N11644

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

WS NO 279 OF 2014

BETWEEN
NORMAN G. OMA, CHAIRMAN OF PARAMA LAND GROUP ASSOCIATION INC., for and on behalf of members of PARAMA LAND GROUP ASSOCIATION whose names appear on Schedule 1
 First Plaintiff

AND
SANEW MAKIBA, CHAIRMAN OF AREBETTE LAND GROUP INC., for and on behalf of members of AREBETTE LAND GROUP INC, whose names appear on Schedule 2 
Second Plaintiff

AND
GURAHI LAND GROUP INC 
First Defendant

AND
ALA ANE, REGISTRAR OF TITLES 
Second Defendant

AND
THE INDEPENDENT STATE OF PAPUA NEW GUINEA 
Third Defendant

 WAIGANI: MAKAIL J
3, 18 DECEMBER 2025 

STATE LEASES – Special Agriculture Business Lease – Land boundary dispute – Two conflicting survey plans – Misdescription of land boundary – Land Registration Act – Section 33(1)(a) & (e) – Survey Act – Sections 37 & 38

Cases cited
Mudge v Secretary for Lands & Ors [1985] PNGLR 387
Emas Estate Development Pty Ltd v John Mea [1993] PNGLR 215

Counsel:
Mr B S Lai, for plaintiffs
No appearance, for first defendant
Ms V Balio, for second & third defendants

JUDGMENT 

1.	MAKAIL J: According to the pleadings in the amended writ of summons filed on 24 November 2023, the first plaintiff as Chairman of Parama Land Group Association Incorporated and its members and the second plaintiff as Chairman of Arebette Land Group Incorporated and its members allege that the Special Agriculture and Business Lease (“SABL”) granted over a portion of land described as Portion 38C Milinch of Sicadadu Fourmil Daru, Western Province was procured by fraud and it be set aside pursuant to Section 33(1)(a) of the Land Registraion Act.

2.	The plaintiffs also seek an order that the persons found to have procured the SABL by fraud be referred for investigations by the police and damages to be assessed.

3.	The first defendant filed its defence to the original writ of summons on 2 July 2014.  However, it did not participate in defending the proceedings after being served the amended writ of summons on 24 November 2023.  Moreover, it did not file and serve any affidavits in response to the orders sought by the plaintiffs and attended trial.

4.	The second and third defendants did not file and serve any defence but filed and served two affidavits.  These are:

(a)	Affidavit of Benjamin Samson sworn on 24 April 2025 and filed on 25 April 2025 (exhibit “B”), and
(b)	Affidavit of Zara Waiin sworn and filed on 27 March 2025 (exhibit “C”).

5.	The law recognises a holder of a State Lease to have exclusive right to uninterrupted use and occupation of the land the subject of the State Lease under Section 33(1) of the Land Registration Act.  That right is derived from the doctrine of indefeasibility of title.  However, it is not absolute and may be set aside if it is established that the State Lease was procured by fraud under Section 33(1)(a) of the Land Registration Act. These following cases reinforce this doctrine.  Mudge v Secretary for Lands & Ors [1985] PNGLR 387 and Emas Estate Development Pty Ltd v John Mea [1993] PNGLR 215.

6.	 Section 33(1)(a) states:

“The registered proprietor of an estate or interest holds it absolutely free from all encumbrances except in the case of fraud.”

7.	A State Lease may be also set aside on other grounds under Section 33(1).  One of them being “wrong description of the land or of its boundaries” under Section 33(1)(e).

8.	I have read the affidavit of Norman G. Oma sworn on 1 March 2024 and filed on 3 March 2024 (17 December 2025) (exhibit “A”) and second and third defendants’ affidavits marked as exhibit “B” and exhibit “C” mentioned at [4] (supra) including learned counsel’s written submissions with his oral submissions and find that a dispute exists between the plaintiffs and first defendant over the boundaries of the land upon which the SABL has been granted.  This is because the land was formerly customary land owned by the plaintiffs and first defendant as adjourning customary landowners.

9.	The cause of the dispute is the existence of two Survey Plans of the land.  These are:

(a)	Survey Plan described as Cat Plan 47/108 registered for Portion 38C in favour of the first defendant on 1 September 2009, and

(b)	Survey Plan described as Cat Plan 47/124 registered for Portion 73C in favour of the first plaintiff on 4 March 2020.

10.	According to a letter by the then Surveyor General Mr Luther Sipison dated 1 February 2011, Portion 38C land was surveyed by a Greg Kasan and was registered as Cat Plan 47/108.  Greg Kasen is a Registered Surveyor who prepared a Survey Report dated 8 December 2008 of Portion 38C.  Cat Plan 47/108 shows the land boundary stretches inland to the north and to the sea in the south and eastward inclusive of Parama Island and west to Daru Island.  The total land area including the sea is 14,323 ha.

11.	 The second Survey Plan Cat Plan 47/124 shows that the land boundary stretches in land to the north from Parama Island and to the sea in the south, east past Parama Island and west where Parama Island shores end.  The total land area including the sea is 76,993 ha.

12.	Approximately half of the land area of 76,993 ha and where Parama Island is located is the one under dispute.  The plaintiffs say that this is the part of the land where they own and the correct boundary where Portion 38C should end is before Parama Island; not beyond it as is the present case.

13.	It is said that the Chaiman of the first defendant, namely Dabi Pagei and four others were responsible for this error because on 20 April 2007 they signed Statutory Declaration Forms falsely stating that their customary land boundary extended to the portion of the land where the plaintiffs claimed as theirs which is beyond Parama Island. 

14.	To the extent that Dabi Pagei and others falsely claimed in their respective Statutory Declaration Forms that their customary land boundary extended to the plaintiffs’ land, it is incorrect because it was not until 2018 when the ownership of the land which included Parama Island was resolved in favour of the plaintiffs by an Approved Agreement dated 24 April 2018 and endorsed by way of an order of the Daru District Court dated 12 June 2018 under the provisions of the Land Disputes Settlement Act.  That order has not been set aside by the National Court and recognises the plaintiffs’ ownership of the land by custom.  It also shows that the boundary as depicted in Cat Plan 47/108 overlaps or encroaches onto the plaintiffs’ land which included Parama Island.

15.	However, prior to that, based on the Statutory Declarations by Dabi Pagei and others, the Surveyor General proceeded to register the Survey Plan Cat Plan 47/108 on 1 September 2009.  

16.	The Survey Plan Cat Plan 47/108 with the Land Investigation Report by the Provincial Lands Office Daru were submitted to the Department of Lands and Physical Planning for processing.  Following this, a Lease-Lease Back Agreement was signed between the first defendant and third defendant on 11 December 2009.  

17.	Based in these documents and information, the Secretary as delegate of the Minister for Lands and Physical Planning granted the SABL to the first defendant by Notice of Direct Grant pursuant to Section 102 of the Land Act.  Following this, the SABL was published in the National Gazette No. G124 dated 3 June 2010.

18.	Meanwhile with the Statutory Declarations, Approved Agreement dated 24 April 2018, and the order of the Daru District Court dated 12 June 2018 in hand, the plaintiffs made several representations to the Surveyor General to correct the error in the land boundary of Portion 38C.  However, he did not.  He has not provided any response to the plaintiffs’ requests or an explanation as to why he has not corrected the error.

19.	Several meetings were held.  One of the meetings was held pursuant to a Court direction of 2 June 2024 for parties to settle the dispute out of Court.  The meeting was held on 2 September 2024 at the office of Department of Lands and Physical Planning where the plaintiffs’ lawyers and second and third defendants’ lawyers met with representatives of second defendant, and it was acknowledged that there was an error in the land boundary of Portion 38C which needed to be corrected.

20.	 However, it was made clear to the plaintiffs that the second defendant was not responsible for the Survey Plan Cat Plan 47/108 and was not authorised to cancel or change it.  That responsibility fell squarely on the Surveyor General.  As noted above the Surveyor General has not come forward to enlighten the parties on this issue.

21.	Nonetheless, it was open to the Surveyor General to approve the Survey Plan Cat Plan 47/108 pursuant to Section 37(3) of the Survey Act which provides as follows: 

“37. MAKING OF AUTHORIZED SURVEYS

An authorized survey must - 

(a)	be carried out subject to any directions given by the Surveyor General; and
(b)	be made in accordance with any survey information supplied by or by the authority of the Surveyor General.

(1)	The Surveyor General shall establish a Plan Registry in which be lodged in accordance with the provisions of this section, such survey plans as are prescribed.

(2)	 A –
(a)	registered surveyor; or
(b)	certified measurer; or
(c)	person otherwise carrying out a survey,

who prepares a survey plan of a type prescribed under Subsection (1), within three months of the date of completion of the survey, submit the survey plan to the Surveyor General for approval and, if approved, registration in the Plan Registry.

(3)	A survey plan shall –
(a)	not be registered in the Plan Registry until approved as correct by the Surveyor General; and
(b)	not be used in any dealing in land, except with the consent of the Surveyor General.

(4)	For the purpose of this section, ‘dealing in land’ has the meaning giving in Section 3(4).” (Emphasis added).

22.	It would appear then that as a grant of a SABL over Portion 38C land was a “dealing in land” under Section 3(4) and Section 37(3)(b) & (4) (supra), a consent of the Surveyor General was given under Section 37(3)(b) which paved the way for the Secretary as delegate of the Minister for Lands and Physical Planning to grant the SABL to the first defendant pursuant to Section 102 of the Land Act.

23.	On the other hand, while the Survey Plan Cat Plan 47/124 was registered by the Surveyor General, it appears that it reached the Department of Lands and Physical Planning without the consent of the Surveyor General and was not progress any further.  Be that as it may, what is clear is that, the ownership of the land dispute was finally resolved in 2018, and it confirmed that the boundary of the land in Survey Plan Cat Plan 47/108 overlapped or encroached onto the plaintiffs’ land and it was necessary to correct it pursuant to Section 38 of the Survey Act which provides that: 

“38. CORRECTION OF ERRORS
	
(1)	The Surveyor General may, by written notice – 

(a)	Request a registered surveyor or certified measurer to correct, at his own expense and within the time specified in the notice, an error made by him in an authorised survey; or

(b)	Instruct another registered surveyor or certified measurer to make the correction, and require the registered surveyor who made the error to pay the costs of the correction.

(2)	If the registered surveyor or certified measurer refuses or omits to correct an error within the time specified in a notice under Subsection (1), or omits to pay the cost of the correction of an error when called on to do so, the Surveyor General may recover the reasonable cost of the correction as a debt.

(3)	 A request or an instruction under this section for the correction of a survey shall not be made after one year from the date of lodgement of the plan of survey with the Surveyor General.”

24.	In addition, as noted at [6] (supra) the first defendant’s SABL may be set aside if it is established that it was granted based on a “wrong description of the land or its boundary” under Section 33(1)(e) of the Land Registration Act.

25.	While the above findings do not establish the allegation that the SABL was procured by fraud, they give the Court the factual and legal basis to set aside the first defendant’s SABL on the ground that it was granted on a wrong description of the land boundary under Section 33(1)(e) of the Land Registration Act.

26.	In addition, it is necessary that the boundaries of the land in the two Survey Plans be changed to reflect the correct land boundaries.  It follows that there will be a further order to quash the two Survey Plans Cat Plan 47/108 and Cat Plan 47/124 and for parties to redo the Survey Plans if they wish to conduct any “dealing in the land” under Section 37 of the Survey Act.

27.	Finally, it has not been established that the defendants had intentionally, without authority and unlawfully encroached or occupied the portion of the plaintiffs’ land.  On the other hand, they were legitimately entitled to it until the contrary was established in 2018.  

28.	In addition, there is no evidence from the plaintiffs that the first defendant and its members had physically occupied the land.  It follows that the order sought to have them referred for investigations by the police and for damages to be assessed have not be made out and are refused.

29.	The orders are:

1.	The first defendant’s SABL published in National Gazette No. G124 dated 3 June 2010 is set aside on the ground that it was granted on a wrong description of the land boundary under Section 33(1)(e) of the Land Registration Act.

2.	The two Survey Plans Cat Plan 47/108 and Cat Plan 47/124 are quashed forthwith.

3.	The plaintiffs and first defendant are at liberty to conduct a new survey and submit a new Survey Plan of Portion 38C land for new SABL to be granted at their convenience.

4.	The order sought to have the defendants referred for investigations by the police and for damages to be assessed are refused.

5.	The defendants shall pay the plaintiffs’ costs of and incidental to the proceedings, to be taxed, if not agreed.

Judgment accordingly
________________________________________________________________
Lawyers for plaintiffs: B S Lai Lawyers	
Lawyer for second & third defendants: Solicitor General