Niugini Tablebirds Pty Ltd v Nasap [2000] PGNC 44; N2018 (22 March 2000)

N2018

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS. 464 of 1998

BETWEEN:

NIUGINI TABLEBIRDS PTY LTD
- Plaintiff -

AND:

NAMIS NASAP, BARNABAS NASAP
& ARON NASAP
- Defendants -

Lae: Injia, J
2000: February 17, March 22

LAND - Registered title - Map of land endorsed on Title

- Indefeasibility of Title over land shown on map: - Land Registration Act (Ch. No. 191) s.33

Cases cited in the judgment:
Mudge v. Secretary for Lands [1985] PNGLR 587

Counsel:
P. Ousi for the plaintiff
L. Siminji for the defendants

22 March 2000

INJIA, J: In this trial, there is no dispute that the plaintiff is the registered proprietor of the Pastoral Lease over portion 12, Milinch Onga, Fourmil Markham, Morobe Province, formally registered Volume 52 Folio 7. A registered title was first issued to the ANZ Bank on 24 May 1972 under the Land Registration Act (Ch. No. 191). A description of the land is depicted on a map which is endorsed on the registered title. Since then, the land had changed hands between a number of transferees before it was transferred to the plaintiff on 12/8/86. The map of the land endorsed on the title deed has not changed to this day.

The plaintiff’s claim is that the defendants have illegally or without right settled on certain part of the land claiming to be customary landowners. It now wants them evicted from the land.

The plaintiff engaged the services of a private Surveyor to survey the land depicted by a map endorsed on the registered title and to determine whether the defendants are living within the boundary of Portion 12. They engaged Mr Terence Krauwai Kuniaka, a registered surveyor. In his report, Mr Kuniaka confirmed the boundaries as shown on the map of the registered title and concluded that the defendants were living on top of the hill close to Lake Sasiang about "800 m into portion 12": see Exhibit "D" & "E" tendered into evidence through Mr Kuniaka.

There is evidence from Mr Nasup Uragu, the respondents’ father, that this land was first sold by the wrong customary landowners to the colonial administration in 1952, for a small price. A copy of the Transfer Certificate dated 1/9/52 was tendered into evidence: see Exhibit "E". The map depicted on that Transfer Certificate clearly shows that the "Sasiang lake" and the surrounding hills are situated well inside the boundaries shown on that map.

Mr Kuniaka’s evidence confirms that the respondents are living well inside portion 12. It is clear from his evidence that his survey report was based on a survey conducted in 1972, the details of which are endorsed on the registered title, and not on the map endorsed on the Transfer Deed dated 01/09/52. It is possible that a fresh survey was done in 1972 for the purpose of identifying the boundaries of Portion 12 for the purpose of issuing a registered title and the result of that survey is shown on the map endorsed on the registered Title. It is not clear if the map endorsed in the registered title issued in 1972 is the same as the map shown in the Transfer Deed dated 01/09/52. But what is clear is that the land on which the respondents have settled on now is well within the boundary of portion 12 as defined by the map on the registered title. The significant physical topographical feature point common to both maps is "Lake Sasiang", which is located in the centre of one half of the land on both maps. It is clear that the defendants have settled on the hills situated near "Lake Sasiang."

What really matters to this Court today is the title to the land described on the registered Title, as confirmed by Mr Kuniaka. There is no other survey done by a registered surveyor on the land described in the registered title to counter Mr Kuniaka’s findings. The defendants have been given ample time by the Court to engage a surveyor of their choice to produce a survey report but they have failed to do so. The registered titleholder, the plaintiff, is clearly entitled to exclusive and absolute possession and use of the land described in the registered title issued in 1972. This is what the principle of indefeasibility of a registered title holder in S. 33 of the Land Registration Act entails: see Mudge -v- Secretary for Lands [1985] PNGLR 387. If the respondents are unhappy at the manner in which the land may have been re-surveyed in 1972 for purposes of compiling the map to go on the registered Title Deed, and/or if they are also unhappy at the actions of other so called "customary land-owners" in selling the land to the State for a small fee, that is a different matter. They should take the State and their fellow customary land-owners to Court, to redress those wrongs, and not the plaintiff. The plaintiff is a bona fide purchaser for value of the land described in the registered title and its enjoyment of the land should not be hindered in any way by anyone. For these reasons, I order that the defendants jointly or by the servants or agents, dependants whosoever vacate their occupation of Portion 12 within 7 days. I further order that they be permanently
restrained from entering or trespassing Portion 12. In the even that they fail to vacate the premises, the plaintiff shall take steps as a necessary, including help from the police force, to evict the defendants. I should further suggest to the plaintiff to erect clearing visible boundary cement posts or signs around Portion 12 in the disputed areas to avoid future controversy, and this should be done with the help of Mr Maniaka and perhaps the police. The plaintiffs shall have their costs of the proceedings.
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Lawyer for the Plaintiff : Warner Shand Lawyers
Lawyer for the Defendants : Public Solicitor