N10814

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS NO. 38 OF 2023 (IECMS)

BETWEEN:
WEST SAKARE
Plaintiff

AND
ILLEGAL OCCUPANTS – JUDO NULAI,
 PASTER BULAGER & ARNOLD KOMI
Defendants

Waigani: Wood J
2024: 5th March, 17th May

INDEFEASIBLE TITLE AND SEEKING EVICTION OF OCCUPANTS ON LAND – The plaintiff sought a declaration that he is the registered proprietor of the land at Portion 2265, Milinch Granville, Fourmil Moresby, National Capital District, and also sought a declaration that he had indefeasible title to the land – the plaintiff sought an order that all other occupants on the land be evicted – declaration granted that plaintiff is the registered proprietor of the land and has indefeasible title – orders made for the eviction of the defendants and all other occupants on the land.

Cases Cited:
Gawi v PNG Ready Mixed Concrete Pty Ltd [1984] PNGLR 74; SC267
Koitaki Farms Limited v Kenge (2001) N2143
Yangon v Noura (2008) N3375

Legislation Cited
Land Registration Act

Counsel
Mr Stanis Japson, for the Plaintiff
No appearance on behalf of the Defendants

17th May 2024

1.	WOOD J: As a preliminary issue, a number of orders were made on 13 February 2024, including that the trial in this proceeding would take place at 9.30 a.m. on 5 March 2024 and that the plaintiff was directed to file and serve on the defendants, those Orders made by this Court on 13 February 2024.  At the hearing on 5 March 2024, the plaintiff’s lawyer relied on the Affidavit of Service of Constable Paul Bakira sworn on 20 February 2024 and filed on 22 February 2024, in which Constable Bakira deposed that on 19 February 2024 at about 3.51 p.m., he served a letter from the plaintiff’s lawyers dated 15 February 2024, together the Notice to Rely on Affidavit, the Notice of Trial and the Court order made on 13 February 2024 on Judo Nulai (the first-named defendant).  Constable Bakira further deposed that he served the above-mentioned documents on Mr Nulai in Pitpit Street, Waigani, who accepted service of the documents on behalf of himself and the other two defendants, who were also present at the time of service.

2.	On the basis of the above-mentioned matters, the plaintiff was granted leave to proceed with the hearing of the trial in the absence of the defendants.

Background

3.	The plaintiff relied on his affidavit sworn on 9 December 2022 and filed on 23 February 2023 (exhibit ‘P1-WS’), in which he deposed to a number of matters, including that the is the owner of the property regarding that land at Portion 2265, Milinch Granville, Fourmil Moresby, National Capital District (Portion 2265) and which land is further described in State Lease Volume 102, Folio 122 (the first State Lease).
4.	The plaintiff’s evidence is that he bought Portion 2265 from the Waigani Health Services Centre in 2020.  In this regard, annexure A to his above affidavit shows that Portion 2265 was transferred to the plaintiff from the Waigani Health Services Centre on 15 June 2020.  

5.	The plaintiff’s evidence is that he subsequently wanted a residential lease over Portion 2265, so he was advised by the Department of Lands and Physical Planning (the Department) that he should surrender the first State Lease.  The plaintiff subsequently made application for a residential lease and his application was acknowledged by way of a letter from the Department dated 4 January 2021, which stated, in part, that the plaintiff’s application was considered at item 17 of the Papua New Guinea Land Board (the Land Board) meeting no. 4/2020 at which time the Land Board recommended, in part, that the plaintiff be granted a Residence (Low Covenant) Lease over the land at Portion 2265.  Further evidence of the plaintiff is that he received a letter from the Secretary for Lands and Physical Planning dated 24 May 2021, in which he was notified that he was the successful applicant for the lease over Portion 2265.  Also annexed to the plaintiff’s affidavit was a copy of the Lease Acceptance Form, which he signed on 28 May 2021.  Annexure F to the plaintiff’s affidavit is a copy of the State Lease, which was signed on 21 December 2021 by the Minister for Lands and Physical Planning, in which the Residence (Low Covenant) State Lease was granted to the plaintiff for a period of 99 years (the second State Lease).

6.	The plaintiff’s evidence is that on many occasions he would travel to Port Moresby from Wabag, during which time he would visit Portion 2265 and warn the defendants that they were living on his land, that he had genuine title to the land and that they should vacate the land or prepare to be evicted.  While the plaintiff’s evidence was lacking in some detail about all the occasions he says he went to Portion 2265 and spoke to the defendants and any other occupants on the land, I note that the defendants filed a Notice of Intention to Defend in this proceeding on 21 March 2023, including that the Notice of Intention to Defend by the three named defendants also states it for them and ‘all other persons residing on Portion 2265 Granville Fourmile Moresby, national (sic) Capital District’.  In this regard, I am satisfied that at the latest, the defendants became aware no later than 21 March 2023 that the plaintiff had filed this proceeding, including that he was seeking their eviction from the land.

7.	In terms of the declaration sought by the plaintiff that he is the registered proprietor of the land, I note that section 33 of the Land Registration Act provides as follows, namely:

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

8.	The defendants did not attend at the trial on 5 March 2024 and they therefore did not rely on any evidence to challenge the plaintiff’s ownership of the land.  There was also no evidence before me at the trial that the defendants or any other occupants of the land at Portion 2265 had commenced a court proceeding to challenge the grant of the second State Lease to the plaintiff.  Based upon these reasons and the evidence referred to above, I find that the plaintiff has indefeasible title in Portion 2265 and is the registered proprietor of Portion 2265, which land is more particularly described in Volume 102, Folio 122. 
     
9.	In the plaintiff’s submissions made at the trial, the plaintiff’s lawyer submitted that the defendants were illegally settling on the plaintiff’s property without his authority and consent and should be known as ‘illegal squatters’, as per the decision in Gawi v PNG Ready Mixed Concrete Pty Ltd (1984) SC267 and Yangon v Noura (2008) N3375.
10.	    In Yangon’s case (supra), Cannings J stated the following:

‘15. I have underlined the bits of Section 6 that show that this law can only be used where the persons the owner wants to evict are "illegal" occupiers of the land: people who have no "right, title or licence" to be on the land. The settlers did not fall into that category. They are not squatters. There is a big difference between people who just turn up and live on unoccupied land without permission – they can be called squatters – and those who are invited onto the land and stay there for a long time with express or tacit approval before being asked to leave – they can be called settlers (Koitaki Farms Ltd v Kemoko Kenge and Other Squatters at Itikinumu Plantation (2001) N2143).

16. Settlers have an equitable interest in the land, which is akin to a licence to occupy it. Squatters also might have such an interest if they have lived on the land and made their homes there without anyone making a fuss about it. That was the principle of law established in the 1981 Ready Mixed Concrete case. It was accepted as correct by the Supreme Court in Gawi v png Ready Mixed Concrete Pty Ltd [1984] PNGLR 74. The principle has withstood the test of time in subsequent cases such as Amos Bai as Representative of Lae Squatter Settlements v Morobe Provincial Government and The State [1992] PNGLR 150; Siso Naso v National Housing Corporation (1999) N1947; the Itikinumu Plantation case (2001) N2143; and Koang No 47 Limited v Monodo Merchants Limited and Melpa Properties Limited (2001) SC675.

17. This does not mean that the settlers have the right to live on the land for as long as they like. But it does give them the right to be given reasonable notice to leave and perhaps to be compensated for being required to leave.’   

11.	In the decision of Yangon (supra), His Honour described the difference between squatters and settlers.  There was no evidence tendered to the Court at the trial of this proceeding that the occupants of the land at Portion 2265 were invited onto the land, either by the plaintiff, or any other person prior to the plaintiff being issued with the first State Lease or the second State Lease.  In the circumstances, I am satisfied that the current occupants of the land at Portion 2265 are occupying it illegally, as squatters, and that it is appropriate that they should be evicted from the land in order give vacant possession of that land to the plaintiff.

12.	In the decision of Koitaki Farms Limited v Kenge (2001) N2143, Kandakasi J (as he was then), held that:

‘In the present case, it is not strictly a case of illegal squatting as was in the cases cited. Instead, it was a case of the defendants and or their parents being brought on to the land from their home province in the Southern Highlands, by the previous owners of the land to work on it has labourers. They were housed on the land by the previous owners of the land and were permitted to make gardens. Some of their colleges were repatriated in 1973. The ownership of the property changed hands on more than two or three occasions before the plaintiff acquired it. There is no evidence of what, if any, due diligence, the plaintiff conducted before purchasing the property. If it did, it could have ascertained the position of the defendants’ long uninterrupted occupation of the plantation with the implied consent of all its previous owners. This may have given the defendants a legitimate expectation in equity to continue to occupy the land in much the same way they have had in the past. In the absence of any evidence to the contrary, I find that, the plaintiff bought the land with full knowledge and acceptance of the defendants occupation of the land, which gave rise to a limited right in equity to continue to occupy, subject to reasonable notice for them to vacate.’

13.	I distinguish the facts in the Koitaki case (supra) from the current case on the basis that there was no evidence at the trial that the defendants are settlers or that they were invited onto the land at Portion 2265.  In this regard, I repeat my finding that the defendants are squatters.  Notwithstanding this, and noting that the defendants have had over one year’s notice that the plaintiff had commenced this proceeding, I consider it fair and reasonable, and in the interests of justice, that the defendants and any other occupants on Portion 2265 be given 30 days’ notice to vacate the land at Portion 2265. 

     Orders:

14.	In the circumstances, the relief granted by the Court is as follows:

1.	A declaration is granted that the plaintiff is the registered proprietor of the land at Portion 2265, Milinch Granville, Fourmil Moresby, National Capital District, which land is more particularly described in State Lease Volume 102, Folio 122.

2.	A declaration is granted that the plaintiff has indefeasible title to the land at Portion 2265, Milinch Granville, Fourmil Moresby, National Capital District, which land is more particularly described in State Lease Volume 102, Folio 122.
3.	A declaration is granted that the plaintiff shall be given vacant possession of the land at Portion 2265, Milinch Granville, Fourmil Moresby, National Capital District, which land is more particularly described in State Lease Volume 102, Folio 122.
4.	An order is granted that the defendants, their relatives, families and agents and all other occupants on the land at Portion 2265, Milinch Granville, Fourmil Moresby, National Capital District, which land is more particularly described in State Lease Volume 102, Folio 122, shall immediately vacate the land, following the expiry of 30 days from the service of a copy of these Court Orders on at least one of the defendants, or if they cannot be located after reasonable inquiry, service on an adult person who is an occupant of the land at Portion 2265, Milinch Granville, Fourmil Moresby, National Capital District, which land is more particularly described in State Lease Volume 102, Folio 122.
5.	An order is granted that the Police Station Commander of Waigani Police Station and with all other necessary assistance from other members of the Royal Papua New Guinea Constabulary, subject to the Order in paragraph 4 above, shall take all necessary action to evict the defendants, their relatives, families and agents and all other occupants on the land at Portion 2265, Milinch Granville, Fourmil Moresby, National Capital District, which land is more particularly described in State Lease Volume 102, Folio 122.
6.	In relation to the above orders and declarations, the Police Station Commander of Waigani Police Station and with all other necessary assistance from other members of the Royal Papua New Guinea Constabulary, are empowered to take all reasonable and lawful action to ensure that the defendants, their relatives, families and agents and any other persons, do not take steps to re-enter and/or occupy the land at Portion 2265, Milinch Granville, Fourmil Moresby, National Capital District, which land is more particularly described in State Lease Volume 102, Folio 122, in which case the police shall take all reasonable and lawful action to evict those persons.
7.	The defendants shall pay the plaintiff’s costs of and incidental to the proceeding, which shall be taxed, if not agreed.
8.	Time is abridged.

Jepson & Associate Lawyers: Lawyers for the Plaintiff
No appearance by the Defendants