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National Court of Papua New Guinea |
N11345
PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]
OS NO 3 OF 2025 (IECMS)
BETWEEN
I-SKY RESOURCES DEVELOPMENT (PNG) LTD (1-81547)
First Plaintiff
AND
TUMU TIMBERS DEVELOPMENT LTD (1-22269)
Second Plaintiff
AND
BIRU HITOLO, as Deputy Registrar of Titles of Department of Lands & Physical Planning
First Defendant
AND
ALA ANE, as Registrar of Titles of Department of Lands & Physical Planning
Second Defendant
AND
BENJAMIN SAMSON, as Secretary of Department of Lands & Physical Planning
Third Defendant
AND
DEPARTMENT OF LANDS & PHYSICAL PLANNING
Fourth Defendant
AND
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Sixth Defendant
WAIGANI: MAKAIL J
27, 30 JUNE 2025
STATE LEASE – Special Agriculture & Business Lease – Cancellation of – Fraud alleged against cancellation of State Lease – Proof of
STATE LEASE - Cancellation of State Lease – Process of cancellation of State Lease discussed – Land Registration Act – Sections 160 & 161
PROFESSIONAL CONDUCT – LAWYERS DUTY – Lawyers duty to Court – Duty to put relevant information in search of truth – Failure to call or summon witness – Summons to a witness issued by Court on its own initiative – Professional Conduct Rules – Rule 15 (2)
Cases cited
Peter Gilmai v Abel Tol & NHC (2025) N11279
The State v Sasoruo [1997] PNGLR 676
Counsel
Mr A Waffi for Plaintiffs
Ms V Balio for Defendants
JUDGMENT
1. MAKAIL J: The plaintiffs sue for fraud being perpetrated by the defendants in cancelling the second plaintiff’s Special Agriculture & Business Lease (“SABL”) contained in a letter under the hand of the first defendant to the second plaintiff dated 14th June 2019 (“14 June letter”). Accordingly, pursuant to the originating summons filed 22nd January 2025, they seek declarations that the 14 June letter was a fraud and illegal and that the second plaintiff’s SABL is valid and/or has not been cancelled.
2. The plaintiffs tendered the following affidavits which were marked as exhibits:
(a) affidavit of Sau Shian Chong sworn on 15 January 2025 and filed 22 January 2025 (Exhibit “P1”), and
(b) affidavit of Wisa Susupie sworn on 15 January 2025 and filed 22 January 2025 (Exhibit “P2”).
3. The defendants tendered the affidavit of Benjamin Samson sworn on 21 February 2025 and filed on 3 March 2025 (Exhibit “D1”).
4. From the accounts given by the deponents in these affidavits, the common facts are, the second plaintiff is the registered proprietor of the SABL over the land described as Volume 34 Folip 94, Aidolo, Portion 1C, Milinch, Aramia/Bosavi/Miwa/Aiema/Wawoi/Campell/Kaim/Soari/Avu/Kotale/Piarieme/Samake, Fourmil Ragii/Murray/Kutubu/Aworra, Western Province (“the land”).
5. The land is also described as Kamula Doso Forest Blocks 1, 2 and 3, Balimo, Western Province. The land has an area of 790,800 hectares.
6. The SABL was granted to the second plaintiff on 6 April 2009. On 22 February 2016 the second plaintiff sub-leased the SABL to the first plaintiff for the balance of the file of the SABL.
7. The 14 June letter was sent to the chairman of the second plaintiff advising that the SABL was cancelled.
8. At trial the first and second defendants appeared in response to a summons issued by the Court on 11 June 2025 following the Court’s refusal of the plaintiffs’ application for summary judgment.
9. The main issue is whether the 14 June letter was written by the first defendant.
10. The plaintiffs relied on a subsequent letter by the second defendant to the first plaintiff dated 9 January 2025 (“9 January letter”) and submitted that by this letter the second defendant advised that the 14 June letter “is fake, fraudulent and illegitimate and not recognized by this office” and retracted it. This is because it was not written by the first defendant. Further, there is no record of the SABL being cancelled.
11. The 14 June letter and 9 January letter were tendered by Sau Shian Chong and Benjamin Samson in their respective affidavits (exhibit “P1” and exhibit “D1”).
12. However, Sau Sian Chong and Benjamin Samson are not the authors of these letters and their accounts that the 14 June letter is fake because of irregularities identified in it carries no weight and is insufficient to make a finding that it is fake based on these inferences.
13. Moreover, the tender of the 9 January letter and the plaintiffs’ strong submission that this letter is an admission by the defendants that the 14 June letter is fake and judgment should be entered by consent or otherwise is insufficient to make this finding based on these inferences.
14. On the other hand, the onus of proof is on the plaintiffs to call evidence from the first and second defendants because if they were the authors of these letters, then they should be called upon to verify their veracity. Where they are unwilling witnesses, it is open to the plaintiffs to apply for a summons to secure their attendance at trial. They failed to do that.
15. The duty of counsel for the plaintiffs to bring forth the relevant information in search of the truth cannot be understated. As an officer of the Court, counsel had a duty to summon the first and second defendants to verify the veracity of these letters. In the recent judgment of the National Court in Peter Gilmai v Abel Tol & NHC (2025) N11279 where the counsel was found using generative artificial intelligence tools in the form of ChatGTP in citating case authorities in her written submissions to the Court which were false and misleading, the Court reinforced the importance of the duty of counsel at [17]:
“In addition to their obligations under the general law, lawyers have significant obligations under the general law, lawyers have significant professional obligations under the Professional Conduct Rules 1989. In particular, s 15(2) of those Rules provides that lawyers are not to mislead or knowingly deceive the Court.”
16. Earlier on in The State v Sasoruo [1997] PNGLR 676 the National Court stated that:
“The primary responsibility of the courts and lawyers is to administer justice. Lawyers generally are officers of the court. It is their obligation, both professional and ethical toward the courts they are to appear before.......Apart from their duty to their clients, they also have a duty to the court.”
17. Although the evidence does not establish that the plaintiffs’ counsel engaged in false and misleading conduct, I hope their haste to bring this proceeding to a close and obtain a quick result for the plaintiffs when they relied solely on the 14 June letter and 9 January letter to run the submissions that the 14 June letter is fake, and illegal are not.
18. As the plaintiffs failed to call the first and second defendants, using its own initiative the Court summoned them, and they appeared at the trial and gave evidence under oath. The second defendant gave his account first. His account was that he was the author of the 9 January letter. It was sent to the first plaintiff after he called the first defendant to verify the veracity of the 14 June letter which the first defendant confirmed was not written by him.
19. The first defendant was the second witness. He confirmed that he did not write and sent out the 14 June letter to the second plaintiff. He said that he is the Deputy Registrar of Titles in charge of Islands and Highlands Regions. Because of this, he is not responsible for authorising any letter for Southern and Momase Regions matters such as the one under contention because the SABL is in Western Province and falls within the responsibility of the Deputy Registrar of Titles for Southern Region. Moreover, he reassured the Court that he did not write the 14 June letter.
20. Based on the first and second defendants’ accounts I am satisfied that the first defendant did not write the 14 June letter, and it is fake and illegal.
21. As to whether the SABL has been cancelled, given the above finding, it is not. In any case, there is a process under Sections 160 and 161 of the Land Registration Act by which the Registrar of Titles must follow to cancel a State Lease. Section 160 sets out the grounds on which the Registrar of Titles may cancel a State Lease. Amongst them is where the Registrar of Titles is satisfied that the State Lease has been fraudulently or wrongly obtained by a person. Before cancelling it, amongst others, the Registrar of Titles must summon the person who holds the State Lease to deliver it to him. Where the person refuses or neglects to deliver it to the Registrar of Titles, or cannot be found, the latter may apply to the Court to issue a summons for that person to appear before the Court and show cause why the State Lease should not be delivered up. Pursuant to Section 161(1)(a), the Registrar of Titles may cancel the State Lease delivered up under Section 160.
22. In the present case, there is no evidence from either party that the Registrar of Titles followed the process outlined in Sections 160 and 161 above in cancelling the SABL. In the absence of this evidence, it will be the Court’s finding that the SABL has not been cancelled. It follows that the orders sought at paragraphs 1, 2 and 3 of the originating summons are granted.
23. The orders are:
4. Time shall be abridged.
Judgment accordingly.
________________________________________________________________
Lawyers for plaintiffs: Aigilo Lawyers
Lawyer for defendants: Solicitor General
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URL: http://www.paclii.org/pg/cases/PGNC/2025/217.html