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Tobar Business Group Incorporated v Teko [2026] PGNC 58; N11733 (6 March 2026)

N11733


PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]


WS NO. 572 OF 2025


BETWEEN:
TOBAR BUSINESS GROUP INCORPORATED
Plaintiff


v


JOSEPH TEKO
in his capacity as the Chairman of Bitagaliplavu Land Group Incorporated
First Defendant


BITAGALIPLAVU LAND GROUP INCORPORATED
its members, servants, agents or associates
Second Defendant


KOKOPO: CHRISTENSEN J
19 DECEMBER 2025, 6 MARCH 2026


CIVIL – TRIAL – Trespass claim – title holder of land – contended invalidity of certificate of title – gazette notice – Land Redistribution Act 1974 purpose – Land (Ownership of Freeholds) Act 1976 purpose – Land Registration Act 1981 – meaning of folio – contents of certificate of title document – plan attached to certificate of title – mortgage – indefeasible title – evidence from surveyor – elements of trespass established – permanent injunctive relief granted


Cases cited


Angai v Gemini Holdings Ltd [2024] PGSC 12, SC2543
China Railway Construction Engineering Group (PNG) Real Estate Co. Limited v Ane & Ors [2024] PGNC 195, N10870
Dekenai Constructions Limited v Seeto [2025] PGSC 25, SC2714
Gawi v PNG Ready Mixed Concrete Pty Ltd [1984] PNGLR 74
Medaing v Ramu Nico Management (MCC) Ltd [2011] PGSC 40, SC1144
Mudge and Mudge v Secretary for Lands [1985] PNGLR 387


Counsel


R Asa for the plaintiff
E Paisat for the first and second defendants


DECISION ON LIABILITY
Claim of trespass


  1. CHRISTENSEN J: By way of writ of summons filed 19 October 2023 the plaintiff, an incorporated business group, seeks the following relief:
  2. The matter proceeded to trial on 19 December 2025, with both parties relying on evidence adduced by way of filed affidavits.
  3. The plaintiff contends that it is the legal owner and proprietor of a portion of land described as ‘Portion 234, Allotment 4, Milinch Kokopo, Fourmil Rabaul, East New Britain Province’ and known as Gilalum Plantation. The plaintiff’s position is that the Certificate of Title over this portion of land was issued to them on 19 May 2005.
  4. The plaintiff contends that the first and second defendants unlawfully, without right by custom or title, moved onto the plaintiff’s portion of land in 2018. It is contended that they have remained there and that they are squatting and conducting unauthorised activities including farming, cash crops, and other activities. This is occurring despite numerous requests and demands by the plaintiff for them to cease residing on the land and conducting activities. The plaintiff has sought from the defendants that they return full possession of the land to the plaintiff.
  5. The plaintiff contends that the defendants have trespassed and have violated the plaintiff’s right to quiet enjoyment of the land, causing damages.
  6. The essence of the defendant’s submission is that they are not trespassers and are entitled to possession and use of the land. No other contention was made, and it was accepted that the issues to be determined are resolved by determination as to the title holder of the land.
  7. The claim is one that contends trespass in which declaratory relief, permanent injunctive orders, and damages are sought. This is the decision on liability.

Evidence and defendant’s contentions


  1. The Acting Chairman and Treasure of the plaintiff business group, Mr Anton Banit, deposed an affidavit filed 13 May 2024. In this evidence, Mr Banit contends that the plaintiff is the registered owner and proprietor of the relevant land, being ‘Portion 234, Allotment 4, Milinch Kokopo, Fourmil Rabaul, East New Britain Province’, described in the Certificate of Title as ‘Volume 16, Folio 96’ (the Portion 234, Allotment 4, Volume 16, Folio 96 land)
  2. The plaintiff’s evidence additionally explains that there is a Special Agricultural and Business Lease (SABL) for the land described as Portion 234, Volume 16, but this relates to Folio 55 and to Allotments 2 and 3. The SABL was granted to second defendant from 11 June 2009. The plaintiff submits that Allotment 4, the subject land, is registered under the distinct Certificate of Title held by the plaintiff.
  3. The plaintiff produced the original of this Certificate of Title at trial, and I have viewed it. I am satisfied that it had the appearance of a genuine and valid Certificate, with no indications of being a forged document. Indeed, the first defendant does not contend that the original Certificate of Title produced at trial was invalid in its form.
  4. Rather, the defendants contend that there are anomalies in copies of the Certificate of Titles relating to Portion 234 which reveal there to be invalidity. Firstly, by way of affidavit filed 17 October 2024, the first defendant contends that the purported transfer to Tobar Business Group Incorporated on 19 May 2005 “is invalid as it contravenes the Gazettal Notice intend and lawful direction by the then Minister for Natural Resources, Mr Boyamo Sila, MP, made on 10 March 1978” [sic]. In support of this contention, the defendant attaches the 10 March 1978 National Gazette Notice which provides for a “declaration of land to which the Land Redistribution Act 1974 applies” (the Gazette Notice). This Gazette Notice contains:

All those pieces or parcels of land known as Tannua Planation and described as Lot 2 on deposited Plan No 16 being part of Portion 234, Milinch Kokopo, Fourmil Rabaul East New Britain Province being the whole of the land contained in Certificate of Title Volume 20, Folio 155 and Lot 3 on deposited plan No 43 being part of Portion 234, Milinch Kokopo, Fourmil Rabaul, East New Britain Province being the whole of the land described in Certificate Title Volume 21, Folio 99.

[emphasis added]


  1. The first defendant contends that, in contrast, the Certificate of Title relied upon by the plaintiff has a coversheet providing “Landownership of Freeholds Act 1976, Lease, Volume 16, Folio 96, dated 10 May 2005” [emphasis added]. The first defendant explains that the second page to the title grants a lease of 99 years to Meriba Tomakala under the Land (Ownership of Freeholds Act) 1976, and thereafter to Tobar Business Group and that this is incomplete.
  2. As I understand it, the first defendant is contending that the relevant land was declared to be land falling under the Land Redistribution Act 1974 and not land available for transfer under the Land (Ownership of Freeholds) Act 1976. The defendant appears to seek that the 1978 Gazette Notice, and the declaration as to the land under the 1974 Act, supersedes any subsequent grant of title.
  3. This contention is plainly misconceived. As the plaintiff submits, the Gazette Notice was concerned with ‘Lots’ 2 and 3, and not Allotment 4.
  4. Further, if the Gazette Notice could be said to be relevant to the subject land, it is to be observed that the Land Redistribution Act (Chapter No 190) was, per its Preamble, concerned with providing for the redistribution of certain land alienated from customary owners. Neither the 1978 Gazette Notice, nor the Land Redistribution Act, in and of itself conferred ownership, nor title in the subject land. Rather, with respect to the subject land, the Land (Ownership of Freeholds) Act 1976 provided for ownership. This Act implemented s 56(1)(b) of the Constitution and, again per the Preamble, defines the forms of ownership of land that are to be regarded as freehold and made provision for the conversion of interests in land to State leases.
  5. It follows that the eligibility for ownership of the Portion 234, Allotment 4, Volume 16, Folio 96 Land the subject of consideration here is, in the first instance, determined by the Land (Ownership of Freeholds) Act 1976. The Land Registration Act 1981 is then concerned with the recording and protection of interests in the land. As explained by Pratt J in Mudge and Mudge v Secretary for Lands [1985] PNGLR 387:

That which the certificate of title describes is not the title which the registered proprietor formerly had, or which but for registration would have had. The title it certifies is not historical or derivative. It is the title which registration itself has vested in the proprietor.


  1. Accordingly, to the extent that the first defendant asserts that the 1978 Gazette Notice determines entitlement to the land, I reject this contention.
  2. Additionally, it appears from the first defendant’s affidavit that it is contended that the differences in the folio description are of significance. They are not. As s 9 of the Land Registration Act provides, a folio identifies a duplicate of a certificate of title on the Register. It facilitates the identification of a “running series” as to the parcel of land in the Register (see s 9(1)), that is, a means by which the legal interest in the land is identifiable at a specific point in time, with a new ‘folio’ created whenever that interest is altered.
  3. Here, as the plaintiff deposed (see above at [9]), a SABL was registered in the past. The change in folio description is to be expected in such circumstances. Accordingly, to the extent that the first defendant asserts that there is significance in the distinction of the folio description on the Register, I reject that contention.

Evidence and plaintiff’s contention


  1. The evidence adduced by the plaintiff includes evidence from a registered surveyor in East New Britain. Two separate surveys have been conducted.
  2. The first survey, reported in correspondence dated 11 September 2020 from registered surveyor Mr Joseph Wukawa, produced a sketch plan identifying encroachment areas on Portion 234, Allotment 4. The surveyor states that “the people are well inside your ([the plaintiff’s] land.
  3. The second survey occurred on 17 November 2025 and was deposed to in an affidavit filed 20 November 2025 by the registered surveyor Mr Wukawa. Mr Wukawa explains that he has examined the original title and found it to be “authentic and in order”. His survey of the land included reference to “old cement pegs’’ and the use of a drone survey system to capture the boundaries of the land. He attaches a report and survey plan to his affidavit.
  4. Mr Wukawa concludes in his affidavit that there are 232 houses and small huts and structures of unauthorised and illegal settlers who have moved into Portion 234, Allotment 4.

Submissions


  1. On behalf of the plaintiff, it was submitted that the evidence clearly establishes the plaintiff’s registered indefeasible and exclusive title over the Volume 16, Folio 96, Portion 234, Allotment 4 land. It is submitted that the defendants have, without lawful reason, excuse, and consent, moved in, erected houses and structures, and engaged in activities on the land since 2018. It is submitted that this has occurred despite there been separate and distinct titles, and that the defendants have trespassed on the land. On behalf of the plaintiff, it is submitted that there is no dispute as to the validity of the plaintiff’s title and that accordingly their claim is established.
  2. On behalf of the defendants, no issue was taken with there being a conclusion that the first defendants are utilising the subject land. It was submitted that the fundamental issue for resolution is whether the title of the subject land is valid. The submissions, as I understood what was submitted orally and in writing, were essentially twofold.
  3. It was firstly submitted that there is no evidence that ‘Portion 234, Allotment 4’ exists at law and accordingly the plaintiff does not hold title to land that the first defendants can trespass upon. This submission was premised on the court’s attention being drawn to the Title document itself. It was submitted that there were inconsistencies in the Title documents produced in evidence. It was further submitted that the Title relates only to the ‘box’ portion of the document, with this providing no reference to ‘Allotment 4’ and only details of:
  4. The absence of a reference to ‘Allotment 4’ in that portion of the document was said to be significance. That the document continues after the ‘box’ with the words “as shown coloured yellow 19/131 in the planned annexed hereto” and attaches a plan with a highlighted portion containing the number “4” was said to be irrelevant. It was submitted that this additional portion of the document is to be disregarded for the purposes of determining title. No authority was produced in support of this submission.
  5. It was secondly submitted that the title document reveals that the National Development Bank has a priority claim over the land as a mortgagee and therefore the plaintiff does not have sufficient interest to claim legal interest in the land. No authority was produced in support of this submission.

Consideration


  1. The defendant’s submission that the plaintiff does not have a legal interest in the land and that the defendants have an entitlement to possession and use of the land is entirely without merit and I reject it. This is for five reasons.
  2. Firstly, as to the submission that the existence of a mortgage determines legal interest in the land, and gives the mortgagee sole locus standi, this is plainly misconceived. While no mortgage documents as to the agreement between the plaintiff and the financier were produced in evidence, there is no basis to conclude that the plaintiff has anything other than a typical mortgage.
  3. The mortgage does not disentitle the plaintiff to occupation of the land other than in the event of default: Part VII Land Registration Act, and see, eg China Railway Construction Engineering Group (PNG) Real Estate Co. Limited v Ane & Ors [2024] PGNC 195, N10870 at [41] – [45] as to the interest created by a mortgage. The defendant’s submission as to the existence of a mortgage as an answer to their entitlement to occupy the subject land is readily rejected.
  4. Secondly, the submission that the description in the Certificate of Title does not incorporate the portion of the land that the plaintiff claims entitlement of is entirely without merit and I reject it. There is no basis to conclude that the Certificate of Title is anything other than one produced in accordance with the prescribed form of the Registrar required by s 8 of the Land Registration Act. Further, the interpretations given to the terms “certificate of title”, “instrument” and “document” in s 2 of the Land Registration Act contemplate the inclusion of a “map or plan”.
  5. There is no basis upon which the Court should disregard the clear inclusion of the map attached to the Certificate of Title, one that is specifically referred to in the instrument. The attached map clearly delineates the plaintiff’s portion of land.
  6. Thirdly, as observed above, the first defendant’s contention as to the 1978 Gazette Notice and the folio description is not at all determinative as to the current ownership and legal interest in the subject land.
  7. The plaintiffs are the registered proprietors of an indefeasible title (s 32, 33 Land Registration Act), with no exceptions pursuant to s 33 of the Land Registration Act established, or even submitted to arise, by the first defendants. The registration of the title in the plaintiff’s name vested in it “an indefeasible (unforfeitable) title”: Angai v Gemini Holdings Ltd [2024] PGSC 12, SC2543 at [28], and see Mudge v Secretary of Lands.
  8. Additionally, the defendants produced no evidence that they hold any Certificate of Title or legal interest relating to the particular portion of land that they are utilising. Whether the defendants even had standing to assert the invalidity that they did claim was not readily apparent to me, nor was any cross claim pursued. In any event, if, as the first defendant has contended, the transfer of land to the plaintiff was invalid, it does not follow that the defendants are necessarily entitled to possession and use of the subject land.
  9. Fourthly, to the extent that the defendants submit that the evidence in the proceeding included inconsistent copies of the Certificate of Title, this submission is also without basis.
  10. I make this finding despite accepting that there are differing versions of the title produced in evidence by the plaintiff. There are subtle differences between the copies attached to the affidavits of Mr Banit to the copy referenced by Mr Wukawa. Mr Banit’s versions are stamped only as ‘owners copy’ and it is explained that this copy was obtained prior to the later endorsements on the title. Mr Wukawa’s version, being a copy of the original one viewed by the court, is stamped with ‘official copy’. As already observed, I have viewed the original document, as did the surveyor, and it establishes the indefeasible title of the plaintiff.
  11. Fifthly, is that the contested portion of land and the location that the defendants are occupying was the subject of comprehensive consideration by a registered surveyor. This is strong and persuasive evidence that I accept. The defendants had no response or submissions as to this evidence. This evidence provides that the land currently occupied by the defendants is the land of the plaintiffs. Accordingly, the defendants are trespassing on the plaintiff’s land.
  12. In accordance with the issues as raised in the trial, it then follows that the plaintiff’s claim of trespass (applying the elements of trespass applied in Dekenai Constructions Limited v Seeto [2025] PGSC 25, SC2714) is established.

Conclusion


  1. The parties defined the legal issues in dispute for determination as being:
  2. To both of these issues, the answer is yes. That is, the Certificate of Title for Portion 234, Allotment 4, Volume 16, Folio 96 is valid on the face of it, and the first and second defendants are living and settling within the boundary of that land and should be evicted.
  3. Orders will be made to give effect to this finding, while also recognising that the defendants have occupied the land for an extended period and it is appropriate to afford them an opportunity for them to vacate before any forceful eviction action.
  4. The orders I will make will not be, as sought by the plaintiff, pursuant to the Summary Ejectment Act, as this may be more appropriately a mechanism utilised as an enforcement mechanism if it becomes necessary (Gawi v PNG Ready Mixed Concrete Pty Ltd [1984] PNGLR 74). I will though make orders in the nature of the permanent injunctive relief sought as it is reasonably necessary to protect the ongoing interests of the plaintiff: Medaing v Ramu Nico Management (MCC) Ltd [2011] PGSC 40, SC1144 at [58], [59]. The orders to be made are in accordance with s 155(4) of the Constitution.
  5. Additionally, consequential orders are required to facilitate finalisation of the proceeding as to the issue of the damages sought.

Declarations and orders


  1. For those reasons, the claim is upheld and the following declaration and orders are made:

________________________________________________________________
Lawyers for the plaintiff: Warner Shand Lawyers
Lawyers for the first and second defendants: Paisat Lawyers

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