N11637
PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

WS NO 151 OF 2024

BETWEEN
MORRIS DIDIBU-OWNER OF THE STATE LEASE 
Plaintiff

AND
KORU ABE, CHIEF EXECUTIVE OFFICER RIGO DISTRICT 
First Defendant

AND
ANO PALA AS CHAIRMAN OF RIGO DISTRICT DEVELOPMENT AUTHORITY 
Second Defendant

AND
SOATIE LIMITED AS CONTRACTOR 
Third Defendant

AND
EDWARD KILA AS THE ADMINISTRATOR, CENTRAL PROVINCE 
Fourth Defendant

AND
INDEPENDENT STATE OF PAPUA NEW GUINEA
Fifth Defendant

WAIGANI: MAKAIL J
2 , 15 DECEMBER 2025

PROPERTY LAW – STATE LEASES – Encroachment and occupation of land in State Lease – Business Lease – Indefeasibility of title – Land Registration Act – Section 33(1)  

TORT OF TRESPASS – Occupation of land under a State Lease – Entry and occupation of land without permission 

REMEDY – Order sought for vacant possession – Loss of use of part of land – K5,000.00 awarded as nominal damages 

Cases cited
Nil 

Counsel
Mr A Donigi, for plaintiff
No appearances, for first, second, third & fourth defendants
Ms Z Waiin, for fifth defendant

JUDGMENT

1.	MAKAIL J:  The plaintiff alleges that he is the holder of a State Lease described as Business Lease Allotment 2 Section 2 Volume 105 Folio 240 located at Kwikila Town in the Central Province.  Based on the State Lease, he seeks a declaration that he is the holder of the State Lease and an order that the defendants give vacant possession forthwith.  

2.	The plaintiff relies in his affidavit in support sworn on 17th August 2024 and filed on 19th August 2024 while none of the defendants have filed any affidavits in response to the plaintiff’s claim.  Also, parties were directed to file and serve written submissions.  The plaintiff and fifth defendant have while the first to fourth defendants have not.

3.  I have read the affidavit in support of the plaintiff.  The plaintiff’s account in the said affidavit is uncontroverted.  Based on the copy of the State Lease which may be found at annexure “A” I am satisfied that the plaintiff is the holder of the State Lease described as Business Lease Allotment 2 Section 2 Volume 105 Folio 240 located at Kwikila Town in the Central Province.	

4.	The land is next to the Kwikila Town market.

5.	The land area of the State Lease is 0.3910 hectares as delineated on the registered Survey Plan Class Urban One Catalogued No 49/4140 in the Department of Land and Physical Planning, Waigani, National Capital District.

6.	The law is that as the holder of the State Lease the plaintiff holds an indefeasible title to the exclusion of other interests under Section 33(1) of the Land Registration Act.

7.	I am further satisfied that the first, second, third and fourth defendants encroached and occupied part of the land as follows:

	(a)	encroachment from the East 48 sqm.
	(b)	encroachment from the West 51.58 sqm.
(c)	encroachment from the North 70.43 sqm.

Total of 169.61 sqm.

8.	I am further satisfied that the encroachment and occupation of part of the land by the first, second, third and fourth defendants is an extension of the Kwikila Town market.  The first, second, third and fourth defendants did not obtain any approval or consent of the plaintiff to occupy and extend the Kwikila Town market.  

9.	For the foregoing reasons, I am satisfied that the first, second, third and fourth defendants have trespassed onto part of the plaintiff’s land and have committed the tort of trespass.  However, I am not satisfied that the plaintiff has established that the fifth defendant, its servants and agents directed or advised the first, second, third and fourth defendants in enter and occupy part of the plaintiff’s land.  Accordingly, I dismiss the claim against the fifth defendant.

10.	Next, while the plaintiff seeks damages for the encroachment and occupation of part of the land by the first, second, third and fourth defendants, his account of the loss in his affidavit in addition to his counsel’s submissions is vague, convoluted, confusing and uncorroborated by independent evidence such that the sum of K1.7 million claimed as loss has not been proven on the balance of probabilities.  On the other hand, a nominal sum of K5,000.00 is awarded to compensate the plaintiff for the period of time the first, second, third and fourth defendants occupied part of his land.  

11.	I decline to award interests under the Judicial Proceedings (Interests on Debts and Damages) Act, 2015 for the reason that the primary purpose of the plaintiff commencing these proceedings was to have free and uninterrupted access to the whole portion of land and have the first, second, third and fourth defendants removed from part of the land they are occupying.  

12.	Finally, the plaintiff has made several requests to the first, second, third and fourth defendants to stop work on part of his land but received no response.  He asks for costs on solicitor client basis for the trouble these defendants have put him through.  I accept his request.  

13.	As the plaintiff seeks the Court’s intervention to affirm his interest and right to the part of the land encroached and occupied by the first, second, third and fourth defendants, I grant the following orders:

1.	A declaration that the plaintiff is the holder of a State Lease described as Business Lease Allotment 2 Section 2 Volume 105 Folio 240 located at Kwikila Town in the Central Province.
2.	A declaration that the encroachment and occupation of the land in a State Lease described as Business Lease Allotment 2 Section 2 Volume 105 Folio 240 located at Kwikila Town in the Central Province is illegal, null and void.
3.	The first, second, third and fourth defendants, their servants and agents shall give vacant possession of part of the land in State Lease described as Business Lease Allotment 2 Section 2 Volume 105 Folio 240 located at Kwikila Town in the Central Province forthwith.
4.	The first, second, third and fourth defendants, their servants and agents shall refrain, cease and/or stop work on the extension of Kwikila Town market on part of the land in State Lease described as Business Lease Allotment 2 Section 2 Volume 105 Folio 240 located at Kwikila Town in the Central Province forthwith.
5.	Judgment is entered against the first second, third and fourth defendants in the sum of K5,000.00 as nominal damages.
6.	The first, second, third and fourth defendants shall pay the plaintiff’s costs on a solicitor client basis, to be taxed, if not agreed.
7.	Time for entry of these orders shall be abridged to the date of settlement, by the Registrar, which shall take place forthwith.
________________________________________________________________
Lawyers for plaintiff: Ama Wali Lawyers			
Lawyers for fifth defendant: Solicitor General