N10266

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS NO.  305 OF 2022

BETWEEN:
THE EVANGELICAL LUTHERAN CHURCH OF PAPUA NEW GUINEA
Plaintiff

AND:
JOHN JACOB, TALI JACOB, ANDREW KAMAKI, ROWAN (ALSO KNOWN AS SEPIK), BEN KORA, SANDY KALO, TOMMY SAING AND ALLT HE OTHER ILLEGAL SQUATTERS ON PORTION 3298 AMPO, LAE, MOROBE PROVINCE
Defendants

Lae: Dowa J
2023: 13th April & 25th May

LAND LAW – state lease -Seeking orders for possession- and for leave to issue a writ of possession-restraining orders against adverse possession- defendants dispute ownership of land based questionable acquisition of customary land and disputes as to boundary- defendant has onus to initiate own proceedings-court has no jurisdiction to deal with disputes over alienated customary land– the appropriate body to hear disputes over alienated customary land is the Land Titles Commission. Defendants’ equitable interest to remain on property is limited- Orders granted in favour of the Plaintiff.
 
 Cases cited:
Mudge -v- Secretary for Lands [1985] PNGLR 387
Pius Tikili -v- Home Base Real Estate Ltd (2017) SC1563 
National Council of Young Men’s Christian Association of PNG -v- Firms Services Ltd (2017) SC1596
Albert Camilus -v-David Mota & others (2022) SC2210
Godowan Investment Ltd v Wambea (2018) N7263
Yandu v Waiyu (2005) N2894
Kimas v Oala (2015) SC1475
 Katumani & Ors v Elijah Yawing & Ors (2020) N8481
Evangelical Lutheran Church of Papua New Guinea v David [2022] PGNC 528; N10060
Jure Investment v Conlife (2018) N7286
Paga Hill Development Company v Daure Kisu (2014) N5683
Laka v Nui (2013) SC1223
Medaing v Ramu Nico Management (MCC) Ltd (2011) SC1144
Robinson v Airlines Corp [1983] PNGLR 476

Counsel:
S. Gor, for the Plaintiff
S. Toggo, for the Defendants

DECISION

25th May, 2023

1.	DOWA J:	 The Plaintiff is seeking judgment for vacant possession of land described Portion 329, Ampo, Lae, Morobe Province, and other consequential orders.

2.	The Plaintiff claims in the Statement of Claim the following orders:

i.	Pursuant to section 33 of the Land Registration Act Chapter No. 191 and Order 12 Rule National Court Rules, a declaration that the Plaintiff as the registered owner of Portion 329, Ampo, Lae, Morobe Province (Portion 329), is entitled to vacant possession of the property as against the Defendants and their relatives, family members, friends, and associates.

ii.	Pursuant to Order 12 Rule 30(1) National Court Rules an order that the Defendants deliver vacant possession of Portion 329 to the Plaintiff forthwith.

iii.	Pursuant to Order 13 Rule 3(2) National Court Rules leave is granted to the Plaintiff to issue a Writ of Possession to Portion 329.

iv.	Pursuant to Order 14 Rule 10 and Order 12 Rule 1 National Court Rules an order to restrain the Defendants (and their relatives, family members, friends and associates) from remaining in possession of Portion 329.

v.	In addition, and in the alternative damages against the Defendants to be assessed for trespass and unlawful occupation of Portion 329 for a substantial period of time.

vi.	Costs of and incidental to the proceedings against the defendants jointly and severally.

Background Facts

3.	The Plaintiff is a Christian church organisation established under the Lutheran Church of Papua New Guinea Act.  It is the registered proprietor of land, described as Portion 329, Ampo, Lae, Morobe Province, contained in State Lease, Volume 21 Folio 28.

4.	Portion 329 is a huge land containing several hectares.  It contains substantial improvements, which include the headquarters of the Lutheran church, buildings for the offices and staff houses. 

5.	The Defendants are residing on the block of land from the back of the Plaintiff’s property encroaching on the Hanta side of Portion 329. Despite repeated requests by the Plaintiff to give up possession, the defendants have not vacated. This resulted in the current proceedings. The defendant, Andrew Kamake, filed a Defence and a Crossclaim disputing the Plaintiff’s claims for various reasons set out in their defence. The main reason is that the portion of land they are occupying remains customary land and it was not properly acquired by the Plaintiff. 

Issues

6.	The issues for consideration are:

a)	Whether the Plaintiff is the registered proprietor of Portion 329, Ampo, Lae   Morobe Province.
b)	Whether there is a bona fide dispute as to title.

c)	Whether the Plaintiff is entitled to the reliefs it seeks.

         The Plaintiff’s Evidence

7.	The Plaintiff relies on the Affidavit of Bernard Kaisom sworn and filed 08/07/2022.
 
8.	The summary of the Plaintiff’s evidence as deposed to by Bernard Kaisom is this.
         He is the Church Secretary of the Plaintiff the Evangelical Lutheran Church of Papua New Guinea (ELC PNG).  The Plaintiff is a body corporate established under the Evangelical Lutheran Church of Papua New Guinea Act 1992 (the Act).  That the Church is the registered proprietor of land described as Portion 329, Ampo, Lae, Morobe Province, contained in Certificate of Title Volume 21 Folio 28, (a copy of the title being attached to his affidavit).    He deposes that erected on Portion 329 is the Headquarters of the Church, commonly called Ampo.  It has all the buildings for the offices, staff houses and many other improvements. That the Defendants are are residing on the block of land from the back of Portion 329 encroaching on the Hanta side of the property. The defendants come from the neighboring Wagang and Sipaia villages and other illegal settlers. The occupation and illegal encroachment by the Defendants are not permitted by the National Church Council.  The encroachment is spearheaded by a few local villagers who are motivated by the recent announcement by the National Fisheries Authority to develop fisheries project at the customary land adjoining Portion 329. Despite numerous verbal and written notices to the Defendants to vacate, they defy those notices and continue to reside on the land and building homes and gardens. They have recently stopped a machinery engaged by the Plaintiff to construct a boundary road around the perimeters of Portion 329, causing disruption to the work.  

DEFENDANTS’ EVIDENCE

9.	The Defendants offered no evidence at the trial, but I have considered the affidavit filed by Sandy Karo sworn and filed 30th August 2022. Mr. Karo deposes that the defendants are members of the Wakanku clan of Wagang village of AHI LLG area of Lae. They are part of the original customary landowners of all that land the Plaintiff acquired and has establishment its headquarters. Mr. Karo is the chief of the clan and says they are not encroaching on the Plaintiff’s land. They deny the Plaintiff’s claim and dispute the boundary. Mr. Karo says their land was unlawfully acquired by the Plaintiff during the colonial days. He alleges the boundary was illegally extended only recently by the current church administration. A recent survey shows there is no encroachment as asserted by the Plaintiff. Mr. Karo also takes offence at the words “radical group” used by Bernard Kaisom, in his affidavit. 

Submissions of counsel for the Parties

10.  Mr. Gor, counsel for the Plaintiff, submits that the Plaintiff is the registered proprietor of Portion 329 and has an indefeasible title to the property by virtue of sections 32 and 33 of the Land Registration Act. That the Defendants are unlawfully squatting on the land and dealing with same. The only way the Plaintiff’s title to the property can be challenged is by reason of fraud and other exceptions under section 33(1) of the Land Registration Act. 

11.	The defendants did not present any submissions. However, based on their defence and the affidavit filed in Court, the defendant’s case is this. They are customary landowners and living on their own customary land. Apart from disputing the validity of the original acquisition of their customary land by the Plaintiff, they also deny encroaching onto the Plaintiff’s land, Portion 329.They also question the authenticity of the boundary relied on by the Plaintiff. 

       Consideration of the issues

Whether the Plaintiff is the registered proprietor of the land, Portion 329, Ampo, Lae, Morobe Province.

12.	The Plaintiff has produced, a certificate of title, issued under State Lease, Volume 21 Folio 28 over the subject land, Portion 329, in the name of Evangelical Lutheran Church of Papua New Guinea. Section 32 of the Land Registration Act provides that where an instrument of title describes a person as the proprietor of an estate or interest, that person is the registered proprietor of the estate or interest.  Section 33 of the Land Registration Act provides that a registered proprietor of an estate or interest holds it absolutely free from all encumbrances except for fraud and other exceptions set out in (1)(a) to (f). (Mudge -v- Secretary for Lands (1985) PNG LR 387) Pius Tikili -v- Home Base Real Estate Ltd (2017) SC1563, National Council of Young Men’s Christian Association of PNG -v- Firms Services Ltd (2017) SC 1596 and Albert Camilus -v-David Mota & others (2022) SC 2210.

13.  I find from the undisputed evidence that the Plaintiff is the registered proprietor of land described as Portion 329, Ampo, Lae under State Lease, Volume 21 Folio 28.

Whether there is a bona fide dispute as to the title.

14.  The defendants have not seriously disputed that the Plaintiff is registered as proprietor of Portion 329 although they have questioned the validity of the initial acquisition of their customary land. They are, however, disputing the boundaries of the property in relation to the location of the area they are residing. If the defendants are serious about challenging the boundaries to the Plaintiff’s property in Portion 329, they can do so by bringing their own proceedings. 

15.	So far, the Defendants have not taken any proper and appropriate action or steps to challenge the title in some tangible ways to raise the issue of bona fide dispute as to title. The title was issued many years back.  The Defendants and the other customary landowners have been aware since. The validity of the title was not challenged so far, in a Court of competent jurisdiction or the Land Titles Commission. 

16.	The onus of challenging the validity of title rests on the defendants. in Yandu v Waiyu (2005) N2894, Godowan Investment Ltd v Wambea (2018) N7263, Katumani & Ors v Elijah Yawing & Ors (2020) N8481, Evangelical Lutheran Church of Papua New Guinea v David [2022] PGNC 528; N10060.

17.	In Godowan Investment v Wambea (supra), Cannings J said this at paragraph 9 of his judgment: 

	“The fact that the leases were granted to and registered in the name of the plaintiff gives rise to the presumption that it has good and indefeasible title subject only to the exceptions prescribed by Section 33(1) of the Land Registration Act (Mudge v Secretary for Lands [1985] PNGLR 387). The onus of proving a case of fraud or that any of the other exceptions in Section 33(1) applies rests with the person who challenges the title of the registered proprietor (Niugini Properties Ltd v Londari (2014) N5727).”

18.	In Yandu v Waiyu (2005) N2894, where the Court (Cannings J) in dealing with an eviction matter held that:

“2. 	If the registered proprietor of a State Lease commences proceedings in the District Court to enforce their interest in the land there is no bona fide dispute about title to the Land unless some other person demonstrates that they have taken some distinct, formal, legal steps to disturb that title.”

19.	In the present case, the Defendants have not demonstrated to the Court that they have taken appropriate legal steps to disturb the Plaintiff’s title.  Therefore, in my view there is no bona fide dispute about title. 

20.	Secondly, where customary land is alienated, the process of determining customary ownership and land rights is now vested with the Land Titles Commission. This is because the defendants’ allegations concern customary land rights and interests. In the circumstances, the National Court does not have jurisdiction to deal with the issues raised by the Defendants. 

21.	In Kimas v Oala (2015) SC1475, the Supreme Court settled the law. At paragraphs 6 and 7 of its judgment the Court said, and I quote:

“6. 	It is settled law that the National Court has no jurisdiction to hear and determine disputes concerning ownership by custom of any land, including a dispute as to whether any land is or is not customary land. Such disputes fall within the exclusive jurisdiction of the Land Titles Commission under section 15 (determination of Disputes) of the Land Titles Commission Act, which states:
The Commission has, subject to this Act, exclusive jurisdiction to hear and determine all disputes concerning and claims to the ownership by custom of, or the right by custom to use, any land, water or reef, including a dispute as to whether any land is or is not customary land and may make all such preliminary inquiries and investigations as it deems necessary for the purpose of hearing and determining the disputes and claims.
7.	Section 15 has been given full effect by the courts over many years. As soon as it becomes apparent that a case involves a dispute about whether a land is or is not a customary land, the court should divest itself of jurisdiction. Such disputes fall within the exclusive domain of the Land Titles Commission.”

22. 	Applying the reasonings in Kimas v Oala, I have expressed a similar view in Katumani & Ors v Elijah Yawing & Ors (supra) at paragraph 28 of the judgment: 

“28. Since the Defendants have raised substantial dispute over ownership, I will address them as well, so the parties have proper and informed understanding of the process involved in furthering their interests. It is trite law that both the district and National Courts have no jurisdiction to deal with disputes over customary land. Such disputes can be dealt with in the first instance by following the procedures and processes in the Land Dispute Settlement Act. Where a title is issued over customary land as in the present case, a disputing party can mount a case with the Land Titles Commission pursuant to section 15 of the Land Titles Commission Act”.

23.	Based on these two reasons, I find the defendants have not appropriately challenged the Plaintiff’s title to the property, Portion 329.

Whether the Plaintiff is entitled to the reliefs it seeks.

24.	The Plaintiff seeks several reliefs in the statement of claim.  I will consider each one of them.

         Vacant Possession

25.	The first and second reliefs sought is for judgment for possession and for the Defendants to deliver up vacant possession. This will involve the demolition and removal of any buildings, homes, structures, and improvements done on the property. As I have found, the Plaintiff is the registered owner of the Property, Portion 329.  There is no bona fide dispute as to title.  The Defendants and other unauthorised persons are illegally occupying on parts of Portion 329. It appears the Defendants, relatives and other persons have been residing on the land for some years now.  They have also allowed others to settle on the land. They have built homes and structures on the land. The defendants argue that the portion of land they are occupying remains customary land.  However, the evidence shows the Defendants, were told many years back that the Plaintiff has a Title over the property. The Plaintiff has taken steps, requesting the Defendants to stay clear off the land. The Plaintiff is entitled to take up possession of the property and there is no good reason for refusing it. This may be difficult for the defendants, but it should not be a surprise as the defendants knew or ought to have known the consequences of settling on someone’s land without their consent.

26.  In the case Godowan Investment Ltd v Wambea (supra), Cannings J in dealing with a similar case said this at paragraphs 19-20 of his judgment:
         
“19. I have no hesitation in granting orders generally in terms of paragraphs 3 and 4. Such orders follow naturally from the declaration that the plaintiff is the registered proprietor of the State Leases over Section 173, Allotments 6, 7 and 8. The person who will be directly affected by such orders is the second defendant. He has erected buildings and other structures on the subject properties and conducts his businesses there. He invested in and improved the properties without the consent of the registered proprietor. That is a risk he voluntarily took and he has to bear the consequences of taking such a risk.

20. There is no evidence or suggestion that the plaintiff by its conduct acquiesced in the second defendant’s conduct. In fact, the evidence shows the contrary. The plaintiff warned him on several occasions that he was acting unlawfully. He took no notice and continued to develop the properties. There is no good reason for refusing the relief sought in the originating summons.”

27. 	I am therefore inclined to grant orders for vacant possession and for the defendants to deliver up vacant possession within the time frame the Court considers reasonable. 

Writ of Possession

28.	The third relief is an order for leave to issue a Writ of Possession.  The law is settled. If a person moves in and settles on someone else’s land and builds homes and structures, he does it at its own peril.  Such persons are entitled to an equitable interest of being granted a reasonable time to remove their structures and vacate the property.  Refer: Jure Investment v Conlife (2018) N7286, Paga Hill Development Company v Daure Kisu (2014) N5683 and Laka v Nui (2013) SC1223.

29.  	In the present case, the Court has upheld the application for vacant possession. For the same reasons and as a matter of course, leave to issue a Writ of Possession be granted. In my view, a period of four (4) months is reasonable for the Defendants, their families and servants or agents to remove their homes and structures and deliver up vacant possession.

         Restraining Orders

30.	The fourth relief is for an order restraining all the Defendants, their families from trespassing on the subject land, and from threatening, intimidating or otherwise harassing the Plaintiff, its associates, agents, and employees living on the subject land. 
  
31.  Generally, a grant of an interlocutory injunction is discretionary.  Its purpose is   to maintain status quo until final determination.  See Robinson v Airlines Corp (1983) PNGLR 476. A permanent injunction on the other hand is more serious and is sparingly granted. The Supreme Court in Medaing v Ramu Nico Management (MCC) Ltd (2011) SC144 discussed the law on permanent injunction.  At paragraphs 58-63of the judgment, the court said, and I quote:
“58. 	The law in relation to the grant of permanent injunctions is summarised in the text Spry, Equitable Remedies, Injunctions and Specific Performance, Seventh Edition (1980). At pg.392, Spry (supra) states.
"In all cases, it is a matter of discretion whether an injunction will or will not be granted; but the manner of exercise of that discretion depends on the precise nature of the particular rights that it is sought to protect and on all other material circumstances."
59. 	Spry (supra) quotes further at pg.393 from the case Pride of Derby and Derbyshire Angling Association Ltd v. British Celanese Ltd [1953] ch.149 at 189, which states;
"An injunction may nonetheless, be refused, as a matter of discretion, should it appear to be unjust or 'highly unreasonable' to grant it, by reference to established equitable considerations such as laches, hardship, acquiescence, the absence of clean hands or such other matters. Further, statutory rights must be taken into account by the Court."
32. 	The Plaintiff, as the registered owner, is entitled to peaceful of the use of the   property. It is not highly unreasonable or unjust to grant the orders sought. I will therefore grant an order restraining the defendants from remaining on Portion 329. 
Damages for Trespass
33. 	The final relief sought by the Plaintiff is for damages for trespass and unlawful occupation. An additional order for damages against the Defendants would be burdensome. I am not inclined to grant this relief. 
        Costs

34.	Finally, as to cost, it is a discretionary matter.  Generally, an order for cost is awarded to a successful party in a contested hearing.  The proceedings have been defended and cost is incurred.  In the circumstances, cost shall be awarded to the Plaintiff to be taxed, if not agreed.  

ORDERS

35.     The Court orders that:

i.	The Plaintiff as the registered owner of Portion 329, Ampo, Lae, Morobe Province is entitled to vacant possession of the property as against the Defendants and their relatives, family members, friends, and associates.

ii.	The Defendants shall deliver up vacant possession of Portion 329 to the Plaintiff within four (4) months from date of this order.

iii.	Leave to issue Writ of Possession pursuant to the judgment for possession is hereby granted to be executed after the lapse of the four (4) months.

iv.	The Defendants and their relatives, family members, friends, and associates are restrained from remaining in possession of Portion 329.

v.	The Defendants shall pay the Plaintiff’s cost to be taxed, if not agreed.

vi.	Time be abridged.
_____________________________________________________________________
Fiocco Nutley & Kesno Lawyers: Lawyers for the Plaintiffs
Daniels & Associates: Lawyers for the Defendants