 metres and 99 degrees 14 minutes 30 metres to the point of commencement be the said several dimensions all a little more or less and all bearings Fourmil Standard as delineated on plan catalogued M/15/166 in the Department of Lands and Surveys Port Moresby.

41. From the plan it is evident that the Lease extends from the dry land, cutting through the foreshore reserve and into the high-water mark. It follows that if hypothetically, there was accretion within Portion 1041, the new land would follow the title according to the doctrine of accretion, however there is no evidence to that effect. The doctrine of accretion appears to come from the Roman law where it was classified as accessio. According to Hunters’ Introduction to Roman law 7^th Ed. 53: “The slow increase of land near the mouth of a river so gradual as to be at each moment imperceptible was called alluvio and the increase belongs to the owner of the land enriched by the accretion.”

42. In this case the lease was granted under special purpose for a wharf and other ancillary purposes. However, since it is situated further away from the area of contention it is of no relevance to this dispute and serves no utility in these proceedings. This change of heart , possibly an afterthought was reflected in the omission of Portion 1041 in the Plaintiff’s Amended Originating Summon filed on 29 May 2023. .

43. As regards all land ownership by and within a Sovern State, the common of England is stated thus in Halsbury’s Laws of England (2^nd Ed.) Fol. 33 at pp 520 at seq:

“The soil of the sea between the low-water mark and so for out to sea as is deemed by international law to be within the territorial sovereignty of the Crown is claimed as the property of the Crown although outside the realm. The soil of the bed of all channels, creeks and navigable rivers, bays, and estuaries, as far up the same as the tide flows, is prima facie the property of the Crown. The Crown also claims to be entitled to the mines and minerals under the soil of the sea within these limits. The Crown can grant and in manycases has granted the soil below the ordinary low water mark to subjects but such a grant is subject to the public rights of navigation and fishing and rights ancillary thereto existing over the locus of the grant.”

44. The common law position as it were and is still current is mirrored in Section 4 of Land Act 1996. It reads:

(1) All land in the country other than customary land is the property of the State, subject to any estates, rights, titles, or interests in force under any law.

(2) All estate, right, title and interest other than customary rights in land at any time held by a person are held under the State.

45. Therefore, being fortified by the doctrine of accretion, I find that all new land beyond the high-water mark and all new land above the foreshore belongs to the Independent State of Papua New Guinea. I am unable to make a finding whether there was accretion due to insufficient facts put before me.

Whether the Plaintiff’s rights were breached, and does he have standing to sue?

46. The Plaintiff claims that the 1^st Defendants shipping activities including the movement of heavy vehicle along the foreshore area they were causing a nuisance and disturbing the peaceful enjoyment of residents on his three nearby properties, (Portions, 183,184 and 186). Such activities were illegal. NB: The Plaintiff’s properties are situated some 50 meters away from the foreshore reserve land.

47. The 1^st Defendant argued that he was not carrying out any business operations on the Foreshore Reserve Land. Furthermore, The First Defendant was not carrying out any business operations on any of the Plaintiff's properties. The Plaintiff does not have a right or proper and tangible interest to seek any such declaratory remedy in respect of the Foreshore Reserve Land along the shoreline at Buluma Beach?

48. That the Plaintiff has no standing to pursue a claim for trespass and intrusion regarding the Foreshore Reserve Land, because the Plaintiff is not the owner of the Foreshore Reserve Land, it does not have any standing to pursue this claim. And secondly the Plaintiff is pursuing a claim for intrusion and trespass. In summary, Plaintiff is claiming the tort of trespass. (Gesring Gabing Bob v Stettin Bay Lumber Company Ltd (2008) N344)

49. Clearly there is insufficient evidence from the Plaintiff for court to preserve and protect his rights. I quite agree with Counsel of 1^st Defendant’s submissions that the Plaintiff is claiming the tort of trespass, if indeed one existed at all in these proceedings. I doubt this to be the case.

50. For the 1^st Defendant, I turn now to examine the cases cited or referred to me in these proceedings to try and answer the question I posed above.

51. Again, I agree with the view expressed by Counsel of 1^st Defendants that in order for a declaration to be obtained the well settled factors reflected in the above mentioned two cases including the factors in Amos Ere v NHC and another (2016) N5615 must be shown. That (a) there must exist a controversy between the parties, (b) the proceedings must involve a right, (c) the proceedings must be brought by a person who has a proper or tangle interest in obtaining the order. (Emphasis mine).

52. My examination of the law has fortified my conclusion in this manner: That the Plaintiff suit seeking declaratory orders does not conform with known case law on this subject including those well settled principles pronounced in the cases cited above. There is no evidence of controversy, and the Plaintiff does not have a proper of tangle interest in obtaining the order, save the Independent State of Papua New Guinea. To my mind it is superfluous to apply for declaratory orders to restrain either the 1^st Defendant or its dealings with Beli Land Group, local landowners of Buluma village Hoskins who were not a party to these proceedings, for that matter.

53. Upon the evaluation of evidence and placing them against the law produced one conclusion, that the Plaintiff does not have legal standing in law or equity to lay claim or seek declaratory relief. His three leases are all confined within the parameters of the grant and does not extend beyond the reserved foreshore land or land alleged to be added beyond the foreshore or high-water mark. The Plaintiff does not have any right over the foreshore reserve in law or equity and his claim is frivolous and not proper before this court.

54. My conclusion is further fortified by looking closely at the Plaintiffs Origination Summons of 2 June 2022 and the Amended Originating Summons filed on 29^th May 2023 seeking declaratory orders: All his Leases/Titles are exclusive of all reserve foreshore land along Buluma beach; The Plaintiff does not have any rights either in law or equity to be overly concerned with what’s happening in his neighbour’s land. In any event there is a buffer zone created by the dividing main road and the foreshore areas said to be a distance of some 50 meter away; The making of an assessment of what’s happening of one’s neighbour’s land to be unlawful and illegal is not the Plaintiff’s concern; The Plaintiff’s actions of what’s happening to land adjacent to the Plaintiffs land described as actions of intrusion and trespass are baseless and not founded in law or equity. (Gesring Gabing Bob v Stettin Bay Lumber Company Ltd (2008) N3440). The Plaintiff does not have standing in law to make those assertions. Put differently in my view the Plaintiff is a busybody:

3. The Plaintiff does not have legal standing to file suit against the Defendant

4. The Plaintiff’s Titles does not extend beyond the foreshore reserve and along Buluma beach. The only exception being Portion 1041, however that is not in contention as it is outside the areas in dispute.

________________________________________________________________
Mr. Felex Kua: Lawyer for the Plaintiff
Mr. George Akia: Lawyer for the First Defendant

National Court of Papua New Guinea

Stettin Bay Lumber Company Ltd v Pacific Development Contractors Ltd [2023] PGNC 368; N10537 (20 October 2023)