N10982

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS NO.  85 OF 2024

BETWEEN:
DANIEL HARGREAVES
-Plaintiff-

AND
BERNARD MARIKA
-First Defendant-

AND
JOHN LUCAS
-Second Defendant-

Lae: Dowa J
2024:  3rd & 5th September

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) SC144
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:
M. Hiob, for the Plaintiff
B. Marika, first Defendant in person. 

DECISION 

5th September 2024

1.	DOWA J:	This is a decision on the Plaintiff’s application for orders amongst others, a declaration that he is the registered proprietor of Allotment 6 Section 9018, Wau, Morobe Province, registered as State Lease Volume 24, Folio 181.

2.	By Originating Summons, the Plaintiff seeks the following orders:

1.	A declaration that the Plaintiff, as the registered proprietor of the property described as Allotment 6, Section 9018, Wau Town, Morobe Province contained in the State Lease Volume 24 Folio 181 (herein the Property) is protected by and holds the Property absolutely free from all encumbrances pursuant to Section 33(1) of the Land Registration Act 1981.

2.	A declaration that the Plaintiff, as the registered proprietor of the Property, is free to use and enjoy his property to the exclusion of the First Defendant, his servants, agents and associates, and other third parties whatsoever including the Second Defendant pursuant to Section 33(1) of the Land Registration Act 1981.

3.	An order pursuant to Section 155(4) of the Constitution and Order 12 Rule 1 of the National Court Rules that the First Defendant, his servants, agents, associates and other third parties whatsoever are illegally and unlawfully occupying and developing the Plaintiff’s Property without the lawful consent and authority of the Plaintiff and that they shall be evicted forthwith from the Property.

4.	An order pursuant to Order 14 Rule 10(1) and (2) of the National Court Rules that the Plaintiff, with the assistance of the Papua New Guinea Royal Constabulary officers and or any other authorized person, with the intent and for purposes of preserving the property, enter the property and conduct the eviction exercise, evicting the First Defendant, his servants, agents, associates and third parties whatsoever illegally and unlawfully occupying and developing the Property and with the use of appropriate force deemed necessary in the circumstances.

5.	An order pursuant to Section 155(4) of the Constitution and Order 12 Rule 1 of the National Court Rules that the First Defendant, his servants, agents, associates, and third parties whatsoever are restrained permanently forthwith from re-entering and occupying the property, erecting structures, developing the Property and disturbing the enjoyment and peace of the Plaintiff, his servants, agents, and associates on the property.

BACKGROUND FACTS

3.	The Plaintiff is self-employed and is the registered owner of the property described as Allotment 6 Section 9018, Wau, Morobe Province. The land is Business Lease contained in the State Lease Volume 24 Folio 181, containing an area of 0.1570 hectares and is situated at Wau township. The state lease was granted to the Plaintiff in June 2014 and was registered on 20th January 2017. The Plaintiff alleges that he could not enter and work on the land due to continuous interference by the first Defendant. The first Defendant disputes the Plaintiff’s ownership to the land and claims that he has been permitted by the second Defendant and the Morobe Lands Office to occupy the land with a promise that he would be given the title to the land once the PNG Land Board meets to consider his application for a State Lease. 

4.	The Plaintiff alleges that he obtained clear title and currently the registered owner free from all encumbrances and says that the second Defendant and other Lands Officers gave false promises and hopes to the first Defendant. The Plaintiff therefore institutes the current proceedings seeking declaratory orders of ownership and for possession and other consequential orders.  

HEARING
5.	The matter was fixed for hearing on 3rd September 2024 by consent of parties. Notice of hearing was served on both Defendants. The Defendants did not show up at the hearing when the matter was called. The Court being satisfied with the proof of service of Notice of Hearing, granted leave to the Plaintiff to proceed ex parte. Almost towards the end of submissions by counsel for the Plaintiff, the first Defendant shows up in Court. The first Defendant appearing in person and not being represented by a lawyer was allowed to give unsworn evidence from the bar in the interest of justice. The first Defendant filed a Defence attaching evidentiary material. The first Defendant was allowed to rely on the defence and other material in his defence. After the conclusion of submissions, the matter was fixed for decision on 5th September 2024, which I now deliver.

EVIDENCE

6.	The Plaintiff relies on the following affidavits:

1)	Affidavit in Support of Daniel Hargreaves filed 21 May 2024;
2)	Affidavit of Paul Anton filed 27 May 2024;
3)	Affidavit of Petrus Edison filed 27 May 2024; and
4)	Affidavit of Daniel Hargreaves filed 30 July 2024.

7.	Based on the facts sworn in the affidavits filed, this is the summary of the Plaintiffs claim.  The Plaintiff says he is the registered proprietor of Allotment 6 Section 9018, Wau, Morobe Province.  He was granted the Business Lease from the Lands Department in June 2014. The State Lease was registered on 20th January 2017. He is now the registered o   wner free from all encumbrances. His ownership to the property is confirmed by two letters from one Ala Ane, the Registrar of Titles and Jonah Suvi, the Provincial Program Advisor, Morobe Provincial Administration, Division of Lands. 

8.	The Plaintiff deposes that since the grant of the Lease, he and his staff were continuously harassed and intimidated by the first Defendant and his family and agents from developing the land.  The caretaker has always been disrupted.  Although the Police officers were called to explain, the first Defendant has been adamant that he has a right to the property. The first Defendants claim to the land is fueled by the second Defendants false and inflammatory letters giving false expectations of ownership. Based on false and misleading information, the first Defendant proceeded even to erect a perimeter fencing recently and proceeded to occupy the land. The Plaintiff says it has now become necessary for the orders sought in the proceedings to protect his interests in the subject property.

FIRST DEFENDANT

9.	For evidence, the First Defendant relies on the following:

i. Defence filed 27th June 2024. 
ii. Oral unsworn statement from the bar.

10.	The First Defendant is a resident of Wau township and has an interest in the property. He filed a Defence in the proceedings disputing ownership of the subject land. He alleges the land is undeveloped and left idle for many years. He was interested in the land and approached the Morobe Provincial Lands officers. With their support, he applied for a state lease in 2018. Pending PNG Land Board meeting for the grant of the lease, he was permitted by the Morobe Provincial Administration, Lands Division, to occupy the land. He is not aware of a title being issued to the Plaintiff and disputes same. He says the Lands Officials from Morobe Provincial Administration, Division of Lands, have continuously assured him that the land remains vacant and that they are not aware of any title being issued to the Plaintiff. 

SECOND DEFENDANT

11.	The Second Defendant filed an affidavit on 28th June 2024. The Affidavit was not tendered into evidence as he did not appear for the trial despite being served Notice of Hearing on 11th July 2024.

ISSUES

12.	The main issues for consideration are:

i.    Whether the Plaintiff is the proprietor of Allotment 6 Section 9018, Wau.

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

CONSIDERATION OF THE ISSUES

(i)	Whether the Plaintiff is the registered proprietor of Allotment 6 Section 9018, Wau, Morobe Province 

13.	The main issue to determine is whether the Plaintiff is the owner of Allotment 6 Section 9018, Wau. The Plaintiff has produced, a certificate of title, issued under State Lease, Volume 24 Folio 181 over the subject land, Allotment 6 Section 9018, Wau.  The Plaintiff’s claim of ownership is supported by Ala Ane, the Registrar of Titles in his two letters dated 9th July 2020 and 16th May 2024. The Plaintiff’s ownership is also supported by Jonah Suvi, the Provincial Programme Advisor, Morobe Provincial Administration, Division of Lands in his letter dated 28th June 2024. Under our current Torrens system in respect of interests in land, titles and ownership interests are created by a system of registration under Sections 26 to 28 of the Land Registration Act. The Title shows the Plaintiff is 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).
. 
14.  The defendants dispute that the Plaintiff is registered as proprietor of Allotment 6 Section 9018, Wau. However, the Defendants have not produced any evidence challenging the clear title the Plaintiff has over the property. The best interest the first defendant has in the property is, as an applicant, the prospect of being granted a state lease.  The first Defendant relies on some correspondence from the second Defendant stating the land remains vacant with a promise that the first Defendant’s application for state lease will be considered favourably. That is all and nothing more. 

15.	I find from the evidence that the Plaintiff is the registered proprietor of land described as Allotment 6 Section 9018, Wau, Morobe Province, under State Lease, Volume 24 Folio 181. 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).

16.	It is however worth noting that the Defendants are disputing the Plaintiffs title on grounds of some irregularity. They are questioning the compliance of the processes under the Land Act and the decisions of the Lands Department. The defendants are indirectly seeking a review of the various administrative decisions. 

17.	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 Defendant has 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. 

18.   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) N10060.

 19.	 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.”

 20.   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).”

21.	In the present case, I find the defendants have not appropriately challenged the Plaintiff’s title to the property, Allotment 6 Section 9018 up to now and are therefore not entitled to any reliefs not appropriately sought. On the other hand, the Plaintiff has established to the satisfaction of the Court that he is the registered owner of the subject property.

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

22.	The Plaintiff seeks several reliefs in the Originating Summons.  I will deal with them together.  Firstly, the Plaintiff seeks a declaration that he is the registered proprietor of Allotment 6 Section 9018, Wau and is entitled to quiet and peaceful enjoyment of his property. From the evidence provided, it is clear the Plaintiff is the registered proprietor of Allotment 6 Section 9018 Wau, Morobe Province, State Lease, Volume 24 Folio 181 free from all encumbrances and is therefore entitled to quiet and peaceful enjoyment of the property. 

23.	The third and fourth reliefs sought is for a judgment for possession and for the Defendants to deliver up vacant possession without resistance. This will involve the demolition and removal of any fences, structures, and improvements done on the property. As I have found, the Plaintiff is the registered owner of the property. There is no bona fide dispute as to title.  The Defendants and other unauthorised persons are illegally hindering the quite enjoyment of the property. It appears the Defendants, relatives and other persons are persistent in their illegal intrusion for years. They have more recently built a fence and occupied the land. Is it then 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 and allow vacant possession.  Despite the requests, the first Defendant has 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 first Defendant, 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.

24.   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.”

25. 	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 the present case, there is no evidence of any structures put up by the first Defendant except for the perimeter fencing. The first Defendant shall be given one month to remove any improvement on the property and deliver up vacant possession of the property.
 
26.  The next relief is for an order for police to be involved in a forced eviction exercise. Although the Plaintiff did not specifically seek the orders, it seems he is asking 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. 

27. The final relief is for permanent restraining orders against the Defendants. Except for the Defendants’ rights to institute appropriate proceedings to challenge the Plaintiff’s title at appropriate forums, it is not an unreasonable request for the grant of the restraining orders to maintain peace especially in the light of the continuous interruptions exhibited by the first Defendant and his supporters.

COSTS

28.	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. The first and second Defendants shall pay the costs in equal portions after taxation. 

ORDERS

29.     The Court orders:
         
1)	By way of a Declaration that the Plaintiff is the registered proprietor of the property described as Allotment 6 Section 9018, Wau, Morobe Province, State Lease Volume 24, Folio 181.

2)	By way of a Declaration that the Plaintiff, as the registered proprietor of the Property, is free to use and enjoy his property to the exclusion of the First Defendant, his servants, agents and associates, and other third parties whatsoever including the Second Defendant pursuant to Section 33(1) of the Land Registration Act 1981.

3)	 By way of a declaration that the Plaintiff 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 Allotment 6 Section 9018, Wau, Morobe Province, registered as State Lease Volume 24, Folio 181.

4)	That the Defendants, their families, relative, wantoks, servants, agents, and other settlers on the property deliver vacant possession of property described as Allotment 6 Section 9018, Wau, Morobe Province, registered as State Lease Volume 24, Folio 181.within one month from the date of this order.

5)	That leave be granted to the Plaintiff to issue a Writ for Possession followed by an issuance of a Writ of Possession to be executed after one months from date of this order.

6)	That the First Defendant, his servants, agents, associates, and third parties whatsoever are restrained permanently forthwith from re-entering and occupying the property, erecting structures, developing the Property and disturbing the enjoyment and peace of the Plaintiff, his servants, agents, and associates on the property.

7)	That the first and second Defendants shall pay the costs of the proceedings in equal portions to be taxed, if not agreed.

8)	Time be abridged.

Dalton Legal Advisory:	Lawyers for the Plaintiff
Bernard Marika: 		First Defendant in person 
John Lucas: 		Second Defendant in person