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Mota v Camillus [2017] PGNC 149; N6810 (27 July 2017)

N6810

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]


WS NO 1418 OF 2014


BETWEEN
DAVID MOTA, REPRESENTING ENO
INCORPORATED LAND GROUP
First Plaintiff


AND
DAVID JOHN, REPRESENTING NAKISE CLAN
Second Plaintiff


AND
RAYMOND JACK, REPRESENTING MENEM CLAN
Third Plaintiff


AND
ALPHONSE KURAI, REPRESENTING OTHO CLAN
Fourth Plaintiff


PASSINGAN KARIEN, REPRESENTING KATHKATHE CLAN
Fifth Plaintiff


AND
MESAK RUO, REPRESENTING LOVUTH CLAN
Sixth Plaintiff


AND
SAMSON WAIYU, REPRESENTING D9 LESSEES
Seventh Plaintiff


MARAREA LAND GROUP INCORPORATED
Eighth Plaintiff


AND
DARIUS BOAS, CHAIRMAN, MELOKS ILG FOR AND ON BEHALF OF HIMSELF AND RIGULA CUSTOMARY LANDOWNERS
Ninth Plaintiff


AND
MELOKS INCORPORATED LAND GROUP
Tenth Plaintiff


AND

ALBERT CAMILLUS
First Defendant


AND
AKAMI OIL PALM LIMITED
Second Defendant


AND
HENRY WASA, REGISTRAR OF TITLES
Third Defendant


AND
DEPARTMENT OF LANDS AND PHYSICAL PLANNING
Fourth Defendant


AND
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Fifth Defendant


Madang: Cannings J
2015, 14th December
2016, 7th March

Kimbe: Cannings J

2017, 27 July


LAND – customary land – government land – Special Agricultural and Business Leases – whether fraud involved in granting of State Leases – meaning of “fraud” in Land Registration Act – actual fraud – constructive fraud.


CLAIMS BY AND AGAINST THE STATE ACT – whether Section 5 notice had to be given – limitation periods – Frauds and Limitations Act, Sections 16, 18 – deed of release – whether applicable when executed by a person associated with, but not, a plaintiff.


The Minister for Lands and Physical Planning granted 99-year Special Agricultural and Business Leases to the second defendant over two portions of land, which were formerly customary land. The plaintiffs claimed that they were genuine customary owners of the land and that they were not consulted on and did not agree to the leases being granted. They argued that the circumstances surrounding the granting of the leases to the second defendant involved actual fraud, and constructive fraud. They sought declarations that the leases were null and void and an order that the leases be quashed. A trial was conducted. The first defendant (a primary shareholder and director of the second defendant) and the second defendant argued that the proceedings should be summarily dismissed on three preliminary grounds: (a) non-compliance with Section 5 of the Claims By and Against the State Act; (b) being time-barred by Section 16 of the Frauds and Limitations Act; and (c) non-compliance with a deed of release. As to the substantive question of whether fraud was involved in granting of the two leases, the first and second defendants denied the allegations. They asserted that the genuine former customary landowners had agreed to their land being transferred, by signing purchase agreements, and had been paid accordingly. The third, fourth and fifth defendants (the Registrar of Titles, the Department of Lands and Physical Planning and the State) took no part in the trial.


Held:


(1) As to the preliminary issues: (a) Section 5 of the Claims By and Against the State Act did not apply as the plaintiffs were not making a “claim” against the State; (b) the proceedings were not time-barred by Section 16(1) of the Frauds and Limitations Act as: (i) this was not an action founded on simple contract or tort or any other form of action covered by Section 16(1); and (ii) the proceedings are properly regarded as a claim for declarations and other forms of equitable relief, in which case Section 16 does not apply; and (c) the deed of release did not apply as it was not executed by most of the plaintiffs.

(2) Under Papua New Guinea’s Torrens Title system of land registration the general principle is that once a lease of land from the State, including a Special Agricultural and Business Lease, is registered, an indefeasible title is conferred on the registered proprietor, subject only to the exceptions in Section 33(1) (protection of registered proprietor) of the Land Registration Act, including Section 33(1)(a), which states: “The registered proprietor of an estate or interest holds it absolutely free from all encumbrances except ... in the case of fraud”.

(3) “Fraud” means actual fraud or constructive fraud (where it is proven that the circumstances in which a person has obtained title are so unsatisfactory, irregular and unlawful as to warrant the setting aside of title).

(4) Here, the plaintiffs failed to prove actual fraud.

(5) The plaintiffs proved constructive fraud as none of the elaborate procedures under Sections 10, 11 and 102 of the Land Act for acquisition by the State, by lease, of customary land, and granting of Special Agricultural and Business Leases over such land to third parties, were complied with. This was a case of extensive violation of statutory procedures for transfer of interests in customary land. It was proven that the circumstances in which the second defendant obtained title were so unsatisfactory, irregular and unlawful as to amount to constructive fraud, warranting the setting aside of title.

(6) The principal relief sought by the plaintiffs was granted: each Lease was declared null and void and quashed, and the Registrar of Titles was ordered to amend the Register of State Leases and all other records of the State under his control to give effect to the declarations. Costs followed the event.

Cases cited:


The following cases are cited in the judgment:


Doriga Mahuru v Hon Lucas Dekena (2013) N5305
Emas Estate Development Pty Ltd v John Mea & Ors [1993] PNGLR 215
Eric Kiso v Bennie Otoa & Ken Wutnalom (2013) SC1222
Gire Gire Estates Ltd v Barava Ltd (2016) N6473
Kathrine Mal v Commander, Beon Correctional Institution (2017) N6710
Koitachi Ltd v Walter Schnaubelt (2007) SC870
Kol Toki v Moeka Morea (2016) SC1588
Lae Bottling Industries Ltd v Lae Rental Homes Ltd (2011) SC1120
Leo Maniwa v Aron Malijiwi (2013) N5687
Louis Medaing v Ramu Nico Management (MCC) Ltd (2011) N4340
Mamun Investment Ltd v Nixon Koi (2015) SC1409
Mark Lakani v Gabe Ikupu (2015) N6067
Mond v Okoro [1992] PNGLR 501
Mudge v Secretary for Lands [1985] PNGLR 387
Musa Valley Management Company Ltd v Pepi Kimas (2010) N3827
PNG Deep Sea Fishing Ltd v Luke Critten (2010) SC1126
PNGBC v Jeff Tole (2002) SC694
The State v Lohia Sisia [1987] PNGLR 102
Vitus Kais v Sali Tagau (2016) N6159


STATEMENT OF CLAIM


This was a trial in which the plaintiffs sought declarations and orders regarding two Special Agricultural and Business Leases granted to the second defendant.


Counsel:


J N Tandawai, for the 1st, 2nd, 3rd, 4th, 5th, 6th, 7th, 9th & 10th Plaintiffs
R J Mann-Rai, for the 8th Plaintiff
G Lau & K Makeu, for the 1st & 2nd Defendants


27th July, 2017


  1. CANNINGS J: This case is about two portions of land in the Central Nakanai area of West New Britain Province, which are the subject of Special Agricultural and Business Leases. The lessee or registered proprietor of each lease is the second defendant, Akami Oil Palm Ltd, a company of which Albert Camillus, the first defendant, is a primary shareholder and a director. The two portions, which are close to each other, in the vicinity of Mt Pago, near the junction of the Kapiura and Leaururu Rivers, are:
  2. The Minister for Lands and Physical Planning, on behalf of the State (the fifth defendant), granted Akami Oil Palm Ltd, under the Land Act 1996, a 99-year Special Agricultural and Business Lease over Portion 104C on 19 March 2008 and over Portion 2628C on 8 April 2008.
  3. The plaintiffs claim that they are or represent the customary owners of the two portions of land or that they have lived on the land for many years with permission of the customary owners. The plaintiffs claim that the customary landowners were not consulted on and did not agree to the leases being granted to the second defendant. They argue that the circumstances surrounding the granting of the leases to the second defendant involved actual fraud, and constructive fraud. They seek declarations that the leases are null and void and an order that the leases be quashed.
  4. The first and second defendants argue that the plaintiffs’ case should be summarily dismissed on three preliminary grounds:

(a) non-compliance with Section 5 of the Claims By and Against the State Act 1996;

(b) being time-barred by Section 16 of the Frauds and Limitations Act 1988; and

(c) non-compliance with a deed of release.


  1. As to the substantive question of whether fraud was involved in the granting of the two leases, the first and second defendants absolutely deny these allegations. They assert that the genuine customary landowners – and they say that the most of the plaintiffs are not genuine customary landowners – agreed to their land being transferred and that they signed a purchase agreement in respect of each portion of land and were paid in accordance with those agreements.
  2. The third, fourth and fifth defendants (the Registrar of Titles, the Department of Lands and Physical Planning and the State) took no part in the trial.

ISSUES


  1. The following issues arise:

1 Should the proceedings be summarily dismissed?


  1. 2 Did Akami Oil Palm Ltd obtain either of the Special Agricultural and Business Leases by fraud?

3 What declarations or orders should the Court make?


  1. SHOULD THE PROCEEDINGS BE SUMMARILY DISMISSED?
  2. None of the three preliminary arguments result in summary dismissal of the proceedings, for the following reasons.

This provision does not apply as the plaintiffs are not making a monetary “claim” against the State. The term “claim” in Section 5 refers to a monetary claim or a claim for an order such as an injunction that would involve direct cost or prejudice to the State (Kathrine Mal v Commander, Beon Correctional Institution (2017) N6710). It was not necessary for the plaintiffs to give notice in writing of their intention to commence proceedings against the State within six months after the date on which the occurrence giving rise to the claim arose.


(b) Section 16(1) of the Frauds and Limitations Act


  1. Mr Makeu for the first and second defendants submitted that the proceedings are time-barred by Section 16(1) (limitation of actions in contract, tort, etc) of the Frauds and Limitations Act, which states:

Subject to Sections 17 and 18, an action—


(a) that is founded on simple contract or on tort; or

(b) to enforce a recognisance; or

(c) to enforce an award, where the submission is not by an instrument under seal; or

(d) to recover any sum recoverable by virtue of any enactment, other than a penalty or forfeiture or sum by way of penalty or forfeiture,


shall not be brought after the expiration of six years commencing on the date on which the cause of action accrued.


  1. It was submitted that the alleged fraud on which the plaintiffs rely occurred in March-April 2008 when the two Special Agricultural and Business Leases were granted. They had until March-April 2014 to commence the proceedings, but did not do so until 14 November 2014, which exceeded the statutory time limit by more than six months.
  2. I reject that submission for the same reasons I rejected a similar submission in Vitus Kais v Sali Tagau (2016) N6159. First, this is not an action founded on simple contract or tort or any other form of action covered by Section 16(1) of the Frauds and Limitations Act. Though in some cases (eg Mark Lakani v Gabe Ikupu (2015) N6067) a challenge to a defendant’s title to Government land has been regarded as an action founded on the tort of fraud, and therefore subject to the six-year limitation period, the present case should not be categorised in that way.

The plaintiffs’ statement of claim did not plead the tort of fraud; and nor did it have to. Though it was not expressly pleaded as a case of constructive fraud for the purposes of Section 33(1) of the Land Registration Act, I consider that that is how the statement of claim is properly regarded. There are many cases now applying the principle established by the Supreme Court in Emas Estate Development Pty Ltd v John Mea & Ors [1993] PNGLR 215 that a registered proprietor’s State Lease can be annulled in a case of constructive fraud and that proof of actual fraud is not necessary. None of those cases say that constructive fraud is necessarily the equivalent of the tort of fraud.


  1. The second reason the action is not time-barred is that it falls within Section 18 (claims for specific performance, etc) of the Frauds and Limitations Act, which states:

Section 16 does not apply to any claim for specific performance of a contract or for an injunction or for other equitable relief.


  1. Section 18 requires the Court to assess the nature of the primary relief sought by the plaintiffs. If it is equitable relief, the proceedings are not subject to the time limitation in Section 16. The primary remedies sought by the plaintiffs are declarations that the second defendant obtained the two Special Agricultural and Business Leases by fraud and orders quashing those titles. The declarations are not sought on the basis of breach of contract or the tort of fraud or other common law principles, but on equitable principles. They are equitable remedies (Mamun Investment Ltd v Nixon Koi (2015) SC1409). Likewise with the orders. They are sought on the basis of equitable principles. They are properly regarded as mandatory injunctions. They are also, in this case, equitable remedies.

Digression: pleadings


  1. Before addressing the third preliminary argument, I digress to comment on the pleadings. I have taken a liberal approach to the pleadings as both sides have been less than precise in drafting them. The plaintiffs’ statement of claim focuses on actual fraud, when they should have expressly pleaded constructive fraud, at least as an alternative. The defence of the first and second defendants is convoluted and reads more as a submission than a pleading, yet it does not plead the preliminary arguments raised at the trial. During submissions, all counsel seemed uninterested in arguing about pleadings. Counsel for the first and second defendants did not attempt to argue that the plaintiffs should not be allowed to base their case on constructive fraud (on the ground that it was not expressly pleaded). Counsel for the plaintiffs did not attempt to argue that the first and second defendants’ preliminary arguments should not be entertained (on the ground that they were not pleaded in the defence).
  2. The best approach is to deal with all arguments raised by both sides, without being overly concerned about whether the arguments are supported by the pleadings. This might offend purists. It might sound irregular or contrary to the purpose of pleadings: to guard against trial by ambush (PNGBC v Jeff Tole (2002) SC694; Mond v Okoro [1992] PNGLR 501). However, where both sides engage in an ambush, of sorts, and neither of them complain about it, why should the Judge step in and insist on adherence to the pleadings? The more general purpose of pleadings is to ensure that there are no surprises or shock tactics employed at the trial. To ensure fairness. Here I am satisfied that there have been no surprises or shock tactics and the proceedings have been fairly conducted. Hence a liberal approach is required.

(c) Deed of release


  1. Mr Makeu refers to a deed of release signed by certain office-holders of Eno Incorporated Land Group, which, on one interpretation, releases Akami Oil Palm Ltd from the risk of legal action being brought against it by Eno Incorporated Land Group in relation to title to Portion 104C. The deed, however, on its terms, does not prevent David Mota, the first plaintiff, from commencing such action. And even if it did, it does not apply to the other nine plaintiffs.
  2. The three preliminary arguments have failed. I will now address the substantive issues.
  3. DID AKAMI OIL PALM LTD OBTAIN EITHER OF THE SPECIAL AGRICULTURAL AND BUSINESS LEASES BY FRAUD?
  4. The main issue is whether the second defendant obtained title to Portion 104C and/or Portion 2628C in a case of fraud. Under Papua New Guinea’s Torrens Title system of land registration, registration of a lease vests an indefeasible (unforfeitable) title in the registered proprietor subject only to the exceptions in Section 33(1) of the Land Registration Act Chapter 191. Most significantly Section 33(1)(a): “in the case of fraud” (Mudge v Secretary for Lands [1985] PNGLR 387). The plaintiffs allege both actual fraud and constructive fraud.

Actual fraud


  1. The plaintiffs (other than the eighth plaintiff, which bases its case only on constructive fraud) say that in March 2000 there was a meeting involving the Rigula Landowners Association (which was then an umbrella group for customary landowners of the land known then as Bialiki, Roka No 2) and the first defendant, Mr Camillus. It was agreed that Mr Camillus, who comes from East Sepik Province, should develop it for the benefit of his children. This was agreed as Mr Camillus was married to a local woman, who was herself a primary landowner by virtue of the matrilineal system of customary landownership extant in West New Britain. The plaintiffs argue that it was only 40 hectares that was sold to Mr Camillus and they were shocked upon discovering eight years later that Mr Camillus had somehow got 576.95 hectares of their land registered in the name of his company, Akami Oil Palm Ltd. They argue that the only inference to be drawn is that Mr Camillus fraudulently used some of their signatures which appeared on the March 2000 purchase agreement, to facilitate a “land grab”.
  2. Mr Camillus and Akami Oil Palm Ltd deny those allegations, for good reason. Though there might have been a meeting in March 2000 and an original agreement to sell 40 hectares (which is disputed by the defendants), it is clear that over several years Mr Camillus reached ongoing agreements with some (not all) of the plaintiffs and paid more than K100,000.00 to local people who held themselves out as customary landowners.
  3. The plaintiffs’ argument about signatures being fabricated and forged and fraudulently used is without merit. I find that this was not a case of actual fraud.

Constructive fraud


  1. Constructive fraud exists where the circumstances of transfer of title are so unsatisfactory, irregular or unlawful, it is tantamount to fraud, warranting the setting aside of registration of title. There is now a strong line of Supreme Court authority in support of the constructive fraud approach: Emas Estate Development Pty Ltd v John Mea [1993] PNGLR 215, PNG Deep Sea Fishing Ltd v Luke Critten (2010) SC1126, Lae Bottling Industries Ltd v Lae Rental Homes Ltd (2011) SC1120 and Kol Toki v Moeka Morea (2016) SC1588.
  2. That line of authority is, in my view, binding on the National Court, more so than cases such as Koitachi Ltd v Walter Schnaubelt (2007) SC870 and Eric Kiso v Bennie Otoa & Ken Wutnalom (2013) SC1222, in which the Supreme Court has indicated that proof of actual fraud is necessary.
  3. The critical issue therefore becomes whether the granting of either or both of the Special Agricultural and Business Leases to Akami Oil Palm Ltd was a case of constructive fraud. If that is determined in the negative, the plaintiffs’ case will fail. If it is determined in the affirmative, the question of remedies will arise.
  4. Mr Tandawai (for all plaintiffs other than the eighth) and Mr Mann-Rai (for the eighth plaintiff) submitted that the procedures for ‘conversion’ of customary land, under the lease-leaseback regime in the Land Act 1996, to Special Agricultural and Business Leases, were not followed. The plaintiffs were genuine customary owners of the land and that they were not consulted on and did not agree to the leases being granted.
  5. The first and second defendants respond that everything was done in accordance with the law following land investigation reports prepared by the Department of Lands and Physical Planning and in consultation and agreement with the genuine customary landowners. They have adduced many affidavits by various local people who say that they are genuine customary landowners, that they have been paid well by Mr Camillus, that they question the plaintiffs’ customary ownership and the motives of the plaintiffs for commencing this case, and that they support the proposals by Akami Oil Palm Ltd to develop the land, which will have spin-off benefits for the local people.
  6. It is clear that the first and second defendants enjoy the support of many local people. It is equally clear that the plaintiffs are supported by many local people. The ownership of Portions 104C and 2628C is a burning local issue.

It is not my task to try to work out who is standing on the highest moral ground. This is a case about compliance with the law, in particular the Land Act and the elaborate procedures it prescribes for granting of Special Agricultural and Business Leases. I have dealt with these procedures in two cases, Musa Valley Management Company Ltd v Pepi Kimas (2010) N3827 and Doriga Mahuru v Hon Lucas Dekena (2013) N5305. The relevant law is Sections 10, 11 and 102 of the Land Act.


  1. Section 10 (acquisition of customary land by agreement) states:

(1) Subject to Section 11, customary land shall be acquired in accordance with this Section and shall be authenticated by such instruments and in such manner as are approved by the Minister.


(2) The Minister, on behalf of the State, may acquire customary land on such terms and conditions as are agreed on between him and the customary landowners.


(3) Subject to Subsection (4), the Minister shall not acquire customary land unless he is satisfied, after reasonable inquiry, that the land is not required or likely to be required by the customary landowners or by persons on whom the land will or may devolve by custom.


(4) Where the Minister is satisfied, after reasonable inquiry, that any customary land is not required or likely to be required for a certain period but is of the opinion that the land may be required after that period, he may lease that land from the customary landowners for the whole or a part of that period.


  1. Section 11 (acquisition of customary land for the grant of special agricultural and business lease) states:

(1) The Minister may lease customary land for the purpose of granting a special agricultural and business lease of the land.


(2) Where the Minister leases customary land under Subsection (1), an instrument of lease in the approved form, executed by or on behalf of the customary landowners, is conclusive evidence that the State has a good title to the lease and that all customary rights in the land, except those which are specifically reserved in the lease, are suspended for the period of the lease to the State.


(3) No rent or other compensation is payable by the State for a lease of customary land under Subsection (1).


  1. Section 102 (grant of special agricultural and business leases) states:

(1) The Minister may grant a lease for special agricultural and business purposes of land acquired under Section 11.


(2) A special agricultural and business lease shall be granted—


(a) to a person or persons; or

(b) to a land group, business group or other incorporated body,


to whom the customary landowners have agreed that such a lease should be granted.


(3) A statement in the instrument of lease in the approved form referred to in Section 11(2) concerning the person, land group, business group or other incorporated body to whom a special agricultural or business lease over the land shall be granted, is conclusive evidence of the identity of the person (whether natural or corporate) to whom the customary landowners agreed that the special agricultural and business lease should be granted.


(4) A special agricultural and business lease may be granted for such period, not exceeding 99 years, as to the Minister seems proper.


(5) Rent is not payable for a special agricultural and business lease.


(6) Sections 49, 68 to 76 inclusive, 82, 83, 84 and 122 do not apply to or in relation to a grant of a special agricultural and business lease.


(7) Notwithstanding anything in this Act, a special agricultural and business lease shall be effective from the date on which it is executed by the Minister and shall be deemed to commence on the date on which the land subject to the lease was leased by the customary landowners to the State under Section 11.


  1. The approach I took to interpretation of the above provisions, in Musa Valley and in Doriga Mahuru, has been supported by Gavara-Nanu J in Leo Maniwa v Aron Malijiwi (2013) N5687 and by Anis AJ in Gire Gire Estates Ltd v Barava Ltd (2016) N6473. I am unaware of any conflicting authority. The approach is rather strict, but this is necessarily the case, to reflect the cultural, social and economic significance of customary land in Papua New Guinea. The issue of Special Agricultural and Business Leases has been very controversial in recent years, so much so that the Prime Minister instituted a Commission of Inquiry to inquire into the circumstances in which large tracts of customary land throughout the county have been made the subject of Special Agricultural and Business Leases, many of which are controlled by non-citizen interests.
  2. To lawfully grant a Special Agricultural and Business Lease over customary land the Minister for Lands and Physical Planning and all interested parties must comply with all of the requirements of Sections 10, 11 and 102, which can be summarised as follows:
  3. In this case, I see no evidence that any of those requirements have been met. The defendants are reasonably expected to have the evidence to show that all of the requirements have been met, But there is none. The Registrar of Titles and the Department of Lands and Physical Planning and the State were joined to the proceedings as defendants. It is reasonably expected that they would also have the documentary evidence that the necessary procedures were followed. But they have shown no interest in the case. This strengthens the conclusion I am driven to draw: that there is no evidence of compliance, and this is because the mandatory procedures were not followed.
  4. I find that:
  5. The elaborate procedures in Sections 10, 11 and 102 of the Land Act exist for a reason: to ensure that leases over customary land are granted only after a thorough identification and investigation of the land and the customary landowners and their agreement to what is proposed.

That purpose has not been achieved in this case. I find that the circumstances in which the Special Agricultural and Business Leases over Portions 104C and 2628C were granted and registered in favour of Akami Oil Palm Ltd are so unsatisfactory, dubious and irregular as to be tantamount to fraud.


  1. In PNG land is a critical natural resource required by National Goal Number 4 to be conserved and used for the benefit of the present generation and for the benefit of future generations. National Goal No 4 (natural resources and environment) of the Constitution and its accompanying Directive Principles state:

We declare our fourth goal to be for Papua New Guinea's natural resources and environment to be conserved and used for the collective benefit of us all, and be replenished for the benefit of future generations.


WE ACCORDINGLY CALL FOR—


(1) wise use to be made of our natural resources and the environment in and on the land or seabed, in the sea, under the land, and in the air, in the interests of our development and in trust for future generations; and


(2) the conservation and replenishment, for the benefit of ourselves and posterity, of the environment and its sacred, scenic, and historical qualities; and


(3) all necessary steps to be taken to give adequate protection to our valued birds, animals, fish, insects, plants and trees.


  1. Under Section 25(2) (implementation of the National Goals and Directive Principles) of the Constitution all governmental bodies are obliged to apply and give effect to the National Goals and Directive Principles as far as lies within their respective powers. As I pointed out in Louis Medaing v Ramu Nico Management (MCC) Ltd (2011) N4340 the National Goals and Directive Principles are in the Preamble to the Constitution. They underlie the Constitution. They are the proclaimed aims of the People of Papua New Guinea. They cannot be ignored. They must be taken into account by the Court when interpreting laws and when deciding what relief should be granted to persons such as the plaintiffs who have proven errors of law have been committed by governmental officials and bodies. Section 25(3) of the Constitution states:

Where any law, or any power conferred by any law (whether the power be of a legislative, judicial, executive, administrative or other kind), can reasonably be understood, applied, exercised or enforced, without failing to give effect to the intention of the Parliament or to this Constitution, in such a way as to give effect to the National Goals and Directive Principles, or at least not to derogate them, it is to be understood, applied or exercised, and shall be enforced, in that way.


  1. Decisions about the transfer of interests in customary land must be made carefully and thoughtfully and in strict accordance with procedures prescribed by law. Those procedures have in this case been flouted. Actual fraud has not been proven, but constructive fraud has been proven. This is therefore a “case of fraud” for the purposes of Section 33(1)(a) of the Land Registration Act.
  2. WHAT DECLARATIONS OR ORDERS SHOULD THE COURT MAKE?
  3. The granting and registration of the Special Agricultural and Business Leases are ineffective at law and should not be allowed to stand. I will exercise the discretion of the Court by making the declarations and orders sought by the plaintiffs. The Court’s orders will require the Register of Titles to be corrected. Costs will follow the event and be on a party-party basis.

ORDER


(1) The Special Agricultural and Business Purpose Lease in respect of Portion 104C, Milinch Megigi, Fourmil Talasea, West New Britain, granted to Akami Oil Palm Ltd, dated 19 March 2008, is declared null and void and is quashed.

(2) The Special Agricultural and Business Purpose Lease in respect of Portion 2628C, Milinch Megigi, Fourmil Talasea, West New Britain, granted to Akami Oil Palm Ltd, dated 8 April 2008, is declared null and void and is quashed.

(3) The third defendant, the Registrar of Titles, shall, within 21 days after the date of service of this order, amend the Register of State Leases and all other records of the State under his control to give effect to these declarations.

(4) Subject to any specific costs order made in the course of the proceedings, the first and second defendants shall pay the plaintiffs’ costs of the proceedings on a party-party basis, which shall, if not agreed, be taxed.

(5) Time for entry of the order is abridged to the date of settlement by the Registrar, which shall take place forthwith.

Judgment accordingly.
________________________________________________________________
Robert Mai & Co Lawyers : Lawyers for the 1st, 2nd, 3rd, 4th, 5th, 6th, 7th, 9th & 10th Plaintiffs
Mann-Rai Lawyers : Lawyers for the 8th Plaintiff
Niuage Lawyers : Lawyers for the 1st & 2nd Defendants


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