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Kaevaga Land Group v Tulia [2020] PGDC 68; DC5088 (4 November 2020)

DC5088

PAPUA NEW GUINEA

IN THE DISTRICT COURT OF JUSTICE


In the Matter of

DC NO. 472 of 2020


Between:

KAEVAGA LAND GROUP INCORPORATED

Complainant


And:

FRED TULIA

First Defendant


PARADISE BUILDING SUPPLIES LIMITED

Second Defendant


Port Moresby: Magistrate Komia

04th November 2020


SUMMARY EJECTMENT PROCEEDING – District Courts Jurisdiction – nature of rights and interests concerning registered land – description of land important in ensuring proper jurisdiction is exercised – court has powers only under circumstances where the land, subject of the proceeding is unambiguously described and identified so as to not cause injustice – dispute in land description – land identified and subject of proceeding is clear – eviction ordered accordingly.


Legislations Cited

Land Group Incorporation (2009) Amendment Act

Land Registration Act

Land Act

Case Laws

Goru v. Sima [2018] PGNC 380; N7462 (14 September 2018)

Job v. Tori [2020] PGNC 62; N8254

Kevau v. Penny [2020] PGDC 46; DC 5034

Yagon v Nowra No. 59 [2008] PGNC 82; N3375

Koitachi Farms Ltd v Kemoko Kenge and Other Squatters at Itikinumu Plantation (2001) N2143

Gawi v PNG Ready Mixed Concrete Pty Ltd [1984] PNGLR 74.
Aos Bai as Representative of Lae Squatter Settlements v Morobe Provincial Government and The State [1992] PNGLR 150


Siso Naso v National Housing Corporation (1999) N2143;


Koang No 47 Limited v Monodo


Merchants Limited and Melpa Propertirs Limited (2001) SC675


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


Kwan v Bining [2014] N5836


  1. INTRODUCTION
  1. This is a claim for vacant possession of a land described as Portion 3646C, Millinch Granville, Fourmil Moresby, National Capital District, which is contained as Volume 1 Folio 24 in the Certificate of Title dated 20th December 2016.
  2. The hearing proceeded by way of Affidavit.
  1. FACTS.
  1. The facts of the cases are summarized as follows:
    1. The complainant is an Incorporated Land Group, and is the registered proprietor of Portion 3646, Millinch Granville, Fourmil Moresby (hereinafter referred to as Sasiva.). The ILG was registered on17th March 2015.
    2. On 09th August 2016, the Complainant and the Second Defendant entered into an agreement by way of an MOA for the sale of a portion of the customary land owned by the ILG, and the land is known as Minotogo. It was also agreed that the Complainant would have the land registered as a state lease, and subsequent transfer of the title would then be made to the Second Defendant.
    1. The Second Defendant made payments totaling to K 304, 000.00, and other goods such as food items, and a Blue Dyna Truck, as consideration for the Minatogo Land.
    1. The Minatogo land to date has not been registered, but a different portion of land known as Sasiva has been registered, and that is the land, subject of this proceeding. Sasiva Land is distinct from Minatogo land.
    2. The Second Defendant had made improvements on the land and have begun early works.
    3. The Complainant had issued a stop work notice on the land alleging that the Second Defendant has illegally settled on the land without the consent of the ILG. The Second Defendant contends otherwise.
  1. ISSUE
  1. The issues are:
    1. Whether the Defendant’s should be ordered to give free and vacant possession to the Complainants.
  1. EVIDENCE
  1. The complainant and the defendants filed their affidavits respectively. The complainant relies on the following affidavits:
  2. The defendants rely on the following affidavit:
  3. A brief summary of the evidences is provided below:

Complainant’s Evidence in Summary
Defendant’s Evidence in Summary

  1. Complainant is a registered ILG, and the ILG was registered on 17th March 2015, and is the registered proprietor of the land described as portion 3646, Millinch Granville, Fourmill Moresby, NCD.
  2. In 2016, the Complainant had an agreement with the Defendants to sell the portion of land described as Minotogo.
  3. In 2017, a dispute arose over Minatogo Land, and as a result, the Defendants moved onto the Sasiva Land.
  4. Minatogo land is a separate stretch of land and is completely different from Sasiva Land. Minatogo Land has a dispute, but the nature of the dispute has not been fully disclosed to the Court.
  5. The Complainants on numerous occasions requested the defendants to vacate the premises they were occupying. The most recent notice was given by the Complainants Lawyers, Mel & Henry Lawyers on 15th November 2019.
  6. Complainant filed this proceeding on 06th November 2020 after the defendants had brought in heavy machineries and started digging a perimeter drain around the area they were occupying on 27th October 2020.
  1. Defendants had an agreement with the complainant for the sale and transfer of the land described as Minotogo.
  2. The Defendants paid a total of K 304, 000.00 with some food items and a blue dyna truck in consideration of the land.
  3. The complainant was to survey Minatogo Land, and have the title registered and hten transferred to the defendant.
  4. The Minotogo lands registration and subsequent transfer of the title has not occurred as yet.
  5. The sale of Minotogo land was witnessed by the members of the ILG and the ILG executives themselves.

  1. DISCUSSIONS ON FACTS AND LAW
  1. This proceeding instituted by the Complainant seeks to evict, the Defendants from the land which they (defendants) currently, occupy and possess. The complainants claim that the defendants have no interest or right in any manner whatsoever to justify their current occupation of the land.
  2. The defendants contend otherwise and argue that their interest on the land is a consequence of the MOA that they entered into on 16th August 2016. They claim that they are rightfully on the land.
  3. The Court then inquired with Counsels on the description and identification of land and the significant differences between the land. The complainants counsel referred this Court to the Annexure FT1 of Fred Tulia’s affidavit and submitted that the MOA entered between the complainant and defendants were for Matirogo land, and that the current proceeding has been instituted against the defendants because they have encroached onto Sasiva land.
  4. The court noted that, Sasiva is a separate portion of land and Minatogo is another portion of land bordered by Busutabu (as I see, because the name is somewhat unclear).
  5. There was an agreement for sale of a land described as Minatogo, and Sasiva land is a separate land. Payments were made for the land and the defendants did move onto the land. It was revealed that the Minatogo Land, then became subject to a land dispute, and it directly affected the defendants occupation of the land.
  6. This issue of the dispute between the complainant ILG and the defendants presents us with one other legal issue which counsel for the defendant briefly mentioned in his submission, whether this Court has the jurisdiction to deal with disputes between an ILG and a non - member of the ILG. It is an important preliminary issue that this court must first discuss and settle to establish if this proceeding is consistent with the legislation, and if it is found to be inconsistent, then the proceeding would be ultra vires, and this court must dismiss the proceeding on the outset to avoid miscarriage of justice.
  7. The court will then proceed to deal with the eviction proceeding if it is not inconsistent with the legislation (i.e. Land Group Incorporation 2009 (Amendment) Act).
  1. PRELIMINARY ISSUE – WHETHER PROCEEDING IS CONTRARY TO THE ILG ACT
  1. Disputes between an ILG and non – members of an ILG are handled by the dispute settlement authority of the ILG. The establishment of ILG, management and operation are governed by the Land Group Incorporation Act which was initially enacted in 1974, and later amended to the current version of the Land Group Incorporation (Amendment) Act 2009.
  2. For the purposes of this case, the court will deal with PART IV of the Act which establishes the Dispute Settlement Authority of the ILG, and the jurisdictional basis of the dispute settlement committee, and how the facts of the case would present the settlement of such disputes and ensure if the Court has jurisdiction to deal with this matter.
  3. The purpose of the dispute settlement authority is provided for under interpretation clause in, s.2, which states that “in relation to the incorporated land group, means the dispute settlement authority for the group.”
  4. In order to understand the mechanics of how a dispute settlement authority in an ILG operates, it is proper for this court to delve into discussions for provisions under PART IV.

PART IV.—DISPUTE SETTLEMENT.

20. Application and interpretation of Part IV.
(1) This Part applies to disputes between—

(a) an incorporated land group and a member of the group; or

(b) members of an incorporated land group,

concerning the property or the affairs of the group, including—

(c) the distribution or disposal of any property or income of the

group, and

(d) any transaction between the group and any of its members,


but, except by agreement, does not apply to any dispute between the group, or a member of the group, and a non-member.

(2) This Part also applies to disputes as to membership of, or the right to membership in, an incorporated land group.


(3) In this Part, a reference to a party to, or to a person interested in, a dispute includes a reference to a person whose interest in the dispute is real, though not necessarily or immediately financial.

21. Dispute-settlement authorities.

(1) In order to be recognized under this Act, each group must have at least

one dispute-settlement authority.


(2) A dispute-settlement authority may be a person or a number of persons—

(a) specified by name; or

(b) specified by office or position; or

(c) determined in the manner specified,


in the constitution of the group, or a combination of any such persons.

(2) Notwithstanding Subsection (2), the parties to a dispute to which this

part applies may, with the consent of the group, agree on an ad hoc dispute-settlement authority in relation to the dispute.


22. Settlement of disputes.

All disputes to which this Part applies shall be dealt with, in accordance with Sections 23 and 24, by the dispute-settlement authority or a court having jurisdiction under Section 23.

23. Jurisdiction of courts.

(1) No court has jurisdiction over a dispute to which this Part applies

unless—

(a) all parties agree that it should be referred to the court; or

(b) the constitution of the incorporated land group concerned so

provides; or

(c) any relevant agreement between the group and a party so

provides; or

(d) the dispute-settlement authority thinks that—

(i) it cannot satisfactorily settle the dispute; and

(ii) the court may be able to do so.


(2) The dispute-settlement authority has jurisdiction to decide any matter

referred to in Subsection (1) and its decision is not open to challenge in any court.


(3) Where under Subsection (1) a dispute may be referred to a court—

(a) subject to Subsection (4), the court must be a Village Court or a

Local Court that has, apart from the effect of this Part,

jurisdiction in the matter; and

(b) it shall be referred, in the prescribed manner, by the dispute-

settlement authority; and

(c) the dispute-settlement authority is entitled to act, and if the court

or a person interested so asks shall act, as an assessor on

matters of custom and as to matters of common knowledge

within the group, but—

(i) its advice shall be given in open court and is

open to challenge; and

(ii) if for good reason the court thinks it proper to

do otherwise, the court is not bound to accept the advice.


(4) For the purposes of Subsection (3)(a), each Village Court and each

Local Court has jurisdiction over disputes as to land (other than disputes as to registered interests in land).

24. Law to be applied.
A dispute-settlement authority or a court dealing, under Section 23, with a
dispute to which this Part applies—

(a) is not bound by any law or rule of law, practice

or procedure other than this Act; and

(b) may inform itself on any matter in such manner

as it thinks proper; and

(c) shall not make a decision about any matter

without calling for argument and hearing any argument made on the matter; and

(d) shall endeavor to do substantial justice

between all persons interested, in accordance with this Act, the constitution and any relevant custom.

25. Appeal and review under [1]Part IV.

(1) Subject to this section, no proceedings or decision under this Part,

whether before or by a dispute-settlement authority or by a court, are or is subject to appeal or review in any way.


(2) A person aggrieved by a decision of a dispute-settlement authority or a

court under this Part may require that the decision be reviewed and, if necessary, the matter be reopened in accordance with this section.


(3) Subject to Subsection (4), the decision shall be reviewed in the first

instance, as if the grievance were the subject matter of a new dispute, by an ad hoc dispute-settlement authority appointed in accordance with Section 21(3).

(4) If—

(a) an ad hoc dispute-settlement authority cannot be agreed on; or

(b) the decision on the review differs from the original decision and

a person aggrieved by the difference so requires, the matter shall be reviewed by a Village Court consisting of not less than three Village Magistrates having jurisdiction over the members of the group, sitting with—

(c) the members of the original dispute-settlement authority; and

(d) the members of the ad hoc dispute-settlement authority (if any);

and

(e) such other customary authorities having customary jurisdiction

over the members of the group as the Village Court thinks appropriate, but the decision of the Village Court is the decision on the review.


(5) If in a case to which Subsection (4)(a) or (b) applies there is no Village

Court referred to in Subsection (4), the jurisdiction of the Village Court under that subsection shall be exercised by a customary authority having customary jurisdiction over the members of the group, nominated by the Registrar after due inquiry and consultation with the members of the group.


  1. It is clear from the schemes of provision within PART IV of the Act that the dispute settlement committee is intended to ensure that issues within the ILG remain within the ILG, and to be amicably discussed and settled to the exclusion of the courts, unless parties agree that the matter cannot be resolved by the dispute settlement committee and have the matter referred to court for deliberation.
  2. In the case of Goru v. Sima [2018] PGNC 380; N7462 (14 September 2018) Miviri (AJ) stated;

...“and section 23 of the Act establishes that a court does not have jurisdiction unless and until all parties agree that it should be referred to court.


  1. What this basically indicates is that, the Courts will seize jurisdiction, if the parties agree that the matter cannot be resolved by the dispute settlement committee and that the proper body to resolve the issue would be either a village court or a District Court.
  2. Similarly, in the case of Job v. Tori [2020] PGNC 62; N8254, His Honor, Anis J said:

“the dispute is subject to the LGI Act and should be brought before the dispute settlement authority. Section 23 and 24 of the Act, however restrict disputes that arise, that is within the confines of PART IV of the LGI Act, and in particular, the dispute settlement authority.


  1. Having understood the concept behind an establishment of a dispute settlement authority, and the limitations it places on the courts in dealing with issues concerning an ILG, what then would be the approach this Court should take in dealing with this matter?
  2. Is it proper for this Court to refer the matter back to the ILG to be dealt with by the dispute settlement authority? Or is it proper for this Court to ignore those restrictions and proceed on to hear the eviction proceeding. To my mind, the answer lies in this Court carefully assessing other legislations and to ensure if this matter is properly before the Court.
  3. In the most recent District Court case of Kevau v. Penny [2020] PGDC 46; DC 5034 (13 November 2020), I stated:

“Nevertheless, it is a different scenario when it comes to disputes between a member of an ILG, or an ILG itself and a non-member. Section 20 (1) applies in this instance where the dispute is between the appellant who is a member of the ILG and the first respondent, who is a non-member of the ILG. This court construes the said provision to mean that; if there is a dispute between members of the ILG and the ILG, or amongst the ILG members themselves which concerns property and income associated with the properties, and other things, then the dispute settlement authority is utilized.


The final clause of s.20 gives a rather contrasting landscape in which, the provision does not allow for disputes between, either the ILG and a non-member, or an ILG member and a non-member, to be dealt with by the dispute settlement committee. Furthermore, it is only exceptional where there is an agreement that the dispute settlement authority should deal with the issue. Where there is disagreement, it must be referred to the courts.”


  1. In this case, the disagreement between parties has never been settled, and parties have not been able to agree, hence this Court is properly seized of the jurisdiction to deal with this matter.
  2. The other important reasons I say this, is because the District Court, being a creature of the Statute must be properly seized of the jurisdiction before it proceeds to deliberate on issues such as this. I note that this Court does have the jurisdiction to deal with this issue also, because the Land Title Registration Act under the S. 34K to 34Q establishes that:

34K. Registration of Clan Land.
The application for registration on behalf of the Incorporated Land Group

shall —

(a) be in the prescribed form; and

(b) be accompanied by a copy of the instrument of incorporation; and

(c) be accompanied by —

(i) registration plan; and

(ii) such order of the court, document or instrument forming a good root of title.


34L. Issue of certificate of title.

(1) Where the customary group has been registered as the owner of land, the Registrar of Titles shall, upon payment of a prescribed fee, prepare and issue a Certificate of Title in the prescribed form in the name of the group.

(2) In preparing a Certificate of Title under Subsection (1), the Registrar of Titles shall prepare a copy of the title for the purposes of registration in the Register.

34M. Effect of registration.
(1) An entry in the Register —

(a) is conclusive evidence of the facts; and

(b) unless endorsed otherwise, shall be deemed to guarantee the area and the boundary of the land to which the entry relates; and

(c) shall be subject to such rights and interests as are recorded in the register.


(2) Registration of ownership which is inconsistent with —

(a) a title previously registered under the provision of this Act; or

(b) a reservation, easement or other such interest made by the State for public purposes under any law; or

(c) an estate, right, title or interest granted by the State under any law,

shall be ineffective to the extent of the inconsistency.


34N. Custom.

(1) Land entered in the Register under this Part and the right to ownership or possession of any such land or any right, title, or interest in or in relation to any such land shall cease to be subject to customary law.

(2) Subsection (1) has no application to the transfer of a member's rights and custom shall apply.

34O. Land transactions.

(1) An Incorporated Land Group registered as owner of clan land has power to grant derivative rights and interests in the land or portions to itself, any land group, unincorporated or incorporated, an individual or any entity on payment of a rent or rent free in such manner as provided in Part VI of the Principal Act.

(2) Land transactions, unless provided to the contrary, are deemed to be on such terms and conditions provided for in Parts VI, VII and IX of the Principal Act.

(3) The transfer of allodial title in clan land is prohibited.

34P. Controlling land transactions.

(1) Part XVII of the Land Act, (Approval of Dealings). apply to dealings in land registered under this Part, except for transactions between the Incorporated Land Group and its members, corporate or unincorporated.

(2) The grant of a mortgage or charge of land is regulated by terms and conditions contained in Section 23.

34Q. Unlawful occupation of clan land.

Sections 144, 145, 146 and 147 of the Land Act apply for the protection of clan land.


  1. A look at the legislative provisions cited above, explicitly establishes under s. 34N that the custom of the ILG ceases to operate on the land that is registered. This means that the jurisdiction of the Courts can now be fully utilized. Consequently, if custom ceases, then the dispute settlement authority does not have jurisdiction to deal with such issues, because the dispute settlement authority and its committee are bound to deal with issues within the parameters of its property listing and boundaries under custom of an ILG in which the land is located.
  2. In this instance, the issue of Matirogo land would then be an issue that may be subject to discussion, negotiation and possible settlement between the ILG and the defendants, and upon which they would elect to agree to, either proceed to Court or, to have the dispute settlement authority to deal with the dispute.
  3. It is rather a contrasting scenario with respect to the land described as Sasiva because, it is a land that has already been registered and now has attained the status of a State Lease. This essentially means that the laws applicable under state lease land, should be employed. In this instance, the title held by the complainant falls well within the context of “indefeasibility of title”, and land management and administration regarding state lease, under the Land Registration Act.
  4. In answer to the question of whether this is an issue that concerns the dispute and whether it falls under the s.20 category under the Land Group Incorporation Act? The simple answer is “NO!” and it is also properly before this Court as it is a State Lease land, and as such, the customary laws do not apply, thereby conforming to the two tests, hence; this Court must proceed to hear the substantive issue on whether the Complainant’s prayer for free and vacant possession of Portion 3646 should be granted.
  5. I will therefore refuse the objection and proceed to hear the application for eviction.

EVICTION


  1. The applicant herein seeks vacant possession of the land that is already described as portion 3646, and has filed the application correctly pursuant to S.6 of the Summary Ejectment Act. The Act provides for an aggrieved proprietor with indefeasibility of title to seek an order for eviction to remove a squatter or an illegal occupant on the land, which the proprietor has title over.
  2. The remedies mentioned above are available under s.6 of the Act, which provides as follows:

6. Recovery of premises held without right, etc.

(1) Where a person without right, title or license is in

possession of premises, the owner may make a complaint to a magistrate of a District Court to recover possession of the premises, and the magistrate may issue a summons in the prescribed form to the person in illegal occupation.


(2) Where the person summoned under Subsection (1)—


(a) does not appear before the District Court at the time

named in the summons; or

(b) appears and does not show reasonable cause why

possession of the premises should not be given, the Court may, on proof of the matter of the complaint, issue a warrant directed to a member of the Police Force requiring him, on or before a day specified in the warrant—

(c) to enter, by force and with assistants if necessary,

into the premises; and

(d) to give possession of the premises to the

complainant.


  1. The applicant – complainants lawyer argued that the Plaintiff was the proprietor of portion 3646, located on Sasiva land, and that the defendants were merely squatting on the land without any interest in any manner or form whatsoever, and as such, they (the defendants) should be ordered to give vacant possession to portion 3646.
  2. The defendant’s lawyers contend otherwise and mention that the defendants have an interest on the land by virtue of the agreement of 09th August 2016, and it was pursuant to that agreement that they have moved onto the land. They also claim that they have an equitable interest on the land as they have done substantial improvement on the land.
  3. The defendants lawyers strenuously argued that their interest on the land should never be overlooked and, relied on the case of Yagon v Nowra No. 59 [2008] PGNC 82; N3375. This case concerned eviction of descendants of plantation laborers that had settled on the land and the land lord after a dispute with the descendants of the plantation laborers obtained an eviction order against the descendants who were regarded as the settlers. The descendents of the laborers who were ordered to be evicted filed and appeal to challenge the decision of the Madang District Court. Cannings J in his ruling on the appeal stated;

“.... 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 (Koitachi Farms Ltd v Kemoko Kenge and Other Squatters at Itikinumu Plantation (2001) N2143


Settlers have an equitable interest in the land, which is akin to license 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 Aos Bai as Representative of Lae Squatter Settlements v Morobe Provincial Government and The State [1992] PNGLR 150, Siso Naso v National Housing Corporation (1999) N2143; and Koang No 47 Limited v Monodo Merchants Limited and Melpa Propertirs Limited (2001) SC675


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.”


  1. This court when considering the above reasoning’s is minded to assess whether the defendant does have any interest to be on the land, and if the occupation has gone without challenge. This is answered by the complainant secretary’s affidavit one Noah Borema, and he deposes from paragraphs six (6) to paragraph twelve (12) which establishes that the defendants occupation of the land has been continuously challenged from the initial occupation up to the time of the filing of this proceeding.
  2. The complainants also submitted strongly that the two land are distinct and that the defendants were entitled to move onto Matirogo land and not the Sasiva land. When the court enquired with the defendant description and location of the two land (Matirogo and Sasiva land), the defendant’s lawyer simply answered that, he was unsure, and said he didn’t know.
  3. In my respectful assessment of the submissions made by parties and the evidentiary materials put before the court, I am of the view that the land in which the defendants entered into agreement with the complainants for registration and eventual transfer of the title to the defendants was for the Minatogo land, but that never eventuated because there was a dispute on the land, and I note that the nature of the dispute has not been disclosed. Both counsels never referred this court to the nature of disput and the parties the dispute arose between.
  4. I am not indebted to delve into the nature of the dispute. This Court forms the view that it was as a result of the dispute that the defendants then decided to move onto the alternate land known as Sasiva, also belonging to the complainants on the basis that they had expanded substantial monies for the Minatogo land, and they should be compensated with a portion of the land in Sasiva.
  5. If my assertion above is true and correct, then the appropriate remedy available to the defendants would be damages against the complainants pursuant to the agreement of 09 August 2016. This proceeding is not the case here.
  6. In saying this, and considering the cases put forward by the defendants that they have equitable interest, and that they should be allowed to remain on the land. I consider that the Yagon case cannot be applicable in this case, because the Yagon (supra) case involved people who had lived there with the consent of the proprietor, and that they had been living there for more than one generation, without any challenge or request to vacate.
  7. The other important factor is the mode of culmination of an equitable interest. An equitable interest that arises as a wrongful or deliberate act to unlawfully create legal interest, can be distinguished from an equitable interest as a result of genuine ground to believe that the land was never owned and occupied by someone and that the party raising the defense of equitable interest has been genuinely led to believe that such is true.
  8. The distinguishing factor between those cases and the current case is the fact that, the defendants were requested to stop work and remove their machineries at the very instance they moved in and occupied the land in 2017, and that Sasiva land is not the land subject to the agreement to sell. The complainants also have been telling the defendants that the land they have moved onto is another land, not subject of the agreement. That request by the complainants to the defendants fell on deaf ears. Secondly, such arguments and case law propositions would be properly applicable if the defendant’s occupation of the land was on Minatogo land. In this case, the agreement spells it out that the sale was for Minatogo. Sasiva has never been named or referred to in any part of the agreement.
  9. It is a well settled law that the registered proprietor of a state lease has an indefeasible title, as correctly pointed out by the complainant’s lawyers. This common law proposition has been adopted and applied in our jurisdiction beginning with the case of Mudge v Secretary for Lands & Ors [1985] PNGLR 387, in which the Supreme Court extensively discussed the principles of indefeasibility of the title and held that a person who is a registered proprietor of a title is protected by the Torrens System of Indefeasibility of Title, and such interest must be protected.
  10. Nevertheless, in an eviction proceeding such as this; unless there is a challenge (bona fide dispute over the property), then, the District Court would be seized of the jurisdiction to deal with the issue of eviction. But where there is no distict, and formal legal steps taken to challenge and disturb the title. See Kwan v Bining [2014] N5836
  11. Finally, S.33 of the Land Registration Act protects the interest of a registered proprietor. It states:

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 [1]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 favor 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.


  1. In considering all the above discussions, I remain steadfast in my ratio decidendi to uphold the argument that the defendants in fact have not established any interest, either equitable or legal, so as to convince this Court not to evict them. I say this because their interest over the land they currently occupy has emerged from their own misdemeanor to enter the land without prior consultation and discusiion with the complainats. Even if such discussions were held, there is no evidence before this Court to establish such interest.
  2. I have always remained fortified in my opinion that an interest that arises out of an unlawful or illegal conduct of parties, must never be protected by any Court of Law, as it would be simply be encouraging ordinary people and business houses to say, “ah it’s okay, we can move onto the land and do development and later seek the redress of equitable interest to protect ourselves.” I remind myself of that.
  3. It is therefore my strongest view that the defendants moved onto portion 3646 withut the consent of the complainant despite the various request to stop work and exiting the land, and therefore are not entitled to possession of the Sasiva Land.
  4. I uphold the complainants argument and hereby order;

COURT ORDERS:


  1. The Complainant is the registered proprietor of portion 3646, milinch Granvilee, Fourmil Moresby.
  2. The defendant is given fourteen (14) days to vacate the land and give free and vacant possession to the complainant applicant, failing which, the complainant shall forcefully enter the land and evict the defendants with the help of Police Personals.
  3. Cost to be borne by parties.
  4. Time is abridged.

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