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National Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
OS No. 180 OF 2022 (IECMS)
BETWEEN:
GLOBAL TRANSFERS LIMITED (1-54649)
Plaintiff
AND:
MAKU DAI and TOUA KOHU for and on behalf of themselves and on behalf of members of the Kwaradubuna Clan of Hanuabada Village, National
Capital District
First Defendants
AND:
SEURA LOA and SIOSI DAERA for and on behalf of themselves and on behalf of the members of Tubumaga Clan of Hanuabada Village, National
Capital District
Second Defendants
AND:
MEA LAHUI and KORA LAHUI for and on behalf of themselves and on behalf of the members of Vahoi Clan of Hanuabada Village, National
Capital District
Third Defendants
Waigani: Bre, AJ
2024: 16th February and 19th July
CIVIL PRACTICE AND PROCEDURE – declarations and permanent injunction sought – jurisdictional basis – Section 33 Land Registration Act and Section 155(4) Constitution – State lease - general discretionary power in the Court to protect existing rights.
DECLARATIONS – there must exist a real controversy – dispute to registered land title – constructive fraud and customary interest alleged to challenge interest in land – defendant must have proper or tangible interest to oppose declarations.
Cases Cited
Amos Ere v. National Housing Corporation [2016)] N6515
Camillus v Mota [ 2022] SC2210
Emas Estate Development v John Mea & Ors [1993] PNGLR 215
Ising v Ande [2014] SC1359
Job v Tori [2020] N8218
Kimas v Oala [2015] SC1475
Mudge v Secretary of Lands [1985] PNGLR 387
Ok Tedi Mining Ltd v Niugini Insurance Corporation [1988-89] PNGLR 425
Papua New Guinea Air Services Ltd v Tai [2015] N5870
Pius Pundi v Chris Rupen [2015] SC1430
Shengtai Investments Ltd v Chen Jing [2017] N6753
Tin Siew Tan v PNG Electricity Commission [2003] SC683
The State v Lohia Sisia [1987] PNGLR 102
Waigani Heights Development Ltd v Mul [2018] N7162.
William Powi (Acting Administrator for Southern Highlands Province) v Southern Highlands Provincial Government [2006] SC844
Legislation
Constitution, s155(4)
Land Registration Act Chapter 191, s33
ORIGINATING SUMMONS
Hearing of the originating summons where the plaintiff sought declaratory orders and permanent injunction.
Counsel
Ms E Duma, for the Plaintiff
Mr H Kevau, for the First, Second and Third Defendants
DECISION
19th July 2024
1.BRE, AJ: INTRODUCTION: Global Transfers Limited seeks declaratory orders that it is the registered proprietor of portion 2545 located at Burns Peak, Port Moresby and permanent injunction to restrain the defendants from disturbance. The defendants are landowners from Hanuabada who dispute the plaintiff's State lease on the basis of customary ownership and constructive fraud.
THE PLAINTIFF'S CLAIM
2. By Originating Summons filed on 19 November 2020, the main relief sought by the plaintiff are declaratory orders and permanent injunction as follows:-
"1. A Declaration pursuant to the inherent jurisdiction of the Honourable Court, section 33(1) of the Land Registration Act Chapter 191 and section 154 (4) of the Constitution that the Plaintiff is the duly recognised owner and proprietor of the property described as State Lease, Volume 54, Folio 18, Portion 2545, issued on 7 June 2013, located at Burns Peak along Poreporena Highway, National Capital District.
2. A Declaration pursuant to the inherent jurisdiction of the Honourable Court and Section 155(4) of the Constitution that:
(a) the Defendants are not the recognised owners of the property described as State Lease, Volume 54, Folio 18, Portion 2545, issued on 7 June 2013, located at Burns Peak along Poreporena Highway, National Capital District.
(b) the Defendants are not authorised to enter the land within the State Lease.
3. Consequently to the above an order that the Defendants their agents, servants relatives and associates be permanently restrained forthwith from further interfering with, intimidating or harassing the plaintiff and its agents, servants, and associates from full use and enjoyment of the said property described as State Lease, Volume 54, Folio 18, Portion 2545, issues on 7 June 2013, located at Burns Peak along Poreporena Highway, National Capital District."
3. The defendants filed their Notice of Intention to Defend on 29 November 2023.
PARTIES EVIDENCE
Plaintiff
4. The plaintiff relies on the following affidavits:-
Defendants
5. The defendants rely on the affidavits of:-
ISSUE
6. The primary issue for determination is whether there exists a real controversy that the Court should exercise its discretion to
grant the declarations sought to clarify the rights of the parties.
The secondary issue concerns whether a permanent injunction should be granted, if I decide in favour of granting the declarations
sought.
ANALYSIS
7. The plaintiff seeks equitable remedies that require the exercise of discretion. I address the declaratory orders sought first.
In Pius Pundi v Chris Rupen [2015] SC1430, the Supreme Court held:-
"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."
8. If these tests are not met, then the plaintiff will have no standing to bring the proceeding. See Amos Ere v. National Housing Corporation [2016)] N6515.
9. Declaratory orders are granted to clarify the legal interest of the party seeking it. The applicant must demonstrate that its legal right is at issue and that it has a proper or tangible interest in obtaining the declaratory orders.
10. In opposing the declaratory orders being sought by the plaintiff, the defendants must prove that they have a proper or tangible interest in opposing the declarations sought and the issues involved are real and not hypothetical or an academic exercise.
11. Where the issues to be decided are based on assumed facts or hypothetical questions of law or the issues raised are complex, arguable and does not resolve all issues between the parties or the applicant has no standing, the Court should not exercise its discretion to grant the declarations sought. See: Papua New Guinea Air Services Ltd v Tai [2015] N5870, Tin Siew Tan v PNG Electricity Commission [2003] SC 683, Ok Tedi Mining Ltd v Niugini Insurance Corporation [1988–89] PNGLR 425, Shengtai Investments Ltd v Chen Jing [2017] N6753, and Waigani Heights Development Ltd v Mul [2018] N7162.
12. The plaintiff's evidence shows that it is the registered proprietor of State Lease Volume 54, Folio 18, Portion 2545 Milinch Granville, Fourmil, Port Moresby, NCD located along the Poreporena Highway at Burns Peak, Port Moresby.
The defendants' challenge the plaintiff's registered title on three grounds:-
1) customary interests,
2) clause 6 of the Poreporena Freeway Memorandum of Understanding dated 17 July 1997 entered into with the State ( 'Poreporena MoU'), and
3) constructive fraud.
13. The defendants claim they have customary interests in the land and are the customary owners of Claims 136, 137 and 322 in that same piece of land as Portion 2545. That their customary rights were recognised by the colonial administration.
In raising this argument, the defendants rely on Clause 6 of the Poreporena Freeway Memorandum of Understanding dated 17 July 1997 entered into with the State, when the State constructed the Poreporena Freeway in the National Capital District.
The defendants argue that Clause 6 transfers the legal ownership of the unused portions of the land back to them. That, Portion 2545
is an unused portion of the land that is returned to them by virtue of Clause 6.
14. The defendants also rely on a previous Court proceeding between the same parties in OS 435 of 2007 in which they allege that restraining orders issued against the plaintiff and the Land Board were breached when the plaintiff's application
was granted in 2008 and published in the National Gazette NG 211 of 13 November 2008.
15. The defendants submit that the Court should consider the breach a procedural irregularity in the grant of the title to the plaintiff and one which amounts to constructive fraud which this Court should consider and render the State Lease title of the plaintiff void. Counsel for the defendants relied on the cases of Camillus v Mota (2022) SC2210 and Emas Estate Development v John Mea & Ors [1993] PNGLR 215 for the proposition on constructive fraud.
16. The plaintiff submits that it has a valid State lease which was issued after due compliance with the Land Board processes which
granted its application and registered it as the registered proprietor of Portion 2545. That its' title is indefeasible and protected
by Section 33 of the Land Registration Act Chapter 191 ( 'LRA'). And that, this Court has no jurisdiction to hear customary land disputes.
The plaintiff further submits that there is an interim restraining order in place to prevent the defendants from disturbing its occupation
and use of the land and the dispute has adversely affected its development plans.
Is there a real controversy between the parties?
17. There appears to be a real controversy between the parties as it concerns their respective interests to Portion 2545. It is worth considering the evidence to ascertain whether the defendants have a proper or tangible interest in opposing the plaintiff's claim and there is an arguable case on merits that would not warrant the exercise of discretion to grant the declarations sought.
1 and 2) Customary interests and clause 6 of the Poreporena Freeway Memorandum of Understanding dated 17 July 1997 entered into with the State ( 'Poreporena MoU')
18. I have examined the evidence of the defendants and form the view that the defendants are customary landowners to lands that now occupy the Poreporena Freeway portion from Burns Peak and had those lands and their interest recognised as such during the colonial administration in 1962. The recognition by the then colonial administration recognised their customary interest as Claim 136 or Dinagata land by Vahoi Clan, Claim 137 Tubumaga Clan and Claim 322 Vainakomo land by Kwaradubuna Idibana Clan.
19. The defendants evidence is that Claims 136, 137 and 322 were acquired by the State on 10 August 1995 to develop and construct the Poreporena Freeway. The defendant landowners entered into the Poreporena MoU on 17 July 1997. The defendants' evidence contains Local Land Court decisions confirming their customary interests in the subject lands and their rights to payment and royalties. The defendants' evidence showed the State paid K2million to the defendants for the use of the land and royalties were paid at 0.65toea per cubic meter for excavating gravel.
20. The defendants' evidence also indicates that after the State acquired the land, it was described as Portion 719. The defendants have not put into evidence a copy of a State Lease for Portion 719, however I infer from the defendants' evidence that Claims 136, 137 and 322 were converted or classified as State Lease Portion 719 after the State acquired these lands.
21. The defendants rely on clause 6 of the Poreporena MoU to assert a legal interest over Portion 2545 by claiming that Portion 2545 consists of the unused portion of the land that was not used by the State to construct the Poreporena Freeway and by virtue of clause 6 that land reverted to them as the customary landowners. Clause 6 of the Poreporena MoU reads:-
" That area of Government land known as Portion 719 was acquired by the State for the purpose of connecting Spring Garden Road at Konedobu but the contract for that carriageway having been cancelled and re-designed for the Project, parts of Portion 719 are no longer required as a road. The State will, upon completion of all works for the Project, return to the persons from whom it was acquired, all the area of Portion 719 not required for the Project. "
(Emphasis added)
22. The '' Poreporena Freeway Land Owner Clans" are defined in clause 1.1 to include:-
"all of the landowning clans of Mavara Idibana, Tubuma, Kwaradubuna, Gevana, Mavara Laurina, Vahoi and Geakone."
23. It is not disputed that the defendants represent some of the Hanuabada clans listed in clause 1.1 being the Kwaradubuna, Tubumaga and Vahoi Clans.
24. The defendants submission is that Portions 2545 reverted to them as customary owners by virtue of clause 6 of the Poreporena MoU and Portion 2545 was at the relevant time their customary land, thus they have a genuine, proper and tangible interest in the land.
25. However, I find the defendants reliance on clause 6 alone is not sufficient to demonstrate that they have a proper or tangible interest in the land. The defendants have not produced into evidence an official or formal transfer instrument or documentation from the State releasing the unused portions of Portion 719 back to them as customary landowners. I interpret clause 6 as one that requires the State to, by a formal grant, or some other formal action, identify the unused portions of Portion 719 and consistent with clause 6, transfer those lands back to the customary landowners. Asserting a right to the lands without formal documentation, to me, is not sufficient to demonstrate the legal effect of clause 6. In my view, clause 6 takes effect after the State formally returns the unused areas of Portion 719. There is no provision for the landowners to assert their rights without the act of return or transfer by the State reflected in formal documentation.
26. It is clear to me from the defendants evidence that Portion 719 remained with the State until it reclassified and transferred
part of it as Portion 2545 to the plaintiff. The evidence of both parties is that the area of land now known as Portion 2545 was
classified initially for public utility or a road reserve.
To me, that implies that the subject lands remained State land and part of Portion 719. It appears the State was within its rights
to consider the plaintiffs' application.
27. The defendants' reliance on clause 6 of the Poreporena MoU and its assertion of customary ownership in the unused portions of Portion 719 is a matter for the defendants to pursue with the State and is not a relevant consideration in this proceeding. Customary interests are not a ground to validly contest a State lease under Section 33 LRA.
28. I find that the State continued to retain ownership of the land and later through the authority of the Land Board converted and
reclassified the land to a commercial lease which the State issued to the plaintiff.
Therefore, I am not satisfied that the defendants have adduced sufficient evidence to assert that they have a proper or tangible interest
to Portion 2545.
29. Additionally, the defendants urge the Court to consider three circumstances which it submits amount to constructive fraud: -
30. The defendants submit that the plaintiff breached a standing restraining order when it applied to the Land Board and was granted
the State lease to Portion 2545. The relevant breach would have allegedly occurred when the Land Board decision was published in
National Gazette NG 211 on 13 November 2008. From the evidence of Mea Lahui, proceeding OS 435 of 2007 was still on foot. However, the plaintiff did not provide any evidence to demonstrate that the alleged breach of the interim restraining
order was enforced in 2008.
However, the plaintiff produced evidence (Doc 5) that proceeding OS 435 of 2007 was dismissed on 08 April 2009. There was ample time from 13 November 2008 to 07 April 2009, for the defendants to enforce the restraining order, but that did not occur.
31. In this proceeding, the declarations sought by the plaintiff concerns the State lease issued to it on 7 June 2013, this is some four years after the dismissal of OS 435 of 2007 with the restraining order no longer in force.
I understand the defendants case is that the breach on the interim restraining order in 2008 amounts to a procedural irregularity in obtaining the title and may constitute constructive fraud. However, the National Gazette NG 211 on 13 November 2008 is a publication by the PNG Land Board that it considered and granted a business (commercial) lease over Portion 2545 to the plaintiff. The defendants' course of action apart from enforcing the interim restraining order at the relevant time, would have been to file judicial review proceedings to challenge the decision of the Land Board in 2008 or 2009.
32. In commencing judicial review proceedings, the defendants ought to have also challenged the reliance by the Land Board on the survey map submitted by the plaintiff. The defendants' survey map shows the boundaries of the customary claims recognised by the colonial administration while the plaintiff's survey map does not. As to whether that would have made a difference in the Land Board decision in 2008, it is not for this Court to consider and one that will not be known as there is no evidence that the defendants had commenced judicial review proceedings to challenge the Land Board decision.
33. The plaintiff's evidence is that it applied to the Land Board to rezone the public utility status of the land to a commercial zone. I note from the evidence of Veraverai Uleakarawa (Doc 5) that the zoning was the issue taken up by the defendants in OS 435 of 2007 and the defendants in that proceeding had a claim in the neighboring lands known as Portion 2544C. These lands according to the affidavit of Maku Dai (Doc 17) includes Portion 2545.
34. In raising the issue of irregularity in duplicate of titles, in Maku Dai's evidence he refers to two copies of the plaintiff's title, State Lease dated 17 December 2008 referred to as annexure 'D' and State Lease dated 07 June 2013 however, both annexures in his affidavit contain the State Lease dated 07 June 2013 resulting in insufficient evidence to prove his assertion that there was duplicity of titles and procedural irregularities arose in the process of obtaining the plaintiff's title.
35. On the other hand, the plaintiff's evidence (Doc 5) of the Land Board minutes of 30 June 2009 shows that the Land Board considered that the court proceeding, which I infer to be OS 435 of 2007, was no longer preventing them from deciding on the application and proceeded to grant the plaintiff's application. This was some two months after proceeding OS 435 of 2007 was dismissed on 08 April 2009. There is no evidence of a State lease from 2008 nor 2009. What is before the Court is the State lease issued on 7 June 2013.
36. Section 33 of the Land Registration Act Chapter 191 protects registered proprietors of State leases with indefeasibility of title. One instance where the registered title can be effectively challenged and the title cancelled, is where fraud is proved. The principle of indefeasibility of title has been upheld by the Supreme Court in Mudge v Secretary of Lands [1985] PNGLR 387. The cases of Emmas Estate Development v John Mea & Ors and Hi Lift v Setae [2000] N2004 have reaffirmed the principle of indefeasibility but have expanded fraud to include constructive fraud where procedural irregularities and breaches of the land laws are proved, it is also sufficient to nullify the indefeasible nature of a registered title.
37. A challenge to the indefeasible nature of a registered State Lease should be properly pleaded with particulars consistent with
Order 8 rule 30 of the National Court Rules and commenced by writ of summons. Allegations of fraud whether actual or constructive, are serious matters and must be properly pleaded
and defended. See: Ising v Ande [2014] SC1359 and Job v Tori [2020] N8218.
It is not sufficient to raise allegations of constructive fraud to oppose a declaration for lawful ownership to land.
38. I find the defendants do not have a proper or tangible interest in opposing the plaintiff's claim as they have not filed proceedings alleging constructive fraud nor produced formal documentation from the State returning the subject land to the defendants pursuant to clause 6 of the Poreporena MoU.
CONCLUSION
39. On a balance of probabilities, I accept the evidence of the plaintiff that it has a valid State Lease to land that was rezoned from a road reserve to a commercial zone.
40. In terms of the jurisdictional basis of the declaratory orders, the Court's inherent jurisdiction pursuant to Section 155(4) of the Constitution can be invoked to protect the existing primary rights of an applicant. See William Powi (Acting Administrator for Southern Highlands Province) v Southern Highlands Provincial Government [2006] SC844.
The plaintiff has rights to the land by virtue of the State Lease granted on 07 June 2013 and it has correctly invoked the Court's jurisdiction under Section 155(4) of the Constitution to seek the declarations and permanent injunction.
41. The defendants have not demonstrated on a balance of probabilities that they have a proper or tangible interest to oppose the
declarations sought by the plaintiff. The arguments raised by the defendants of constructive fraud and customary interest are matters
to be commenced by other modes of proceeding.
I find that the defendants generally slept on any rights they may have, equity does not aid laches. The defendants have not established
a proper or tangible interest to effectively oppose the declarations sought by the plaintiff.
42. It is my decision to exercise my discretion to grant the declaration sought by the plaintiff that it is the registered proprietor of Portion 2545 and entitled to the protection granted to it as a registered proprietor of land pursuant to Section 33 of the Land Registration Act.
Permanent Injunction
43. In terms of the permanent injunction sought, parties did not make submissions on this relief. However, there is in existence an
interim restraining order issued on 4 March 2022 (doc 10) preventing the defendants or their relatives and agents from harassing,
intimidating and trespassing onto Portion 2545. As the registered proprietor, the plaintiff is entitled to quiet enjoyment of the
property. See Evangelical Lutheran Church of PNG v Jack David [2022] N10060.
I consider the history and the contentious nature of the claim by the defendants also a relevant factor and exercise my discretion
to grant the permanent injunction sought.
ORDER
44. The formal Orders of the Court are:-
1) A Declaration is granted pursuant to section 154(4) of the Constitution and section 33(1) of the Land Registration Act Chapter 191 that the plaintiff, Global Transfers Limited, is the registered proprietor of the property described as State Lease, Volume 54, Folio 18, Portion 2545, issued on 7 June 2013, located at Burns Peak along Poreporena Highway, National Capital District.
2) The Defendants, their agents, servants, relatives and associates are permanently restrained forthwith from further interfering with, intimidating or harassing the plaintiff and its agents, servants, and associates from full use and enjoyment of the said property described as State Lease, Volume 54, Folio 18, Portion 2545, issued on 7 June 2013, located at Burns Peak along Poreporena Highway, National Capital District.
3) Costs of the proceeding are awarded to the plaintiff to be paid by the defendants on a party/party basis to be taxed, if not agreed.
4)Time for entry of the orders is abridged to the date of settlement by the Registrar of the National Court which shall take place, forthwith.
5) The file be closed and archived.
Orders accordingly.,
________________________________________________________________
Nelson Lawyers Lawyers for the Plaintiffs
Kevau Lawyers: Lawyers for the First, Second and Third Defendants
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