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Puara v Andagali [2023] PGNC 424; N10569 (25 October 2023)


N10569

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS NO: 1402 of 2019 (CC2)

BETWEEN:
RICHARD PUARA
Plaintiff/First Cross-Defendant

AND:
LARRY ANDAGALI
First Defendant


AND:
TRANS WONDERLAND LTD
Second Defendant


AND:
NOU NOU
Third Defendant/First Cross-Claimant


AND:
KAEVAGA INCORPORATED LAND GROUP
Fourth Defendant/Second Cross-Claimant


AND:
LAND TITLES COMMISSION OF PAPUA NEW GUINEA
Second Cross-Defendant


AND:
INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Cross-Defendant


Waigani: Shepherd J
2022: 24th March, 7th April
2023: 25th October


REAL PROPERTY – Land (Tenure Conversion) Act, s.7 – application to Land Titles Commission for conversion order in respect of customary land – whether plaintiff contractually entitled to make application for conversion order – breaches of Land (Tenure Conversion) Act alleged by defendants – circumstances in which registered survey plan can be superseded or cancelled – whether plaintiff has indefeasible title consequent upon making of conversion order under Land (Tenure Conversion) Act – procedural breaches not proven – validity of plaintiff’s title upheld.


EVIDENCE – contract for sale of customary land - dispute as to identity of purchaser to contract – evidence established that plaintiff was correct purchaser - breaches of contract alleged against plaintiff not proven – contract valid.


Case Cited:


PNG Deep Sea Fishing Ltd v Critten (2010) SC1126


Counsel:


Mr Nemo Yalo, for the Plaintiff/First Cross-Defendant
Mr George Lau, for the First & Second Defendants
Mr Peter Hai Pato, for the Third & Fourth Defendants/Cross-Claimants


DECISION

25th October 2023

  1. SHEPHERD J: This case concerns a dispute regarding title to a parcel of land at Napanapa, National Capital District.

BACKGROUND

  1. The background to this case is largely set out in the Court’s interlocutory decision N9210 in this proceeding delivered on 1 October 2021 which dealt with two motions. Much of the following background is reproduced from that decision.
  2. The plaintiff (Mr Puara) commenced this litigation by the filing of his writ of summons and statement of claim on 31 October 2019. An amended statement of claim was filed by him on 25 February 2020 with the consent of all parties.
  3. Mr Puara by his amended statement of claim pleads that he is the registered proprietor of all that freehold land comprising an area of 2.03 hectares known as Portion 3959C Milinch of Granville, Fourmil of Port Moresby, National Capital District being all the land described in Certificate of Title Volume 37 Folio 248.
  4. M Puara’s amended statement of claim alleges that on 23 December 2016 the third defendant (Mr Nou) on behalf of himself and the fourth defendant (Kaevaga ILG) executed a contract for the sale to Mr Puara of the subject land, which forms a part of customary land known as Begadaha (alternatively, Bega Daha) near the turn-off to Motukea Wharf on the road leading to Napanapa Oil Refinery not far from Port Moresby. The agreed purchase price was K300,000, with a 50% deposit to be paid upfront and the 50% balance to be paid after issuance of a registered certificate of title for the land.
  5. On 26 March 2018 the Land Titles Commission granted a conversion order to Mr Puara pursuant to the Land (Tenure Conversion) Act 1963 permitting him to acquire the subject land, identified as Begadaha Portion 3959C, from Kaevaga ILG. This subsequently resulted in the issuance by the Registrar of Titles of Certificate of Title Volume 37 Folio 248 in favour of Mr Puara on 17 October 2018. The Certificate of Title was issued subject to conditions and restrictions imposed by the Land (Tenure Conversion) Act. The Certificate of Title states that a registered survey plan for the subject land is contained in Catalogue No. 49/3739 held by the Department of Lands and Physical Planning at Waigani, National Capital District.
  6. However, on 20 June 2019 Kaevaga ILG executed a second contract, this time for the sale of a greater part of Begadaha customary land to the second defendant, Trans Wonderland Ltd (TWL). The land which was sold to TWL included Portion 3959C, which Mr Puara asserts had already been sold to him by Kaevaga ILG.
  7. Mr Puara’s amended statement of claim pleads to the effect that on or about 2 September 2019 agents or employees of the defendants wrongfully entered and encroached onto Portion 3959C and destroyed almost 20,000 meters of fencing which Mr Puara had constructed on the perimeter boundary for his land. Agents or employees of the defendants dug up and removed the concrete survey pegs which delineated the boundary for the land. They then bulldozed the entire area, dug up trenches and did further earthworks which altered the contour of the land at Portion 3959C.
  8. Mr Puara by his amended statement of claim is seeking damages against TWL and its managing director the first defendant Larry Andagali for trespass to Portion 3959C and damages for mental anguish sustained by Mr Puara. The amended statement of claim also seeks interim and permanent injunctions against the defendants to prevent further encroachment and interference with the land at Portion 3959C.
  9. On 14 February 2020 Mr Nou and Kaevaga ILG were joined by order of this Court as third defendant and fourth defendant respectively to this proceeding. This was followed by the filing of Mr Puara’s abovementioned amended statement of claim on 25 February 2020, which expanded Mr Puara’s claim against Mr Andagali and TWL to include Mr Nou and Kaevaga ILG.
  10. On 20 March 2020 this Court granted interim orders restraining TWL and members of the Kaevaga ILG and Kaevaga Clan from entering onto Portion 3959C and restraining the parties from harassing each other regarding matters in issue in this proceeding. Those interim orders are still in force.
  11. An appeal against the interim restraining orders of 20 March 2020 was filed by Mr Andagali and TWL in the Supreme Court on 6 June 2020 However, the appeal was subsequently withdrawn by Mr Andagali and TWL on 28 July 2020 after Justice Cannings dismissed their application for a stay of the interim restraining orders pending final determination of the appeal, primarily on the basis that the appeal had no prospect of success.
  12. The case then reverted back to the National Court and on 16 October 2020 the Court heard and reserved on two motions: (1) a motion by Mr Puara filed on 24 September 2020 seeking orders to restrain the defendants and the Surveyor General for taking further steps to alter or cancel Survey Plan Catalogue No. 49/3739 pending the outcome of this proceeding, and (2) a motion by Mr Nou and Kaevaga ILG filed on 25 September 2020 seeking leave to amend their defence and cross-claim.
  13. On 1 October 2021 this Court delivered its interlocutory reserved decision, reported as N9210, in connection with the two motions heard on 1 October 2020. The Court made the following rulings:

pending further order of the Court.

(2) the motion filed for Mr Nou and Kaevaga ILG seeking leave to file and serve out of time an amended defence and cross-claim to plead alleged commission of fraud by Mr Puara, the Land Titles Commission and Acting Chief Land Titles Commissioner Mr Kutt C. Paonga was refused as the Court was satisfied that no credible evidence to support allegations of fraud had been adduced by Mr Nou and Kaevaga ILG;
(3) The parties were ordered to settle a statement of disputed and agreed facts and issues for trial (Statement) which was to be filed by Mr Puara by 22 October 2021.

15. Further directions hearings were held by the Court on 8 November 2021 and 6 December 2021.

  1. The parties’ Statement, signed by the parties’ respective counsel, was eventually filed on 10 December 2021.
  2. Prior to the filing of the parties’ Statement, on 5 November 2021 Mr Nou and Kaevaga ILG filed an application in the Supreme Court seeking leave to appeal all of the orders which were made by this Court in this proceeding on 1 October 2021: SCA No. 146 of 2021 (IECMS) – Nou Nou & Kaevaga ILG v Richard Puara, Land Titles Commission of Papua New Guinea and The State. An application for a stay of this Court’s orders of 1 October 2021 was dismissed by Logan J sitting as a single judge of the Supreme Court on 14 March 2022, following which Mr Nou and Kaevaga ILG apparently abandoned their application for leave to appeal in SCA No. 146 of 2021.
  3. The substantive claims of the plaintiff in this proceeding WS No. 1402 of 2019 were set down for trial on 24 March 2022 pursuant to directional orders of this Court made on 25 February 2022.
  4. The trial commenced on 24 March 2022 at which time a series of affidavits relied on by the parties were admitted into evidence, followed by cross-examination of certain deponents. The trial was then adjourned part-heard for respective counsel to prepare their written submissions. The trial resumed on 7 April 2022 at which time lengthy submissions were made by counsel and the Court’s decision was reserved. The Court’s reserved decision on the substantive claims of the plaintiff and the cross-claimants, based on the issues which the parties had themselves agreed in their Statement filed on 10 December 2021 were to be determined by the Court, is the subject of this judgment.

EVIDENCE

  1. The parties’ affidavit evidence is extensive.
  2. At trial Mr Puara relied on the following affidavits and documents produced in evidence:
  1. The first and second defendants relied on the following affidavits at trial:
  2. The third and fourth defendants relied on two affidavits at trial:
  3. In addition to the affidavit evidence, the following witnesses were summonsed and gave oral evidence at trial:

(1) Mr Ala Ane, Acting Registrar of Titles

(2) Mr Jack Backus, Acting Surveyor General

(3) Mr Lionel Jarigi, private surveyor engaged by TWL

(4) Mr Kutt Paonga, Acting Chief Land Titles Commissioner

(5) Mr Richard Puara, plaintiff.

ISSUES

  1. Having reviewed the pleadings, the parties’ Statement, the evidence adduced by the parties at trial and the parties’ respective objections to certain aspects of the evidence, I accept that there are four core issues to be determined in this suit if Mr Puara is to succeed in his claims against Mr Andagali and TWL and in his defence of the cross-claim by Mr Nou and Kaevaga ILG. Those four issues were identified by the parties themselves in their Statement but which I have paraphrased below to allow for clarification.
  2. The four core issues that fall for determination by the Court are these:
  3. If the Court were to determine these four core issues in favour of Mr Puara, that would establish liability on the part of the four defendants and the Court would then be called upon to determine the quantum of damages to be paid by the defendants as well as the other relief sought by Mr Puara in this suit.

CONSIDERATION

Issue 1: Did Mr Puara breach the terms of the Contract for Sale executed by Mr Nou and Kaevaga ILG on 23 December 2016?

  1. Mr Andagali and TWL have pleaded in their amended defence, repeated in their submissions at trial and supported by Mr Nou and Kaevaga ILG, that Mr Puara breached the contract for sale executed by Mr Nou for himself and on behalf of Kaevaga ILG on 23 December 2016 in two respects:

(1) That there was a contractual obligation on Mr Puara’s company, not Mr Puara personally, to obtain a conversion order from the Land Titles Commission under the Land (Tenure Conversion) Act in respect of the customary land that was the subject of the sale and for Mr Puara’s company to then pursue registration of a certificate of title to the land to be registered in the name of the company, not in the name of Mr Puara personally, and that Mr Puara’s company failed to pursue that registration.

(2) That in any event Mr Puara’s company failed to “settle” payment to Mr Nou and Kaevaga ILG of the balance of K150,000 that fell due for payment under the Contract when the certificate of title was actually issued to Mr Puara.

  1. The first limb to this aspect of the defence calls into question who were the actual parties to the Contract. This is an issue which was raised by all defendants during the earlier stages of this proceeding and was expressly addressed at paras. 44 to 50 of the Court’s interlocutory ruling N9210 delivered on 1 October 2021. I refer to those particular paragraphs as if they were set out in extenso herein, the essence of which is captured in para. 46 which reads as follows:

“ 46. Despite some initial ambiguity in the name of the purchaser in the Contract having been referred to as “PNG Trans Logistics Ltd ... through its director Mr Richard Puara”, it is obvious that Mr Nou signed the Contract as vendor on behalf of all members of the Kaevaga ILG with the intention that the subject customary land was being sold to Mr Puara in his own right.. Clause 1.5 and other clauses in the Contract use the pronoun “his”, not “its”, when referring to the Purchaser. I therefore accept for the purposes of the leave application of Mr Nou and Kaevaga ILG that annexure “RP 01” to Mr Puara’s affidavit filed on 17 December 2019 is good evidence that Mr Nou on behalf of the Kaevaga ILG executed the Contract for the sale of the subject land to Mr Puara personally as the director of PNG Trans Logistics Ltd rather than to Mr Puara’s company. ”

  1. The authenticity of the Contract dated 23 December 2016 is not disputed by any of the parties.
  2. The cover sheet for the Contract at its foot states the name of “Kolo & Associates Lawyers”, from which I infer that the Contract was prepared by that law firm acting for Mr Puara at the time. A reading of the Contract gives every indication that it was prepared in haste. This is because the content of the Contract is relatively short. It comprises only 6 clauses. The Contract only has 5 pages, including the attestation page and a schedule. The Contract also has drafting errors. The recitals on page 1 of the Contract indicate at first blush that the Contract is between Mr Nou and PNG Trans Logistics Ltd “through its Director Mr Richard Puara” . However the recitals in the Contract then continue:

“ WHEREAS

A. The parties hereby enter into an Agreement for Sale and Purchase of a Portion of customary Land known as BEGA DAHA more particularly described in Item 3 of the Schedule.

B. In consideration of this Agreement, the Vendor MR. NOU NOU and the Purchaser MR RICHARD PUARA agree to be bound by the provisions of this Agreement. ”

[emphasis added]

  1. The mode of attestation on page 4 of the Contract reinforces the Court’s earlier observations in its interlocutory ruling that it was Mr Puara, not his company, who was the purchaser for the purposes of the Contract.
  2. The attestation page of the Contract clearly shows that Mr Nou’s signature as vendor was witnessed by four persons, three whom were presumably members of Kaevaga ILG, namely Morea Nou, Dabada Arua and Willie Nou. The fourth witness to Mr Nou’s signature was Kaevaga ILG’s lawyer at that time, Mr Glen Jerry.
  3. Mr Puara’s signature as purchaser on the attestation page was witnessed by two persons, Jacob D. Ahuru and Sergeant Richard Triga of Boroko Police Station’s CID.
  4. The signatures of all of these named witnesses were endorsed on the attestation page. For good measure the seal and signature of Mr Puara’s lawyer, Mr Jason Kolo, was endorsed at the foot of the attestation page.
  5. Mr Nou is described underneath his signature on the attestation page of the Contract as “Dispute Committee Chairman & Senior Clan Member” of Kaevaga ILG.
  6. Mr Puara is described alongside his signature on the attestation page of the Contract as “Richard Puara as Director of Trans Logistic Ltd”. The correct name of Mr Puara’s company is PNG Trans Logistics Ltd. However, that is largely irrelevant as there is in any event no statement or indication on the attestation page that Mr Puara placed his signature there “for and on behalf of PNG Trans Logistics Ltd as purchaser”.
  7. I observe that if Mr Puara’s company was the intended purchaser to be bound by the Contract, not Mr Puara, one would have expected the attestation page of the Contract to bear the usual attestation clause for a company, which is: “The common seal of X company was affixed hereto in the presence of Y, a director of the company” or words to that effect, followed by the imprint of the company’s common seal and evidenced by the signature of one or more authorised officers of the company. The attestation page bears no common seal imprint for Mr Puara’s company.
  8. Alternatively, if PNG Trans Logistics Ltd were the correct purchaser, and not Mr Puara, his company could have used the same format for execution as TWL used in its own contract with members of the Kaevaga Clan, which was: “Signed for and on behalf of Trans Wonderland Limited by its duly authorised representative in the presence of: [signature of Mr Andagali as authorised representative]”. That format, which would prima facie bind a company, was not used in the Contract signed by Mr Puara and Mr Nou for himself and for Kaevaga ILG.
  9. I find that Mr Puara’s signature on the attestation page is consistent with the statement in Recital B on page 1 of the Contract that “the Vendor MR. NOU NOU and the Purchaser MR. RICHARD PUARA agree to be bound by the provisions of this Agreement”. To my mind, this should have put at rest any contention by the defendants that it was Mr Puara’s company PNG Trans Logistics Ltd which was the purchaser bound by the Contract, not Mr Puara personally.
  10. My conclusion in this regard is further reinforced by the text of clause 1.5 of the Contract, which unambiguously states:

1.5 The Purchaser shall undertake at his own expense and be responsible for the survey of the subject land, lodgment, payment of prescribed fees and costs, and registration of the land under his own name including all other necessary physical and administrative compliance in furtherance of his interest and desire to purchase the land but reserves the right to deduct monies paid on behalf of the Vendors in procuring the title to the said land.

[emphasis added]

  1. I consider that Mr Nou was well aware at the negotiation stage of the Contract that Mr Puara had a company named PNG Trans Logistics Ltd and that it was Mr Puara’s intention, if his application to the Land Titles Commission for conversion of title to the subject customary land to registered freehold title were to be granted to him, it would be Mr Puara’s company that would be funding and carrying out development works on the land, not Mr Puara personally, but that the title to the land was to be in Mr Puara’s name, not in the name of his company.
  2. I infer that this is how the initial reference to Mr Puara’s company came to be erroneously made in the Contract but was then internally corrected in the Recitals because the remainder of the Contract makes it abundantly clear that Mr Nou was contracting with Mr Puara personally, not with Mr Puara’s company despite superficial indications to the contrary.
  3. When the Court delivered its interlocutory ruling of 1 October 2021, term 5 of the Court’s order made on that occasion directed the parties to settle a Statement, being the parties agreed and disputed facts and issues for trial, which was to be filed by 22 October 2021. The purpose of that direction was to compel the parties to mutually agree on what were the core issues to be determined at trial, given that the Court had already ruled that the Contract was between Mr Nou and Kaevaga ILG as vendor and Mr Puara personally as purchaser.
  4. As I have already observed, the parties’ Statement was filed on 10 December 2021. The Statement appears to have been carefully drafted. It sets out the parties’ agreed chronology of common facts, disputed facts and agreed four core issues to go forward to trial. The Statement was signed and separately dated 10 December 2021 by each counsel, that is to say by Mr Nemo Yalo of Nemo Yalo Lawyers for the plaintiff/cross-defendant, by Mr George Lau of NiuAge Lawyers for the first and second defendants and by Mr Peter Hai Pato of Parker Legal for the third and fourth defendants/cross-claimants.
  5. The Statement was clearly the product of extensive negotiation between Mr Yalo, Mr Lau and Mr Pato on behalf of their respective clients. I say this because the time for the filing of the Statement had to be extended twice by order of the Court to enable all three counsel to complete their negotiations as to the final content of the Statement. The first extension order was granted on 8 November 2021 which allowed for the Statement to be filed by 1 December 2021, followed by a further extension order on 6 December 2021, which stipulated that the Statement had to be filed no later than 10 December 2021.
  6. The issue of alleged breaches of the Contract was stated in Item C.1 of the parties’ Statement under the heading “Legal Issues” on p.7 as follows:

“ C.1 Whether the Plaintiff has breached the terms of the Contract of Sale executed with the 3rd and 4th Defendants on 23 December 2016? ”

  1. Phrased in this way, it is clear that as at 10 December 2021 all four defendants recognized and acknowledged in item C.1 of their Statement that the parties to the Contract were Mr Puara personally and Mr Nou on behalf of the members of the Kaevaga ILG as vendor(s), as had been pleaded by Mr Puara in para. 6 of his amended statement of claim. Otherwise the defendants would have insisted that Item C.1 of the Statement include an additional issue as to whether the Contract was entered into by Mr Nou and Kaevaga ILG as vendor and PNG Trans Logistics Ltd as purchaser, which would have been contrary to the finding of the Court in its interlocutory decision delivered on 1 October 2021 that the Contract was between Mr Nou and Kaevaga ILG as vendor and Mr Puara personally as purchaser. That issue was not raised in Item C.1 of the parties’ Statement as an issue requiring the determination of the Court.
  2. However, despite the clear acknowledgement in item C.1 of the Statement’s Legal Issues for determination by the Court that the Contract was between Mr Nou for himself and Kaevaga ILG as vendor and with Mr Puara as purchaser, at trial counsel for Mr Andagali and TWL, Mr Lau, and counsel for Mr Nou and Kaevaga ILG, Mr Pato, each attempted to reagitate their clients’ contentions that the purchaser who was bound by the Contract was Mr Puara’s company, not Mr Puara personally.
  3. At trial, Mr Pato persisted in his submissions with his clients’ contention pleaded in para. 3 of their defence filed on 9 March 2020 that his clients denied that they had executed their Contract with Mr Puara and that they had instead executed the Contract with “a company known as PNG Trans Logistics Limited – not with the Plaintiff”. Mr Lau echoed the same position for Mr Andagali and TWL in his submissions, even though the first and second defendants were never parties to that Contract and only had hearsay knowledge of the circumstances that gave rise to its execution.
  4. Mr Puara pleaded in his amended statement of claim at para. 1(a) that he is an adult citizen, and at para. 1(b) that he is the proprietor of 2.03 hectares of freehold land being Portion 3959C, Milinch of Granville, Fourmil of Moresby referred to in Certificate of Title Volume 37 Folio 248.
  5. The Contract, and the parties to it, were expressly pleaded by Mr Puara in para. 6 of his amended statement of claim in these terms:

“ 6. On 23 December 2016 the Plaintiff and the Third Defendant for and on behalf of himself and the Fourth Defendant executed a Contract of Sale of Customary Land where it was agreed that the Plaintiff will buy a portion of customary land owned by the Fourth Defendant. ” [emphasis added]

  1. It is noteworthy that Mr Andagali and TWL responded to para. 1 of Mr Puara’s amended statement of claim by pleading in their amended defence filed on 9 March 2020 follows:

“ 1. The First and Second Defendants admit paragraph 1(a) and denies paragraph 1(b) and pleads the following;

(a) On 23rd December 2016, the Third Defendant and his Kaevaga ILG executed a contract for sale of customary land (Agreement) with PNG Logistics Ltd and not with Richard Puara. By operation of the doctrine of privity of contract, Richard Puara personally is not a party to the agreement so the agreement does not confer [on] him any right or obligation. Hence obtaining the title under the Plaintiff’s name is flawed from the start.

(b) The purchase price was K300,000.00 of which K148,000,00 was paid by PNG Logistics less K2,000.00 as bank fees;

(c) Claus[e] 2.3 of the Agreement provides that PNG Logistics Ltd as the purchaser shall pay the balance of K150,000 to Kaevaga ILG as a vendor after securing the title of the subject land or such other time mutually agreed by the parties.

(d) PNG Logistics Ltd without settling the balance of K150,000..00 carried out Survey process and obtained a Portion number known as Portion 3959C followed by lodgement of application for conversion under the Plaintiff’s name but not under PNG Logistics Ltd.

(e) On 17th October 2018, the Certificate of Title was issued under the Plaintiff’s name instead of PNG Logistics Ltd as an initial party to the Agreement.

(f) The Plaintiff obtained Certificate of Title and Conversion Orders in breach of the Land (Tenure Conversion) Act No. 15 of 1963 and that he does not have capacity to sue in his own name.

(g) The Plaintiff is also not a customary landowner to be granted a Certificate of Title under the Land (Tenure Conversion) Act. He is from Southern Highlands Province. ”

  1. I observe that there are two obvious discrepancies which can be seen in Mr Andagali and TWL’s defence to paras. 1(b) and 6 of Mr Puara’s amended statement of claim.
  2. Firstly, Mr Andagali and TWL have erroneously referred in their defence to Mr Puara’s company as “PNG Logistics Ltd” instead of its correct name “Trans PNG Logistics Ltd”. This is a serious but not necessarily fatal error of pleading as it could have been cured by amendment, but was not.
  3. Secondly, despite the denial of Mr Andagali and TWL in para. 1(a) of their amended defence that Kaevaga ILG as vendor entered into the Contact with Mr Puara and the assertion that the Contract was between Kaevaga ILG as vendor and a company named “PNG Logistics Ltd” as purchaser, this allegation, based on hearsay and their conjecture, is in stark conflict with the following admission contained in para.2 of their amended defence:

“ 2. The First and Second Defendants admit paragraph ... 6 of the Plaintiff’s Amended Statement of Claim. ”

This is a clear admission by Mr Andagali and TWL that the parties to the Contract were the parties pleaded by Mr Puara in para. 6 of his amended statement of claim, viz. Mr Nou and Kaevaga ILG as vendor(s) and Mr Puara as purchaser.

  1. As for Mr Nou and Kaevaga ILG, they flatly denied in their defence that they had sold the subject land to Mr Puara and alleged that they had instead sold the land to Mr Puara’s company, PNG Trans Logistics Ltd. But at the same time Mr Nou and Kaevaga ILG admitted in their defence filed on 9 March 2020 that they had given consent to Mr Puara to acquire the subject land, being customary land, through the conversion process allowed for under the Land (Tenure Conversion) Act. However Mr Nou and Kaevaga ILG also confusingly pleaded to the effect that the reason Mr Puara was not entitled to have acquired title to the land was because Mr Puara is not a member of the Kaevaga Clan or a customary owner of the land.
  2. Set out below are the relevant pleadings extracted from Mr Nou and Kaevaga ILG’s defence:

“ 1. The Third and Fourth Defendants admit paragraph 1(a) [of the statement of claim] but deny paragraph 1(b) and say as follows:

1.1 The subject land is owned by the Third Defendant and his Kaevaga Clan known as Bega Daha, which is a customary piece of land.

1.2 The Plaintiff has no right under the Land (Tenure Conversion) Act 1963 to acquire customary land through the process of conversion administered by the Land Titles Commission as he is not a member of the Kaevaga clan nor is he a landowner, even if there was consent given by the landowners.

1.3 The Plaintiff obtained the freehold lease title illegally:

1.3.1 as relevant provisions of the Land (Tenure Conversion) Act 1963 were breached, rendering his claim over the land and title null and void, hence he is not entitled to claim ownership.

1.3.2 The Third and Fourth Defendants never at any one time sold part of their customary land to the Plaintiff to enable him to apply for conversion of the land into a freehold lease, therefore Plaintiff’s purported title is null and void, thus defective.

1.3.3 The Office of the Surveyor General cancelled the Plaintiff’s Survey Plan No. Cat. 49/3739 and did a new Survey Plan Cat. No. 49/3917 and a new Portion number was given to the Second Defendant as Portion 4251C, Milinch Granville, Fourmil Moresby, NCD.

2. ...

3. As to paragraph 6, the Third Defendants deny that they executed a contract of sale with the Plaintiff but say that they executed the contract of sale referred to with a company known as PNG Trans Logistics Limited - not with the
Plaintiff ” [emphasis added]

  1. It is therefore incomprehensible and illogical, in view of the evidence and the Court’s earlier finding that the Contract was indeed executed between Mr Nou and Kaevaga ILG as vendor and Mr Puara as purchaser, that all four defendants through their respective counsel persisted in their submissions at trial that the Contract was between Mr Nou and Kaevaga ILG as vendor and PNG Trans Logistics Limited as purchaser, when the evidence and various of their own admissions in their pleadings were to the contrary.
  2. I surmise that the rationale for this persistence by the defendants at trial was that if the Court could somehow be persuaded to reverse its earlier finding on this issue, then it would be open to the defendants to rely on the doctrine of privity of contract to assert that Mr Puara was never a party to the Contract and that if the true purchaser was PNG Trans Logistics Ltd as purchaser, then only that company, not Mr Puara, had the contractual right to pursue a conversion order from the Land Titles Commission with the consent of Kaevaga ILG and to seek to have a certificate of title to the subject land registered and issued to the company in its name.
  3. This position taken by all defendants at trial on this issue defies not only the compelling evidence to the contrary but it also defies common sense. Section 7 of the Land (Tenure Conversion) Act states:

7. Subject to this Act, a citizen may apply to the [Land Titles] Commission in the prescribed form in his or its name of any customary land or of an interest in customary land.

  1. Section 56(1(b) of the Constitution provides that only citizens, other than those having dual citizenship, may acquire freehold land.[1]
  2. All defendants in their pleadings admitted that Mr Puara is a citizen of Papua New Guinea.
  3. The term “citizen” is defined in s.3 of the Interpretation Act Chapter 2 as meaning a person who is a citizen of Papua New Guinea by virtue of Division IV.2 (acquisition of citizenship) of the Constitution. However, this definition, according to s.2 of the Interpretation Act, can be given a further meaning if clearly indicated in other legislation.
  4. Section 4 of the Land (Tenure Conversion) Act gives the term “citizen” an extended meaning for the specific purposes of that Act. Section 4 defines the term “citizen” as including:

(a) a business group;

(b) a land group;

(c) a customary kinship group;

(d) a customary descent group; and

(e) a customary local group or community.

  1. This definition in s.4 of the Land (Tenure Conversion) Act 1963 simply extends the normal meaning of the term “citizen” for the purposes of that Act beyond that of an individual person who is a Papua New Guinea citizen to include groups of persons having a customary connection to land.
  2. The argument of the defendants advanced at trial, as best I can understand it, is that because PNG Trans Logistics Ltd is incorporated as a company under the Companies Act 1997, it is not a citizen of Papua New Guinea. Therefore the company, not being a citizen for the purposes of the Land (Tenure Conversion) Act 1963, never had standing at the outset to apply to the Land Titles Commission for a conversion order under s.7 of the Act in respect of the subject land. And as Mr Puara was allegedly not a party to the Contract, he too had no contractual right to apply to the Land Titles Commission for a conversion order.
  3. This argument, advanced by the defendants at trial, when taken to its logical conclusion would mean that Mr Nou and the Kaevaga ILG as vendors had purportedly entered into a contract with PNG Trans Logistics Ltd for the sale of customary land in respect of which no conversion order could ever have been lawfully granted under the Land (Tenure Conversion) Act, nor could a certificate of title to the land have subsequently been lawfully registered and issued to PNG Trans Logistics Ltd under the Land Registration Act Chapter 1981 because Mr Puara’s company was not a Papua New Guinea citizen for the purposes of those two Acts.
  4. If the scenario presented for the defendants that the Contract was between Mr Nou and Kaevaga ILG and PNG Trans Logistics were to be correct, which it most certainly is not, then this would mean that there had been such a fundamental error in the creation of the Contract, whose authenticity is not disputed, which in itself would raise a multitude of issues such as voidability, misrepresentation, inducement by Kaevaga ILG to enter into contractual relations, mistake and illegality, to name but some of the potential consequences in contract law which such a bizarre position would present.
  5. There having been no additional evidence adduced at trial by any of the defendants to rebut the Court’s earlier finding that the subject Contract for the sale of Portion 3959C was between Mr Puara personally as purchaser and Mr Nou on behalf of Kaevaga ILG as vendor, I find that this question continues to remain fully resolved by the Court’s earlier finding in this regard. There is simply no merit, given the evidence on point, that the Contract was entered into by Mr Nou on behalf of himself and the Kaevaga ILG as vendors with any purchaser other than with Mr Puara personally.
  6. At trial the defendants by their respective counsel made alternative submissions to the effect that if the Court were to consider that Mr Puara was the purchaser bound by the Contract (which the Court most certainly does), not his company, then it was argued that Mr Puara as purchaser breached the Contract in several respects. This is where the first of the core issues in Item C.1 of the parties’ Statement comes into focus.
  7. It was submitted for Mr Nou and Kaevaga ILG that the Contract was breached by Mr Puara because they never agreed to him making application to the Land Titles Commission in his own name for a conversion order under s.7 of the Land (Tenure Conversion) Act. Mr Nou and Kaevaga ILG rely in this regard on the following poorly drafted clause 1.6 in the Contract:

“ 1.6 Upon signing the Agreement, the Vendor shall ensure that the Purchaser receives the State Lease Sub Lease over the subject land free from all encumbrances and readily assist where necessary to procure the primary title under its ILG before transferring same to the Purchaser. ”

[emphasis added]

  1. A cursory reading of clause 1.6 seems to indicate that it was the intention of the parties that Kaevaga ILG would take the steps necessary to obtain “primary title” to the land and then transfer that title to Mr Puara. However, this conflicts with that part of clause 1.6 which states that the Vendor would “readily assist where necessary to procure the primary title”. I pose the question: Why would the Vendor need to “assist where necessary” if the obligation to obtain primary title, that is to say a certificate of freehold title (not leasehold title), was the obligation of Kaevaga ILG, not the obligation of Mr Puara? Kaevaga ILG as a corporate entity would not need to assist itself to carry out that obligation.
  2. The evidence adduced by Mr Puara on this point clearly shows that the ambiguity inherent in clause 1.6 of the Contract was remedied by the steps which Mr Puara took to file his application for a conversion order with the Land Titles Commission, those steps having been taken by Mr Puara with the knowledge and consent of Mr Nou and Kaevaga ILG.
  3. Mr Puara relies in this regard on a further agreement which was signed by Kaevaga ILG at the request of Mr Puara. This is the document titled “Consent Agreement” dated 13 November 2017 which is annexure ”PR 13” to Mr Puara’s affidavit filed on 17 December 2019 and which formed part of Exhibit P2 at trial. The Consent Agreement is again referred to by Mr Puara in his affidavit filed on 9 October 2020, Exhibit P6 at trial.
  4. The Consent Agreement is on the letterhead of Kaevaga ILG. Its content, except for signatures, is reproduced hereunder without editorial correction:

“ CONSENT AGREEMENT

We the clan members of Kaevaga Land Group Incorporated (REG. ILG NO. 307) of Baruni Village and being the traditional landowners hereby duly give our consent over the sale of Begadaha a customary pocket of land portion within Sasiva customary landmass owned by Kaevaga ILG.

We affirm acquisition of Begadaha herein referred to as Portion 3959c (NCD) Cat. No. 49/3729 Milinch of Granville Fourmil of Moresby by Mr Richard Puara of PNG Trans Logistics Limited and all other requirements been complied with to be legal transferred to Mr Richard Puara of PNG Trans Logistics Limited.

Hence, we affirm that the referred land portion was purchased for K300,000.00 on the 23rd of December 2016 hence been surveyed however ending title registration under Mr Richard Puara of PNG Trans Logistics Limited upon granting of the application under section 7 of Land Tenure (Conversion) Act we do not object.

The undersigned signatories are true legitimate clan members giving effect to this consent agreement on this dated 13th November 2017.

[signature]
NOU NOU
Senior clan member & Dispute Settlement Authority Chairman
Kaevaga ILG

[signature]
DABADA ARUA KOBUA
Senior Clan Member & Treasurer
Kaevaga ILG

[signature]
MOREA NOU
Senior Clan Member & Dispute Settlement Authority Committee
Kaevaga ILG

[signature]
AUDA BOREMA
Senior Clan Member
Kaevaga ILG

[signature]
RAHE RAHE
Senior Clan Member & Dispute Settlement Authority Committee
Kaevaga ILG

[signature]
NIGANI TONI
Senior Clan Member
Kaevaga ILG

[signature]
PETER TOKANA
Senior Clan Member
Kaevaga ILG

[signature]
VEIDIHO NOU
Senior Clan Member
Kaevaga ILG

[signature]
RARUA NOU
Senior Clan Member
Kaevaga ILG

[signature]
GIRIGI BOREMA
Senior Clan Member
Kaevaga ILG ”

  1. In answer, Mr Nou has strenuously denied in his evidence that he ever signed this Consent Agreement. Mr Nou has alleged that this document was fraudulently manufactured by Mr Puara and that all signatures of those members of Kaevaga ILG who purportedly signed the document have been similarly forged by Mr Puara.
  2. However, I find that Mr Puara’s evidence has convincingly refuted Mr Nou’s denial. The purpose of the Consent Agreement dated 13 November 2017 and the circumstances surrounding its genesis are fully explained by Mr Puara in his affidavit filed on 9 October 2020, Exhibit P6, as follows:

“ 4. Mr Nou is accusing me of uttering the “Consent Agreement” dated 13 November 2017 signed by him and his colleague landowners. This document is Annexure “PR13” annexed to my affidavit sworn on 16 and filed on 17 December 2019, court doc. #16.

5. ...

6. On 21 September 2017 I submitted my application for Conversion Order dated the same date [to the Land Titles Commission] using an Application for Registration form supplied to me by the LTC. I attached a copy of the Contract for Sale of Customary Land (Contract for Sale) which I executed with Nou and his Kaevaga ILG representatives on 23 December 2017. I beg to refer the Court to Annexure “01” annexed to my affidavit sworn on 16 and filed on 17 December 2017, court doc. #16.

7. ...

8. In the morning of 13 November 2017 an officer from LTC called me to advise that in addition to the Contract for Sale, LTC required a consent agreement executed by the Kaevaga Landowners as a further proof that they have consented to selling their customary land to my company. I immediately drove to Mr Nou in his Sasiva/Motukea Village and explained the LTC requirements.

9. Mr Nou wanted to instruct his lawyer Mr Glenn Jerry to draft the consent agreement. So I drove Nou and his brother Morea Nou to Mr Jerry’s office located behind the Post Courier along Lawes Road, in Konedobu.

  1. Mr Jerry drafted the consent agreement, however Nou did not have the proper copy of the Kaevaga ILG Letterhead. The ILG Chairman Haraka Borema and his brother Nau Borema the ILG Secretary usually kept the Letterheads. Mr Nou could not ask for it because he had an ongoing conflict with them and even if he asked they would not give it to him.
  2. Both Glenn and Nou decided that I should draft a new letterhead for our purposes and I would print the consent agreement for Nou and his clan leaders to sign. Glen[n] drafted the contents of the consent agreement, copied it onto a flash drive and gave it to me to print. I drafted a new Kaevaga ILG Letterhead upon consent from Nou and printed the Consent Agreement drafted by Mr Jerry.
  3. In the afternoon of the same day, I drove to Nou in his village and handed him the Consent Agreement. As I waited in my car Mr Nou took the document house to house to the clan leaders to sign. Some leaders were at Baruni so I drove him to Baruni where Morea Nou and Rahe Rahe signed. Since Dabada Arua Kobua was the only one yet to sign but was not in the village Nou called him on his mobile number. Mr Kobua advised that he was in Brown River on duty. Because the time was about 4:00pm and it was late I advised Nou to keep the document for Mr Kobua to execute and I drove back to the city.
  4. On the next day, I called Nou and checked on the agreement. He advised that all had signed so I could collect it from him in his village. I drove to his village and picked up the document. At that point he asked me to draft a cover letter on the new Kaevaga ILG Letterhead that I had created so that he could sign. I drove back to the city, drafted Nou’s cover letter and returned to Nou in his village and he signed his letter. Thereafter I attached the Consent Agreement to Nou’s cover letter and took it to the LTC office and lodged them there.

True copies of the Consent Agreement and Nou’s cover letter are annexed hereto and are marked as Annexure “B”.

  1. I did not initiate the Consent Agreement on my own and forge the signatures appearing on that document or even forged Mr Nou’s signature appearing on his cover letter.”

[emphasis added]

  1. Mr Puara’s denial that he forged the Consent Agreement and its signatures and that the Consent Agreement is genuine is corroborated by the evidence of Police Crime Scene Investigator Mr Dabada Arua Kobua. Mr Kobua deposes in his affidavit filed on 9 October 2020, Exhibit P10 at trial, that as at that date he was not only the treasurer of Kaevaga ILG but he was also a crime scene investigator with the Forensic Division of the Royal PNG Constabulary, having served the Police for 11 years. Mr Kobua confirms in his affidavit that he is from the Kaevaga Clan of Baruni Village. He deposes in para. 5 of his affidavit that his signature on the Consent Agreement dated 13 November 2017 is authentic, which I am satisfied in turn confirms the authenticity of the Consent Agreement. Mr Kobua’s evidence in this regard was not rebutted by any evidence adduced for the defendants.
  2. If Mr Nou and Kaevaga ILG’s allegations that Mr Puara had fraudulently manufactured the Consent Agreement were to have had any substance at all, the most obvious person to have refuted Mr Puara’s account of the circumstances that gave rise to the Consent Agreement would have been Mr Glen Jerry, the lawyer who was then acting for Mr Nou and factions of Kaevaga ILG. Mr Jerry is a reputable lawyer. He was formerly a legal officer with the Sheriff’s office of the National and Supreme Courts.
  3. According to Mr Puara, it was Mr Jerry who prepared the Consent Agreement on 13 November 2017 and who, with the knowledge of Mr Nou, asked Mr Puara to create a letterhead for Kaevaga ILG onto which the Consent Agreement prepared by Mr Jerry could be printed. It will be recalled that Mr Jerry was one of the witnesses to the signature of Mr Nou on the earlier Contract dated 23 December 2016 between Mr Nou and Kaevaga ILG as vendor and Mr Puara as purchaser for the sale of the subject land.
  4. I accept Mr Puara’s evidence that Mr Nou was unable to provide his lawyer Mr Jerry with a blank letterhead for Kaevaga ILG onto which the Consent Agreement could be printed, the reason being that there was an ongoing dispute between Mr Nou and Kaevaga ILG’s chairman Mr Haraka Borema and Kaevaga ILG’s secretary Mr Nau Borema. Because of the dispute, Mr Nou knew that Mr Haraka Borema and Mr Nau Borema would not release any blank letterheads for Kaevaga ILG to him. Mr Puara was present when this discussion between Mr Nou and Mr Jerry took place regarding Mr Nou’s inability to provide Mr Jerry with a blank letterhead for Kaevaga ILG.
  5. For reasons unexplained at trial, Mr Jerry was never called upon by Mr Nou and Kaevaga ILG to depose to any affidavit material in support of Mr Nou’s allegations of fraudulent conduct on the part of Mr Puara. Nor was Mr Jerry summonsed by any of the defendants to give evidence at trial. Yet if Mr Nou’s allegations of fraud on the part of Mr Puara were true and the Consent Agreement had been fabricated by Mr Puara, Mr Jerry’s evidence would have been pivotal for the defendants’ rebuttal of Mr Puara’s strenuous denials.
  6. The issue of Mr Nou’s allegations of fraud by Mr Puara in connection with the preparation of the Consent Agreement came before this Court in the interlocutory proceedings which resulted in the Court’s decision delivered on 1 October 2021. One of the motions before the Court on that occasion was an application by Mr Nou and Kaevaga ILG seeking an order to file an amended defence and cross-claim alleging, among others, fraud on the part of Mr Puara in connection with the Consent Agreement and also fraud by the Land Titles Commission. That motion was refused by this Court.
  7. I now repeat what I said at para. 50 of the Court’s interlocutory decision N9210 delivered on 1 October 2021 as it is of equal effect for the purposes of the present substantive decision, there having been no fresh evidence adduced at trial by any of the defendants to rebut Mr Puara’s account of how the Consent Agreement was prepared and how it was signed:

“ 50. I accordingly accept Mr Puara’s explanation as to how the Consent Agreement signed by Mr Nou and other senior members of the Kaevaga ILG and Kaevaga Clan on 13 November 2017 came into existence and that it is a genuine document, not forged by Mr Puara at all, as has been alleged by Mr Nou. It is therefore disingenuous for Mr Nou and Kaevaga ILG to seek to deny through paragraph 4.5 of their proposed amended defence and cross-claim that they have no knowledge of the Consent Agreement and that it is a document that has been forged by Mr Puara. Such a pleading, on the evidence presented to this Court at this hearing, is patently untrue. ”

  1. The consequence of this continued rejection by the Court of any allegation by Mr Nou of fraudulent conduct on the part of Mr Puara in connection with the Consent Agreement is that the content of this document, which was filed by Mr Puara with the Land Titles Commission on 14 November 2017, stands as compelling proof that after Mr Puara lodged his application for a conversion order with the Land Titles Commission on 21 September 2017, his application for a conversion order was subsequently endorsed and further consented to by Mr Nou and Kaevaga ILG.
  2. The Consent Agreement expressly stated that the Kaevaga clan members who signed the Consent Agreement on Kaevaga ILG letterhead affirmed Mr Puara’s acquisition of the subject customary land from them, the land having been surveyed as Portion 3959C as described in survey plan Catalogue No. 49/3797, and that they had no objection to the grant by the Land Titles Commission of Mr Puara’s application under s.7 of the Land (Tenure Conversion) Act “pending title registration under Mr Richard Puara of PNG Trans Logistics Limited”. The Consent Agreement is overwhelming proof that effectively disposes of the baseless allegations made at trial for all defendants that Mr Puara had allegedly breached the Contract by pursuing a conversion order in his own name at the Land Titles Commission without the consent or knowledge of Mr Nou and Kaevaga ILG.
  3. The second instance of breach of the Contract which Mr Puara is said by the defendants as part of their submissions in the alternative if the Court were to find that the Contract was between Mr Nou and Kaevaga ILG as vendor(s) and Mr Puara as purchaser (which the Court has so found) is that it is alleged that Mr Puara supposedly failed to pay the balance of K150,000 outstanding for the agreed purchase price of K300,000 for the land when Certificate of Title Volume 37 Folio 248 was issued to him by the Registrar of Titles.
  4. Mr Nou and Kaevaga ILG have not pleaded this alleged breach of the Contract in their defence. It was raised in submissions by their counsel at trial and, in my view, can be disregarded by the Court on that basis alone.
  5. However, both Mr Andagali and Mr Puara have deposed to the circumstances as to why Mr Puara has been prevented by Kaevaga ILG from paying the outstanding K150,000 which Mr Puara was contractually required to pay to Kaevaga ILG when his Certificate of Title was issued to him. I now refer to those circumstances.
  6. The evidence of Mr Andagali and Mr Puara establishes that Mr Nou and Kaevaga ILG refused to accept the outstanding payment of K150,000 which Mr Puara had been attempting to pay to Kaevaga ILG because Mr Nou on behalf of himself and other members of the Kaevaga Clan of Baruni Kaevaga Village (not Kaevaga ILG) had sold a large portion of customary land at Begadaha to TWL. The land sold to TWL comprised 20.41 hectares of land surveyed as Portion 4251C but which included Mr Puara’s land, under a contract of sale dated 20 June 2019, executed 2 years 6 months after Mr Nou and Kaevaga ILG had already sold the 2.03 hectares surveyed as Portion 3959C to Mr Puara.
  7. Mr Andagali deposed in his affidavit filed on 12 December 2019, Exhibit DA-1, as follows:

“ 5. During the negotiation for purchase of the land, the customary landowners advised us that they previously had some arrangement with one PNG Trans Logistic Ltd owned by Richard Puara and Pacific Corporate Services who paid some money but the contracts were not completed and they have already issued letters to terminate their agreements and to refund their money paid as deposits.

6. The landowners entered into an agreement with PNG Trans Logistics Ltd on 23rd December 2016 to purchase 2 hectare of the subject land for K300,000. PNG Trans Logistics Ltd paid K150,000 as deposit and promised to pay the balance of K150,000 once title was granted to it. We wanted to reimburse what was owed to PNG Logistics Ltd so the landowners provided all these information to us.

Annexed hereto and marked with letter “B” is a true copy of the Land Sale Agreement between the Landowners and PNG Trans Logistics Ltd.

7. The Plaintiff registered the 2 hectares of land it had interest over as Portion 3959, Cat No. 49/379, Milinch of Granville, Fourmil Moresby, NCD. The purported survey plan is attached as annexure “B” to the Affidavit of Richard Puara filed herein on 26th November, 2019.


8. I have noted the content of National Gazette dated 5th September 2018 provided by the landowners and it explicitly stipulates that no grants be made to any applications under the Land (Tenure Conversion) Act by any citizen, other than a genuine customary landowner, an incorporated Land Group (ILG) or an entity established by an ILG until and unless the consideration/purchase price agreed to y the parties has been paid and settled in full.

Annexed hereto and marked with the letter “C” is a true copy of National Gazette (No.G570) dated 05.09.18.


9. It is based on that National Gazette that the customary landowners have cancelled or terminated their agreement with the Plaintiff’s company, PNG Trans Logistic Ltd we did a refund cheque of K150,000 as part of our purchase price to reimburse the Plaintiff company’s deposit and was given to the Landowners to deliver it to the Plaintiff.


Annexed hereto and marked with the letter “D” is a true copy of our company cheque No. 396014 of K150,000 made out to the Plaintiff’s company dated 20th June 2019.

10. When we entered into agreement with the customary landowners, nobody had any knowledge about the Plaintiff or anybody else having any Certificate of Title of the Land in issue. In fact the landowning clan and its ILG members advised us that they have in fact asked for cancellation of sale to the Plaintiff’s company and also have approached the Surveyor General to cancel the survey plan Cat. No. 49/3739. Some copies of correspondence were provided by the ILG to us so we could continue with our transactions. “

  1. I observe at this juncture that the Practice Direction of then Acting Chief Tittles Commissioner Mr Kutt C. Paonga of the Land Titles Commission requiring payment in full of the purchase price for customary land before grant of an order for tenure conversion under the Land (Tenure Conversion) Act only relates to grants made after 5 September 2018, which was the date of publication of that Practice Direction in Gazette 570.
  2. The grant of Mr Puara’s conversion order for Portion 3959C was made by the Land Titles Commission on 26 March 2018. A copy of Acting Chief Land Commissioner Mr Kutt Paonga’s Decision and Conversion Order made on 26 March 2018 and entered on 4 July 2018 is annexure “PR-14” to Mr Puara’s affidavit filed on 17 December 2019, Exhibit P2 at trial. After setting out the Land Title Commission’s reasons for Decision, the Conversion Order states:

Accordingly, the Land Titles Commission Declared that RICHARD PUARA is the owner of an estate in fee simple in all that parcel of land being Portion 3959C known as “BEGA DEHA” in the Milinch of Granville, Fourmil of Moresby having an area of 2.03 hectares approximately, as shown delineated and edged in red on the Conversion Plan annexed hereto and marked with the letter “A” subject to the encumbrances (if any) as notified hereunder.

The Land Titles Commission hereby DIRECTS the Registrar of Titles in pursuance of the provisions of the Land (Tenure Conversion) Act 1963 (as amended) to register in the register established under the Land Registration Act, 1981, the said Richard Puara as the owner of an estate in fee simple in all that parcel of land known as Bega Daha herein-before described.

ENCUMBRANCES REFERRED TO:

(Interests found under Section 11(1)(b): No interests declared.

  1. The Practice Direction of the Acting Land Commissioner published in Gazette G570, having post-dated the Land Titles Commission’s grant of Mr Puara’s conversion order, has no bearing on the issue as to when Mr Puara was lawfully required under his Contract to pay the balance of K150,000 which was owing by him once his certificate of title was issued by the Registrar of Titles.
  2. Mr Puara’s explanation for what occurred regarding his efforts to pay the balance of K150,000 owing under his Contract with Mr Nou and Kaevaga ILG is to be found in various of the paragraphs in his affidavit filed on 17 December 2019, Exhibit P2 at trial. The relevant paragraphs are set out in full below:

“ 15. On 17 October 2018 the Registrar of Titles issued a Certificate of Title under my name upon advice from the LTC and following the expiry of the 90 day period for an aggrieved party from seeking a review by the LTC or appeal in the National Court.

16. ...

17. Following the receipt of the Certificate of Title under my name I maintained regular mobile phone communications (both calls and SMS) with Mr Nou Nou and his brother Morea Nou for the purposes of settling the balance of K150,000.00 pursuant to the Contract of Sale of the land.

18. We maintained communications until February 2019 onwards, when both Mr Nou Nou and his brother refused to communicate with me. In March 2019 or thereabouts I drove to Mr Nou Nou’s house in his village in Motukea to see hm and his clan members so as to settle what I owe to the Kaevaga Clan. I could not meet Mr Nou Nou so I left a message with his wife Kila Nou, so he can call me. I did not receive any call.

19. When Nou Nou did not call me I made several attempts and drove to his village between March and August 2019 to meet and talk to Mr Nou Nou or his clan members but without success.

20. ...

21. On 29 August 2019, I drove to Motukea to see Nou Nou and to inspect the land. To my surprise, I saw that half the perimeter fence I had erected had been taken down. I saw the employees and agents of the Second Defendant working on the land. I approached those who were there and asked what was happening and who gave them permission to trespass on my land and destroy my perimeter fence and clear the land. They told me to go and talk to the First Defendant and Mr Nou Nou.

22. I visited Nou Nou at his residence and asked him why a third party was on my land and destroying my fence despite the fact that I have Certificate of Title pursuant to the Contract of Sale of land.

23. Mr Nou Nou responded by saying that he had sold the land to the Second Defendant because I did not support and help him with his medical bills when he was admitted at the Pacific International Hospital in Port Moresby. I had absolutely no knowledge that he was admitted at the Hospital because he cut off communication with me. Helping Mr Nou Nou or any of his clan member with medical bills is not part of the terms of the Agreement.

24. I advised Mr Nou Nou that he and his ILG had illegally sold the land over which I had a valid Certificate of Titles pursuant to the Agreement. I advised him to stop the [First and Second] Defendants from trespassing my land.

25. Notwithstanding my claim over the land the [First and Second Defendants] through their agents and employees continued to trespass and unlawfully destroy my land including bulldozing the surface of the land, digging up survey pegs demarcating land boundaries. ”

  1. I observe from the parties’ Statement and their evidence that the following facts are not in dispute by the defendants:

(a) the survey plan for Portion 3959C for the 2.03 hectares of land purchased by Mr Puara under his Contract dated 23 December 2016 with Mr Nou and Kaevaga ILG is survey plan Catalogue No. 49/3739 registered by the Surveyor General on 21 September 2017, the survey having been paid for by Mr Puara; and

(b) the survey plan for Portion 4251C for the 20.41 hectares of land purchased by TWL under its Contract dated 20 June 2019 with Mr Nou and members of the Kaevaga Clan is survey plan Catalogue No. 49/3917 registered by the Surveyor General on 17 April 2019, the survey having been paid for by TWL.

  1. What is transparently clear from the evidence of Mr Andagali is that at some point in time after Mr Nou and Kaevaga ILG sold what became Portion 3959C for 2.03 hectares to Mr Puara for K300,000 under his Contract dated 23 December 2016, Mr Andagali approached Mr Nou and his clan members and negotiated for the purchase by his company TWL of 20.41 hectares of customary land at a cost of almost K9million. Mr Andagali was well aware during the negotiation phase for TWL’s purchase of this large block of customary land that Portion 4251C included the 2.03 hectares of land in Portion 3959C previously sold by Mr Nou and Kaevaga ILG. This is because TWL paid for the survey of what became Portion 4250C and Portion 4251C, the survey plan having been registered on 17 April 2019 and which purportedly incorporated Mr Puara’s Portion 3959C. Therefore Mr Andagali obviously knew before TWL executed its contract with Mr Nou and his clan members on 20 June 2019 that there could be a serious issue arising from TWL’s purchase of customary land that included a parcel of land that Mr Nou and Kaevaga ILG had already sold to Mr Puara.
  2. However, it seems that Mr Andagali was able to be persuaded by Mr Nou during the negotiation phase for TWL’s contract that steps were being taken by members of Kaevaga ILG to challenge the Land Title Commission’s conversion order, the registration by the Surveyor General of survey plan Catalogue No. 49/3739 for Mr Puara’s Portion 3959C and to try to block the Registrar General’s registration of a certificate of title in Mr Puara’s name. Mr Nou passed copies of certain purported correspondence to Mr Andagali, now in evidence, including a copy of a letter dated 25 January 2019 to the Surveyor General, signed by Mr Nou and the disgruntled chairman of Kaevaga ILG Mr Haraka Borema and other executives of Kaevaga ILG, which requested the cancellation of survey plan Catalogue No. 49/3739 for Portion 3959C. This letter, a copy of which is annexure “E” to Mr Andagali’s affidavit filed on 12 December 2019, alleged as follows:

“ Subject: Cancellation of Portion 3959 Cat: Plan 49/3739 Milinch of Granville, Fourmil of Moresby, City of Port Moresby

The agreement between Mr. Puara and Mr. Nou was made in order to develop the portion of land for commercial purposes with the view of benefitting the local community and families. The agreement was for Mr. Puara to have all these developments done within three years and to prove yearly reports on the progress of the developments done. This has not been done as agreed between the two parties and as such Mr Nou has decided to forfeit Mr. Puara’s existing rights to the land and for the land to be repossessed and payment of costs and hardships incurred by Mr. Puara be paid back to him accordingly.

Hence, our position is to consolidate both portions to be one, as requested, and have the land be used for commercial purposes by interested developers so our families and community can benefit fully and fairly.

Therefore, we agree to have this land be continued to be registered under our ILG and no longer recognize the interests and rights of Mr Puara to the land. ”

  1. I observe that there is no mention in Mr Puara’s Contract with Mr Nou and Kaevaga ILG of any improvement covenant. Nor was any evidence adduced at trial for Mr Nou and Kaevaga ILG which indicated that an improvement covenant had ever formed part of the negotiations that gave rise to Mr Puara’s purchase of Portion 3959C. The allegation of breach of an improvement covenant by Mr Puara in the letter dated 25 January 2019 from Mr Nou and other executives of Kaevaga ILG to the Surveyor General is unfounded and, on the evidence adduced at trial, simply untrue.
  2. Mr Andagali has referred in his evidence to copies of other correspondence that were given to him by Mr Nou and members of the Kaevaga Clan in connection with their efforts during 2019 to challenge Mr Puara’s title to Portion 3539C. That correspondence includes complaints made by Mr Nou and other members of Kaevaga ILG to the Land Titles Commission and to the Secretary of the Department of Lands & Physical Planning. Those complaints centre on allegations that Mr Puara’s Contract was not with Mr Puara at all but with his company PNG Trans Logistics Ltd and that Mr Puara had “illegally” applied to the Land Titles Commission for a conversion order that should never have been granted because Kaevaga ILG had never consented to that application and that therefore any title for Portion 3959C issued to Mr Puara would be void. In his discussions with Mr Andagali, Mr Nou obviously explained away the Consent Agreement which he and members of Kaevaga ILG had signed and which Mr Puara lodged with the Land Titles Commission on the basis that Mr Puara was said to have forged that agreement and all of the signatures on it. Mr Andagali must have believed that false explanation.
  3. I observe that Mr Andagali, on being apprised of this information and documentation, conveyed to him by Mr Nou and other members of Kaevaga Clan, nevertheless took steps to endeavour to protect TWL from any adverse outcome that could arise if TWL went ahead with its purchase of the 20.41 hectares of land in mid-2019. This is reflected in clause 2.1 of the Agreement and again in the Special Conditions contained in the Third Schedule to TWL’s contract with the Kaevaga Clan dated 20 June 2019.
  4. Clause 2.1 of TWL’s contract states:

“ 2.1 The parties hereby mutually agree that all Payments in respect of the subject land shall commence on the date of execution of this Agreement or such other date as agreed by the parties but subject to the hearing and Final Determination of ANY court proceedings over the subject land or part thereof, any legal impasse through the Courts or the procurement of title through the ILG to be vested in the Purchaser and peaceful resolution of any internal clan disputes as to ownership rights, leadership rights, user rights etc. ”

[emphasis added]

  1. Clauses 4 and 5 of the Special Conditions in the Third Schedule to TWL’s contract state:

“ 4. Kaevaga Clan members, executives individually and collectively hereby indemnify TWL against any and all legal challenges by other disputing ILGs or interested parties, and individuals in relation [to] the 20.41 hectares traditionally called Bega Daha and Sasiva land, CAT NO: 49/3917, PORTION NO. 4251C.

5. Kaevaga Clan members, executives individually and collectively will be responsible to reimburse any and all cost incurred by TWL including all costs outline under Clause 2 of the Agreement and Item 1, 3 and 3 of Schedule 2 and all other costs incurred thereafter with commercial bank interest backdated to 31 January 2015, if the agreement is frustrated by reason of any internal, or external customary land disputes involving the ILG.

6. Kaevaga Clan members, Kaevaga Land Incorporated Group No. 307 and 496 executives and its members who have entered into current or previous agreements with the Purchaser and received partial cash payments are individually and collectively bound ,,, by this agreement. ”

[emphasis added]

  1. It is against this background that Mr Puara’s evidence becomes entirely credible as to why Mr Nou and Kaevaga ILG refused to accept Mr Puara’s repeated efforts between February 2019 and August 2019 to endeavour to pay the balance of K150,000 which was owing by Mr Puara under his Contract following the registration and issuance of Certificate of Title Volume 37 Folio 248 in Mr Puara’s name on 17 October 2018. It also explains why Mr Andagali in his evidence said that TWL passed a cheque for K150,000 to members of Kaevaga ILG to give to Mr Puara by way of attempted refund of the 50% deposit Mr Puara had paid to Kaevaga ILG.
  2. I find that Mr Nou and various of his clan members obviously did not want Portion 3959C for 2.03 hectares to be severed or excluded from the 20.41 hectares in Portion 4251C they had sold to TWL as this would have affected their negotiations with Mr Andagali and their undertaking to him that TWL would receive the whole of that 20.41 hectares because of the steps they were taking to try to have Mr Puara’s conversion order for Portion 3959C cancelled or set aside by the Land Titles Commission, to have survey plan Catalogue No. 49/3739 for Portion 3959C cancelled and to prevent any certificate of title being issued to Mr Puara by the Registrar of Titles.
  3. Under Mr Puara’s Contract, Mr Nou and Kaevaga ILG were to receive approximately K147,785 per hectare for the 2.03 hectares of land sold to Mr Puara. Under Kaevaga Clan member’s contract with TWL, those clan members collectively stood to receive approximately K434,000 per hectare for the 20.41 hectares of the land they sold to TWL, which included 2.03 hectares of land which Mr Nou and Kaevaga ILG had already sold to Mr Puara.
  4. It is clear that if Portion 3959C, as sold to Mr Puara by Mr Nou and Kaevaga ILG, was in fact severed or excluded from Portion 4251C sold to TWL, this would obviously cause a significant proportional reduction in the purchase monies to be paid by TWL to those members of the Kaevaga Clan who had signed their contract with TWL. That reduction would be based on the fact that Portion 3959C comprises approximately 10% of the land area in Portion 4251C, a fact that Mr Nou and other of members of the Kaevaga Clan would have realised could notionally result in a reduction of the overall purchase price to be paid by TWL to Kaevaga Clan members from K8,857,796 to K797,201.64. This reduction in the purchase monies payable by TWL, a substantial difference of K885,779.60, could occur if TWL were to lose the 2.03 hectares covered by Portion 3959C. In addition, if Mr Puara were to be able to lawfully retain title to Portion 3959C, Mr Nou and members of Kaevaga Clan would be liable to account to TWL under the indemnity provisions of TWL’s contract for all legal costs and other expenses incurred by TWL due to legal challenges by an interested party such as Mr Puara and/or if TWL’s contract were to be “frustrated by reason of any internal or external customary land disputes involving the ILG”.
  5. I therefore find that Mr Nou recruited certain members of Kaevaga ILG to actively engage with him in the creation of fictitious grounds to falsely accuse Mr Puara of fraud and illegal conduct in connection with his pursuit of a conversion order from the Land Titles Commission. This includes the denial by them of the authenticity of the Consent Agreement which Mr Nou and other members of Kaevaga had signed and which had endorsed Mr Puara’s right to apply for a conversion order and to obtain freehold title to Portion 3959C. In so doing, Mr Nou and Kaevaga ILG, by refusing to accept Mr Puara’s repeated attempts between February 2019 and August 2019 to pay them the outstanding balance of K150,000 which he owed to them under his Contract, denied Mr Puara any opportunity for him to settle the balance of the monies which he owed, and still owes, to them.
  6. For all of the foregoing reasons I find:

(1) The Contract for the acquisition of Portion 3959Cwas between Mr Puara as purchaser and Mr Nou and Kaevaga ILG as vendor. The purchaser for the purposes of that Contract was not Mr Puara’s company PNG Trans Logistics. Mr Puara therefore had a right under his Contract to apply to the Land Titles Commission under s.7 of the Land (Tenure Conversion) Act for a conversion order in respect of Portion 3957C, endorsed by the Consent Agreement signed by Mr Nou and other members of Kaevaga ILG on 13 December 2017.

(2) That it was not Mr Puara who breached his obligation under his Contract to pay the balance of K150,000 he owed to Mr Nou and Kaevaga ILG. It was the reverse. It was Mr Nou and Kaevaga ILG who willfully breached their Contract with Mr Puara by wrongfully refusing to accept Mr Puara’s tender of his payment of K150,000 which would have enabled Mr Puara to complete his financial obligations under his Contract for the purchase of Portion 3959C.

  1. Issue 1 is accordingly resolved in favour of Mr Puara.

Issue 2: Was the 2.03 hectares of land described as Portion 3959C lawfully converted to freehold title?

  1. The defence and cross-claim filed for Mr Nou and Kaevaga ILG pleads that the conversion order made by the Land Titles Commission was granted to Mr Puara in breach of ss. 8, 9, 10, 14 and 18 of the Land (Tenure Conversion) Act.
  2. The cross-claim cites Mr Puara as the first cross-defendant and the Land Titles Commission as second cross-defendant. The State is sued by Mr Nou and Kaevaga ILG as third cross-defendant because it is alleged that the State is vicariously liable for the acts and alleged omissions of the Land Titles Commission as an agent or entity of the State. The Land Commission and the State took no active part in the cross-claim aspect of this proceeding. The target of Mr Nou and Kaevaga ILG’s cross-claim at trial was solely Mr Puara.
  3. The cross-claim of Mr Nou and Kaevaga ILG seeks judicial declarations and orders to the effect that the Land Title Commission’s conversion order in respect of Portion 3959C and Mr Puara’s Certificate of Title Volume 37 Folio 248 were unlawfully obtained and are therefore void. Mr Nou and Kaevaga ILG also seek through their cross-claim a series of orders declaring that survey plan Catalogue No. 49/3739 was cancelled, that survey plan Catalogue No. 49/3917 is current and that the Registrar of Titles be directed to cancel Mr Puara’s Certificate of Title.
  4. The provisions of the Land (Tenure Conversion) Act which are relied upon by Mr Nou and Kaevaga ILG in the pursuit of their defence and cross-claim against Mr Puara, the Land Titles Commission and the State are set out under individual sub-headings below, followed by Mr Nou and Kaevaga ILG’s allegations of breach and then the Court’s response.

Breach of s.8 of the Land (Tenure Conversion) Act

  1. Section 8 of the Act states:

8. DEALING WITH APPLICATION

(1) [Repealed]

(2) When the Commission decides that an application under [s. 7] should be dealt with, the Commission shall:

(a) prepare a conversion plan of the area in respect of which the application is made; and

(b) publish notice of the application and of the conversion plan by such means as will in the circumstances ensure reasonable notice to all persons affected or likely to be affected thereby, or as is provided in the rules of the Commission; and

(c) specify in the notice a period, not being less than 30 days within which a person may object to the application on the ground that he claims ownership of or an interest in or in relation to the land in respect of which the application is made and is not included under the application as owning or having that interest, or on the ground that he is incorrectly represented in the application as being agreeable to the registration.

(3) A conversion plan shall show the location and boundaries of the land the subject of the plan, and as far as practicable the ownership, or alleged ownership, of that land.

(4) Before proceeding to a hearing of an application or an objection, the Commission shall, at such times as are determined by it, arrange for any parties interested in the application to be shown the boundaries of the land the subject of the application or of the objections, as the case may be, and any boundary marks placed on the land.

  1. Mr Nou and Kaevaga ILG allege that s.8 of the Act was breached in four respects:

(1) The LTC did not prepare any conversion plan.

(2) The LTC failed to publish any notice of the conversion plan and Mr Puara’s application.

(3) Mr Nou and Kaevaga ILG were never given any opportunity to object Mr Puara’s application as no notice was published by the LTC.

(4) No arrangement was made by the LTC for inspection of the boundaries of the land before the hearing of the application took place.

  1. In response, firstly I note that Acting Land Titles Commissioner Mr Paonga gave evidence during his cross-examination at trial that the survey plan is the conversion plan. Usually an applicant for a conversion order under the Act has the land the subject of the application surveyed. The survey plan is submitted to the Land Titles Commission by the applicant at the time when the application is lodged. In this instance, Mr Puara had the 2.03 hectares of land referred to in his Contract with Mr Nou and Kaevaga ILG surveyed by registered surveyor Mr John F.H. Ulai. A copy of Mr Ulai’s survey plan, which demarcated the boundaries for Portion 3959C, was registered by the Surveyor General on 21 September 2017. A copy of this survey plan is Exhibit P14.
  2. Copies of Mr Puara’s formal application for registration of Portion 3959C and Mr Ulai’s survey plan registered by the Acting Surveyor General as Cat. 49/3739 lodged with the Land Titles Commission on 21 September 2017 comprise annexure “D” to Mr Puara’s affidavit filed on 9 October 2020, Exhibit P6 at trial. Mr Puara’s application is in the correct form as prescribed by r.3 of the Land (Tenure Conversion) Regulations 1964. The application states that a demarcation plan for Portion 3959C was attached, and that is obviously the copy of the registered survey plan which now comprises the second page of Annexure “D” of Mr Puara’s affidavit filed on 9 October 2020, Exhibit P6 at trial.
  3. Given Acting Chief Titles Commissioner Mr Paonga’s evidence on point, I find that the Land Titles Commission accepted Mr Ulai’s survey plan when Mr Puara lodged his application on 21 September 2017 and that such acceptance constituted sufficient compliance with the requirement under s.8(2)(a) of the Act that the Land Titles Commission have a conversion plan prepared in respect of the application. The Land Titles Commission did not commit procedural error in this regard.
  4. Secondly, annexure “PR14” of Mr Puara’s affidavit filed 17 December 2019, Exhibit P2 at trial, is the Decision for Conversion Order dated 26 March 2018, entered 4 July 2018, of Acting Chief Land Titles Commissioner Mr Paonga which granted Mr Puara’s application for a conversion order. The opening and concluding words of this Decision state:

“ The application having come on for hearing at the CLRC Conference Room at First Heritage Center on the 15th, 23rd of March 2018 before KUTT C. PAONGA, Acting Chief Commissioner of the Land Titles Commission and upon being satisfied that notices of the hearing had been published and interested persons have been shown the boundaries of the land under application in accordance with Section 8 of the Land (Tenure Conversion) Act 1963 (as amended) and being satisfied that all interested parties understood the effect or what would be the effect of the application, objection (if any) and order, in relation to the rights in accordance with custom which would be extinguished and new rights which would be created ....

There was consultation between Kaevaga ILG and Nou Nou on the one part and the applicant Richard Puara on the other part. In due course, an understanding was established and a Contract for Sale of Customary Land was entered into on 23rd December, 2016. It was witnessed by Dabada Arua, Wilie Nou and Glenn Gerry for the Vendor and Jacob Aguru, Sgt Richard Triga and Jason Kolo, the lawyer for the Purchaser.

Having considered the facts as presented, the Commission is satisfied that Bega Daha land is not part of or within the land described as Sasiva which is captured in Catalogue Plan No. 49/3573. At that relevant time, the vendor was the owner and likewise had the power and authority to deal with the land Bega Daha.

The Decision on Conversion Order then declared that Mr Puara was the owner of the land in Portion 3959C and directed the Registrar of Titles to register Mr Puara under the Land Registration Act 1981 as the owner of the fee simple (freehold) in the land.

  1. When Acting Chief Land Titles Commissioner Mr Paonga was cross-examined at trial, counsel for Mr Nou and Kaevaga Ltd had every opportunity to question the basis on which the Commissioner was able to satisfy himself, as stated in his Decision on Conversion Order delivered on 26th March, that notices of the hearing had been published. Counsel did not do so.
  2. In any event Mr Nou deposes in para. 12 of his affidavit filed on 4 March 2022, Exhibit DB-2 at trial, as follows:

“ 12. I was made aware by Richard Puara that one Gaudi Rei of Tanomutu Clan had filed an objection against the purchaser’s application for conversion and so both the objection and the application were listed for hearing on 15th and 23rd March 2018. I attended for the purpose of listening into the grounds of objection and support the application for conversion order in favor of the purchaser of the land. After that I took no part in the Land Titles Commission (LTC) Hearings leading up to the decision granting the conversion order. To me it was surprising that the conversion order was made in favour of Richard Puara rather than Trans PNG Logistics as we were led to believe all along.”

[emphasis added]

  1. It is misleading for Mr Nou to assert that the Land Titles Commission did not give notice of the hearing. Mr Nou himself most certainly had notice of the Land Titles Commission’s hearing on 15th and 23rd March 2018. I find that there is insufficient proof by Mr Nou and Kaevaga Ltd that there was any breach by the Land Titles Commission of s.8(b) of the Act. Had Mr Nou not been involved in the conversion proceedings and the hearings conducted in his absence, there may have been some justification for Mr Nou and Kaevaga ILG to raise this matter. But Mr Nou’s own evidence establishes that he was on notice and did in fact attend the Land Titles Commission’s proceedings in connection with Mr Puara’s application, irrespective of Mr Nou’s persistence in endeavouring to put forward his erroneous contention that he thought the conversion order was applied for by Mr Puara’s company, not Mr Puara personally. I have already found that Mr Nou and Kaevaga ILG endorsed Mr Puara’s application to the Land Titles Commission for a conversion order in his own name by virtue of the Consent Agreement which Mr Nou and members of Kaevaga ILG signed on 13 November 2017.
  2. Thirdly, the allegation that the Land Titles Commission failed to accord Mr Nou and Kaevaga ILG opportunity to object to the grant of conversion order is baseless. Mr Nou by his own admission was present during the first of the Land Titles Commission’s hearings. The Consent Agreement of Mr Nou and Kaevaga ILG proves that they supported Mr Puara’s application. If for any reason any objection needed to be raised by them, they had every opportunity to do so during the Land Titles Commission’s hearings in connection with Mr Puara’s application for a conversion order under the Act. They did not object. If they did, Mr Nou would have deposed to that effect in his affidavit filed on 4 March 2022, Exhibit DB-2, and during his evidence given at trial.
  3. If Mr Nou and Kaevaga ILG wanted to object to the conversion order after it was made, notwithstanding that they had already supported it, they had another 90 days under Part V of the Land Titles Commission Act to do so. They did not follow up with any objection after Acting Chief Land Titles Commissioner Mr Paonga delivered his decision on 26 March 2018. There was no reason for Mr Nou and members of the Kaevaga ILG to do so at that time because they had already supported the making of that Decision and Order.
  4. Fourthly, the allegation that there was no inspection of Portion 3957C by the Land Titles Commission before the hearings in respect of Mr Puara’s application for a conversion order took place cannot be sustained. I refer here to the affidavit of Mr Gaudi Rei filed on 9 October 2020, Exhibit P8 at trial. Mr Rei states in his affidavit that he is a senior leader of the Kaevaga Clan and the Tanomotu Clan which are the customary owners of land known as “Sasiva” and “Begadaha” in the Baruni area near Napanapa at Motukea, NCD. Relevant extracts from Mr Rei’s affidavit are set out below:

“ 2. I am personally embarrassed by the actions of Mr Nou Nou in bringing the Kaevaga Clan’s name into disrepute. He, for and on behalf of the Kaevaga Incorporated Land Group (ILG), sold land to the Plaintiff which was accepted by the clan membership but he subsequently has sold the same land to the Second Defendant for a much larger sum of money.

...

9. Speaking of the LTC proceeding [in March 2018], I recall that Mr Nou was present in the proceeding and gave evidence in support of the Plaintiff for grant of Conversion Order. Nou’s family and his brothers Rei Nou, Morea Nou, Veidiho Nou and their lawyer Glen Jerry and other Kaevaga Clan members were present during the LTC proceedings.

10. I further recall that in January 2018 the LTC Commissioner Mr Kutt Paonga brought a team of officers including a senior Police Officers when he came around to conduct physical inspection of the land boundary. I was present because I had informed the LTC that I had objection [which I later withdrew].

11. Mr Nou was present and he not only witnessed the LTC’s boundary inspection but he was the person who guided and walked the LTC Cartographer showing the land boundary. A substantial number of Kaevaga Clan members witnessed the activity. ”

  1. No evidence was adduced at trial for Mr Nou and Kaevaga ILG to rebut the matters deposed to by Mr Rei in his affidavit. I accept Mr Rei’s evidence as truthful. The pleading by Mr Nou and Kaevaga ILG in their defence and cross-claim that the Land Titles Commission failed to conduct any boundary inspection of Portion 3979C in breach of s.8(4) of the Act is without any foundation. I reject that allegation.

Breach of s. 9 of Land (Tenure Conversion) Act

  1. It was submitted at trial for Mr Nou and Kaevaga ILG that the Land Titles Commission breached Section 9(1) of the Act because the Commission did not ensure that all interested persons were in agreement with the conversion order for Portion 3957C and that the Commission similarly did not ensure before it made the conversion order that adequate provision had been made, either in cash or otherwise, for compensation to the affected landowners.
  2. Section 9(1) of the Act states:

9. CONVERSION ORDER

(1) After the expiration of the period specified under Section 8(2)(c), the Commission shall consider the application and any objections thereto and, if satisfied that–

(a) subject to Subsections (3) ad (4), the land the subject of the application is customary land; and

(b) all persons interested in the land the subject of the application are in agreement with the application;

(c) subject to Subsection(5), adequate provision has been made, whether by way of a cash payment or otherwise, for compensation to all persons whose interests by custom in the land would be abolished or reduced by the making of a conversion order; and

(d) in all the circumstances it is proper that the application be granted,

the Commission shall, subject to Subsection (2) and to Part III, make a conversion order in accordance with this Division.

  1. Mr Nou and Kaevaga ILG argue that: (1) the Land Titles Commission failed to ensure that all persons represented by Mr Nou and Kaevaga ILG were in agreement for Mr Puara to make his application, and (2) that the Land Titles Commission failed to take into account that no adequate compensation was paid to Mr Nou and members of Kaevaga ILG prior to the grant of conversion.
  2. The first of these arguments is baseless. The Consent Agreement shows that members of the Kaevaga ILG, including Mr Nou, were in support of Mr Puara’s application. Mr Puara has deposed that he submitted a copy of this Consent Agreement to the Land Titles Commission before the Commission heard his application: see Exhibit P6, para. 6. This fact is supported by Acting Chief Land Titles Commissioner Mr Paonga’s own Decision: see Exhibit P2, paras. 11 and Annexure “PR 14” on page 2 at para. 4. Customary landowners represented by Kaevaga ILG were in agreement for Mr Puara to obtain his conversion order.
  3. The second of these arguments is also baseless. The Land Titles Commission at its hearing had a copy of Mr Puara’s Contract. The Land Titles Commission was well aware that Mr Puara was to pay K150,000, the first half of the K300,000 of purchase price, on execution of the Contract. Mr Puara paid that amount of K150,000 to Mr Nou and Kaevaga ILG, a fact which is admitted by Mr Nou and Kaevaga ILG. The Contract provided that the remaining half of the purchase price of K300,000, an amount of K150,000, was to be paid upon issuance of the title for Portion 3959C. The Land Titles Commission was obviously satisfied that adequate compensation was to be paid by Mr Puara. It was only when Mr Puara subsequently attempted to make that payment of the balance of K150,000 to Mr Nou and Kaevaga ILG when his Certificate of Title Volume 37 Folio 238 was issued that Mr Nou and Kaevaga ILG refused to accept that balance. They instead tried to wrongfully terminate their Contract with Mr Puara so that they could maximize the overall payment to be paid to them by TWL under that company’s later contract with Mr Nou and members of the Kaevaga Clan.

Breach of s. 10 of Land (Tenure Conversion) Act

  1. The breach of s.10 of the Act alleged by Mr Nou and Kaevaga ILG to have been committed by the Land Titles Commission relates to s.10(4), the text of which subsection is set out below:

10. PROCEDURE, ETC.

...

(4) Before deciding an application or objection or making a conversion order, the Commission shall assure itself that all persons interested understand the effect, or what would be the effect, of the application or objection or of the order, as the case may be, both in relation to the rights by custom which would be abolished and in relation to the rights which would be created.

  1. Mr Nou and Kaevaga ILG allege that the Land Titles Commission breached s.10(4) of the Act because the Commission failed to ensure that all persons who could be affected by the Land Titles Commission’s decision to grant the conversion order to Mr Puara understood the effect of such a decision.
  2. I reject this allegation for several reasons.
  3. Mr Nou and members of the Kaevaga ILG, being persons who would be affected by the conversion order, were in attendance at the Land Titles Commission’s proceedings in March 2018. Acting Chief Land Commissioner Mr Paonga gave oral evidence that Mr Nou is a person known to him and that he explained to Mr Nou the effect of grant of the conversion order. The Commissioner’s oral evidence is corroborated by his Decision of 23 March 2018: see Exhibit P2, para. 11 Annexure “RP14” and para. 1 of pages 1 and 2 of the Decision.
  4. If Mr Nou or any member of Kaevaga ILG or others had truly not understood or not had explained to them the consequences of a conversion order before it was made, they could have exercised their right to appeal within the 90 days allowed by law for such action. They did not do so. Mr Nou and Kaevaga ILG had already retained the legal services of Mr Glen Jerry at this time. Their complaint that the Land Titles Commission breached s.10 of the Act, in particular s.10(4), is not credible.

Breach of s.14 of the Land (Tenure Conversion) Act.

  1. Section 14 of the Act states:

14. NOTICE OF CONVERSION ORDER, ETC.

The Commission shall publish, in the same manner as that in which a notice under Section 8 of this Act in relation to the application is published, a notice specifying where the conversion order and conversion plan may be inspected.

  1. Mr Nou and Kaevaga ILG allege that the Land Titles Commission breached s.14 of the Act because the Commission failed to publish a notice specifying where the conversion order granted to Mr Puara and the conversion plan could be inspected. This allegation is similarly false. Acting Chief Land Titles Commissioner Mr Paonga in his evidence stated that he did inform interested parties where the Decision could be inspected and that the Land Titles Commission did publish such a notice. A copy of the Commission’s s.14 Notice is Annexure “PR 15” to Mr Puara’s affidavit filed on 17 December 2019, Exhibit P2 at trial. The Notice sets out the venues for inspection of copies of the Decision, namely the Land Titles Commission Office, Gemini Place, Gordons, Port Moresby; the NCDC’s Lands Office at Port Moresby; the Motu Koitabu Assembly’s Office in Port Moresby; and the Department of Lands & Physical Planning at Port Moresby. The Notice stated to the effect that any aggrieved person could appeal the Decision on the Conversion Order within 90 days. The allegation by Mr Nou and Kaevaga ILG that there was breach by the Land Titles Commission of s.14 of the Act for failure to publish a s.14 Notice is without foundation..

Breach of s.18 of the Act

  1. Section 18 of the Act is brief. It states:

18. HEARINGS TO BE PUBLIC

All hearings before the Commission under this Act shall be held in public.

  1. Mr Nou and Kaevaga ILG allege that the Land Titles Commission failed to hold its hearing of Mr Puara’s application for a conversion order in public and thereby breached s.18 of the Act.
  2. I reject this allegation out of hand. The evidence at trial in this proceeding that the Land Titles Commission hearings conducted on 15 and 23 March 2018, which resulted in the subject Conversion Order being made by Acting Chief Land Ttiles Commissioner Mr Paonga on 26 March 2018, were conducted in public is overwhelming. There is indisputable evidence that Mr Nou by his own admission was present at the Land Title’s Commission’s hearings held on 15 and 18 March 2018: see para. 12 of Mr Nou’s Affidavit filed on 4 March 2022, Exhibit DB-2 at trial. Moreover, members of Kaevaga ILG were present at those hearings. They were not denied access. Their presence is referred to in Acting Chief Land Commissioner Mr Paonga’s Decision. There is compelling evidence that they and other persons such as Mr Gaudi Rei and Mr Robert Keith were also present at those public hearings.
  3. Mr Gaudi Rei deposed at paras. 7 and 8 of his affidavit filed on 9 October 2020, Exhibit P8 at trial, that he was present at the Land Titles Commission’s hearings conducted in March 2018 for Mr Puara’s application for a conversion order. Mr Rei said that he attended those hearing because he had initially objected to Mr Puara’s application, an objection he later withdrew. Mr Rei then went on to depose at para. 9 of his affidavit that Mr Nou and his family and his brothers Rei Nou, Morea Nou, Veidiho Nou and their lawyer Glen Jerry and other Kaevaga Clan members were all present during those hearings in March 2018.
  4. Mr Robert Keith has corroborated Mr Rei’s evidence that the Land Titles Commission’s hearings in connection with Mr Puara’s application for a conversion order were conducted in public in March 2018. This is what Mr Keith has deposed at paras. 2 to 9 of his affidavit filed on 23 January 2020, Exhibit P4 at trial:

“ 2. On 15 and 23rd of March 2018 I attended the LTC hearing of the Plaintiff’s application for conversion order for the land subject of the proceeding. On 15 March the LTC took the parties through the process and procedure of the conduct of proceeding and adjourned to 23rd March 2018.

3. On 23 March 2018 the plaintiff moved his application for conversion order. Following the hearing of the application the LTC heard objection filed by Mr Gaudi Rei. Mr Rei objected to the Plaintiff’s application for Conversion Order. The LTC reserved on its decisions.

4. On both 15 and 23 March 2018 I recall that Mr Nou and Mr Glen Jerry were present in the LTC proceedings and participated in the proceeding. Mr Glen Jerry acted as Lawyer for Mr Nou Nou. Mr Nou Nou spoke for and on behalf of the Kaevaga Clan. All the clan members of the Kaevaga Clan including Nou Nou’s family members namely his brothers Morea Nou, Veido Nou and his family were present throughout the entire LTC proceedings.

5. Mr Nou Nou supported the Plaintiff’s application and refuted Mr Rei’s objection. Mr Nou clarified to the LTC that the land sold to the Plaintiff was clear of any interests. He clarified that the land subject of Mr Rei’s proceeding pending in the National Court at that time did not concern and did not relate to the land sold to the Plaintiff and so the Conversion Order in relation to land described as Portion 3959C [could be made].

6. Where Mr Nou Nou claims that he was not present in the LTC proceeding or that he had no notice of the LTC proceeding such statement is false and he is deliberately misleading the Court. He is lying under Oath. ”

  1. I am accordingly satisfied that the combined evidence of Acting Chief Land Titles Commissioner Mr Paonga, Mr Rei and Mr Keith confirms beyond doubt that the Land Title Commission’s hearings in connection with Mr Puara’s application for a conversion order were most definitely held in public in March 2018, and with Mr Nou and members of Kaevaga ILG present. There was no breach by the Commission of s.18 of the Act.
  2. Given this analysis of the evidence adduced for the Plaintiff in rebuttal of Mr Nou and Kaevaga ILG’s allegations of breach by the Land Titles Commission of ss. 8, 9, 10, 14 and 18 of the Land (Tenure Conversion) Act 1963, I find that there is no substance at all in those allegations. I find in favour of Mr Puara in respect of Issue 2.

Issue 3: Whether Mr Puara’s survey plan for Portion 3959C registered as Catalogue No. 49/3939 has been superseded by TWL’s new survey plan registered as Catalogue No. 49/3917 for Portions 4250C and 4251C?

  1. It is contended for all four defendants that TWL’s survey plan registered as Catalogue 49/3917 superseded and cancelled Mr Puara’s survey plan registered as Catalogue 49/3939
  2. This issue arose during the interlocutory stages of this proceeding and was addressed at paras. 18 to 25 of the Court’s decision in N9210 delivered on 1 October 2021. I now refer to those paragraphs because they are of equal relevance to the Court’s consideration of the parties’ Issue 3.
  3. Mr Puara asserts that he has a clear title to the subject land known as Portion 3959c to the exclusion of all others by virtue of his Certificate of Title Volume 37 Folio 248 for Portion 3959c issued by the Registrar of Titles on 17 October 2018, a copy of which Certificate of Title is the 6th document which comprises annexure “I” of Mr Puara’s affidavit filed on 24 September 2020, Exhibit P5 at trial.
  4. Mr Puara relies on survey plan Catalogue No. 49/3739 referred to in Certificate of Title Volume 37 Folio 248 as delineating the legal boundaries of the subject land which comprises 2.03 hectares and which he purchased under his Contract with Mr Nou and Kaevaga ILG. A copy of that survey plan is annexure “D” to Mr Puara’s affidavit filed on 24 September 2020.
  5. Against this, TWL asserts that survey plan Catalogue no. 49/3739 was cancelled by the Surveyor General and replaced by new survey plan Catalogue No. 49/3917 to reflect the 20.41 hectares of land which TWL says it purchased from Kaevaga ILG under its contract with that ILG dated 20 June 2019 and which the Surveyor General has identified as Portion 4251C, Milinch Granville, Fourmil Moresby, National Capital District. TWL, supported by its three co-defendants, argues that the legal description “Portion 3959c”, referred to in Certificate of Title Volume 37 Folio 248 held by Mr Puara, no longer exists because survey plan Catalogue No. 49/3729 has purportedly been cancelled by the Surveyor General. The defendants therefore submit that the Certificate of Title is itself defective and void.
  6. Mr Puara strenuously rejects this contention by TWL and its co-defendants. The first document forming part of the documentation comprising Annexure “I” to Mr Puara’s affidavit filed on 24 September 2020 is a copy of a letter dated 7 September 2020 written by Mr Puara’s lawyer, Mr Nemo Yalo, to Mr Lionel Jarigi. Mr Jarigi is the registered surveyor who was engaged by TWL to survey the 20.41 hectares of land which has become known as Portion 4251C. In that letter, Mr Yalo posed the following four questions to Mr Jarigi:

“ 1. Is Mr Puara’s survey plan Cat No. 49/3739 current and not cancelled?

  1. If Mr Puara’s survey plan Cat No. 49/3739 has been cancelled, did you comply with the established legal and administrative procedures?

3. If you cancelled Mr Puara’s survey plan, what was the legal basis for doing so?

  1. Did you conduct due diligence prior to registering a new survey plan which you say on record “supersedes” Mr Puara’s survey plan No. Cat 49/3739? ”
  2. On 12 September 2020 Mr Jarigi responded to Mr Yalo’s letter of 7 September 2020. A copy of Mr Jarigi’s letter in response is annexure “J” to Mr Puara’s affidavit filed on 24 September 2020. In his letter of 12 September 2020, Mr Jarigi set out his answers to Mr Yalo’s four questions as follows:

“1. Is Mr Puara’s survey plan cat. 49/3739 current and not cancelled?

The cat. 49/3739 not cancelled, if it was cancelled, Survey General would have informed me with the cancellation copy.

  1. If Mr Puara’s survey plan cat. 49/3739 has been cancelled, did you compile [sic] with the established legal and or administrative procedures”

The cancellation of survey plan, the power rest with the Survey General, after receiving all relative evidence from all parties concerned.

  1. If you cancelled Mr Puara’s Survey plan, what was the legal basis for doing so?

(As stated in point 2)

  1. Did you conduct due diligence prior to registering a new survey plan which you say on record “supersedes” Mr Puara’s survey plan cat. 49/3739?

The registration of survey plan 49/3917 was in consultation with the Regional Surveyor, the Surveyor General, the land owners of Kaevaga ILG. After the landowners given their consent letter to the Surveyor General, then I was informed to incorporate portion 3959C into the new survey which enables the survey plan 49/3739 to be superseded.”

  1. It is clear from Mr Jarigi’s answers to Mr Yalo’s questions that as at the date of Mr Jarigi’s letter, 12 September 2020, it was Mr Jarigi’s position that survey plan Catalogue No. 49/3793 had not been cancelled by the Surveyor General. Instead, Mr Jarigi considered that survey plan Catalogue No. 49/3793 for Portion 3959C referred to in Certificate of Title Volume 37 Folio 248 had been “superseded” by the Surveyor General’s registration of survey plan catalogue no. 49/3917 for new Portion 4251C for the 20.41 hectares which TWL asserts it has purchased from Kaevaga ILG, which includes the pre-existing Portion 3959c for 2.03 hectares which Mr Puara says he purchased from Kaevaga ILG.
  2. What is not clear from Mr Jarigi’s answers to Mr Yalo’s questions, is the significance in law of a registered survey plan which has been “cancelled” by the Surveyor General as distinct from the legal status of a registered survey plan which has “superseded” a non-cancelled earlier survey plan for a smaller portion of land that has been included in a larger portion of land covered by a survey plan registered later in time.
  3. The submission of TWL on this point seems to be that because the Surveyor General had omitted to put an official cancellation stamp on the copy of registered survey plan Catalogue No. 49/3739, this does not affect the alleged invalidity of Mr Puara’s Certificate of Title Volume 37 Folio 248 because the Surveyor General’s omission can be regarded as a formality, a mere oversight on the part of the Surveyor General.
  4. I do not accept this submission. The evidence of Acting Surveyor General Mr Jack Bakus given at trial refutes this proposition.
  5. Exhibit P16 is a copy of a letter dated 10 September 2019 from Mr Puara addressed to the Surveyor General. By that letter, Mr Puara requested the Surveyor General to cancel TWL’s survey plan Catalogue No. 49/3917 for Portion 4250C on the basis that this particular survey plan relates to land that encroaches onto Mr Puara’s Portion 3959C to which Mr Puara has freehold title by virtue of his Certificate of Title Volume 37 Folio 248.
  6. On 14 October 2019 Assistant Surveyor General Mr Jack Bakus replied to Mr Puara’s letter of request. A copy of Mr Bakus’s reply on the letterhead of the Office of the Surveyor General is Exhibit P17. His letter is reproduced below:

“ Date: 14th of October, 2019

Mr Richard Puara,
Post Office Box 7939, Boroko,
National Capital District

Dear Sir,

Ref: Objection to Portion 4250C (NCD)

Reference is made to your letter dated 04th of September, 2019 in regard to the above.

I wish to inform you that the office was ill-informed verbally to approve the survey plan for the above mentioned Portion.

As such, your survey plan is still valid and there is no physical cancellation of it.

Therefore, any attempts to destroy any improvements that you made on the land as per registered survey plan 48/3739 is deem[ed] illegal.

Yours Truly

[signature]

Jack Yakutung Bakus 14/10/2019
Assistant Surveyor General
(Survey Coordination) ”

  1. In view of ongoing attempts by Mr Nou and Kaevaga IGL to have Mr Puara’s survey plan Catalogue No. 49/3739 cancelled by the Surveyor General, Mr Puara’s counsel Mr Nemo Yalo wrote to the Surveyor General on 28 September 2020. Mr Yalo stated in that letter, a copy of which is annexure “D” to Mr Puara’s affidavit filed on 15 October 2020. Exhibit P9 at trial, as follows:

“ By a letter dated 14 October 2019 Mr Jack [B]akus, Assistant Surveyor General (Survey Coordination) informed us that Mr Richard Puara’s survey plan registered as Cat No 49/3729 is not cancelled. Our file search conducted on1 September 2020 at your Registry reveals: Survey Plan Cat. 49/3917 says “Customary Land Motukea and supersedes plan 49/3798”. It does not cancel and does not supersede Mr Puara’s Survey Plan Cat No 49/3739.

We have filed a Notice of Motion seeking interim orders restraining your Office and the First and Second Defendants from altering, amending or cancelling Mr Puara’s Survey Plan pending the final determination of the proceeding. We hereby serve you with a copy of our application. Any step you take to cancel Mr Puara’s survey plan whilst our application is on foot will border on sub judice and we will not hesitate to file contempt proceedings against you personally. ”

  1. At the time of trial on 24 March 2022, Mr Bakus had been promoted to the post of Acting Surveyor General. He gave oral evidence to the effect that back in 2019 the Surveyor General could not have lawfully registered TWL’s survey plan Catalogue No. 49/3917 for Portion 4250C and Portion 4251C (Exhibit P15) on 17 April 2019 without having obtained Mr Puara’s consent. This was because Portion 4250C and Portion 4251C shown in TWL’s survey plan Catalogue No. 49/3917 overlapped Mr Puara’s Portion 3959C shown in Mr Puara’s survey plan Catalogue No. 49/3739 (Exhibit P14) which had already been registered earlier in time on 21 September 2017.
  2. Mr Bakus gave evidence at trial to the effect that the proper action which the Surveyor General should have taken by back in 2019 when confronted with the application for registration of TWL’s survey plan for 20.41 hectares (Portion 4251C) and an adjacent area of 2.572 hectares (Portion 4250C), wrongfully registered as Catalogue No. 49/3917 on 17 April 2019, was to insist on the exclusion in that recent survey plan of that area of 2.03 hectares which is Mr Puara’s Portion 3959C covered by survey plan Catalogue No. 49/3739 and which area of 2.03 hectares should not, in the absence of Mr Puara’s consent, have been included as part of the land covered by TWL’s survey plan. Had that exclusion been insisted on the Surveyor General, this would have ensured that TWL’s survey plan when registered would differentiate and exclude land already surveyed as Portion 3959C, freehold title to which latter parcel of land is asserted by Mr Puara.
  3. Mr Bakus went on to confirm in his oral evidence that Mr Puara’s registered survey plan Catalogue No. 49/3739 has not been “superseded” or cancelled by TWL’s survey plan registered as Catalogue No. 49/3917. This is because Mr Bakus explained that the term “supersede” has a technical meaning ascribed to it within the practice of land surveying and applies where a registered survey plan relates to land that is being subdivided, in which case each allotment of land within the subdivision will be surveyed and will have its own separate registered survey plan. In that sense, the new survey plans for each allotment of land forming part of the new subdivision will “supersede” the original survey plan for the land the subject of the subdivision.
  4. Mr Bakus said that a subdivision of land in respect of which an existing registered survey plan is registered is usually done upon application for subdivision made by the registered owner of the land. In this case, the registered owner of Portion 3959C is Mr Puara by virtue of his Certificate of Title Volume 37 Folio 248. It is not in dispute that Mr Puara has never applied to the planning authorities for the National Capital District for the subdivision of Portion 3959C. Mr Bakus said that any notation on Mr Puara’s registered survey plan Catalogue No. 49/3739 that it had been “superseded” would be improper and could be administratively corrected by the Surveyor General or by order of this Court.
  5. In his oral evidence at trial, Mr Bakus was adamant that his statement as contained in his letter to Mr Puara dated 14 October 2019 still stands, which is that Mr Puara’s survey plan Catalogue No. 49/3739 is valid and has not been “superseded” by TWL’s later survey plan.
  6. As to the defendants’ contention that Mr Puara’s survey plan Catalogue No. 49/3739 should have been marked “Cancelled” to allow for registration of TWL’s survey plan Catalogue No. 49/3917 and that the present absence of any “Cancelled” stamp on Mr Puara’s survey plan is simply an administrative oversight that can be readily corrected by the Surveyor General, Mr Bakus strenuously refuted this submission for the defendants. Mr Bakus said that if Mr Puara’s survey plan had been cancelled by registration of TWL’s survey plan Catalogue No: 49/3917 (which it was not), the Surveyor General at the material time would have been required to stamp the instrument with an endorsement with the words “CANCELLED NOT TO BE USED FOR ANY LAND DEALINGS”, and that this stamped endorsement would have been clearly signed and dated by the Surveyor General. As proof of this practice within the Surveyor General’s office for survey plans that are cancelled, Mr Bakus produced to the Court a sample of a survey plan for an entirely different parcel of land where the survey plan had been properly stamped as “Cancelled” using the above wording: Exhibit P18.
  7. At the time of trial, there was no evidence adduced by the defendants that Mr Puara’s survey plan Catalogue No. 49/3739 had in fact ever been stamped “Cancelled” by the Surveyor General. The evidence of AWL’s own surveyor, Mr Jarigi, was that Mr Puara’s survey report Catalogue No. 49/3917 had not been cancelled. Mr Jarigi’s position was that Mr Puara’s survey plan had been “superseded” by TWL’s survey plan, a stance which I find Acting Surveyor General Mr Bakus convincingly refuted in his oral evidence at trial. There is no question that Mr Puara’s Portion 3959C has ever been the subject of a subdivision. In view of the evidence of Mr Bakus, the only logical conclusion the Court can make is that Mr Puara’s survey plan is incapable of having been “superseded” by TWL’s survey plan, there having been no subdivision of Portion 3959C.
  8. Despite forceful cross-examination, Mr Bakus was unwavering in his oral evidence that Mr Puara’s survey plan is valid. I therefore find that the administrative and other more fundamental errors reflected in the official records of the Surveyor General regarding the inclusion of Mr Puara’s Portion 3959C for 2.03 hectares in TWL’s survey plan Catalogue No. 49/3917 for the much larger portion of land which TWL claims it is in the process of acquiring from members of the Kaevaga Clan can be remedied if the Surveyor General is ordered by this Court to do so. The Court certainly has inherent power to make such an order pursuant to s.155(4) of the Constitution to do justice in the particular circumstances of this case. I consider that it is apparent on the evidence presented at trial that such a remedial order should be made. Issue 3 is resolved in favour of Mr Puara.

Issue 4: Whether Mr Puara has indefeasible title Portion 3959C by virtue of Certificate of Title Volume 37 Folio 248?

  1. Mr Nou and Kaevaga ILG have, through their defence and cross-claim filed on 9 March 2020, challenged the validity of Mr Puara’s Certificate of Title Volume 37 Folio 248 and alleged that it is void. The defendants have pleaded that:

(1) Mr Puara had no right or entitlement to apply to the Land Titles Commission for a conversion order under the Land (Tenure Conversion) Act because he is not a member of the Kaevaga Clan, alternatively because Mr Nou and Kaevaga ILG sold the land known as Portion 3959C to PNG Trans Logistics Ltd and not to Mr Puara personally;

(2) that the conversion order which Mr Puara obtained from the Land Titles Commission in respect of Portion 3959C was unlawfully obtained due to alleged breaches by the Commission of provisions of the Land (Tenure Conversion) Act and therefore the Certificate of Title which was issued by the Registrar of Titles consequent upon the conversion order should be cancelled; and

(3) that the Certificate of Title is void because it refers to Portion 3959C which no longer exists as survey plan Catalogue No. 3739 has allegedly been cancelled.

  1. The amended defence filed for Mr Andagali and TWL on 9 March 2023 has pleaded the same matters, using different terminology, that Mr Nou and Kaevaga ILG rely on by way of challenge to the indefeasibility of Mr Puara’s Certificate of Title.
  2. I find, as a result of my foregoing analysis of the parties’ issues 1, 2 and 3 and the evidence presented for the parties at trial, that:

(1) Mr Puara is a citizen of Papua New Guinea and his right and entitlement to apply for a conversion order derives from the Contract which he personally entered into with Mr Nou and Kaevaga ILG;

(2) the evidence adduced for Mr Puara establishes on the civil standard of proof that the defendants’ allegations of breaches by the Land Titles Commission of ss. 8, 9, 10, 14 and 18 of the Land (Tenure Conversion) Act are without foundation; and

(3) Mr Puara’s survey plan Catalogue No. 49/3739 for Portion 3959C is currently valid and was not cancelled or superseded by TWL’s survey plan Catalogue No. 49/3917 for Portions 4250C and 4251C.

  1. Even if there was evidence of breaches by the Land Titles Commission of provisions of the Land (Tenure Conversion) Act (which I have found there was not), breaches of the Act could not per se invalidate Mr Puara’s title in the absence of fraud. Counsel for the defendants in their submissions cited no authority for the proposition that procedural breaches of an Act such as the Land (Tenure Conversion) Act could by themselves defeat the validity of Mr Puara’s Certificate of Title.
  2. For any challenge to the validity of Mr Puara’s Certificate of Title to have been successful, the defendants would have needed to plead either actual or constructive fraud and to then establish by cogent evidence at trial that Mr Puara’s title had been issued by the Registrar of Titles as a result of serious procedural breaches either through actual fraud or in circumstances tantamount to fraud. Only fraud or any of the technical exceptions listed in s.33 of the Land Registration Act 1981 when pleaded and proven to the satisfaction of the Court can defeat indefeasibility of title: PNG Deep Sea Fishing Ltd v Critten (2010) SC 1126.
  3. Mr Nou and Kaevaga ILG were well aware much earlier in this proceeding that if they wished to allege fraud as the basis for invalidating Mr Puara’s title, they would need to obtain leave of the Court to amend their defence and cross-claim to plead fraud. Their application to amend in that regard was heard by the Court as an interlocutory matter on 16 October 2020 and was refused when the Court delivered its reserved decision on 1 October 2021, the Court’s reasons for refusal having been set out in National Court judgment N9210. In short those reasons were that the Court was satisfied at that juncture that there was no credible evidence adduced by Mr Nou and Kaevaga ILG of any legal or equitable fraud having been committed by Mr Puara, the Land Titles Commission or Acting Chief Land Titles Commissioner Mr Paonga in connection with the subsequent issuance by the Registrar of Titles of Mr Puara’s Certificate of Title Volume 37 Folio 248.
  4. I cite the following extract from page 19 of judgment N9210:

“ 4. The evidence before the Court suggests that the proposed amendment has not been made in good faith, particularly in terms of the denial by Mr Nou of the existence of the Consent Agreement, which was clearly signed by him and by senior members of the Kaevaga ILG and Kaevaga Clan. I have found that the Consent Agreement is a genuine document. It was not forged by Mr Puara.

...

6. The conduct of Mr Nou and Kaevaga ILG in denying the existence of the Consent Agreement and denying that they were given any opportunity to be heard at the LTC conversion of title hearing warrants the Court declining to grant leave to amend a pleading which would falsely plead those denials. ”

  1. There was no further evidence presented at trial for Mr Nou and Kaevaga ILG on 24 March 2022 beyond that which was before the Court on 16 October 2020 relating to unsubstantiated allegations of fraud on the part of Mr Puara, the Land Titles Commission or Acting Chief Land Titles Commissioner Mr Paonga.
  2. As there is no foundation in the defendants’ pleadings of actual or constructive fraud and no evidence adduced for the defendants at trial which could substantiate any allegations of fraud in the circumstances that gave rise to the Registrar of Titles’ issuance of Mr Puara’s Certificate of Title, I find that Mr Puara’s Certificate of Title Volume 37 Folio 248 is lawfully valid and unaffected by any of the challenges to that validity made by the defendants. Mr Puara has indefeasible title to Portion 3959C as evidenced by Certificate of Title Volume 37 Folio 248. The parties’ issue 4 is resolved in favour of Mr Puara.

CONCLUSION

  1. In the result, for the reasons I have given, I have determined that all four of the core issues which the parties identified in their Statement were to be decided by the Court have been resolved by the Court upholding the validity of Mr Puara’s title to Portion 3959C. In summary I find that:

(1) Mr Puara did not breach the terms of the Contract for Sale which he as purchaser and Mr Nou for himself and Kaevaga ILG as vendor executed on 23 December 2016.

(2) The 2.03 hectares of land described as Portion 3959C which Mr Puara acquired under his Contract for Sale with Mr Nou and Kaevaga ILG dated 23 December 2016 were lawfully converted to freehold title.

(3) Mr Puara’s survey plan for Portion 3959C registered as Catalogue No. 49/3739 has not been cancelled and was not superseded by TWL’s survey plan registered as Catalogue No. 49/3917. Mr Puara’s Survey Plan registered as Catalogue No. 49/3739 is a valid and subsisting survey plan for Portion 3959C.

(4) Mr Puara has indefeasible title to Portion 3959C by virtue of Certificate of Title Volume 37 Folio 248.

  1. With reference to the Court’s finding in relation to the third issue, an order will be made by the Court today directing the Surveyor General to rectify official survey records held by him to reflect the Court’s finding.
  2. All earlier interim restraining orders issued in this proceeding to date will be discharged.
  3. As counsel for the parties only made brief submissions at trial as to the quantum of damages and other relief to which Mr Puara would be entitled if the Court were to determine that the defendants and cross-claimants were liable to Mr Puara for the four core issues, and as the Court has now fully determined that liability in favour of Mr Puara, I will adjourn this proceeding to 4 December 2023 at 1.30 pm to enable full submissions to be made by counsel for the parties on the consequential orders that the Court should make.
  4. A fresh interim restraining order will issue today against the defendants pending the return of this proceeding before the Court on 4 December 2023.

ORDER

  1. The terms of today’s Order are as follows:

(1) The Surveyor General shall forthwith cause to be rectified all official records under his authority or control in respect of Survey Plan Catalogue No. 49/3739 for Portion 3959C, Milinch of Granville, Fourmil of Port Moresby, National Capital District comprising an area of 2.03 hectares and being all the land described in Certificate of Title Volume 37 Folio 248, the registered proprietor of which is Richard Puara, to ensure that Survey Plan Catalogue No. 49/3739 is distinct from Survey Plan Catalogue No. 49/3917 in respect of Portion 4251C, Milinch of Granville, Fourmil of Port Moresby, National Capital District which purportedly comprises an area of 20.41 hectares and which Portion 4251C erroneously includes the 2.03 hectares of land referred to in Portion 3959C.

(2) The following interim orders made by this Court in this proceeding are discharged with immediate effect:

(a) term 1(a) and 1(b) of the interim order issued on 20 March 2020; and

(b) term 1(a) and 1(b) of the interim order issued on 1 October 2020.

(3) Subject to term 4 of today’s Order and pending further order of the Court, each of the Defendants, including all members of the Fourth Defendant, and all persons acting or claiming to be acting on behalf of or associated with the Defendants or any of them, including all employees, contractors and agents of any of the Defendants, are restrained from:

(a) encroaching or entering upon any part of the Plaintiff’s said land situated at Portion 3959C, Milinch of Granville Fourmil of Moresby, National Capital District; and/or

(b) harassing the Plaintiff or interfering in any way with the Plaintiff’s peaceful use and ownership of the Plaintiff’s said land.

(4) The Court, having determined that the Defendants are liable to the Plaintiff for all four core issues in this proceeding which the parties agreed were to be determined by the Court, adjourns this proceeding to Monday 4 December 2023 at 1.30 pm for the parties to make submissions on the quantum of damages, interest thereon, costs order and any other orders consequential on today’s Order to be made in favour of the Plaintiff, provided that the parties shall in the interim each use their best and genuine endeavours to settle these residual matters and come to Court on Monday 4 December 2023 with a draft set of orders to be made by consent, in default of which the Court will hear submissions and determine the said residual matters.

(5) Costs reserved.

(6) The time for entry of this Order is abridged to the time of signing by the Court which shall take place forthwith.

________________________________________________________________________
Nemo Yalo Lawyers: Lawyers for the Plaintiff/First Cross-Defendant
Niuage Lawyers: Lawyers for the First Defendant and Second Defendant
Parker Legal: Lawyers for the Third and Fourth Defendants/Cross-Claimants


[1] See also the definition of those entities that are regarded as citizens for the purposes of s.56(1)(b) of the Constitution in s.15 of the Land (Ownership of Freeholds) Act 1976. That definition does not include ordinary companies incorporated under the Companies Act 1997.

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