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Scout Association of PNG v Mavara Laurana Clan [2021] PGDC 252; DC9056 (13 December 2021)

DC9056

PAPUA NEW GUINEA


[IN THE DISTRICT COURT OF JUSTICE]


DC. NO. 536 OF 2021


THE SCOUT ASSOCIATION OF PAPUA NEW GUINEA
Complainant


V


MAVARA LAURINA CLAN OF HANUABADA VILLAGE,
NATIONAL CAPITAL DISTRICT
Defendant


Port Moresby: Clivson Philip, Magistrate
2021: 10th & 13th December


IN THE MATTER OF AN APPLICATION FOR DISMISSAL OF PROCEEDINGS SEEKING RESTRAINING ORDERS PURSUANT TO SECTION 22 OF DISTRICT COURTS ACT, CH. NO. 40


Restraining orders - special purpose leases - pre-conditions for exercise of power by the District Court to order restraining orders - need for proof of proprietary ownership by lessee over state land or customary proprietary interests and usufructuary rights in customary land tenure with clear standing.


Lessee - an association with undisputed bona fide titles to three adjoining special purpose leases may sue in its corporate name - pre-conditions to exercise of power to commence court proceedings.


Customary rights of way over state leases - right of access is permissible by formal resolution from The National Scout Council of the Scout Association of Papua New Guinea - entrusted with duty for due administration of the special purpose leases held in trust for benefit of the Boy Scouts of PNG.


Held:


(1) It is proven and clear that the complainant is lessee of 3 special purpose leases which have an access road namely “Scouts Drive” that the defendant and its members have been using to arrive at a seafront that has a back-filled land whereof the defendant claims to be customarily owned by it.

(2) Restraining orders are intended to offer a quick remedy to people who have a clear title to the premises that are being frivolously hindered by acts of misconceived perceptions about certain untenable interests outside of alienated state leases including traditional and customary rights and usufructuary interests which are subject to be tested under Local Land Court proceedings.

(3) Here the three titles of the complainant are clear as alienated state own lands with registered status of special purpose leases without any disputes however the defendant was deliberately or inadvertently pursuing a claim of traditional customary usufructuary rights within ambit of Land Disputes Settlement Act, Ch. No. 45 which this court have no jurisdiction to adjudicate.

Legislation referred to:


  1. Scout Association of Papua New Guinea Incorporation Act, Ch. No. 1032,
  2. Land Act 1996,
  3. Land Tenure Conversion Act 1963,
  4. Land Groups Incorporation Act, Ch. No. 147,
  5. Land Disputes Settlement Act, Ch. No. 45.

Counsels:


I Tolabi of Kopunye Lawyers for the complainant/respondent.
H. I. Kevau of Regau Manua Kikira Lawyers for the defendant/applicant.


10th December, 2021


  1. INTRODUCTION
  1. The complainant is a registered leaseholder of three Special Purpose State Leases namely Allotments 5, 6 and 7 of Section 44, Granville, Port Moresby, Central District (now National Capital District). Allotments 5 and 6 have been consolidated into one single special purpose lease. The three properties houses its girl guides and boy scouts headquarter facilities. A main bitumen sealed road namely Champion Parade is located at its eastern hill side and waterfront of Konedobu to its western side bordering with Hanuabada village. There are no legal disputes on ownership to any one of the 3 state leases of the complainant accept a claim under custom on a right of way from Champion Parade to sea-front which is connected by an undesignated dirt road. For this case it is named as “Scouts Drive.”
  2. The defendant is represented by Mr. Nou Daniel Arua from Mavara Laurina Clan of the Hanuabada village whose members have been freely accessing through the complainant’s three leasehold premises without any formal consent of the National Scout Council until it had demanded the defendant to stop trespassing by way of the accessible Scouts’ Drive from the Champion Parade to enter a back-filled re-claimed land located at the waterfront behind allotments 5 and 6 near the western shoreline. The complainant had pleaded trespass and refused the defendant’s further and future access up to date of the summons due to damage done to its fence and gate thus seeks permanent restraining orders against the defendant from using the Scouts Drive to the sea-front but the defendant claims traditional ownership over the new artificially re-claimed land not yet titled.
  1. COURT DIRECTIONS ISSUED AND NOTICES OF MOTION CONSIDERED
  1. In relation to the defendant’s Further Amended Notice of Motion filed on the 26th of November 2021 and supported by affidavit of Mr. Nou Daniel Arua filed on 27th of October 2021, following are findings of fact and rulings by the Court upon consideration of all the evidence offered by the parties.
  2. With regards to term 3 (i) that the proceedings had incorrectly named both parties and is defective, in the interest of justice for this matter to be fully determined the court had invoked section 138 of District Courts Act, Ch. 40 on 5th of November 2021 by incorporating into respective pleadings the amended names of the parties for purposes of identifying legitimate description to each of the litigant.
  3. The court finds initial proceeding to be naming the complainant as “Scouts Association of Scouts Association of Papua New Guinea, P. O. Box 44, Konedobu, National Capital District” which is now amended correctly to be The Scout Association of Papua New Guinea thus specifically stipulated as being the lessee in Special Purpose Leases for Allotment 7, Section 44, Granville, Port Moresby, NCD described as Annexure “A” sworn in affidavit of Mr. Noel Pinda filed on 6th of October 2021.
  4. The court finds also in fact that originating processes initially named defendant as “Mavara Laurina Clan” and specifically stipulated as “Mavara Laurina Clan of Hanuabada Village of Port Moresby, National Capital District” in paragraph 3 of complainant’s notice of motion filed on 6th October 2021.
  5. Furthermore, the court also finds in evidence that the defendant had deposed that its correct name is Mavara Laurina Clan of Hanuabada Village of Port Moresby, National Capital District in paragraphs 6 and 7 of the affidavit filed on 27th of October 2021 by Mr. Nou Daniel Arua.
  6. Therefore, the court had invoked section 138 of the District Courts Act to incorporate firstly The Scout Association of Papua New Guinea and secondly Mavara Laurina Clan of Hanuabada Village of Port Moresby, National Capital District respectively as the correctly amended description of the parties’ names for purposes of taking this proceedings onward.
  7. Both affidavits filed respectively by Mr. Lohia Kauna and Mr. Eno Mase on 16th of November 2021 corroborates the fact that Mr. Nou Daniel Arua is recognized officially as a principal spokesperson of the Mavara Laurina Clan of Hanuabada Village of Port Moresby, NCD.
  1. DEFENDANT’S ALLEGATIONS OF IRREGULARITY AND BREACHES IN PRACTICE
  1. With regards to term 2 of Further Amended Notice of Motion pleaded for the cause of action to be dismissed by reason of a claim that there is a bona fide dispute in the title of the complainant under section 21(4)(f) of the District Courts Act is rejected and shall be dismissed as being misconceived.
  2. The court is satisfied that the complainant is the duly registered lessee for 3 Allotments 5, 6 and 7 of Section 44, Granville, Port Moresby, NCD and the defendant had not proven its title over the artificially re-claimed land which is located on the seafront at western end of its property fencing.
  3. In relation to term 3 (ii) and (iii) that the cause of action had not pleaded clearly a correct jurisdiction of court thus is defective and futile, the court however finds in evidence that the complainant had correctly expounded on its statement of claim in originating processes by pleading specifically in paragraphs 1 and 3 of its notice of motion filed on 6th October 2021 a relief for permanent restraining orders pursuant to section 22 of the District Courts Act therefore this argument cannot be sustained.
  4. The court is satisfied that the complainant’s Amended Complaint filed on the 16th of November 2021 upon leave of the court being granted on the 12th of November 2021 thus shall decline this ground for dismissal mounted by the defendant.
  5. Regarding term 3 (iii) argument that the interim relief sought is same relief as the substantive claim, the court finds that this proceeding is for a substantive or permanent relief of restraining the defendant from using the Scouts Drive for purposes of continued accessing the re-claimed land at the seafront thus there is no duplication of relief and shall be dismissed as the court had not yet granted any previous interim relief to date. This argument is misconceived and shall be declined.
  1. EVIDENCE OF THE APPLICANT/DEFENDANT TO SUPPORT ITS NOTICE OF MOTION
  1. The defendant had filed following two (2) affidavits as its reply and in response:
    1. By Nou Daniel Arua on 21st of October 2021 and
    2. By Nou Daniel Arua on 27th of November 2021.

  1. EVIDENCE OF THE RESPONDENT/COMPLAINANT
  1. The complainant had filed following seven (7) affidavits as its response and in reply:
    1. By Noel Pinda on 6th of October 2021,
    2. By Noel Pinda on 29th of October 2021,
    3. Secondly by Noel Pinda on 29th of October 2021,
    4. By Noel Pinda on 16th of November 2021,
    5. By Eno Mase on 16th of November 2021,
    6. By Lohia Kauna on 16th of November 2021 and
    7. By Noel Pinda on 23rd of November 2021.
  2. Evidence provided in affidavit of Mr. Noel Pinda, National Scout Administrator of the complainant filed on the 16th of November 2021 specifically in paragraphs 13 to 17 and supported by Annexure “C” clearly shows that late Mahuru Rarua Rarua (MRR) had been a former tenant of Allotment 7, Section 44, Granville, Port Moresby, NCD until he was evicted from the premises by order of Port Moresby District Court dated 16th of January 1990. Before his eviction the late MRR had been responsible for actually back-filing the artificially re-claimed land now a subject of claim as being sought by the defendant to be traditional customary land owners of the newly back-filled land.
  3. After late MRR had departed from the premises, the complainant took full occupation of the property until most recently when defendant manifested their intention to access the re-claimed land through the Scouts Drive which had resulted in this action however the defendant holds no prima facie title.
  4. Official records of determination by (1) Chief Physical Planner’s Office, (2) Surveyor General’s Office, (3) Land Board, (4) National Capital District Physical Planning Board, (5) National Housing Corporation, and (6) Registrar of Titles were not offered to the Court to conclusively determine the issue of whether the Scouts drive is restricted for exclusive use of the complainant or surveyed and designated for public usage as well as for municipal purposes.
  5. Notwithstanding this evidence not available in fact at this stage, the court is satisfied that the complainant duly is current inaugural lessee for 3 special purpose leases. Firstly a consolidation of Allotments 5 and 6, Section 44, Granville, Port Moresby, Central (now NCD), registered as volume 18, folio 4319. Secondly Allotment 7, Section 44, Granville, Port Moresby, NCD registered as volume 120, folio 195. It is clear that the Scouts drive was originally constructed and surveyed as part of survey plans in title deeds for both Allotments 6 and 7 for purposes of achieving statutory mandates of the complainant as the Scout Association of PNG.
  6. The court finds in fact that these 3 State leases were duly registered to the complainant as lessee thus the complainant’s registration of title is protected by section 33 of Land Registration Act, Ch. No. 191 therefore it is necessary to establish any initial usage rights or easements of the Scouts drive to original waterfront prior to it being back-filled with soil as a new re-claimed land from the seafront.
  7. To establish this working parameter or scope of agreed facts, the court relies upon and accepts into evidence 4 maps provided in 3 separate affidavits deposed and filed for the both parties respectively. Firstly, a handwritten sketch map attached as Annexure “A” to Affidavit in Response filed by Mr. Nou Daniel Arua on 21st of October 2021 is admitted as evidence for purposes of this deliberation. Secondly, the court accepts also into evidence without objection two other officially issued surveyed maps as Annexure “A” to Affidavit in Support filed by Mr. Noel Pinda on 6th of October 2021 as being part of those 3 Allotments numbering 5, 6 and 7 of Section 44, Granville, Port Moresby, NCD which had been duly registered under the complainant’s name as lessee to those 3 parcels of land. Thirdly, the court admits the 2 maps attached as Annexures “A” and ”B” exhibited in affidavit of Mr. Noel Pinda filed on 23rd November 2021 which were acquired from National Mapping Bureau (NMB).
  8. It is clear and accepted that the handwritten sketch-map depicted the Scouts drive as an access road leading from the main bitumen sealed Champion Parade road down onto the re-claimed land as being an only visible access road connecting the Champion Parade to the newly back-filled seashore land being claimed by the defendant as part of its ancestral customary land. The sketch map is duly substantiated and validated by both the Google map and detailed map from the Office of the NMB.
  9. It is acknowledged that by combining the officially surveyed maps of the 2 parcels of separate allotments being Allotments 5 and 6 on one side toward Hanuabada village direction and with Allotment 7 on another side toward Konedobu, it is clearly established that there is an originally existing small road connecting the Champion Parade down westward towards the re-claimed land.
  10. It is clear that this small road is the Scouts drive being featured as a statutory boundary separating Allotment 6 from 7 thus the court construes this demarcation as an easement for access to what had been previously located as a site described as a government jetty.
  11. The depiction for such a site which had once been a location of the government jetty is clearly shown on the survey map detailed on the title deed bearing Allotment 7, Section 44, Granville, Port Moresby, NCD registered as volume 120, folio 195. This Special Purpose State lease establishes that indeed an access road comprising 10.060 meters wide connected the site of what had been the previous jetty to present site of the re-claimed land situated from the main Champion Parade. This is being highlighted clearly and shown on both the google map and the detailed map of the NMB as corroboration of existing access road linking Champion Parade to previous Government jetty between Allotments 6 and 7 of Section 44, Granville, Port Moresby NCD duly registered to the complainant.
  12. The court finds that the Scouts drive was purpose built for the three leases granted to the complainant.
  13. It is clear to the court that the Scouts drive which connects the once located jetty (now filled up with soil as artificially re-claimed land from shoreline) to the Champion Parade was specifically written into the survey plans of both statutory Allotments 6 and 7 at time when a grant of special purpose leases were issued respectively on both sets of titles on 6th December 1989 and 19th of August 1990.
  14. Having established that the internally described service road which is labeled by the defendant’s map as the Scouts drive deposed to in affidavit of Mr. Nou Daniel Aru filed on 21st October 2021, it is clear to the court in fact that this road was available at time when both titles were registered and subsequently issued to complainant as lessee or regarded as being in existence before grant of leases.
  15. It is therefore accepted by the court that not only did members of the defendant have used the Scouts drive to the jetty for recreational and other customary obligations but also members of public would have been also using this road more often previously when the jetty was in operation. Given that the jetty is no longer now available any members of the general public cannot have free access to the site of the once government jetty without a formal approval of The National Scout Council (TNSC).
  16. No evidence was adduced by the complainant to establish if TNSC had maintained an operating procedure for internal or external people’s usage of the Scouts drive. Thus the court accepts in fact that the road had been used by the defendant, members of the public and municipal authorities for purposes of accessing the previous jetty located at what was once natural seashore line. However, this practice had ceased when the jetty had become no longer operational thus the Governor General’s further usage of the waterfront had declined as a result of the artificial re-claimed land site in 1990.
  17. The court finds in fact firstly that the previous Government jetty is no longer in use. Secondly, in its place seashore was artificially re-claimed. Thirdly, the entire landscape had been significantly altered. It is also apparent that a growing frequency of traffic involving workmen and members of the defendant is going to grow as this is an only existing access road from the Champion Parade linking the defendant’s claimed customary land. It is clear that any further access to the re-claimed land cannot unilaterally occur without a specific lawful authorization granted formally by TNSC pursuant to section 3 (2) (c) of Scout Association of Papua New Guinea Incorporation Act, Ch. No. 1032. Any unauthorized access to the re-claimed land through the Scouts drive is construed as an act of trespass.
  18. There is evidence of Annexure “B” in Affidavit by Mr. Noel Pinda filed on 16th of November 2021 to confirm that the Governor General’s Office had operated the jetty and its establishment site before it was removed or abandoned prior to or following the back-filling work for the re-claimed land site which is being considered previously as traditional shoreline by the defendant.
  19. Paragraph 10 of the affidavit have Mr. Noel Pinda deposing to a fact that “The Excess Road is not a public road and is intended exclusively for the use of SAPNG (as owners of Lot 6 and Lot 7) and the Governor General (as the Chief Scout of PNG).” This evidence had not been fully contested and rebutted in both the evidence and arguments of the defendant thus the court is satisfied with this fact.
  20. It is clear to the court that the legal issue under consideration in this cause of action is obviously whether the defendant have a lawful right of access to the subject artificially re-claimed back-filled land area that had been once consisted of a shoreline and whether such a right of access falls within a public easement being constituted as accessible at any-time including for public purposes.
  21. The court is satisfied that the defendant have not proven that it has a clear title of ownership over the re-claimed land located before the shoreline at western side of the Allotment 7 of the complainant. It is conclusive in evidence that the defendant have not proven any building rights of any building permits or re-zoning approval either from Chief Physical Planning Office or the NCD Building Board bestowed upon the defendant as legitimate owner and or developer of the artificial re-claimed land.
  22. In the converse whether such right of access is restricted by qualification considered as a private road of the complainant exclusively that is subject only to a specific formal approval to be rendered by authority of TNSC after a prior request for access is lodged with the Administrator of the SAPNG as part of a standard operating procedure stipulated under section 3 (2) (c) (create or reserve easements) of the Scout Association of Papua New Guinea Incorporation Act.
  23. The court is satisfied that upon the granting of those 3 special purpose State leases to the complainant as inaugural and current lessee it was necessary for establishment of the Scouts drive as a key access road for utilization of the land for purposes and functions of the complainant duly mandated under the Scout Association of Papua New Guinea Incorporation Act to an exclusive discretion of TNSC.
  24. It is clear to the court that Allotment 7, Section 44, Granville, Port Moresby, NCD was granted as a special purpose State lease to the complainant as the inaugural lessee for 99 years commencing from 14th of September 1989 and it is also clear that a consolidation of Allotments 5 and 6, Section 44, Granville, Port Moresby, Central District (now NCD) was also granted to The Australian Boy Scouts Association (PNG Branch) as inaugural lessee for 85 years commencing from 23rd of March 1967. Therefore, initial construction of the Scouts drive cannot be intended for other public usage except to specifically facilitate for legal and administrative functions of TNSC under the enabling legislation.
  25. Such functions included the making of a specific provision for access from the Champion Parade to the initial government jetty site for exclusive use of Governor General however any other members of the general public were obligated to seek formal approval from TNSC to have access to the then previous jetty and after it had fallen into dis-use also subsequently to the artificially re-claimed land of present pursuant to section 2 of the Scout Association of Papua New Guinea Incorporation Act.
  26. The court accepts that the artificially re-claimed land now being argued as the traditional ancestral land of the defendant did not exist prior to the grant of the special purpose leases of the complainant therefore were not originally featured and recorded in those 3 State leases of the complainant.
  27. The court finds in evidence that there are no statutorily real evidence offered by the defendant under (1) Land Act 1996, (2) Land Tenure Conversion Act 1963, (3) Land Groups Incorporation Act, Ch. No. 147 and (4) any judicial pronouncements by a Local Land Court or Provincial Land Appeal Court under Land Disputes Settlement Act, Ch. No. 45 which clearly establishes that the artificial land over seawater mark opposite Allotments 6 and 7, Section 44, Granville, Port Moresby, NCD was duly registered to the defendant as lessee with a protection of indefeasibility of title under section 33 of Land Registration Act, Ch. No. 191. The defendant is at liberty to seek a declaration of ownership.
  28. Notwithstanding the formal legal status of those two State leases which the court have accepted as duly registered to the complainant as the conclusive lessee, the court accepts that the affidavit of Mr. Nou Daniel Arua filed on the 21st of October 2021 clearly goes to validate that the Hanuabada village is a traditional motuan establishment maintained upon its recognized customary waterways with clear usufructuary rights to the extent that the subject re-claimed land is yet to be formally registered as traditionally re-claimed motuan land of the appropriately designated Hanuabada traditional sub-clan.
  29. It is accepted that once customary land had been alienated by way of a ministerial grant of State lease and subsequently registered as a special purpose lease under section 100 of the Land Act, all original inherent customary traditional ownership rights and user interests cease in law. On this legal premise it is clear to the court that the Scouts drive leading from the Champion Parade down along and in between Allotments 6 and 7 cannot be deemed as customary land but State land designated as an access road of the lessee for private access to the jetty. It is also intended for the current lessee of the respective Allotments 6 and 7 including members of the public who once had previously used the Scouts drive to go to the jetty when there had been a shoreline with a waterfront.
  30. The court is satisfied that from 1990 the landscape had been significantly altered as a result of earth being poured over the subject shoreline that was once considered as traditional customary waters which the landowners had traditional usage rights over. However, it is significant to consider whether the defendant can now maintain any acquired inherent land ownership rights over the artificial land from what had been once a shoreline whereupon initial rights available then was one only of fishing and access rights to the water ways but not clearly one of land rights after grant of the State leases.
  31. The court adopts definition of “customary land” within section 2 (1) of Land Groups Incorporation Act, Ch. No. 147 " means land that is owned or possessed by virtue of rights of a proprietary or possessory kind and regulated by custom, and includes - (a) land below low-water mark and within jurisdiction; and (b) land covered with water; and (c) rights to rivers and streams;” to conclude that the subject artificial land being considered as Arutoa ancestral or customary land is presumed as customary land until duly proven by custom.
  32. The backfilled land maybe recognized as traditionally owned by the defendant but shall be subject to being formally surveyed, titled and duly registered under the Land Tenure Conversion Act 1963, the Land Groups Incorporation Act or by way of a declaratory instrument after a formal land title commissioner’s determination.
  1. THE AGREED FACTS
  1. The Scout Association of PNG is duly responsible for development, control and direction of Boy Scout Movement in the country. The aims and purposes of the Association are identical with the aims and purposes of the Boy Scouts Association incorporated in United Kingdom by Royal Charter dated 4 January 1912.
  2. The National Scout Council (TNSC) has a legal duty to control the Boy Scout Movement in the country and has power to do all things necessary or convenient to be done for providing and maintaining an efficient organization for the purposes of the Association in the country. The NSC has power to acquire, hold, manage and control, and may grant, transfer, mortgage, demise, sell, dispose of, create or reserve easements in or otherwise deal with property of any kind.
  3. The access road (Scouts Drive) which is the subject of this proceeding is an existing dirt road linking the land upon which current facilities of the complainant are established on with the Champion Parade main road located at eastern side and the seafront on western side of the property.
  1. MAJOR ISSUES
  1. The Court finds that a relevant legal issue arising for determination of the complainant’s application for restraining orders is not about whether the complainant had trespassed or encroached upon an artificially re-claimed “Arutoa Ancestral or customary land” claimed by the defendant or whether the defendant was obstructed from accessing such a re-claimed shoreline but whether the defendant have a right of access through the complainant’s two Special Purpose State Leases namely Allotments 6 and 7 of Section 44, Granville, Port Moresby, Central District (now National Capital District).
  2. For the court to consider this issue, it must first deal with a threshold question of who owns existing access road linking the Champion Parade and the defendant’s claimed artificial land. The back-filled land over a claimed customary seafront had been established over natural location of once a shoreline. However, both parties did not provide any evidence to validate ongoing pre-existing arrangements and antecedent information to verify ownership and user rights of this road namely “Scouts Drive”.
  1. THE RELEVANT LAW
  1. The complainant seeks a permanent restraining order against the defendant from the continuous use of the scouts drive for accessing the backfilled artificially re-claimed land as the seafront pursuant to section 22 of the District Courts Act which is stipulated as follows:

“Section 22. General ancillary jurisdiction.

Subject to this Act, a Court as regards a cause of action for the time being within its jurisdiction, shall, in proceedings before it—

(a) grant such relief, redress or remedy, or combination of remedies, whether absolute or conditional; and

(b) give the same effect to every ground of defence or counterclaim, whether equitable or legal,

as ought to be granted or given in a similar case by the National Court and in as full and ample a manner.”


  1. The defendant have not pleaded nor submitted in law any grounds which prohibits the court from exercising its power under section 22 of the District Courts Act in order to consider the substantive relief.
  1. APPLYING THE LAW TO THE FACTS
  1. Pursuant to Section 146 of the District Courts Act, the court finds in fact that the evidence adduced by the complainant had satisfied the court on the balance of probability that the complainant owns exclusive usage of the Scouts drive as a private road. The court is satisfied that the Scouts drive had been originally included in the survey plan of the respective Special Purpose State Leases for purposes of maintaining public access to the Government jetty from the Champion Parade upon specific authorization from Office of Governor General as Chief Scout of PNG and mandated upon sections 2 and 3 (2) (c) of the Scout Association of Papua New Guinea Incorporation Act by TNSC.
  2. The complainant have proven both in fact and in law to the court’s satisfaction that the Scouts Drive is a private road for exclusive use by the complainant as lessee therefore its claim shall be allowed.
  3. It is clear from authenticity of the official survey map that it incorporated in the title deed of the lessee’s property being Allotment 7, Section 44, Granville, Port Moresby, NCD bearing folio 120, volume 195 having shown that a designated access road to the seafront initially from the date the title was granted. This is formally being recognized as the Scouts drive for the purposes of this case.
  4. Therefore, the Scouts drive is an access road deemed as being already surveyed and featured for easement thus specifically established between Allotment 6 and Allotment 7 of Section 44, Granville, Port Moresby, NCD and can be seen as not designed to encroach upon those two adjoining parcels of land being granted clearly as bordering between the Allotments of 6 and 7 respectively.
  5. The court finds that if the Scouts drive had not been specifically surveyed and drawn into the official survey plan on the title deed of the Special Purpose State Lease for Allotment 7, Section 44, Granville, Port Moresby, NCD which is duly registered to the complainant as lessee then it cannot be regarded as an officially designated easement for purposes of Physical Planning Act, 1989.
  1. CONCLUSION
  1. In the final analysis of all the evidence, the court is not satisfied that the defendant is formally a duly registered lessee of the artificially re-claimed land depicted as number 7 described in the handwritten sketch map attached as Annexure “A” in the Affidavit in Support of Mr. Nou Daniel Arua filed on the 21st October 2021 in so far as section 33 of Land Registration Act, Ch. 191 applies to an alienated titled land. This is another matter to be determined under Land Disputes Settlement Act, Ch. No. 45.
  2. Furthermore, the court finds that the evidence described as Annexure “A” in the affidavit of Mr. Nou Daniel Arua is pre-dated to pre-alienation status of these lands when a purported Arutoa ancestral land comprised originally of previous un-alienated parcels of land regarded today as State leases of Allotments 4, 5, 6, 7, 8, 9 and 10 duly registered within Section 44, Granville, Port Moresby, NCD.
  3. It is for this reason that the court accepts that the Scouts drive had been intended only for purposes of the complainant’s exclusive usage as stipulated in its Special Purpose Leases and therefore cannot be deemed as also available for public usage. If it had been intended for public purposes to the exclusive use of the complainant then the Scouts drive could not have been specifically surveyed and featured as a road intersecting Allotments 6 and 7 with a clearly designated street name which is not the case.
  4. The evidence shows that this particular road had been clearly featured as a surveyed establishment in between the two statutory boundaries of Allotment 6 and Allotment 7 of Section 44, Granville, Port Moresby, NCD. Therefore, this court is satisfied on the balance of probability that the Scouts drive is designated as an access road for exclusive usage of the complainant and only for other parties upon proper formal authorization rendered by The National Scout Council of Papua New Guinea (TNSC).
  1. JUDGEMENT
  1. Both the interlocutory and final orders of the court are stipulated in the following:
    1. Pursuant to sections 22 and 138 of the District Courts Act, firstly the defendant shall be granted leave to file its Further Amended Notice of Motion dated 26th of November 2021 in compliance with the court’s order dated Tuesday 23rd of November 2021.
    2. Secondly the complainant shall be granted leave to file its Amended Complaint dated 16th of November 2021 in compliance with the court’s order of Friday 12th of November 2021.
    3. Thirdly, the complainant’s Amended Notice of Motion filed on Friday 29th of October 2021 was initially allowed leave of court on Friday 5th of November 2021.
    4. It relation to term 1 of the defendant’s Further Amended Notice of Motion filed on the 26th of November 2021, the court shall strike out this stipulation as being irrelevant and of no substance since no such interim restraining orders were yet issued by the court and this is misconceived.
    5. Furthermore, in relation to term 3 (i) of the defendants’ Further Amended Notice of Motion, the court shall strike-out this pleading by virtue of its interlocutory orders of Friday 5th of November 2021 wherein initial names of the parties were amended accordingly to The Scout Association of Papua New Guinea being the complainant and Mavara Laurina Clan of Hanuabada Village, National Capital District as the defendant for purposes of this proceedings.
    6. Pursuant to Section 146 of the District Courts Act, the Amended Complaint and Summons to a Person upon Complaint filed by the complainant and issued by the Port Moresby District Court respectively on Wednesday 6th of October 2021 and Tuesday 16th of November 2021 shall be allowed after substantive hearing of legal issues today.
    7. In accordance with Section 146 of District Courts Act, the defendant’s Further Amended Notice of Motion shall be denied and the complainant’s Amended Notice of Motion shall be allowed.
    8. The complainant is at liberty to pursue the issue of repairs arising from damage caused to its gate and fencing by the defendant along Allotment 7, Section 44, Granville, Port Moresby, NCD at another court as no evidence of this claim was presented to this court to be adjudicate.
    9. Pursuant to section 22 (a) of the District Courts Act the defendant shall be restrained from entering the complainant’s properties being the three Allotments 5, 6 and 7 of Section 44, Granville, Port Moresby, National Capital District including any further and future unauthorized usage of the Scouts drive road unless duly approved by an official board meeting resolution of The National Scout Council of Papua New Guinea.
    10. The defendant has not proven either in law or custom that the scouts drive was a road initially built for public purpose which generates an easement of free access through the properties of the complainant.
    11. No orders made on costs.
    12. Time is abridged for these orders to take effect forthwith.

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Kopunye Lawyers for the complainant/respondent.


Regau Manua Kikira Lawyers for the defendant/applicant.

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