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Paga Hill Development Company (PNG) Ltd v Kisu [2014] PGNC 27; N5683 (29 January 2014)

N5683

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS 573 OF 2012

BETWEEN:

PAGA HILL DEVELOPMENT COMPANY (PNG) LIMITED
Plaintiff

AND:

DAURE KISU
as representative of the original settlers of Paga Hill and other settlers from the Papuan Region including Central, Kikori, Gulf and Southern Highlands Provinces
First Defendant

AND:

DAVID KEMI
as representative of Paga Hill settlers from Highlands and other parts of Papua New Guinea and Chaiman of Paga Hill Community Development Committee
Second Defendant

AND:

LLOYD SEPUNA, ALLAN PINGAH AND FRANCIS NIANFORD AND 33 OTHER TENANTS of the Paga Hill National Housing Corporation Hostel
Third Defendant

AND:

DR. ANDREW MOUTU,
Director National Museum and Art Gallery
Fourth Defendant

AND:

TRUSTEES OF THE NATIONAL MUSEUM
AND ART GALLERY
Fifth Defendant

AND:

JOE MOSES, RATOOS GARI & THOMAS BULU for themselves and on behalf of settlers of Paga Hill settlement area
Sixth Defendants

Waigani: Hartshorn J.
2013: September 18th,
2014: January 29th

Trial

Cases cited:

Bank of PNG v. Muteng Basa [1992] PNGLR 271
Air Niugini v. Elizabeth Talum [1992] PNGLR 296
PNGBC v. Barra Amevo (1998) N1726
Pius Nui v. Jackson Laka (2012) N4698
Samuel Nema v. Rural Development Bank Ltd (2012) N5317
Jackson Laka v. Pius Nui (2013) SC1223
Samuel Nema v. Rural Development Bank Ltd (2013) SC1243

Counsel:

Mr. I. R. Shepherd, for the Plaintiff
Mr. D. Kamen, for the Third, Fourth and Fifth Defendants
Mr. M. Maiteng, for the Sixth Defendant

29th January, 2014

1. HARTSHORN J: The plaintiff seeks judgment for the possession of the land known as Portion 1597 Granville, which is the whole of the land contained in State Lease Volume 24 Folio 249 and now State Lease Volume 34 Folio 176 (Land). The plaintiff also seeks the leave of this court for a writ of possession to issue to enforce the judgment for possession of land. The plaintiff contends that it is entitled to the orders it seeks as it is the registered proprietor of the State Lease for the Land.

Background

2. The plaintiff was granted a State Lease over the Land on 1st September 2000. The Land comprises 13.7 hectares on Paga Hill in Port Moresby. The plaintiff's plans for the development of the Land include a "ring road" proposal. This is part of the National Capital District Commission's planning for Port Moresby City. The plaintiff contends that it is anticipated that construction of the ring road will substantially relieve traffic congestion in Port Moresby City. The plaintiff's development proposal for the Land has been declared by the National Executive Council as a project with "National Significance". The project has the support of the Ministry of Housing and Urbanisation and National Housing and Estate Ltd, and also the Ministry for Art, Culture and Tourism.

3. The plaintiff commenced consultation with settlers on the Land including those named as defendants in this current proceeding in 2004. It held meetings with settlement leaders in 2010 and has offered compensation and resettlement. Some of the settlers have been relocated to land at 6 Mile. In April 2012 after obtaining what the plaintiff thought were orders which had been consented to by all of the settlers, the eviction process was commenced. This resulted in appeals to this court and a stay of eviction orders.

4. The District Court Orders were subsequently dissolved when the proceedings were discontinued rendering the appeal to this court redundant. All of the defendants to this proceeding were those either named in the previous eviction proceedings in the District Court or were named as appellants in this court and all have been served with the Originating Summons.

5. The first and second defendants' have not entered an appearance in this proceeding.

6. The third, fourth and fifth defendants oppose the claim of the plaintiff for possession on the basis that:

a) the Land was mistakenly awarded to the plaintiff. As the Land contains war surplus material, pursuant to s. 2 War Surplus Material Act 1952, the Land is the property of the State.

b) the plaintiff does not have a clear title to the Land as the Secretary for the Department of Lands and Physical Planning has informed that the issue of the State Lease for the Land is being investigated.

7. The sixth defendant does not contest the plaintiff's title to the Land, but it contends that the title does not include land that has been reclaimed as the reclaimed land was reclaimed by members of the sixth defendant.

8. If this court decides that the plaintiff is entitled to the relief that it seeks, then the third to sixth defendants submit that they be given ample time to vacate the Land.

9. The plaintiff submits that it is entitled to the relief that it seeks as it is the registered proprietor of the Land by virtue of State Lease Volume 24 Folio 249 that was granted to it on 1st September 2000 and by virtue of the new State Lease Volume 34 Folio 176 that was issued to it on 22nd June 2009. As such it has an indefeasible title to the Land pursuant to s. 33 Land Registration Act.

10. The plaintiff further submits that unless the third to sixth defendants are able to show that they have a better title to that of the plaintiff or that the plaintiff's title is defective, the orders that the plaintiff seeks should be granted. The plaintiff's originating summons has been filed under Order 4 Rule 26 National Court Rules and leave to issue a writ of possession is sought pursuant to Order 13 Rule 3(2) National Court Rules.

11. It is clear from the evidence that the plaintiff is registered upon State Leases Volume 24 Folio 159 and Volume 34 Folio 176 as the Lessee of the Land.

12. The third, fourth and fifth defendants' contend that the Land was mistakenly awarded to the plaintiff as the Land contains war surplus material and is therefore the property of the State pursuant to s. 2 War Surplus Material Act 1952.

13. In regard to this submission, there is no evidence that the Land was mistakenly awarded as submitted. Secondly, the definition of "war surplus material" in s. 1 War Surplus Material Act and s. 2 of that Act do not operate to deem land upon which there is located war surplus material, the property of the State. Consequently I reject this submission. I note in this regard that it is in evidence that the then Minister for Tourism, Arts & Culture, in a press release stated:

"There are a lot of historical monuments and relics at Paga Hill but they have deteriorated over the years due to complete negligence and also lack of funding to properly preserve and restore them. The initiative taken by the developer to fully incorporate tourism products and facilities whilst also preserving and protecting the historical war relics is a commendable effort....."

14. As to the submission that the plaintiff does not have clear title as the Secretary for the Department of Lands and Physical Planning has informed that the issue of the State lease for the Land is being investigated, an investigation is just that - an investigation. In the absence of any other evidence to the effect that the third to sixth defendants' have a better title or that the plaintiff's title is in some way defective, the fact of there being an investigation does not adversely affect the plaintiff's title.

15. As to the submission of the sixth defendant that the plaintiff's title does not include land reclaimed by some of the sixth defendants, annexure "B" to the affidavit of Tony Ilave to my mind appears to show that the land he deposes has been reclaimed is in fact within Portion 1597. In any event, the sixth defendants' have not shown either by reclamation or otherwise that they have a better title than that of the plaintiff.

16. Consequently, I am satisfied to the requisite standard that the plaintiff is entitled to the relief that it seeks. I have had recourse to the following decisions in this regard: Jackson Laka v. Pius Nui (2013) SC1223, Samuel Nema v. Rural Development Bank Ltd (2013) SC1243, Pius Nui v. Jackson Laka (2012) N4698, Samuel Nema v. Rural Development Bank Ltd (2012) N5317, PNGBC v. Barra Amevo (1998) N1726, Air Niugini v. Elizabeth Talum [1992] PNGLR 296 and Bank of PNG v. Muteng Basa [1992] PNGLR 271.

17. The next consideration is the amount of time the defendants' should have to vacate the Land. Notwithstanding the evidence concerning the length of time that the defendants and occupants have been living on the Land, the difficulties that may occur in vacating the land and in resettling somewhere else, I am satisfied that the defendants and occupants have been aware that they must vacate the Land for at least the last two years. In all the circumstances therefore I am satisfied that it is appropriate that the defendants' give vacant possession to the plaintiff within 45 days from today's date and that a writ of possession shall issue at the expiration of 45 days from today's date.

Orders

18. It is ordered that:

a) The defendants shall give vacant possession of the Land known as Portion 1597 Granville, National Capital District, being the whole of the Land contained in State Lease Volume 34 Folio 176, formerly in State Lease Volume 24 Folio 249, to the plaintiff within 45 days from today.

b) a writ of possession shall issue in respect of the above property, at the expiration of 45 days from today.

c) the third to sixth defendants' shall pay the plaintiff's costs of and incidental to this proceeding.

d) time is abridged.

____________________________________________________
Ashurst Lawyers: Lawyers for the Plaintiff
Kamen Lawyers: Lawyers for the Third, Fourth and Fifth Defendants Mirupasi Lawyers: Lawyers for the Sixth Defendant