N9656
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

APPEAL NO.39 OF 2021

BETWEEN:
KATUMANI LAND GROUP INCORPORATED (REG ILG No.646)
Appellant

AND:
ADVANCE CONSTRUCTION LIMITED
First Respondent

AND:
TITI BANON LASEK
Second Respondent

AND:
SANGAS PIPOLS ASSOCIATION INC
Third Respondent

Lae:  David, J
2022:  3rd & 5th May

APPEAL FROM DISTRICT COURT – dispute over land – State Lease - registered proprietor has indefeasible title subject to exceptions under s.33(1) Land Registration Act – evidence received on appeal - powers of National Court on appeal – District Courts Act, ss.229 and 230.

Case cited:

Mudge and Mudge v Secretary for Lands & Ors [1985] PNGLR 387

Counsel:

Steven Kesno, for the Appellant

JUDGMENT

5th May, 2022

1.	DAVID, J:	INTRODUCTION; This is a decision on an appeal against an order made by the District Court here in Lae on 15 June 2021 whereby the District Court dismissed proceedings commenced by the appellant against the respondents by way of Complaint No.390 of 2020, Katumani Land Group Incorporated (Reg ILG No.646) v Advance Construction Limited, Titi Banon Lasek & Sangas Pipols Association Inc. filed on 3 June 2020 (the District Court proceedings) with costs of the defendants to be paid by the appellant, to be taxed, if not agreed.  The Notice of Appeal was lodged with the Clerk of the Lae District Court on 22 June 2021 and a copy of the Notice of Appeal was lodged with the Registrar of the National Court through the Lae National Court Registry on 6 July 2021 pursuant to ss.220(2) and 221(2) of the District Courts Act. 

2.	Having been satisfied that the respondents have not taken any interest or serious interest in defending the appeal, I granted leave for the appellant to prosecute the appeal ex parte.

CLAIM IN THE DISTRICT COURT

3.	In the Complaint pursued in the District Court proceedings, the appellant averred that:

1.	It was the proprietor of a Special Agricultural and Business Lease described as Portion 482C Milinch of Bulolo and Fourmil of Wau, Morobe Province comprising 22,000 hectares (Portion 482C) and contained in State Lease Volume 18 Folio 44 which was granted on 15 October 2010 (the State Lease). 
2.	The first respondent was a company duly registered pursuant to laws relating to companies in Papua New Guinea.
3.	The second respondent was an adult person from Sangas village, Bulolo.
4.	The third respondent was an association duly incorporated under laws relating to associations in Papua New Guinea.
5.	Between 1 January 2019 and 31 December 2019, the first respondent who was contracted with the Department of Works and Implementation to maintain the Wau-Bulolo national highway (the Highway) extracted gravel from Portion 482C at Vidipos, Sangas for road works on the Highway.
6.	A total of 101 truckloads of gravel comprising 10 cubic metres per truck valued at K30.00 per truck was extracted.
7.	The appellant requested the first respondent to pay K3,030.00 for the total value of gravel extracted, but the first respondent failed to pay the monies. 
8.	The second and third respondents have presented themselves to the first respondent and the Department of Works and Implementation at Lae purportedly as landowners and stopped payments being made to the appellant.
9.	In May 2020, the appellant, through its lawyer, wrote to the first defendant and Provincial Works Manager, Morobe advising them that it holds title to Portion 482C where the gravel pit is located and that payments be released to it, but the first respondent has failed to pay the monies to the appellant.
10.	Consequently, the appellant has informed the first respondent to cease extracting gravel from Portion 482C.     

4.	In the Complaint, the appellant sought the following relief:

1.	Judgment in the sum of K3,030.00 against the first respondent for unlawful extraction of gravel from Portion 482C. 
2.	General damages against all respondents in the sum of K5,000.00 for suffering loss and damage as a result of the unlawful extraction of gravel from Portion 482C.
3.	Restraining order against the first respondent, its servants and agents from extracting gravel from Portion 482C without the expressed permission or consent of the appellant.
4.	Restraining order against the second and third respondents, their servants and agents or any person acting on their behalf from claiming to be the title holder over the Vidipos gravel pit and Portion 482C.

Grounds of appeal  
5.	There are five grounds of appeal and these are:

1.	The learned magistrate erred in law and fact when he proceeded to dismiss the complaint when there was undisputed evidence that the appellant had a valid title over Portion 482C. 

2.	The learned magistrate erred in law and fact when there was sufficient credible evidence showing that the appellant had only subleased smaller portions of the State Lease to PNG Forest Products Limited to operate its hydro power stations and set up its installations which are Sub Lease Plans No.5 (Portion 489C) and No.6 (Portion 487C). 

3.	The learned magistrate erred in law and fact when he proceeded to dismiss the complaint on the basis that there was no evidence to establish who had the title over the portion of land where the gravel pit was situated when there was sufficient credible evidence that the portion of land where the gravel pit was situated was outside the sub leases held by PNG Forest Products Limited.

4.	The learned magistrate erred in law when he proceeded to hear the matter and dismissed the complaint and in doing so created a reasonable apprehension of bias on his part by the public and a breach of the principles of natural justice when:

(a)	on 18 November 2016, he had heard a Land Court matter between the appellant and another party over the same property in a Local Land Court proceeding LLC No.48 of 2016 – Samson Kowa for and on behalf of Yambang Galav Clan of Musim village, Wau, Morobe Province v Katumani Incorporated Land Group Inc. & Another and had issued a temporary order against the appellant’s interest in the State Lease; and

(b)	The Land Court order in LLC No.48 of 2016 was the subject of a judicial review in the National Court in proceeding OS (JR) No.826 of 2016 – Anthony Mark Honey, Managing Director, PNG Forest Products Limited and Katumani Incorporated Land Group  v Terra Dawai sitting as Local Land Court Magistrate in Lae, Morobe Province & Samson Kowa for and on behalf of Yambang Galav Clan of Musim village, Wau, Morobe Province and on 24 January 2019, the Local Land Court order was declared invalid and the Local Land court restrained from hearing, dealing with or determining any issue, matter or interest in connection with the State Lease; and

(c)	He failed to disqualify himself from hearing the matter due to his past involvement in a matter in which he made an order against the appellant over the State Lease and customary land.

5.	There was a substantial miscarriage of justice by the learned magistrate in the manner he heard and dismissed the Complaint.

EVIDENCE BEFORE DISTRICT COURT
6.	Section 229 of the District Courts Act provides, among others, that only evidence brought before the District Court by which an order was made can be received on the hearing of an appeal, but other evidence not before the District Court may be received at the hearing either by consent of the parties or by order of the National Court.  It is not entirely clear to me what affidavit evidence or other evidence was brought before the District Court in the absence of detailed reasons contained in either a written judgment by the learned magistrate or worksheet or court file endorsements capturing that to assist me in ascertaining that.  However, the Appeal Book contains a number of affidavits filed by the appellant and the second and third respondents in the District Court and Mr. Kesno of counsel for the appellant has certified the Appeal Book to be correct.  A certificate was also issued by Ottie Malala Ponduk, Acting Clerk of the Lae District Court on 25 October 2021 affirming that the Appeal Book contains correct copies of the transcript and original documents held in the District Court file.  It is the appellant’s submission that no oral evidence was presented and no cross-examination of deponents of affidavits was conducted as a result. 

7.	Given this, I have considered all the affidavits contained in the Appeal Book touching on the merits or otherwise of the appellant’s action in the District Court and these are:

1.	Affidavit of Geame Katu sworn and filed on 5 June 2020;
2.	Affidavit In Reply to Notice of Motion of Geame Katu sworn on 16 December 2020 and filed on 24 December 2020;
3.	Affidavit of Geame Katu sworn and filed on 11 December 2020;
4.	Affidavit In Support of Titi Banon Lasek sworn and filed on 4 December 2020;
5.	Affidavit In Defence of Titi Banon Lasek sworn and filed on 4 December 2020;
6.	Affidavit of Geame Katu Vavini sworn on 27 November 2020 and filed on 30 December 2020;
7.	Affidavit of Philip Siling sworn on 16 October 2020 and filed on 19 October 2020; and
8.	Affidavit In Response To Affidavit In Reply to Notice of Motion of Titi Banon Lasek sworn and filed on 3 February 2021.

CONSIDERATION
Powers of the National Court on appeal
8.	The powers of the National Court on appeal are set out in s.230 of the District Courts Act and it states:

	“(1) 	On the hearing of an appeal, the National Court shall inquire into the matter, and may–
(a) 	adjourn the hearing from time to time; and
(b) 	mitigate or increase a penalty or fine; and
(c)	affirm, quash or vary the conviction, order or adjudication appealed from, or substitute or make a conviction, order or adjudication which ought, on the evidence before the National Court, to have been made by a District Court; and
(d) 	remit the case for hearing or for further hearing before the Court which made the conviction, order or adjudication or any other competent court; and
(e) 	exercise a power that the Court that made the conviction, order or adjudication might have exercised; and
(f) 	make such further or other order as to costs or otherwise as the case requires.
(2) 	An appeal shall be allowed only if it appears to the National Court that there has been a substantial miscarriage of justice.”

Title over Portion 482C and indefeasibility of title
9.	Mr. Kesno for the appellant submits that the learned magistrate erred in law and fact when he proceeded to dismiss the complaint when there was undisputed evidence showing that the appellant had a valid title over Portion 482C and the principle of indefeasibility of title applied and protected the appellant’s interest. 

10.	The evidence shows that the State Lease over Portion 482C was issued to a land group called Katumani Incorporated Land Group at the time of the hearing of the District Court proceedings:  see annexure “B” affidavit of Geame Katu sworn and filed on 5 June 2020, p 163.  The State Lease was issued by a delegate of the Minister for Lands and Physical Planning on 15 October 2010 for a period of 99 years commencing on 2 July 2010 and ending on 2 July 2109.  Portion 482C contains an area of land of about 22,000 hectares. It is not a small piece of land as suggested by the second respondent, Titi Banon Lasek in his affidavit in support sworn on 4 December 2020:  p.75 AB.  Interestingly, the appellant was incorporated as a land group pursuant to the Land Groups Incorporation Act on or about 1 August 2017. 

11.	An incorporated land group is a corporation with perpetual succession (s.11(1) Land Groups Incorporation Act) and may acquire, hold and dispose of; customary land and rights in respect of customary land; and other land and rights in respect of other land:   s.13(2) Land Groups Incorporation Act. 

12.	In National Court proceedings, OS (JR) No.828 of 2016, Anthony Mark Honey, Managing Director, PNG Forest Products Limited (first plaintiff), Anthony Mark Honey, Managing Director, PNG Forest Products (second plaintiff), and Katumani Incorporated Land Group (third plaintiff) v His Worship Terra Dawai sitting as the Local Land Court Magistrate in Lae Morobe Province (first defendant) and Samson Kowa for and on behalf of Yambang Galav Clan of Musim village, Wau-Bulolo District, Morobe Province (second defendant), the National Court, on 24 January 2019 ordered, among others, that  Katumani Incorporated Land Group was the registered proprietor of Portion 482C contained in the State Lease:  see annexure “C”, Affidavit in Reply to Notice of Motion of Geame Katu sworn on 16 December 2020 and filed on 21 December 2020 pp.62-64 AB.   Orders 4, 5 and 6 state:

“4.	An order in the nature of a declaration, pursuant to Order 16 Rule 1(2) of the National Court Rules, that the third plaintiff is the registered proprietor of Special Agriculture Business Lease described as Allotment 482C, Bulolo, Wau, Morobe Province contained in State Lease Volume 18 Folio 44 (the State Lease). 
5.	An order in the nature of prohibition, pursuant to Order 16 Rule 1(1) of the National Court Rules, against the Local Land Court in Lae, Bulolo or Wau in Morobe Province or any Local Land Court from hearing, dealing with or determining any issue, matter or interest of the plaintiff’s State Lease.
6.	An order in the nature of a declaration, pursuant to Order 16 Rule 1(2) of the National Court Rules, that the Local Land Court proceedings styled LLC No.48 of 2016 held at Lae in Morobe Province or any other Local Land Court does not have the jurisdiction to hear, deal with or determine any issue, matter or interest subject of the plaintiffs State Lease.”    	   

13.	In National Court proceedings, OS No.513 of 2019, Katumani Incorporated Land Group (first plaintiff) and PNG Forest Products Limited (second plaintiff) v Elizah Yawing as clan leader of Patep Denglu Clan (first defendant), Ismael Onam as clan leader of Patep Land Group (second defendant), Sawac Malac as clan leader of Viyambura clan (third defendant), Awateng Ephraim as clan leader of Patep Denglu Major clan (fourth defendant, and Yala Yaking as clan leader of Buvga ICLG clan (fifth defendant), the National Court, on 29 July in making permanent certain interim orders granted on 28 May 2020, ordered, among others, that the defendants, their servants, agents, clans people, relatives or whosoever were restrained from entering Portion 482C and conducting any activity or dealing with it:  p.66 AB.  Order 2(c) states:  

“The defendants, their servants, agents, clans people, relatives or whosoever be restrained from:

Entering, conducting any or further activity or otherwise disrupting or dealing with the land subject of the first plaintiff’s State Lease land described as Special Agriculture Business Lease, Allotment 482C, Bulolo, Wau, Morobe Province registered under Volume 18 Folio 44 (State Lease).”   

14.	Katumani Incorporated Land Group clearly has a valid title over Portion 482C contained in the State Lease.

15.	The evidence points to the land upon which the gravel pit was situated along the Bulolo Highway, Morobe Province to be within the Sangas village and on Portion 482C:  Affidavit of Geame Katu sworn on 16 December 2020 and filed on 24 December 2020, p 50 para 3 and p.53; Affidavit In Support of Titi Banon Lasek sworn and filed on 4 December 2020 (pp.75 to 76 AB); and Affidavit In Defence of Titi Banon Lasek sworn and filed on 4 December 2020 (pp.77 to 91 AB).  However, I am reluctant to make a definitive finding given it seems from the evidence of Titi Banon Lasek that the issue of ownership of the gravel pit was also raised in DC No.296 of 2019 and was pending at the time the District Court proceedings the subject of this appeal were determined and the outcome of which is unknown:  see the three affidavits of Titi Banon Lasek.  The issue is raised in the District Court proceedings the subject of this appeal as well and requires proper determination one way or another.

16.	Under the principle of indefeasibility of title, the registration of leases under the provisions of the Land Registration Act is effective to vest an indefeasible title in the registered proprietor subject to the exceptions enumerated in Section 33(1).  That position was propounded by the Supreme Court in Mudge and Mudge v Secretary for Lands & Ors (1985) PNGLR 387.  In the same case, the Supreme Court said that notwithstanding that a State Lease issued under the Land Act may have been issued irregularly and in breach of the provisions of that Act, registration under the Land Registration Act will confer an indefeasible title. Katumani Incorporated Land Group as registered proprietor of Portion 482C has an indefeasible title subject to the exceptions under s.33(1) of the Land Registration Act.  Any challenge to title by anyone including the second and third respondents would have to be pursued under the exceptions enumerated under s.33(1). 

17.	Katumani Land Group Incorporated is a customary group incorporated under the Land Groups Incorporation Act that was issued with a certificate of recognition number Reg. ILG 646 in 2017. As to whether Katumani Incorporated Land Group is the one and same land group as the appellant whose registered name is Katumani Land Group Incorporated is a matter that requires proper determination as well.  

Other grounds of appeal
18.	Given my findings above, it is now not necessary to address in any detail the remaining grounds.
 
19.    It suffices to state that I am satisfied that there has been a substantial miscarriage of justice by the learned magistrate. The appeal must be allowed.
ORDER
20. The formal orders of the Court are:

1.	The appeal is allowed.

2.	The entire decision of the Lae District Court in Complaint DC No. 390 of 2020 made on 15 June 2021 is quashed and set aside.

3.	The District Court proceedings Complaint DC No.390 of 2020 is remitted to the Lae District Court to be heard and determined by another magistrate.

4.	The respondents shall pay the costs of the appeal which shall, if not agreed, be taxed.

5.	Time is abridged.

Judgment and orders accordingly
___________________________________________________________
Kesno:  Lawyers for the Appellant