N9640

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

HRA NO. 165 OF 2018

BETWEEN:
BILLY ARUA BOKO ON BEHALF OF 708 SETTLERS AT PORTION 161, 162, 1322 AND 69 LALOKI AND PART OF DA 600
Plaintiff

V

NATIONAL AGRICULTURAL RESEARCH INSTITUTE (NARI)
First Defendant

AND:
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Second Defendant

Waigani: Narokobi, J
2022: 12th May

HUMAN RIGHTS- Application for enforcement of human rights – allegations of breach of human rights under the Constitution – whether applicants had equitable interest- whether notice to vacate was sufficient - whether eviction was unlawful in the circumstances – appropriate remedy in the circumstances in the interests of justice. 

The plaintiffs had been served eviction notice by the First Respondent (National Agricultural Research Institute) in August 2018 and given one month to vacate two parcels of land described as Portion 161, Millnch of Granville Fourmil of Moresby, Laloki Central Province, described in the State Lease Volume: 30 Folio: 70 and Portion 1322, Milinch of Granville Fourmil of Moresby, Laloki Central Province, described in the State Lease Volume: 30 Folio: 68. The Plaintiffs say they are the customary landowners of the land while some are settlers who had been occupying this customary land for more than 30 years.  They claim ownership of these portions of land had been awarded to them by Central Province Local Land Court in 1988.  They claim there was no compulsory acquisition of these portions of land nor were they paid any compensation for their land prior to the land being leased by the State to the first defendant in 2005. 

Held: 

(1)	The Plaintiffs have pleaded in their Human Right Application Form (HRA Form 124) that they had occupied those portions of land for many years and when the land was allegedly acquired by the First Defendant there was no objection for their legal occupation of the land portions since 2005 or 2006 since obtaining the leases in question.  There is sufficient pleading on the issue relating to equitable interest.  (Yakasa v Piso (2014) SC1330; Kuman v Digicel (PNG) Ltd (2013) SC1232).

(2)	From the evidence provided there is no doubt that the Plaintiff’s had occupied and lived in the Portions 161, 162, and 1322 for many years up to the time of the lease titles over the same were issued or granted to the First Defendant in 2005.  The First Defendant never objected to this occupation, nor did it mount any eviction notices or action against the Plaintiffs immediately upon grant of the lease. The Plaintiffs had therefore acquired equitable rights over those portions of land and should be properly compensated and given reasonable time to vacate the land.

(3)	In the interest of justice, the Plaintiffs should be given the opportunity to challenge the legality of the leases and enforce any rights (if breached) under the Constitution.

Cases Cited:

Camilus v Mota (2022) SC2210
Emas Estate Development Pty Ltd v Mea, Swokin, and The State [1993] PNGLR 215
Kuman v Digicel (PNG) Ltd (2013) SC1232
Mudge and Mudge v Secretary for Lands, The State and Delta Developments Pty Ltd [1985] PNGLR 387
PNG Ready Mixed Concrete Pty Ltd v PNG Ors [1981] PNGLR 396
Yakasa v Piso (2014) SC1330

Statutes Cited:

Constitution 
Land Act 1996
Land Registration Act, Chapter 191

Counsel:

Ms E Bowada, as representative of the Plaintiffs
Mr S Togo, for the First Defendants 
No appearance for the Second Defendant 

JUDGMENT

12th May, 2022

1.	NAROKOBI, J: The Plaintiffs (or Applicants) filed a Human Rights application disputing the grant of a 99-year lease for a special purposes to the First Defendant National Agricultural Research Institute (NARI) in 2005.

2.	They claim the land is their customary land that was never compulsorily acquired according to the process under the Land Act 1996. The two pieces of land the subject of the dispute are known as - Portion 161, Millnch of Granville Fourmil of Moresby, Laloki Central Province, described in the State Lease Volume: 30 Folio: 70 and the second parcel of land known as Portion 1322, Milinch of Granville Fourmil of Moresby, Laloki Central Province, described in the State Lease Volume: 30 Folio: 68.  

3.	Portion 161 is a size of 121.4 hectares and portion 1322 has an area of 150 hectares.

4.	The Plaintiffs have been living on this land for some 30 years or so and some of them appear to be genuine landowners and come under the Uhadi Iarogaha Incorporated Land Group and say Portions 161,162, and 1322, Laloki, Central Province also come under an area of land they describe as DA 600. 

5.	NARI claims it had title over these land portions but had failed to show Plaintiff (landowners) the title when it got eviction orders from the Port Moresby District Court.  It then gave Notice to the Plaintiffs to vacate the land within a month and offered to pay the Plaintiffs K1,000.00 compensation to each person who had built homes and other improvements or developments to the land. 

6.	The Plaintiffs therefore commenced the proceedings to challenge the Defendants claim on the title to the land as well as their actions in trying to evict them.  As a result of these notices and evictions, the Plaintiffs had obtained from this Court restraining orders against the Defendants and had also got a stay order on the District Court eviction Order of 29 May 2018. 

7.	The matter returned as inter parte hearing on the exparte orders that had been obtained challenging the eviction orders of 29th May 2018.

8.	The issues to be determined are:

•	Whether the title by NARI over the portion of land in question has serious irregularities over its indefeasibility?
•	Whether the plaintiffs have equitable rights over the said portions of land in question?
•	Whether the 1st Defendant’s had breached terms of the State Special purpose lease on Portion 161 and 1322?
•	What is the effect of the District Court Order for eviction?
9.	The relevant laws applicable are firstly s 33 of the Land Registration Act, Chapter 191 and s 13 of the Land Act 1996.

10.	Section 33 of the Land Registration Act provides:

33.	Protection of registered proprietor.
(1) The registered proprietor of an estate or interest holds it absolutely free from all encumbrances except–
(a)	in the case of fraud; and
(b)	the encumbrances notified by entry or memorial on the relevant folio of the Register; and
(c)	the estate or interest of a proprietor claiming the same land under a prior instrument of title; and
(d)	in case of the omission or misdescription of any right-of-way or other easement created in or existing on the same land; and
(e)	in case of the wrong description of the land or of its boundaries; and
(f)	as to a tenancy from year to year or for a term not exceeding three years created either before or after the issue of the instrument of title of the registered proprietor; and
(g)	as provided in Section 28; and
(h)	a lease, licence or other authority granted by the Head of State or a Minister and in respect of which no provision for registration is made; and
(i)	any unpaid rates, taxes, or other money which, without reference to registration under this Act, are expressly declared by a law to be a charge on land in favour of the State or of a Department or officer of the State or of a public corporate body.
(2) The operation of Subsection (1) is not affected by the existence in any other person of an estate or interest, whether derived by grant from the State or otherwise, which, but for this Act, might be held to be paramount or to have priority.

11.	This provision has been interpreted to confer indefeasibility of title unless fraud can be shown. The Supreme Court has maintained two different positions. One line of authority says that it must be actual fraud for the title to be set aside (Mudge and Mudge v Secretary for Lands, The State and Delta Developments Pty Ltd [1985] PNGLR 387) and another says that fraud can extend to non-compliance with statutory processes in the awarding of title (Emas Estate Development Pty Ltd v Mea, Swokin, and The State [1993] PNGLR 215). Later cases have referred to this as “constructive fraud,” (Camilus v Mota (2022) SC2210).

12.	The other relevant provision is s 13 of the Land Act: 

13. Notice to Treat.
(1) The Minister shall not acquire land by compulsory process under this Act unless he has first caused to be served on each of the owners of the land, or such of them as can, after diligent inquiry, be ascertained, a notice inviting the person on whom the notice is served to treat with the Minister for the sale or surrender to the Minister, on behalf of the State, of his interest in the land.
(2) A person served with a notice to treat in respect of land shall, not later than two months after the service of the notice, provide the Minister with particulars of–
(a)	the interest claimed by him in the land; and
(b)	the amount for which he is agreeable to sell his interest in the land; and
(c)	the name and address of any other person known to him to have an interest in the land and the nature of that interest.
(3) On receipt of the particulars referred to in Subsection (2), the Minister may–
(a)	treat with the person providing the particulars for the acquisition of his interest by agreement; and
(b)	notwithstanding anything in this Act, enter into an agreement with that person for the acquisition.
(4) The Minister may, by written notice to a person served with a notice to treat, withdraw the notice to treat.
(5) Where the owner of an interest in land, who has provided the particulars referred to in Subsection (2), suffers loss by reason of the notice to treat having been given and withdrawn, the State is liable to pay to him such compensation as is determined by agreement between the owner and the Minister or, in the absence of agreement, by action as determined by a court of competent jurisdiction.
(6) This Section does not apply in a case where the Minister certifies that there are special reasons why the Section should not apply.

13.	Section 13 of the Land Act sets out an important requirement the State must comply with before it acquires land from any person, including from land owned customarily. It must give prior notice to the owners of the land.

14.	The Plaintiff had relied on the following Affidavits in support of their application:

•	Affidavit of Billy Arua Boko filed on 29 November 2018;
•	Affidavit of Thomas Ovasuru filed on 29 November 2018;
•	Affidavit of Steven Avosa filed on 29 November 2018;
•	Affidavit of Hicksy Mora filed on 29 November 2018;
•	Affidavit of John Moala filed on 29 November 2018;
•	Affidavit of Bensin Vinave filed on 29 November 2018;
•	Affidavit of Isabella Aihi filed on 29 November 2018; and
•	Affidavit of Boio Morata filed on 4 December 2018

15.	The Defendants in response relied on the Affidavit of Sergie Bang filed on 2 November 2018.

16.	The evidence of the parties is summarized in the following manner.

17.	The evidence from the Plaintiffs shows that some of them are genuine landowners while some are settlers who had been living on the portions of land for more than 30 years. They had by right lived on these portions of land by customary ownership as recognized by the Central Provincial Local Land Court decision in 1988.  (refer to affidavit of Billy Arua Boko).

18.	 They claimed that NARI had never shown them or mentioned to them that it had legal title to portions 161, 162, 1322, 69 Laloki and part of DA 600 prior to the eviction orders of 2018.  They were surprised to be served the copies of the lease titles when they received the ex-parte eviction orders in 2018.

19.	The Plaintiffs further claimed that they were not served any notices of the title since the date of the grant of the lease titles at the earliest in 2005 or 2006.  The Plaintiffs were already in occupation of the portions of the said customary land (DA600) which they say had never been acquired by compulsory acquisition. They were never made aware of these lease titles for about 13 years.  The First Defendant by its conduct had not objected to the occupation of the portion of land by the Plaintiffs nor did it evict them there and then when it had the titles. 

20.	Furthermore, the First Defendant had allowed the continuous occupation of the land by the Plaintiffs for 13 years where the land had been developed and used for gardens, buildings and burial of the dead.

21.	They further stated that NARI had failed to develop the land as per the terms of the lease which required it to improve the land with infrastructure to the value of K150,000.00 within 5 years of the grant of the lease.

22.	Finally, the Plaintiffs were not given the opportunity to defend their occupation of the land as genuine landowners when the First Defendant obtained ex parte orders to evict them from the portions of land.  They said they were never served any summons for the eviction case and not all the 708 settlers including members of Uhadi Iarogaha ILG who are the landowners were issued notice to quit or eviction orders to vacate the portions of land in question.

23.	The First Defendant had only relied on the affidavit of one Sergis Bang confirming the lease titles to the portions 161 and 1322.  He stated that NARI has defeasible title to these portions.  He stated that the Plaintiffs were issued notices to vacate the property by the Department of Lands and Physical Planning dated 29th August, 2017. (Notice to Quit under Section 145 of the Land Act).

24.	 Notice to quit was in respect of Portions 162 and 1322, Milinch of Granville Fourmil of Moresby, Laloki, Central Province. There does not appear to be a notice to quit for portion 161.

25.	There is no dispute that the First Defendant had produced copies of the lease titles to Portions 161 and 1322.

26.	There is evidence that the Plaintiffs are landowners and settlers who have lived on these portions of land for many years prior to the First Defendant obtaining leases for these pieces of land in question.  Even upon the leases been granted to the First Defendant it has failed to take appropriate action or serves notices against the Plaintiffs at the earliest opportunity.  NARI had not objected to the occupation of the portions of land aby the plaintiffs for a period of about 13 years.

27.	By operation of the Law as discussed in many Papua New Guinea cases, the Plaintiffs have equitable rights over the land as a result of long period of occupation of the land portions in question without objection.  (PNG Ready Mixed Concrete Pty Ltd v PNG & Ors [1981] PNGLR 396).  It was held in that case that the squatters had by virtue of their long occupation, to which no objection had been raised, acquired equitable interest in the subject land, analogues to a license, entitling them to remain on the land for a reasonable period.

28.	The Plaintiffs have pleaded in their Human Right Application Form (HRA Form 124) that they had occupied those portions of land for many years and when the land was allegedly acquired by the First Defendant there was no objection for their legal occupation of the land portions since 2005 or 2006 since obtaining the leases in question.  Obviously, there is sufficient pleading on the issue relating to equitable interest. (Yakasa v Piso (2014) SC1330; & Kuman v Digicel (PNG) Ltd (2013) SC1232).

29.	The action by the First Plaintiff to take eviction proceedings against the Plaintiffs after 13 years is unreasonable considering the Plaintiffs equitable rights over the said portions of land.  Evidence showed that the Plaintiffs (in particular members of Iarogaha ILG) were never consulted or compensated if there was any compulsory acquisition of their land by the State (under the Land Act)) before it was granted to the First Defendant, NARI.

30.	The other issue raised by the Plaintiffs is the failure by NARI to develop the land within 5 years with K150,000.00 value of infrastructure as a term of the separate leases that were granted.  

31.	It is clear from the circumstances of this case that there are serious issues relating to the leases over the said customary land and that the Plaintiffs be allowed occupation of the land until reasonable compensation is paid.

32.	One of the important issues is the ownership issue over the portions of land which the plaintiffs claim was reverted to them, the customary landowners by the Central Local Land Court.

33.	Copies of the decision of Central Local Land Court confirmed that the members of Uhadi Iarogaha ILG (who are persons included in the schedule of the list of Plaintiffs) were and are the customary landowners of the subject portions of land.

34.	From the evidence provided there is no doubt that the Plaintiff’s had occupied and lived in these portions 161, 162, and 1322 for many years up to the time of the lease titles over the same were issued or granted to the First Defendant in 2005.  The First Defendant never objected to this occupation, nor did it mount any eviction notices or action against the Plaintiffs’ immediately upon been granted the lease.

35.	The Plaintiffs had therefore acquired equitable rights over those portions of land therefore should have been properly compensated and given reasonable time to vacate the land.

36.	In the present case the defendant failed to give appropriate notice to all the persons named as Plaintiffs.  The offer of K1000 as compensation was unreasonable and in breach of their equitable right over the land in question.  Furthermore, the eviction proceedings in the District Court and the order to evict the Plaintiffs was unfair and unreasonable considering the very lengthy delay by the First Defendant to take such action.

37.	The case here is different from other cases involving settlers.   This case involves genuine landowners as well and the evidence that they had not been consulted and properly compensated through the compulsory acquisition process under the Land Act is an issue that must be determined properly as it may amount to deprivation of property (Constitution, s 53) and other rights under the Constitution.

38.	In the interest of justice, the Plaintiffs should be given the opportunity to challenge the legality of the leases and enforce any rights (if breached) under the Constitution.

39.	It is for these above reasons that the Court makes the following orders:

1)	The eviction orders of the District Court in CPC No 7 of 2018 order dated 29 May 2018 is stayed.

2)	The Plaintiffs are at liberty to file a proper statement of claim to challenge the indefeasibility of the titles held by First Defendant over portions 161, 162 and 1322 Fourmil Milinch, Laloki, in which case it has to be filed within 21 days from today.

3)	The restraining orders issued by this Court on 29 May 2018 are extended until further orders of the Court.

4)	Parties to bear their own costs.

5)	The time for entry of these orders are abridged.

6)	This matter shall return for further directions in July 2022 to check compliance with term two of the orders.

Judgment accordingly.
________________________________________________________________
Daniels and Associates Lawyers: Lawyer for the First Defendants
Solicitor General: Lawyer for the Second Defendants