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Rakadui v Lagea [2025] PGNC 499; N11635 (4 December 2025)

N11635

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]


OS NO. 204 OF 2025 (IECMS)


BETWEEN:
DAVID RAIM RAKADUI
First Plaintiff


AND:
VAGA INCORPORATION LANDGROUND (ILG)
(REG NO. 18)
Second Plaintiff


AND
JAMES LAGEA
First Defendant


AND
JOE TONDE
Second Defendant


AND
JESSICA LEO
Third Defendant


AND
ARCHIE KEN KAURA
Fourth Defendant


AND
JAMBO KOMBA
Fifth Defendant


WAIGANI: WIMALASENA J
24 NOVEMBER, 4 DECEMBER 2025


APPLICATION FOR INTERIM INJUNCTIONS – Customary land – Conversion of land under the Land (Tenure Conversion) Act – Certificate of title – Serious question to be tried – Prospects of success – Balance of convenience – Equitable relief - Non-disclosure of material facts -Applicant must come with clean hands.


Cases cited
American Cyanamid Company v Ethicon [1975] UKHL 1
Norman v Pato [2013] PGNC 17
Mahuru v Dekena [2013] PGNC 97
State and Sali v Sisia [1987] PNGLR 102


Counsel
Mr E Nalea, for plaintiffs
Mr A Benny, for first defendant
Mr R Obora, for second defendant
Ms E Bowada, for third and fourth defendants
Mr Tukuliya, for fifth defendant


RULING


  1. WIMALASENA J: This is an application for an interim injunction against the Defendants. The Plaintiffs filed the Notice of Motion seeking the interim injunctions on 31 October 2025. The Plaintiffs seek the following orders against the Defendants:
    1. Pursuant to Order 12, Rule 1 and Order 14, Rule 10(1)&(2) of the National Court Rules and Section 155(4) of the Constitution, the Defendants and their respective relatives, agents, associates, servants whosoever are restrained from developing, clearing, erecting structures, planting food crops and dealing with in any manner or form First Plaintiff's land (property) described as Die Hedika, Portion 4739C, located along Taurama/Magi Link Highway Road within Central Claim 45, National Capital District pending hearing and determination of these proceedings.
    2. Pursuant to Order 12, Rule 1 of the National Court Rules and Section 155(4) of the Constitution the Defendants and their respective relatives, agents, associates, servants whosoever are restrained from harassing, intimidating. abusing including verbally abusing the Plaintiffs, their respective lawyers, relatives, servants and agents and keep a distance of 50 meters pending hearing and determination of the proceedings herein.
  2. The Notice of Motion was taken up for hearing on 24 November 2025 and was further adjourned to 04 December 2025 to enable the Defendants to tender additional evidence and relevant case authorities. The Plaintiffs relied on the affidavit of the First Plaintiff filed on 22 October 2025, the affidavits of the Chairman of the Second Plaintiff filed on 24 October 2025 and 31 October 2025, and the affidavit of Tausie Morea Willie filed on 31 October 2025. Only the Fourth Defendant filed an affidavit dated 17 November 2025 on behalf of the Defendants, with the remaining Defendants relying on that affidavit. The parties made oral submissions, and the Fourth Defendant subsequently filed a further affidavit on 03 December 2025 with a letter issued by the Chief Commissioner of the Land Commission of Papua New Guinea.
  3. To provide context to the Plaintiffs’ case, it is pertinent to note the orders sought in the substantive proceedings. The Plaintiffs filed an Originating Summons on 22 October 2025, seeking the following reliefs:
    1. A DECLARATION that pursuant to Order 12 Rule 1 of the National Court Rules and Section 155(4) of the Constitution, the Contract of Sale and Purchase of Customary Land executed on 21st December 2021 between the First and Second Plaintiffs for the sale of customary land known as Die Hedika, Portion No. 4739C, located along Taurama/Magi Link Highway Road within Central Claim 45 (hereinafter "the Property"), is valid, effective and in force for all purposes and is binding on all parties.
    2. A DECLARATION that pursuant to Order 12 Rule 1 of the National

Court Rules and Section 155(4) of the Constitution, the Certificate of Title in fee simple issued to the Second Plaintiff, which was subsequently transferred to and registered under the name of First Plaintiff on 25th August 2022, which is contained in Register Book No. 40, Folio 100 regarding 6.55 hectares of land known as Die Hedika, Portion No. 4739C, located along Taurama/Magi Link Highway Road within

Central Claim 45 (hereinafter "the Property"), is valid and effective for all purposes and therefore the First Plaintiff is the registered proprietor of the property.


  1. A DECLARATION that pursuant to Order 12 Rule 1 of the National Court Rules and Section 155(4) of the Constitution, the Defendants are illegally occupying the land known as Die Hedika, Portion 4739C, located along Taurama/Magi Link Highway Road within Central Claim 45, on the basis that the Defendants have no lawful title or customary right to occupy or claim the property.
  2. AN ORDER pursuant to Order 12, Rule 1 of the National Court Rules and Section 155(4) of the Constitution, that the Defendants together with their relatives, agents, and associates, deliver vacant possession of the property to the First Plaintiff forthwith, on the basis that the Defendants' continued occupation is unlawful.
  3. AN ORDER pursuant to Order 12, Rule 1 of the National Court Rules and Section 155(4) of the Constitution, that in the event Defendants fail to comply with term 4 of the orders above, the members of the police force in NCD under the command and control of the Metropolitan Superintended enter the subject property and give vacant possession to the First Plaintiff.
  4. AN ORDER pursuant to Order 14 Rule 10(1) & (2) and Order 12, Rule 1 of the National Court Rules and Section 155(4) of the Constitution, restraining the Defendants, their family members, relatives, agents, and associates from issuing threats, intimidating, or interfering with the Plaintiffs, their family members, agents, or any third parties lawfully entitled to access or deal with the property.
  1. The principles governing the grant of interim injunctions are well settled. In determining whether to grant such relief, the Court must consider the following factors: see American Cyanamid Company v Ethicon [1975] UKHL 1; Norman v Pato Norman v Pato [2013] PGNC 17(Cannings J).
  2. The Plaintiffs submitted that a parcel of land known as “DIE HEDIKA” (the land) located at Taurama Valley in the National Capital District was a customary land owned by the members of the Second Plaintiff members for years. The First Plaintiff claims that on 21 December 2021 the said land was purchased by him for K450,000 on a contract of sale with the Second Plaintiff.
  3. The First Plaintiff deposed in his affidavit filed on 22 October 2025 that, with the support and in consultation with the Second Plaintiff, a surveyor was engaged and the land was surveyed and registered as Portion 4736C. However, it appears, as counsel for the Plaintiffs also conceded, that the plan was prepared on 6 September 2021. Be that as it may, the First Plaintiff further deposed that the Second Plaintiff, with his assistance, registered the land as an estate in fee simple and that a certificate of title was issued to the Second Plaintiff on 10 June 2022. Subsequently, according to the First Plaintiff, on 25 August 2022 the Second Plaintiff transferred the title to the First Plaintiff.
  4. The First Plaintiff further averred in his affidavit filed on 22 October 2025 regarding the alleged interference by the Defendants. It appears that the First Plaintiff only became aware of the Defendants’ alleged interference after he purchased the land and proceeded to develop it. The First Plaintiff states as follows:
  5. The First Plaintiff averred that, having become frustrated by the Defendants’ actions, he verified with the Second Plaintiff that there had been no lawful dealings between the Second Plaintiff and the Defendants. Despite repeated demands for the Defendants to vacate the subject land, they have continued to occupy and unlawfully develop portions of the land. When vacant possession was demanded with the assistance of the Second Plaintiff, the Defendants disputed the First Plaintiff’s ownership by alleging that the Contract of Sale and the transfer of title were not genuine, and that the land they occupy does not form part of the land. Consequently, the First Plaintiff asserts that he has been left with no option but to commence these proceedings to seek appropriate declaratory relief and vacant possession.
  6. I will first consider whether there is a serious question to be tried and whether the Plaintiffs have presented a case with prospects of success. The entire case of the Plaintiffs is premised on the validity of the certificate of title relied upon by them. It is clear that the granting of an application for a conversion order is a lengthy process that allows interested parties to put forward their claims, and that a conversion order is made only after a thorough review of all interests in the land. Section 7 of the Land (Tenure Conversion) Act 1963 provides for a citizen including a land group to make an application for conversion in respect of a customary land. Further, under Section 8 of the Land (Tenure Conversion) Act, the process requires the preparation of a conversion plan, the giving of reasonable notice to all persons affected or likely to be affected, and the allowance of a period of not less than 30 days for interested parties to lodge objections. The conversion plan must show the boundaries of the land and, as far as practicable, the ownership or alleged ownership of the land. In addition, before the hearing of any application or objection, the interested parties must be shown the boundaries on the ground and be afforded the opportunity to identify any disputed boundaries. Section 9 of the Land (Tenure Conversion) Act requires that all persons having customary interests in the land must either consent to the conversion or receive adequate compensation where their interests are to be abolished or reduced. The Commission must be satisfied of both consent and adequate compensation, before making a conversion order. Notably, section 14 of the Land (Tenure Conversion) Act requires a notice to be published specifying where the conversion order and the plan may be inspected, and it appears that such notice also requires a period not less than 30 days. It should also be noted that section 34 of the repealed Land Titles Commission Act 1962 as well as section 81 of the Land Commission Act 2022 provide for application for review of the decisions of the commission to the chief commissioner within 90 days. Although the process is complex and lengthy, even when stated simply as above, it is evident that it would take considerably more than four months for a certificate of title to be issued.
  7. Counsel for the Defendants argued that, based on the facts deposed to in the Plaintiffs’ affidavits, the certificate of title produced by the Plaintiffs appears to have been obtained within less than six months. The Chairman of the Second Plaintiff stated in his affidavit filed on 4 December 2025 that the land conversion order was made on 15 June 2021. According to Annexure “GG1”, the land conversion order and the conversion plan were certified on 20 May 2022. On 25 May 2022, the Chief Commissioner wrote to the Second Plaintiff and the Registrar of Titles confirming that the appeal period of 90 days had expired without any requests for review or appeal having been lodged. Further, according to Annexure “GG2”, the certificate of title was issued on 10 June 2022. However, the Chairman of the Second Plaintiff has averred that it was issued on 22 June 2022.
  8. In any event, it appears that for the land conversion order to have been made on 15 June 2021, the application for land conversion must have been made by the Second Plaintiff well before that date. Under Section 8 of the Land (Tenure Conversion) Act, one of the first steps to be taken by the Commission upon receiving an application for conversion is the preparation of a plan. However, in this case, the conversion plan submitted with the conversion order appears to have been prepared on 6 September 2021, which is approximately three months after the land conversion order was made. It is not clear how a plan could have been prepared after the conversion order was made, or whether any prior plan had been prepared for the purposes of the conversion application. The Plaintiffs have not provided any plausible explanation for this discrepancy.
  9. Instead, the Chairman of the Second Plaintiff stated in his affidavit filed on 24 October 2025, that the land was sold to the First Plaintiff on 21 December 2021 and with the support of the First Plaintiff engaged a surveyor and the land was surveyed. As such the same plan prepared on 06 September 2021 was tendered as “C” with his affidavit. Therefore, it appears that, contrary to the actual sequence of events, the Plaintiffs claim that the survey plan was prepared after the land was sold on 21 December 2021. Interestingly, the Chairman of the Second Plaintiff further averred, “I and the other executives of the Second Plaintiff then applied for a certificate of title to the Land Titles Commission under the Second Plaintiff’s name,” thereby giving the impression that the application for conversion was made only after the sale on 21 December 2021. To make matters worse, the First Plaintiff, in his affidavit filed on 22 October 2025, deposed that, as part of the sale agreement, he was required to meet all the costs of the survey plan and that, with the support of the Second Plaintiff, a surveyor was engaged to survey the land. However, the Plaintiffs have not explained how the survey plan on which they rely was prepared three months prior to the sale of the land, in September 2021.
  10. From the manner in which the Plaintiffs deposed in their initial affidavits, they gave the impression that the application for land conversion was made after the land had been sold to the First Plaintiff. It was only in the affidavit filed on 4 December 2025, by the Chairman of the Second Plaintiff that this position was revealed for the first time. However, it appears that the Plaintiffs have nonetheless remained cautious in not disclosing the actual date on which the conversion application was initiated by the Second Plaintiff.
  11. Be that as it may, in the affidavit filed by the Fourth Defendant on 17 November 2025, the following information was revealed:
    1. The District Court in Case No 201 of 2025 has issued an ex parte restraining order against the First Plaintiff and the First Defendant on 24 July 2025 to restrain them from harassing intimidating the Fourth Defendant and restraining them from coming within 100 m of the Fourth Defendant’s land.
    2. That there is proceeding pending in respect of the land at Local Land Court; LLC No 022 of 2021 between Tausi Morea (a member of the Second Plaintiff) & Others and the First Defendant.
    1. That an application for conversion of the same land under Section 8 of the Land (Tenure Conversion) Act is presently pending before the Land Commission, and that the First Plaintiff is the applicant in that application.
  12. During the hearing of the present application, counsel for the Fourth Defendant raised the issue of the pendency of an application for land conversion by drawing attention to the listings before the Land Commission. In response, counsel for the Plaintiffs informed the Court that the matter was wrongly listed. The Plaintiffs’ counsel further informed the court that those proceedings were in fact concluded upon the conversion of the land. However, counsel for the Fourth Defendant vehemently submitted that the hearing before the Land Commission, in respect of the First Plaintiff’s application, is still pending. In light of that assertion, an adjournment was granted to the Fourth Defendant to adduce evidence in support. Accordingly, the Fourth Defendant filed an affidavit on 3 December 2025, annexing a letter from the Chief Commissioner of the Land Commission. The letter reveals the following:
    1. First Plaintiff applied for land tenure conversion over the subject land, and his application remains registered in the Registry.
    2. Due to the absence of supporting documents (including records of hearings, decisions, conversion orders, and correspondence with the Registrar of Titles), the matter was listed for a Call-Over Hearing on 27 February 2025 to verify the status of the application.
    1. First Defendant disputed the application as he has also applied for the conversion of the same land.
    1. There is a Local Land Court (LLC) proceeding instituted for the same land since 2022 and its pending decision.
    2. The Commission declined to conduct any further hearings until the LLC delivers its decision.
    3. On 03 October 2025 the First Plaintiff’s lawyer filed an affidavit and sought to withdraw the application before the Land Commission.
    4. There is another competing application for conversion by another party for the same land and the Second Plaintiff has filed an objection to that application by way of an affidavit file don 19 March 2025.
  13. These matters raise serious questions regarding the case presented by the Plaintiffs. The Plaintiffs have been notably vague in stating material facts in this application. For example, at no point has it been clearly stated when the Defendants entered onto the land. When this issue was raised with counsel for the Plaintiffs, he merely conceded that some of the Defendants were already on the land, contrary to the position taken in the Plaintiffs’ affidavits, but without specifying which Defendants were in occupation or since when they had been in possession of particular parcels of the land.
  14. The facts stated in the letter issued by the Chief Commissioner of the Land Commission raise a number of serious concerns. It is a troubling state of affairs that the very authority entrusted with land conversions has expressed scepticism about the conversion relied upon by the Plaintiffs and has stated that there are no records of such conversion. On the other hand, the fact that there is a separate application for conversion made by the First Plaintiff raises a serious question as to why such an application was necessary, if the land conversion process had already been completed. Further, given that it appears that at least some of the Defendants were already involved in various disputes with the Plaintiffs, it is difficult to comprehend how they were neither given notice of, nor became aware of, the conversion proceedings so as to place their claims before the Land Commission at the hearing of the First Plaintiff’s application, from which he obtained the purported certificate of title. The Plaintiffs have failed to respond to those matters.
  15. It should also be noted that at no time did the Plaintiffs disclose the restraining order issued by the District Court in favour of the Fourth Defendant, nor did they disclose the fact that there is a Local Land Court matter pending in respect of the same land, until these matters came to light through the submissions of the Defendants and the letter from the Chief Commissioner. The Plaintiffs have provided no explanation as to why these material facts were not disclosed.
  16. It must be noted that interim injunction is a relief of equity, and it is important that he who seeks equity must come with clean hands; See Mainland Holdings Ltd v Paul Stobbs [2003] PGNC 10 (Injia DCJ). Also, a party that seeks an injunctive relief must make full disclosure of all relevant matters; see Golobadana No 35 Ltd v Bank of South Pacific Ltd [2002] PGNC 36 (Kandakasi DCJ). I am not satisfied that the Plaintiffs have made full disclosure of all relevant matters. Even after these issues were raised, the Plaintiffs did not demonstrate a genuine attempt to provide adequate explanations or to respond to those matters in a satisfactory manner.
  17. One of the main issues the court has to consider is whether the Plaintiffs have established a prima facie case or whether there is a serious issue to be determined. The main remedies sought by the Plaintiffs are declarations as to title and possession. Where a certificate of title is a valid document, the determination of those matters ordinarily does not involve any serious question to be tried. Section 16 of the Land (Tenure Conversion) Act provides that:

“Upon the making of a conversion order, but subject to any decision on review or appeal under Part V of the Land Titles Commission Act 1962– (a) the land the subject of the order (other than land referred to in Section 11(1)(c)) ceases to be customary land, and the land and any right to the ownership or possession of the land, and any other right, title, estate or interest in or in relation to the land, cease in all respects to be subject to or regulated by custom; and


(b) all rights, titles, estates and interests, whether legal or equitable and whether arising from or regulated by custom or otherwise, and whether in rem or in personam, subsisting before the date of the order, are abolished, other than such rights, titles, estates and interests as are specified in the order;...”


  1. However, on the other hand, evidence has emerged which raises serious questions as to the validity of the certificate of title, and in that backdrop, I am still not satisfied that the Plaintiffs have presented a case with real prospects of success. If, in fact, there has been no valid land conversion and the land remains customary land, then, as submitted by the Defendants, the National Court does not have jurisdiction to hear and determine the matter: See State and Sali v Sisia [1987] PNGLR 102 (4 June 1987); Mahuru v Dekena [2013] PGNC 97; N5305 (1 August 2013). Furthermore, the Land (Tenure Conversion) Act requires that the rights and interests of all parties be dealt with while the land remains customary land, prior to the making of any conversion order.
  2. On the face of it, it appears that the Defendants have had interests in the land for a longer period than the Plaintiffs have attempted to show. The Plaintiffs have not explained why no action was taken against the Defendants from the time they allegedly obtained the certificate of title. Nor have the Plaintiffs disclosed when the Defendants actually entered onto the land. It appears that the Defendants have been in possession of the land and have carried out substantial developments thereon, which could not have occurred overnight. In those circumstances, the balance of convenience does not favour the Plaintiffs. Although the Plaintiffs have filed an undertaking as to damages, in the circumstances of this case I am of the view that this should not be a decisive consideration. Given that the Defendants have been on the land for some time and that no new prejudice is apparently caused to the Plaintiffs, and further that any development undertaken by the Defendants would be at their own risk should the Plaintiffs ultimately succeed, I am of the view that damages would be an adequate remedy for the Plaintiffs if the interim order is not made Also, I am of the view that it is not in the interests of justice to grant the interim orders, as they would indirectly oust the Defendants from the subject land. While the Plaintiffs sought to justify the interim injunction on the basis that its objective is to maintain the status quo, an order requiring the Defendants to remain 50 metres away and not to deal with the land in any manner would, in effect, amount to an attempt to evict them from the land.
  3. In the circumstances, I refuse the application for interim injunctions.
  4. The Plaintiffs shall pay the Defendants’ costs on a solicitor–client basis, to be taxed if not agreed.

________________________________________________________________
Lawyers for the plaintiff: Paul Othas Lawyers
Lawyers for the first defendant: Niuage Lawyers
Lawyers for the second defendant: Raymond Obora Lawyers
Lawyers for the third & fourth defendant: Allan Mana Lawyers
Lawyers for the fifth defendant: Tukuliya & Associates

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