N4955

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CIA NO 411 0F 2006

MUGAU MIAMAI
Appellant

V

NUNGOT BANICK
Respondent

Madang: Cannings J
2012: 9 November,
2013: 30 January

LAND – Government land – Agricultural Lease – competing interests of those claiming customary ownership of Government land – importance of certificate of title – whether District Court has power to inquire into customary interests in Government land

A dispute arose over management and control of a 501- acre portion of Government land, covered by a State Lease, the registered proprietors of which were three persons, one of whom was the son of the appellant. The respondent, claiming to be the proper representative of the customary owners of the land, initiated proceedings in the District Court to restrain the appellant from interfering in the management and control of the land and from entering it. The District Court granted orders in favour of the respondent, finding that he was the proper customary landowner representative. The appellant appealed to the National Court.

Held:

(1)	As this was Government land held by a State Lease the questions of ownership and management and control of the land are to be determined solely by reference to the certificate of title. Those shown as registered proprietors are in effect the owners of the land, holding indefeasible title to it, and have the right to manage and control it.

(2)	The questions of who was the customary owner of land before it became Government land and who the customary owners of the land wish to see owning, managing or controlling it are irrelevant to determining who is regarded as the owner of the land and who is entitled to manage and control it.

(3)	The District Court erred by going behind the certificate of title and inquiring into whether the registered proprietors represented the true customary owners of the land.

(4)	The appeal was upheld and the order of the District Court quashed.

Cases cited

The following cases are cited in the judgment:

Louis Tokivovon Topalakai v Daniel Tovot (2010) N4106
Mudge v Secretary for Lands [1985] PNGLR 387

APPEAL

This was an appeal from an order of the District Court concerning land covered by a State Lease.

Counsel

B Tabai, for the appellant
P Kunai, for the respondent

30 January, 2013

1. CANNINGS J: This is an appeal against an order of the Karkar District Court (Mr B H Amos presiding) which was granted against the appellant, Mugau Miamai, restraining him from entering and interfering in the management and control of a 501-acre portion of Government land on the south-east coast of Karkar Island known as Taab Plantation, Portion 35, Madang. The land is covered by a 99-year State Lease, an Agricultural Lease, originally granted on 17 September 1932 to the Mission of the Holy Ghost (New Guinea) Property Trust and transferred on 8 August 2006 to three persons, one of whom (Jethro Mugau) is the appellant's son.

DISTRICT COURT PROCEEDINGS

2. The respondent, Nungot Banick, claiming to be the proper representative of the customary owners of the land, commenced the proceedings in the District Court due to a dispute with the appellant over how the plantation should be managed and in particular who should be entitled to grow and harvest crops such as cocoa and coconut on it. The respondent accused the appellant of taking over the plantation and treating the land as his own and stealing crops from it when he had no right to. The respondent argued that the appellant was acting as if he was the only owner of the land and he was ignoring the rights of the other landowners.

3. The trial Magistrate considered evidence from District Administrator Vei Makham who reported that he had recently conducted a mediation involving customary landowners from local villages Kubam, Katom, Babel and Komoria who expressed the view that the respondent, and not the appellant, was the proper person to represent them and to decide on management and control of the land. His Worship noted that there was also evidence that in 1997 the Catholic Archdiocese of Madang had agreed to transfer the land to the customary owners for K40,000.00 but that the nominated transferees, Peter Wilmot and Robert Wilmot, failed to pay the full purchase price, and the question of legal ownership remained unresolved until 2006 when the then member for Sumkar, Mathew Gubag MP, handed over the title deeds to the traditional landowners. His Worship took the view, however, that the certificate of title did not reflect the true position as to customary ownership, which was that different parts of Taab Plantation are owned by different clans from the local villages. His Worship felt that "problems will eventuate" if one particular clan takes over management and control of the whole plantation. The best thing to do, his Worship concluded, was to appoint a caretaker to manage the plantation on behalf of the customary owners while the customary owners "demarcate their original landmarks and boundaries".

4. His Worship ordered the appellant and his associates to vacate the land within seven days and restrained them from causing interference in the management or control of the land and from entering or coming within 10 metres of the land.

GROUNDS OF APPEAL

5. The notice of appeal contained four grounds of appeal but only two were pursued, and of those two only one needs to be considered: 'that the Magistrate failed to take into account that the respondent and his associates have title over the property'. Put more correctly this is an argument that the trial Magistrate erred in law by failing to have due regard to the fact that the subject land was Government land, covered by a State Lease.

DID THE DISTRICT COURT ERR IN LAW?

6. I uphold the appellant's argument as it is clear that the learned Magistrate disregarded fundamental principles of land law in Papua New Guinea. This is Government land held by a State Lease so the questions of ownership, management and control of the land are determined solely by reference to the certificate of title. Those shown as registered proprietors are in effect the owners of the land, holding indefeasible title to it, and have the right to manage and control it (Mudge v Secretary for Lands [1985] PNGLR 387).

7. The certificate of title in this case is the Agricultural Lease. It shows that on 8 August 2006 the land was transferred to "Jethro Mugau, Kenny Mugau and Kud Kumed all of Madang as tenants in common in equal shares". This means that each of those persons is a registered proprietor holding a one-third interest in the land with the right to dispose of, assign, transfer or otherwise deal with their interest as he sees fit, including deciding how his interest should be dealt with after his death. (As distinct from holding the land under a joint tenancy where under the common law rules of survivorship the death of one of the joint tenants leads to his interest being transferred automatically to the surviving tenants.)

8. The questions of who was the customary owner of land before it became Government land and who the customary owners of the land (clan members of the local villages) wish to see owning, managing or controlling it are irrelevant to determining who is regarded as owner of the land and who is entitled to manage and control it. The evidence of the District Administrator Mr Makham was irrelevant. The learned Magistrate, in an attempt to resolve long-running tensions surrounding the issues of ownership, management and control of the land, erred in law by going behind the certificate of title and inquiring into whether the registered proprietors represented the true customary owners of the land. 

9. This is not customary land, where the courts can take into account how custom operates and make a decision on who deserves the land or who should be allowed to own it. This is alienated Government land, covered by a State Lease. Special laws apply (Louis Tokivovon Topalakai v Daniel Tovot (2010) N4106). The only persons who have the right to determine whether the appellant or the respondent or some other person should enter the land, manage and control it or grow and harvest crops are the registered proprietors. They were not consulted. There was a substantial miscarriage of justice and the appeal must be upheld.

CONCLUSION

10. As the appeal is upheld I will under the District Courts Act Section 230(1)(c) quash the decision appealed from and under Section 230(1)(e) exercise a power that the District Court might have exercised and declare the rights of the registered proprietors. As to costs I will order that the parties bear their own costs as the appellant has been slow in prosecuting the appeal and abandoned unnecessary grounds of appeal only at the hearing of the appeal. There was a six-year delay by the appellant in prosecuting the appeal, which means that he failed to comply with the condition to prosecute the appeal "without delay" attached to the K500.00 recognisance that he entered into when filing the appeal, so I will order forfeiture of that fee to the State.

ORDER

(1)	The appeal is allowed.

(2)	The order of the Karkar District Court of 1 November 2006 in DCC No 23 of 2006 is quashed.

(3)	The persons who shall be regarded as the owners of Taab Plantation, Portion 35, Madang, having the right to control and manage the land are the registered proprietors, Jethro Mugau, Kenny Mugau and Kud Kumed.

(4)	The parties shall bear their own costs.

(5)	The recognisance fee of K500.00 is forfeited to the State.
___________________________________________

Tabai Lawyers: Lawyers for the Appellant
Kunai & Co. Lawyers: Lawyers for the Respondent