Home | Databases | WorldLII | Search | Feedback National Court of Papua New Guinea

Kais v Tagau [2020] PGNC 22; N8191 (14 February 2020)

N8191

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS (HR) NO. 3 OF 2019

BETWEEN
VITUS KAIS, PETER SIARUP, TOM BAMATU, WOLEF BAMATU, MANUEL AMBAT, JULIUS BAMATU, JOHN SAPURI, SIM SIPIEL, MEPI VITUS, ERLBERT, SIARUP, TARIUS SIARUP, JUAKIM BUNAM, JAUL SAGUI & JOHN DAP
Plaintiffs

AND
SALI TAGAU
First Defendant

AND:
SELON LIMITED
Second Defendant

Madang: Thompson J
2020: 23^rd, 24^th and 27^th January
Waigani: 14^th February

TRANSFER OF LAND – State Lease – indefeasibility of title – necessity to plead and prove fraud or other exception under S33 of Land Registration Act – fraud must be by registered proprietor – necessary elements of a trust – whether land subject to trust – whether title holder subject to trust –necessary elements of an agreement – necessity to show certainty of terms

Counsel

Mr. B Wak Counsel, for the Plaintiffs
Mr. M Yalapan, for the Defendants

14^th February, 2020

1. THOMPSON J: In 2010 the Plaintiffs issued proceedings on WS 301 of 2010 against the Defendants in which they successfully claimed that fraudulent representations were made by the Defendants in obtaining the title to certain land. On 18 December 2018 the Supreme Court on SCA 16 of 2016 found that the Plaintiffs had not proven either actual or constructive fraud, that the claims were in any event time-barred, and set aside the decision.

2. The Supreme Court found that even if fraud had been established, the title would have reverted to the State, and not been given to the Plaintiffs. The Court found that if the Plaintiffs had been seeking equitable relief, the court would have been entitled to refuse it, on the basis of 10 (now 18) years undue delay by the Plaintiffs which had prejudiced the Defendants and the third party bona fide purchasers.

3. In February 2019, the Plaintiffs issued these proceedings. The Statement of Claim essentially pleads that representations were made in 1999 and 2000, the Plaintiffs supported the Defendant’s tender for the purchase of the land, and entered into an agreement whereby the land would be held in trust. They plead that after the land was sold in 2000, the Defendants breached this agreement and trust by their conduct from 2000 – 2008. They further plead that the Defendant’s unsuccessful attempts to evict them from the land are a breach of their human rights under the Constitution.

4. The Writ of Summons and Statement of Claim appear to have been substantially copied from those earlier proceedings. As a result, the Statement of Claim refers to 3^rd and 4^th Defendants, which do not exist, some documents show a 2^nd Plaintiff which does not exist, and many documents such as affidavits show an additional sixteen Plaintiffs, who do not exist. The pleading of a trust in paras 10-13 in WS 301 of 2010 is almost word for word for the pleading in paras 10-13 in the current Statement of Claim.

5. The Plaintiffs also pleaded that the Supreme Court “acknowledged that the title was obtained for and on behalf of the 4 villagers by the 2^nd Defendant as a trustee company”. That was not correct, and is a misunderstanding of the judgment. In paras 23-24 the Supreme Court is only referring to the Plaintiff’s pleading of alleged misrepresentation. It was not finding that the pleading was proven. On the contrary, the Court found that the Plaintiffs neither pleaded nor gave evidence that proper procedures in the grant of title were breached or not followed. The Court made no findings in favor of the Plaintiffs, and found that they had not proven their claims, which in any event were time-barred.

6. In their relief, the Plaintiffs seek six Declarations against the Defendants, three directory orders, an alternative order for the transfer of title, and general and punitive damages.

7. The Defendants filed a Defence essentially pleading that the proceedings were res judicata as a result of the Supreme Court decision. In July 2019 they filed a notice of motion to dismiss the proceedings on that basis, which was refused. The Defendants then filed a replacement defence, omitting reliance on the time-bar and res judicata defences.

8. The Defendants have traversed each of the allegations, and plead that the Plaintiffs have no legal capacity to bring any of the claims or seek any of the relief, they are not landowners, and they are unlawful squatters.

9. At the commencement of the trial, both parties’ lawyers informed the Court that they were proceeding on the basis that the issues of the time-bar and res judicata were themselves res judicata as a result of the National Court decision on the motion, and the trial would be only on the merits of the case.

10. I allowed the trial to proceed on that basis, while noting that it is an essential element of res judicata that the decision is final and on the merits (see G. R. Logging Ltd v David Dotaona and ors (2018) PGSC 34). As the National Court decision was only interlocutory, prima facie it did not give rise to a res judicata, although it may have given rise to an issue estoppel.

Facts

Circumstances before the sale of land

11. The uncontested facts are that an area of land had been customarily owned by the 1^st Defendant’s Panufu Clan and possibly others until about 1963, when the 1^st Defendant’s grandfather on behalf of the Panufu Clan, and possibly other clans, sold the land to some expatriates who developed it into a copra plantation. In about 1974, the State purchased the land from them pursuant to a government buy-back scheme (“the land”), and then sold it to a company named Mililat Development Corporation Ltd. It was a condition of the transfer that the purchase price was to be paid over a number of years. The company was mismanaged, failed to pay the purchase price, and went into liquidation.

12. The State forfeited the title, and in 1999 offered the land for sale by tender. Several companies applied, including the 2^nd Defendant. It was said that the State expressed a desire for the land to be sold to a landowner company, although the State also said that it might sell “to any interested person”.

13. The 2^nd Defendant was a company which had been set up in 1997. It was owned by the 1^st Defendant who was a traditional landowner.

14. On 9 December 1999 a statement was signed by sixteen persons including the 1^st Defendant, saying that they “held an interest in Selon Ltd” and agreed that the land be transferred to the 2^nd Defendant. It was not factually correct that the fifteen other signatories held an interest in the 2^nd Defendant, which was wholly owned by the 1^st Defendant. None of the Plaintiffs were signatories.

15. On 8 February 2000 the Lands Department wrote a letter to the Provincial Lands Division saying, inter alia, that they had received some letters saying that the 2^nd Defendant was a landowner company, that “representatives of landowner company Selon Ltd” had appeared, and requesting that the issue of payment of the outstanding purchase price be resolved.

16. On 15 March 2000 the Provincial Lands Division wrote a letter to the Lands Department. It said, inter alia, that the Panufu clan and some other villagers had land inside the subject land, “recommended” that the 2^nd Defendant was a true representative of the landowner company, and recommended that the title should go to the 2^nd Defendant.

17. On 22 March 2000 the 1^st Defendant called a meeting of senior leaders, to obtain their support for the proposed purchase. None of the Plaintiffs attended the meeting. On that day, six people who said

they represented four villages, signed a Statutory Declaration saying that the 2^nd Defendant was a true landowner company which was put in place to “safeguard the interest of its members and the people ....” of the four villages. Neither the Plaintiffs nor the Defendants were signatories.

18. It is not clear what was meant by “its members”, as a company does not have members, only shareholders. There was no evidence that the company had been incorporated for the purpose of “safeguarding the interest” of the people of four villages. The effect of this document was unclear.

19. The Plaintiffs were not the authors of any of these four documents. With the exception of one signatory to the Statutory Declaration, none of the authors were called to identify them. The documents and their contents were all hearsay. Although they were admitted as annexures to other people’s affidavits without objection, the fact that they were hearsay is a matter to be considered by the court in determining how much weight should be attached to them.

20. In so far as the contents of these documents are alleged to be the representations or misrepresentations referred to in the pleadings, they were only made by the authors of the documents. They were not made by the Defendants.

Circumstances after the sale of land

21. The 2^nd Defendant paid the outstanding purchase price, and on 27 September 2000 the State transferred title and issued a State Lease for the land to the 2^nd Defendant. There was no condition or covenant endorsed on the Certificate of Title which required the 2^nd Defendant to hold the land in trust for the Plaintiffs or for any other person, or which required the land to be used for the benefit of the Plaintiffs or other persons, or which entitled the State to revoke the title for breach of any such condition or covenant.

22. A mortgage to Tropic Timbers Ltd was registered on the title. In 2001 the 2^nd Defendant subdivided the land into six titles, and later subdivided one of those titles into two further titles. Those two further titles were then sold at different times to third parties, who are the current registered proprietors. The 2^nd Defendant repaid the mortgage, which was discharged in 2006.

23. In 2008 the 2^nd Defendant obtained a Summary Ejectment order from the District Court, evicting the Plaintiffs and all other unlawful occupants of the land. The Court Order has not been set aside. Notwithstanding this, the Plaintiffs have not been evicted, and they remain in occupation. The Defendants were restrained by injunction in July 2019 from proceeding with eviction.

24. The land has not been customarily owned since before 1963. It has been owned by the State and by private companies since then, pursuant to various State Leases and Certificates of Title.

25. The 2^nd Defendant has been the registered proprietor of the land for nearly twenty years, and two other third parties have been the registered proprietors of two of the subtitled portions of land for about 10 years.

Issues

26. The first issue concerns the capacity in which these proceedings have been issued by the Plaintiffs. The Writ of Summons names fourteen individuals. Para 1 (a) and (b) of the statement of claim say that “The Plaintiff claims that he is member of the Mabonob clan ....” and “The Plaintiff claims that he is given authority and consent by members of Mabonob clan ... and as such he has instituted these proceedings for himself and their behalf.”

27. There are fourteen named Plaintiffs, and so it cannot be known who is referred to as “The Plaintiff” who claims that “he has been given authority to institute representative proceedings.”

28. In representative actions, all the intended Plaintiffs must be named and duly identified in the Writ or in a schedule to the Writ, and the written consents must be filed by way of an Authority to Act Form. (see Simon Mali v the State (2002) PNGLR 15).

29. The names of the clan members or other persons who allegedly gave consent to “the Plaintiff”, were not named in the Writ or in a Schedule to the Writ, and nor were any Consents to Act filed. There was no attempt at all to identify or name the persons on whose behalf these proceedings were allegedly instituted.

30. It follows that these proceedings are not a representative action. The only Plaintiffs are the fourteen named individuals, and they have only instituted the proceedings as individuals. The Plaintiffs are not representing any clans or villagers or customary landowners. As a consequence, their claims can only be based on their personal causes of action.

31. The next issue concerns the numerous references in the statement of claim to the “Customary Landowners”. For instance, in para 10 of the statement of claim, the Plaintiffs claim that “... it was a condition of the arrangement between the 1^st Defendant and the customary landowners that the land would be held by the 2^nd Defendant in trust for the benefit of all the customary landowners ...”. These “customary landowners” are not named or in any way identified in the statement of claim. There was no pleading by the Plaintiffs that they were the customary landowners, and nor was any other person identified as a customary landowner.

32. This court has no jurisdiction to determine customary ownership of land or interests in customary land.

33. Furthermore, the Plaintiffs did not plead that the land which was in dispute, was customary land. On the contrary, the Plaintiffs clearly acknowledge in the statement of claim that the land is the subject of a State Lease.

34. The land which is the subject of the dispute is, and has been for over 50 years, on a State Title, and so a reference to “customary landowners” cannot refer to the owners of this land. No persons were identified as being the “customary landowners”. The words have no apparent meaning.

35. These proceedings therefore do not concern a claim by customary landowners who have a dispute over ownership of customary land. These are merely proceedings by fourteen individuals seeking to challenge the indefeasible title of one of the registered proprietors of State land.

36. Pursuant to S33 of the Land Registration Act, the registered proprietor holds the title absolutely free from all encumbrances, with the exception of the matters set out in S33 (1) (a) – (i). S33 (2) says that this is not affected by the existence in any other person of an interest of any type which, but for the Act, might be held to be paramount.

37. The Plaintiffs have not pleaded any of the exceptions in S33 (1), and in particular they have not pleaded fraud. Any such fraud must be actual fraud by the registered proprietor in procuring registration, not constructive fraud (John Soto v Our Real Estate Ltd (2018) PGCS 55), and it has to be distinctly pleaded with particularity. No evidence can be given of matters which were not pleaded (PNGBC v Jeff Tole (2002) SC694).

38. As fraud was not pleaded, no legal basis is disclosed for a challenge to the 2^nd Defendants’ title as registered proprietor of the land. The Plaintiffs did not name the other two registered proprietors of the sub-titled parts of the land, so no challenge has been made to their title, and any such claim would be prima facie time-barred.

Plaintiff’s Case

39. In their submissions, the Plaintiff’s counsel referred to letters, agreements, and other matters which were not actually in evidence, and some of which were not pleaded. He sought relief which was not supported by either the pleadings or the evidence. I will deal with each of the pleaded claims.

Representations

40. The meeting of 22 March 2000 is not referred to at all in the pleadings, and no representations are pleaded to have been made at that meeting.

41. The Defendants successfully objected to persons who did not attend the meeting, giving evidence of what was said. One of the Plaintiffs’ witnesses had attended the meeting, and gave evidence of what was said. This witness’s oral evidence in Pidgin showed that he did not fully understand the contents of what he had deposed to in his written affidavit, in English. He did not know what was meant by some of the words used. His grasp of English was poor. After referring in his affidavit to the “terms and conditions” promised by the Defendants, he said that they were “deliberated and emphasized verbally and thoroughly as clauses of the signed Statutory Declaration on 22 March 2000”. However, none of the four “terms and conditions” are in the Statutory Declaration.

42. His evidence of the specific and detailed statements said to have been orally made, should be treated with caution. His evidence was uncorroborated, and was contradicted by the 1^st Defendant and by one other witness. I find that his evidence was insufficient to prove on the balance of probabilities that the alleged statements were made by the 1^st Defendant.

43. The only cause of action pleaded in the statement of claim, is essentially set out in paras 9 – 11. The remaining paras 12 – 30 set out the breaches of rights allegedly arising out of the cause of action.

44. Disregarding the reference to a non-existent Third Defendant, para 9 says that the Certificate of Title was transferred (necessarily by the State) to the 2^nd Defendant on the basis of representations given by the Provincial Minister of Lands, the customary landowners and the Plaintiffs, that the 2^nd Defendant was a genuine landowner company “representing the interest of all the customary landowners”. Paras 10-11 plead that it was a condition of the arrangement between the 1^st Defendant and the customary landowners that the land would be held by the 2^nd Defendant in trust for the benefit of all the customary landowners.

45. There is no pleading that the representations set out in para 9, were made by the Defendants.

46. Further, there is no pleading that they were misrepresentations. The Plaintiffs have not pleaded that any of the contents of the 4 documents were untrue or dishonestly made. As the contents were substantially expressions of opinion or belief by their authors, it is difficult to see that they were capable of being said to be either false or dishonest.

47. The only reference to “misrepresentations” in the pleadings is in the particulars of para 12. They refer to conduct which occurred years after the sale, and which therefore could not have formed the basis of any agreement prior to the sale.

48. Even if the Plaintiffs had shown that the contents of the four documents were representations, it does not follow that they would be entitled to make a claim against the Defendants. The representations were between the authors and the State. Any claims arising out of representations could not be against a person who was not a party to the agreement. (see Pacific Foam Pty Ltd v Zurich Pacific Insurance Pty Ltd (1998) PGNC 77).

49. Insofar as the author’s expressions of opinion or belief contained in the documents could be said to be misrepresentations, the Plaintiffs have not shown any cause of action against the Defendants, as those (hearsay) representations were pleaded to have been made to the State by the Provincial Minister of Lands and the customary landowners.

50. No representations or misrepresentations have been pleaded as having been made by the Defendants prior to the sale
(or indeed, at all).

51. The only pleading against the Defendants is that after the sale, they acted contrary to the “arrangement”, which conduct is then described as “particulars of misrepresentation”. However, a representation or misrepresentation can only be made prior to any agreement, not after it. The Supreme Court made the same point in para 24 of its judgment.

52. No cause of action against the Defendants by the Plaintiffs was disclosed, based on any representations or misrepresentations.

Arrangement/Agreement

53. In the statement of claim, the Plaintiffs refer to an “arrangement” and an “understanding” between the Defendants and the customary landowners. First, there are no customary landowners. Secondly, the Plaintiffs were not a party to the alleged arrangement or understanding. Thirdly, mere arrangements or understandings are not binding agreements.

54. The persons who - by inference only - were said to have entered into the arrangement/agreement, were not the Plaintiffs. Only one of those persons gave evidence that there was an agreement, while another of those persons gave evidence that there was no such agreement. It was also denied by the Defendants.

55. For an arrangement to be treated as a binding agreement, the Plaintiffs would at least have to show its clear terms, that each party had the intention to be bound, that the terms were accepted, and usually that the agreement was supported by consideration. As the Court said in Steven Naki v AGC (Pacific) Ltd (2005) PGNC 163, the test is – did one party make a clear and precise offer, accepted by the other party; would a reasonable person conclude that the parties had reached agreement on the terms; and did the parties give their final consent to terms by which they were content to be bound as a complete statement of their rights and liabilities?

56. None of these elements exist here. There is no pleading that the agreement or understanding was with the Plaintiffs, only that it was with the customary landowners. Those persons were not identified, and they could not have been customary landowners of the subject land, which was not customary land. Neither the Plaintiffs nor the “customary landowners” were the owners or vendors of the land, they have not shown any consideration given by them, and they have not shown that any clear or precise terms were offered or accepted. The Defendants have denied any such agreement, or intention to be bound.

57. The evidence did not show that the Defendants gave their consent to clear terms which were either offered by on behalf of the Plaintiffs and accepted by the Defendants, or offered by the Defendants and accepted by the Plaintiffs, by which they were content to be bound as a complete statement of their rights and liabilities.

58. By way of contrast, when the State earlier sold the land to the Mililat Development Corporation Ltd, it was specifically made a condition of the transfer that the purchase price be paid within a certain time, and that a breach of the condition would result in forfeiture of the title. It was clearly a binding agreement.

59. The 1^st Defendant denied agreeing to any condition prior to the sale, and the State gave no evidence of imposing any conditions. The evidence showed that no condition or covenant was endorsed on the title requiring the 2^nd Defendant to hold the title for the benefit of any other person, or to distribute the land to any other person, or preventing it from being sold without the consent of any other person.

60. The evidence did not establish the existence of the alleged agreement between the 1^st Defendant and the fourteen named Plaintiffs, or anyone else.

Trust

61. The next issue concerns the allegation of a trust.

62. In order to create a trust, there must be a settlor who is the owner of the property, and who is capable of transferring it to a trustee, for the benefit of a beneficiary. In addition to satisfying the requirements of capacity and any statutory formalities, there must be 3 elements: certainty of intention to create a trust, certainty of the subject matter of the trust, and certainty of the object of the trust (see Equity and Trusts in Principle. Dal Pont and Cockburn, 2^nd Ed, 2008, pp (202 – 208).

63. The Plaintiff’s pleadings in relation to a trust, are insufficient. The most basic element, which is the identity of the person who creates the trust, is missing. The identity of the settlor has not been pleaded.

64. It is also not pleaded if the trust was express or non-express. If non-express, it is not pleaded if it was a resulting or constructive trust.

65. The statement of claim makes various contradictory claims that there was an arrangement between the 1^st Defendant and the customary landowners that the land would be held in trust (para 10), that the title was given by a non-existent 4^th Defendant to the 2^nd Defendant under a trust (para 13), that the State issued the title to the 2^nd Defendant on an agreement and understanding, but which is then referred to in the particulars as a trust (para 21), and that there was a trust agreement between the Plaintiffs and the 1^st Defendant (para 22).

66. Was there an express trust?

67. An express trust can be created by transfer or declaration, whereby the settlor transfers legal title in the property to a trustee, or the settlor retains the legal title but declares that he holds it on trust. There must be compliance with any relevant statute law.

68. Section 2 of the Frauds and Limitations Act says that a declaration of trust over any land must be manifested and proved by some writing signed by a person lawfully able to declare such a trust. The Plaintiffs were not the owners of the land, and had no lawful capacity to declare a trust over the land. They did not plead or prove any declaration of a trust written or signed by either the State or the Defendants.

69. Pursuant to S98 of the Land Registration Act, (“the LRA”) a right over land may, with the consent of the Custodian for Trust Land, be created by the registered proprietor by instrument in the name of the Custodian as a trustee for customary owners, and any such right shall be registered. No such right was created by the State or by the Defendants, or was registered by the Plaintiffs.

70. Pursuant to S105 of the LRA, where a registered proprietor intends to make the land or an interest in it the subject of a trust, he may by instrument in the approved form nominate persons to be the trustees, on registration.

71. Alternatively, pursuant to S106, any such trust can be declared by a separate instrument, which must be deposited with the Registrar.

72. Pursuant to S108, a court may still grant relief on the ground of, inter alia, fraud, but subject to S33, no unregistered interest prevails against the title of a subsequent purchaser for valuable consideration duly registered under the Act.

73. The Plaintiffs have not pleaded that they or the State or the Defendants utilized any of the procedures available to them under the LRA for creating or registering a trust. They have also not pleaded fraud under S33, so that even if they had an unregistered trust interest, it could not prevail against the registered proprietor.

74. I find that there was no express trust created over the land.

75. Could a non-express trust be implied?

76. The Plaintiffs would need to establish the 3 elements of certainty. In relation to the certainty of intention, a disposition subject to precatory words (ie words expressing a wish or desire) such as “understanding”, “request” or “recommend”, does not generally create a binding trust. Such words can create no more than a moral obligation.

77. There was no pleading that the words used by the 1^st Defendant or the leaders at the meeting of 22 March 2000, were intended to create a trust. The meeting was not pleaded at all in the Statement of Claim. The evidence of the words used at the meeting, was insufficient to establish an intention to create a trust.

78. The words used in the only written documents which were produced, and which were hearsay, were merely precatory, or expressions of opinion or belief. They show no clear intention to create a trust by anyone. They show that the persons who wrote the documents supported the Defendant’s purchase of the land, and that they understood that the Defendants would look after their interests. Those persons were not the owners of the land, had no capacity to declare a trust over the land, and were not the Plaintiffs. At the time when the words were written, the land was owned by the State. There is no evidence whatsoever of any intention by the State to create or declare a trust over the land, or to appoint either of the Defendants as trustees. The Defendants denied that they declared or created a trust, or that they had been appointed trustees.

79. The Plaintiffs have not pleaded or shown who created a trust.

80. I find that there was no certainty of intention by either the State or the Defendants to create a trust over the sale of the land, and neither the Plaintiffs nor any other person had the capacity to declare or create such a trust.

81. In relation to the certainty of subject matter, a mere hope of receiving property is not property, and so cannot be the subject matter of a trust (Equity and Trusts in Principle, P203, supra).

82. The Plaintiffs did not plead or prove that they had an interest of any nature in either the land or the 2^nd Defendant company before the sale of the land. The trust is alleged to have been created in the hope of receiving property. There was nothing which could have been the subject matter of a trust.

83. The pleadings refer to a “trust agreement” between the 1^st Defendant and the customary landowners, but also between “the Plaintiff” and the 1^st Defendant. Whether this is one Plaintiff or fourteen Plaintiffs is not specified, and there were no customary landowners.

84. The Plaintiffs plead various different matters as the subject. They say that any dealings in the land would involve all the customary landowners (para 10), would not mortgage or sell the land or eject the Plaintiffs without the consent of customary landowners (paras 12-13), would distribute the land among the customary landowners (para 13), would change the ownership of the company to represent the Plaintiff and people of 4 villages (para 14), would run the 2^nd Defendants’ business in accordance with an unidentified agreement signed by an unnamed Plaintiff and the 1^st Defendant (para 21 (a)), would give the Plaintiffs and people of 3 villages the right to run the 2^nd Defendants’ business (para 21 (b) and (d)), and would run the 2^nd Defendant for the benefit of the Plaintiffs and people of 3 villages (paras 22 and 23).

85. The differing references to distributing the land, or changing the ownership of the land, or merely running the company, show no certainty of the subject of any trust over the company.

86. The pleadings do not even make it clear if the subject matter of the trust was to bind the title of the land, or bind the ownership or management of the 2^nd Defendant’s company.

87. I find that there was no certainty over the subject matter of the alleged trust.

88. In relation to the certainty of the objects of the trust, the principle requires a trust to be in favor of definite beneficiaries who are ascertained or capable of being ascertained.

89. The Plaintiffs have made conflicting pleadings of the purpose of the trust – that it was in favor of the 14 named Plaintiffs and/or the customary landowners, and/or the people of 4 villages and/or the people of 3 villages. None of the other alleged beneficiaries are a party to the proceedings. There are no customary landowners.

90. Unless the Plaintiffs themselves are beneficiaries (or the settlor) of the alleged trust, they have no standing to bring proceedings to enforce it. The pleadings do not show if they are claiming to be settlors or beneficiaries. If the latter, it is not clear if they are claiming to be beneficiaries as 14 individuals, or as being some of the customary landowners, or as some of the four villages or some of the three villages. There are no customary landowners, the people of the 4 or 3 villages are not parties, the Plaintiffs do not represent them in the proceedings, there is no evidence of any trust agreement between the Defendants and the 14 individual Plaintiffs, and the Defendants denied any such agreement.

91. I find that there is no certainty in the objects of the trust.

92. Neither the Plaintiffs nor anyone else were customary landowners of the land, they were not the title holders, they had no interest, registered or unregistered, in it, and they had no capacity to deal with the land or to impose conditions on its sale. On the Plaintiff’s own main pleading, the alleged trust arrangement was made between the 1^st Defendant and the customary landowners. The Plaintiffs were not pleaded to have been a party to the alleged arrangement. The customary landowners are not identified, and in any event cannot exist, as it was not customary land. The alleged trust arrangement was denied by the 1^st Defendant.

93. The Plaintiffs have failed to establish any of the certainties of a trust.

94. The Plaintiffs further plead that the 1^st Defendant’s conduct after the sale of the land, was in breach of the trust under which the title was given to the 2^nd Defendant by the 4^th Defendant. Disregarding the non-existent 4^th Defendant, there was no evidence of any trust created by the State, or even of any conditional agreement with the State. There could therefore be no such breach.

Breach of Human Rights

95. The Plaintiffs have alleged that the Defendants’ conduct in attempting to evict them from the land, is a breach of their Constitutional rights.

96. In circumstances where the Plaintiffs were not customary landowners and had no right or title to the land, and where the 2^nd Defendant was the duly registered proprietor with indefeasible title, there was no evidence that the attempted eviction pursuant to a valid court order was an unjust deprivation of property, or harsh and oppressive, or inhuman, or in any way deprived the Plaintiffs of any rights.

97. The Plaintiffs have not been evicted. The only evidence of any “threatening, intimidating, harassing, assaulting and unlawful conduct” is that of the Plaintiffs, their relatives and other unlawful occupants against the Defendants.

98. I find that the Plaintiffs have not proven that they had any Constitutional or other rights which were breached by the Defendants, and have not proven any assaults or other unlawful conduct by the Defendants.

Defendants’ Case

99. The 1^st Defendant’s evidence was that at the meeting which he called with the leaders, he said that if his company made profits, it would look after the people from the four villages, and the leaders said that they would support his purchase of the land.

100. Those statements were not pleaded or proven to have created a legally binding agreement or trust. At their highest, the statements may have given rise to a moral obligation on the 1^st Defendant to do what he said.

101. The Plaintiffs were neither the customary nor legal owners of the land. There was no pleading or evidence that they or any of the people from the four villages wished to, or did, apply to purchase the land themselves. They just wanted to see that whoever purchased the land, might give some benefit to them. There was no evidence that the Plaintiffs or the people from the four villages had any interest which they were giving up, in consideration for being provided with such benefits.

102. It was not disputed that the 2^nd Defendant was a company owned by the 1^st Defendant, who was a traditional landowner. If there was any significance in having customary ownership of the land before it became converted to State title in 1963, then the 1^st Defendant had more of an entitlement as a descendant of the customary landowner, than the Plaintiffs or anyone else.

103. The 1^st Defendant did not resile from his statement to the leaders that if his company made profits, it would look after them. His evidence was that the company has never made any profit, and so has been unable to look after them.

104. This raises the issue of the conduct of the Plaintiffs and other third parties. Despite the fact that they did not purchase the land and were not the registered proprietors, they moved onto the land, built houses, dug gardens, and established cash crops. By refusing to move off the land, they prevented the Defendants from developing it, and thereby prevented them from making any profits.

105. The Defendants’ witnesses also gave uncontested evidence that when they went onto the land, they were attacked by the relatives of the Plaintiffs, who severely injured them, leaving one man permanently disabled.

106. The 1^st Defendant gave uncontested evidence that in 2001 he appointed four of the leaders who had signed the statutory declaration, and four others, as directors of the 2^nd Defendant. Those persons proceeded to harvest and sell the copra and cocoa, but kept the proceeds of sale personally, damaged and broke the copra drier and fermentary, and took and removed the cars, copra machines and tractors which were owned by the 2^nd Defendant. As a result of them acting against the company’s interests, he replaced most of the directors in 2006, as he was lawfully entitled to do. In 2008, he issued summary ejectment proceedings and obtained an eviction order from the District Court. In defiance of the Court Order, and the Police, the Plaintiffs and other persons remained in occupation.

107. On this point, even if the 1^st Defendant had a moral obligation to look after the people before the company made a profit, and even if this went so far as to give the people of 3 or 4 villagers the right to run the 2^nd Defendant’s business, he complied with that obligation. He appointed the leaders of the 4 villages as directors, who then had the right to run the business. Unfortunately, the evidence was that they ran the business for their own benefit, and not for the benefit of either the people of the villages or the shareholders.

108. The Defendant’s evidence was that as the company has been kept out of and been unable to implement its plans to develop the land, the company has not made any profits.

109. The Defendants’ evidence is that at the same time, they have been obliged to incur considerable time and expense in issuing legal proceedings in the District Court, and then defending the Plaintiff’s appeal in the National Court, defending the Plaintiff’s proceedings on WS 783 of 2009 until they were discontinued, defending the Plaintiffs’ proceedings in WS 301 of 2010, and in the Supreme Court, and finally in these proceedings. This has also resulted in the company not being able to make a profit.

Conclusions

110. No representations or misrepresentations were pleaded or proven to have been made by the Defendants, prior to the transfer of the land from the State.

111. It follows that there could be no breach of or failure to comply with such representations or misrepresentations, by the Defendants.

112. The Plaintiffs have not proven that a trust was created over the land or over the 2^nd Defendant company, by the State, the Defendants or anyone else.

113. It follows that there could be no breach of a trust by the Defendants.

114. The Plaintiffs have not proven any binding agreement between the Plaintiffs and the Defendants for the ownership of the land, or for the ownership or use of the 2^nd Defendant’s company.

115. It follows that there could be no breach of an agreement by the Defendants.

116. The 2^nd Defendant and the two other owners of part of the land, are the duly registered proprietors, and their title has not been challenged under any of the exceptions set out in S33 (1) of the Land Registration Act.

117. The 2^nd Defendant and the two other owners of part of the land, remain the duly registered proprietors with indefeasible title.

118. For these reasons, I make the following orders:

(a) The proceedings are dismissed

(b) The injunction and stay orders made by the Court on 2 July 2019, are discharged
(c) The Plaintiffs and all other persons unlawfully occupying the land formerly known as the Mililat plantation, on portions 1056, 1057, 1058, 1059, 1060 and 1061, are to vacate the property within 14 days.

(d) The Plaintiffs are to pay the Defendants’ costs, to be taxed if not agreed.

_______________________________________________________________
Bradley Wak Lawyers: Lawyers for the Plaintiff
Yalapan & Associates Lawyers: Lawyers for First and Second Defendants