N4698

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS No.645 OF 2009

BETWEEN:

PIUS NUI
Plaintiff/Cross-Defendant

AND:

JACKSON LAKA
Defendant/Cross-Claimant

Mt. Hagen: David, J
2012: 10, 15 & 31 May

LAND LAW – State Land – by originating summons the plaintiff seeks, inter alia, vacant possession of the land - plaintiff is registered proprietor - permissive occupancy by defendant for over 26 years without any objection by plaintiff to activities of defendant – no rent charged by registered proprietor – defendant built a 3 x bedroom permanent house, fully furnished and kunai house on part of the land he occupies – defendant has gardens on the part of the land he occupies and on other parts of the land – that part of the land occupied by the defendant is regarded as home – state of current relationship between the parties not conducive to defendant remaining on the part of the land he occupies and the land generally - equitable interest acquired over land – defendant reluctant to vacate unless plaintiff pays him compensation for structural improvements effected on land - defendant is tenant at will – right of occupancy limited to the will of the plaintiff – just and equitable to make declaratory orders recognising the plaintiff as registered proprietor and the right to possession - the plaintiff is estopped from insisting on his full legal title – summary ejectment not warranted - defendant allowed to remain on land for not more than 12 months.

LAND LAW - Compensation - by cross-claim, the defendant seeks special damages in the sum of K240,259.00 for structural improvements he has effected on the land - defendant erected a 3 x bedroom permanent house with furniture and beddings, a kunai house on land and gardens – application of Latin maxim quicquid plantatur solo, solo cedit – plaintiff not interested in structural improvements – reliefs sought in defendant's cross-claim refused. 

The defendant and tribesmen moved onto the land prior to the plaintiff being issued with the title to land which is State land. After the plaintiff obtained title to the land, he allowed the defendant and tribesmen to remain on the land without objections to activities conducted on the land. The defendant has resided on the part of the land he occupies for a total of about 26 years. He made structural improvements such as building a permanent house and a kunai house and made gardens on the land. The plaintiff did not want the defendant to remain on the land anymore. The defendant was indisposed to leave unless he is paid compensation in the sum of K240,259.00 for structural improvements he effected on the land.

Held: 

1.	The defendant had an equitable interest in the land arising from his long period of permitted occupation.
2.	The defendant was a tenancy at will whose occupancy of the land was limited to the will of the plaintiff.
3.	The plaintiff was estopped from asserting his full legal rights as to possession of the land.
4.	Summary ejectment was not available to the plaintiff. The defendant was permitted to remain on the land for a period not exceeding 12 months, i.e. to vacate by 31 May 2013.
5.	Interim restraining orders granted on 23 November 2009 in the terms pleaded at paragraphs 3, 4 and 5 of the originating summons and extended on 11 December 2009 were made permanent.
6.	The plaintiff's claims for damages and interest were not pursued at the trial and considered abandoned. 
7.	All reliefs sought in the defendant's cross-claim were refused. 

Cases cited:

These cases are cited in the judgment:

Geita Sebea v Territory of Papua (1941) 67 CLR 544
png Ready Mixed Concrete Pty Ltd v The State of Papua New Guinea & Others [1981] PNGLR 396
Herman Gawi v png Ready Mixed Concrete Pty Ltd [1984] PNGLR 74 
John Jivetuo v The Independent State of Papua New Guinea [1984] PNGLR 174
Ume More v The University of Papua New Guinea [1985] PNGLR 401
Amos Bai as Representative of Lae Squatter Settlements v Morobe Provincial Government and The Independent State of Papua New Guinea [1992] PNGLR 150
Steven Charles Pickthall v Lae Plumbing Pty Ltd [1994] PNGLR 363
Siso Naso v National Housing Corporation (1999) N1947
Koang No 47 Limited v Monodo Merchants Limited and Melpa Properties Limited (2001) SC675
Papua New Guinea Banking Corporation v Jeff Tole (2002) SC694
Koitaki Farms Ltd v Kemoko Kenge and Other Squatters at Itikinumu Plantation (2001) N2143
John Kameku v Patilius Gamato (2004) N2512
Madiu Andrew v Mineral Resources Development Company Ltd (2004) N2601 
Tony Yagon for himself & on behalf of settlers of Dylup Plantation v Nowra No 59 Ltd trading as Dylup Plantation (2008) N3375

Treaties cited:

Megarry & Wade, The Law of Real Property, 5th Edition, Stevens & Sons Limited, 1984

Counsel:
Koeya J. Peri, for the plaintiff
Noel L. Ako, for the defendant

JUDGMENT

31 May 2012 

1. DAVID, J: INTRODUCTION: On 30 October 2009, the plaintiff/cross-defendant (hereinafter referred to as "the plaintiff") commenced these proceeding by originating summons seeking the following reliefs: 

"1.	A declaration that the plaintiff is the registered proprietor of the property described as Portion 1232 Milinch of Hagen, Fourmil of Ramu, Western Highlands Province contained in State Lease Volume 102 Folio 198 containing an area of 49.5 hectares, be the same or a little more or less.
2.	An order that the defendant, his family members, servants, associates, or representatives deliver up possession of the property to the plaintiff forthwith;
3.	An order that the defendant, his family members, servants, associates, or representatives be restrained from threatening, intimidating, harassing the plaintiff, his family members, sons, daughters, servants, agents, associates or representatives;
4.	An order that the defendant, his family members, servants, associates, or representatives be restrained from blocking any motor vehicles, truck, or movable machinery which engrosses upon the said property and the excess from the main highlands highway at Togoba to the plaintiff's residence. 
5.	An order that the defendant, his family members, servants, associates, or representatives be restrained from blocking any road, access road or path way that leads into and out of the Plaintiff's residence including his family members, sons and daughters.
6.	An order for damages, interest and costs of this proceeding." (sic)

2. On 16 November 2009, the plaintiff obtained a number of interim restraining orders ex-parte in the terms pleaded at paragraphs 3, 4 and 5 of the originating summons. By his notice of motion filed on 3 December 2009, the defendant/cross-claimant (hereinafter referred to as "the defendant") made application to set aside these orders. On 11 December 2009, this application was refused and the interim orders were extended until further order of the Court. 

3. By his notice of motion filed on 9 December 2009, the defendant sought, inter alia, leave to file a cross-claim against the plaintiff. I heard the application which was contested on 5 February 2010 and on 13 February 2010, I delivered my ruling. I granted leave and directed the defendant to file a cross-claim against the plaintiff within 14 days of the date of the ruling. I also issued further directions as to the filing of further pleadings after the filing of the cross-claim and the progression of the matter to trial.

4.	In my ruling, I made a finding of fact that the plaintiff was the registered proprietor of all that piece or parcel of land described as Portion 1232 Milinch of Hagen, Fourmil of Ramu, Western Highlands Province which is contained in State Lease Volume 102 Folio 198 (the land). That is contained in paragraph 24 of my ruling where I said:

"I accept that there is no dispute that the plaintiff is the registered proprietor of the land. That fact is pleaded at paragraph 2 of the draft cross-claim as well.

5.	Paragraph 2 of the defendant's draft cross-claim read:

"The cross-defendant is the registered title holder of the property described as Portion 1232, Milinch of Hagen, Fourmil of Ramu, Western Highlands Province. The Cross-Defendant is capable of suing in his own name."

6.	For this reason, before the commencement of the trial, I enquired whether the parties, the defendant in particular, had any difficulty with me presiding over the matter so that I could recuse myself if that were the case. Both counsel had no objection. Mr. Ako for the defendant submitted that his client conceded that the plaintiff was the registered proprietor of the land therefore he had no difficulty with me presiding to determine the remaining issue(s) in the plaintiff's originating summons as well as those raised in the defendant's cross-claim. I therefore proceeded to hear the trial. 

BRIEF BACKGROUND

7.	On 25 February 2010, the defendant filed his cross-claim. On 24 March 2010, he filed his reply to the plaintiff's defence to the cross-claim. Briefly, in his pleadings, he avers that he is an occupant and resident of the land, the registered proprietor of which is the plaintiff. In 1983, prior to the plaintiff obtaining title, the defendant's tribe called Jiga Walpil moved onto the land and settled. There was no one living on the land or cultivating it at the time. After obtaining title, the plaintiff did nothing to assert his rights under the title, but allowed the defendant to settle on the land. The defendant has expended money and resources to build a permanent house and has also effected various other improvements on the land. He has a right to remain on the land which is akin to a tenancy for life. He basically seeks special damages for the value of structural improvements he effected on the land which was valued at K240,259.00 by Noah Kana of the Moody Real Estate Limited as per a Valuation Report he compiled, particulars of which are set out at paragraph 5 of the cross-claim and are summarized below.

1. Residence & kunai house	K170,800.00	
2. Furniture & beddings	K 62,050.00	
3. Garden crops	K 7,409.00	

8.	On 12 March 2010, the plaintiff filed his defence to the cross-claim. He basically denies that the defendant is entitled to any relief sought in the cross-claim. Briefly, he avers as follows. The defendant and his Jiga Walpil family group were allowed to settle on the land in 1983 on the condition that they respected the plaintiff and his family and not to cause any disturbance or disharmony whilst living there. There is no landlord and tenant relationship as the defendant does not pay rent and has acquired no interest in the land because he was a squatter within the meaning of Section 6 of the Summary Ejectment Act. Any issue about customary land ownership prior to the grant of title to the land to the plaintiff should be taken up with the State and not with the plaintiff. Alternatively, the occupation was unlawful and constituted a trespass within the meaning of Sections 145 and 146 of the Land Act1996. The erection of a permanent house by the defendant and some other improvements he effected on the land in 1998 was some 12 years after the plaintiff acquired title to the land. The defendant knew or ought to have known that he was effecting improvements on land he did not own and he knew or ought to have known the consequences in the event of the plaintiff taking ejectment proceedings. As to the valuation of improvements, the value placed on each item is grossly exaggerated and over-valued. The furniture, beddings, residence can be removed from the land at no cost to the plaintiff.

9.	At the trial, counsel agreed that since it was not disputed that the plaintiff is the registered proprietor of the land and the restraining orders sought by the plaintiff in the originating summons had been granted, apart from the claim for the defendant to deliver up possession of the land to the plaintiff which was a relevant consideration in determining the defendant's cross-claim, the plaintiff's claim in the originating summons was substantially completed or resolved in his favour. For this reason, the parties agreed that the defendant should be invited to call evidence in support of the cross-claim first.

DEFENDANT/CROSS-CLAIMANT'S EVIDENCE

10.	The defendant adduced both oral and documentary evidence.

11.	The defendant was the only witness called to support his cross-claim and was subjected to cross-examination. 

12.	The following documents were tendered:

1.	Affidavit of Noel Ako sworn on 8 May 2012 and handed up at the hearing by consent – Exhibit "A".

2.	Affidavit of Jackson Laka sworn on 9 May 2012 and handed up at the hearing by consent – Exhibit "B".

3.	Affidavit of Jackson Laka sworn and filed on 9 December 2009 by consent – Exhibit "C".

4.	Affidavit of Noah Kana sworn and filed on 9 December 2009 with the leave of the Court despite objection raised by the defendant - Exhibit "D". 

13.	I summarise the defendant's evidence below.

Noel Ako

14.	The defendant relied on this affidavit to support the tender of Noah Kana's affidavit. He is the defendant's counsel. After he received a letter from Warner Shand, lawyers for the plaintiff dated 4 May 2012 together with a Notice to Cross-Examine filed on 4 May 2012 by facsimile, on 7 May 2012, he contacted the defendant and instructed him to inform Noah Kana to attend at the trial of this matter on 10 May 2012 as his presence was required for cross-examination by the plaintiff's lawyers on his affidavit. On 8 May 2012, he was contacted by the defendant who informed him that he had gone to Noah Kana's residence on 7 May 2012 only to be informed by Noah Kana's relatives that he was deceased. 

Jackson Laka – Exhibit "B"

15.	He is the defendant. He relied on this affidavit to support the tender of Noah Kana's affidavit. He corroborates matters deposed to by Noel Ako about being contacted by Noel Ako requesting him to inform Noah Kana to be present at the trial on 10 May 2012 for purposes of cross-examination by the plaintiff's lawyers. Noel Ako contacted him by mobile phone. 

Jackson Laka – Oral evidence and Exhibit "C"

16.	He was aged 40 years at the time of swearing the affidavit in December 2009. He has lived all his life on the land which is located at Togoba. He is from the Jiga Walpil tribe. In 1982 a dispute arose between his tribe and the neighbouring tribe called Kunukas over the ownership of the land which lasted several months. The land was vacant. It was never occupied or cultivated by anyone. His grandfather namely, Puri Kopung died in the course. He was buried on the land. In 1983, his father brought his family onto the land and the rest of his tribesmen followed suit. He was aged 15 years then. His block is about 5,985 square metres. His brothers and other family members reside on smaller sections of the land. The plaintiff who is from the Kamuk Pil tribe moved onto the land about the same time as they did. The plaintiff and his family previously lived in his wife's village at Tokpa which is about 2.5 kilometres from the Togoba Station and the land.

17.	Prior to moving on to the land, he was living in his village at Pang which is up on the mountain past Togoba station. Some of his people still reside there.

18.	In 1986, he got married. He has 6 children. All the children have been brought up on the land. Of the 6 children, 4 of them attend school. His eldest son was attending school at Hagen Secondary doing Grade 12. The other 3 children all females were attending school at Togoba, one in Grade 7, another in Grade 5 and the other in Grade 3.

19.	On 2 April 1987, the plaintiff acquired title to the land. After acquiring title, he did not give notice either requiring him and others to move out or indicate for how long they were to remain on the land and whether or not they were allowed to effect improvements on the land. A water supply system was built on the land with the assistance of AusAid after they had already moved on to the land.

20.	In 1998, he built a 3 bedroom permanent house on part of the land he occupies. That is the only permanent structure he built there. It is fully furnished. Public utilities such as electricity sourced from ELCOM (now PNG Power Limited) and water supply are connected. He also built a grass thatched house (kunai house) next to the house. His family resides there. He and his family consider the part of the land they occupy to be their home. Under cross-examination when asked twice if he were able to remove the house and take it to his place of origin, he said he could, but subject to a Court order and reasonable compensation being paid to him for developing the land. He reaffirmed this statement under re-examination.

21.	A road built by missionaries leads to the land and they still maintain it. 

22.	He has cultivated the area around his house and has grown bananas, red pandanus and other vegetables. He has cultivated 2 other portions of the land where he has planted sweet potatoes, cassavas, taros, bananas, cabbage, carrots, corn and peanuts. He sells the garden produce to earn a living and sustain himself and his family and to pay school fees for his children. Until recently resulting in the commencement of these proceedings, no one including the plaintiff or any of his family members has stopped him from cultivating or developing these areas of the land. Under cross-examination when asked a couple of questions as to whether he was still making gardens after becoming aware of these proceedings and even after the Court's ruling on 13 February 2010, he said yes to those questions. His reason was that he was not served with any Court order such as an eviction order either from the District Court or any other Court. He reaffirmed this statement under re-examination.

23.	If evicted, he will have no place to go to and he will have to find a new school for all his children to school in. Relocation will have an immeasurable impact on the children's education and lives generally.
 
24.	He has neither caused disharmony in the community nor quarrelled with or intimidated, threatened or harassed the plaintiff's family or molested any of them contrary to the plaintiff's assertions. He has never blocked off any access road leading to the land from the main road.

25.	Several hundreds of people from different tribes and clans live on the land. It is a multi-cultural community.

26.	If he has to be evicted, the plaintiff should pay a reasonable compensation for the structural improvements he has effected on the land. This would include the value of the permanent house, the kunai house and the gardens. On 30 November 2009, he engaged Moody Real Estate Limited, a company specializing in valuing properties to value the structural improvements effected on the land. The valuation was duly conducted. He intended getting them to bring the valuation report into evidence. The plaintiff should also find an alternate land for his family and himself to settle on.

Noah Kana – Exhibit "C"

27.	He is deceased now. He graduated from the Papua New Guinea University of Technology in 1973 with a Diploma in Valuation. He was a registered valuer and in private practice since 1980 operating under the umbrella of Moody Real Estate Limited. He had over 35 years of working experience at the time of swearing the affidavit. He was a member of the Papua New Guinea Institute of Valuers, the Papua New Guinea Institute of Valuers & Land Administrators and an Associate of the Australian Institute of Valuers. 

28.	On or about 30 November 2009, he was engaged by the defendant to do a valuation of the structural improvements that the defendant effected on the land including furniture, personal items and garden crops. The land is about 10 kilometres away from Mt. Hagen city. The total land area is 49.50 hectares. He did the valuation and compiled a Valuation Report, a copy of which is annexed to his affidavit as annexure "A". The total replacement value of those items was placed at K240,259.00. The Valuation Report is summarized as follows:

1.	Residence	K170,000.00	
2.	Kunai house	K 800.00	
3.	Furniture & beddings	K 62,050.00	
4.	Garden crops	K 7,409.00	

PLAINTIFF/CROSS-DEFENDANT'S EVIDENCE

29.	The plaintiff adduced both oral and documentary evidence.

30.	Andrew Nui was the sole witness called by the plaintiff to defend the cross-claim and he was subjected to cross-examination. 

31.	The following documents were tendered by consent:

1.	Affidavit of Andrew Nui sworn on 29 October 2009 and filed on 6 November 2009 – Exhibit "1".

2.	Affidavit of Andrew Nui filed on 12 March 2010 – Exhibit "2".

32.	I summarise the plaintiff's evidence adduced through Andrew Nui below.

33.	The witness is a businessman from Togoba in the Hagen Central area and is aged 47 years now.

34. Togoba is where the land is situated and is about 10 kilometres out of town. It is situated somewhere at the junction where the Highlands Highway branches out to Mendi and Wabag. He was born and raised at Togoba. Apart from being away for some months at a time either in Australia, Port Moresby and in the city of Mt. Hagen, he has lived all his life at Togoba.

35. His father, the plaintiff has been living on the land since the State granted him a 99 year State Lease over the land. The total land area is about 49.5 hectares. 

36.	He has a high covenant executive style house built on the land. He intends to live there for the rest of his life. His other brothers also have high covenant houses on the land. He uses the land to plant coffee and other vegetables as well.

37.	He and the defendant are both from the Jiga Nungapil tribe. However, the defendant was born and raised on the other side of the Nebilyer River which is customary land and where their tribe lives.

38.	It was his father's wish that his tribesmen should have access to basic services such as schools and health facilities. It was on this basis and given the plaintiff's status in the village as a community leader and a former member of the Western Highlands Provincial Assembly, with his consent, between 50 to 100 different families willingly moved onto the land and were given individual blocks to build their homes on and reside there. He supports his father's good intentions.

39.	The only condition his father imposed for people to live there was for the community to live in peace.

40.	His father put in an access road from the main road to the land and is used by everyone.

41.	Services such as electricity and water supply are available and are connected to his house and other houses on the land. The water supply system was installed through the assistance of AusAid.

42.	Sometime in 1994, the defendant requested permission from the plaintiff to settle on a portion of the land which was granted. He subsequently erected a semi-permanent house with some minor improvements on the land. Copies of a number of digital photographs of the defendant's house and surrounding area are in evidence and annexed to Andrew Nui's affidavit, Exhibit "1". He built a kunai house as well. The defendant, his wife and 5 children reside there. The defendant's house is about 100 to 200 metres from his. He does a bit of gardening on the portion of land he occupies not on a massive scale, but sufficient for his sustenance, that is, for personal consumption and to earn some cash as well as he is not employed in the formal sector. From the cash he has received, he has built his semi-permanent house.

43.	The plaintiff has not charged rent for the defendant's occupation of the land. He is not interested in doing that. All he wants is that people living there must live in peace and harmony. This is a sentiment he agrees with. 

44.	Until a few years back when some small issues started to creep into their lives, they have generally been living together peacefully without any problem. Some months prior to 29 October 2009, a confrontation occurred between himself and the defendant because the defendant accused him of spreading false rumours following mediation conducted in the open in the village. The defendant was found to be lying. Under re-examination when asked how problems were solved in their community, he said it was through the village forum constituted by village elders and the formal Courts. Since the mediation, the relationship between himself and the defendant has soured. They do not see each other face to face now and their relationship now is such that there is likely to be a further confrontation at any moment. The defendant is now arguing with him and that is causing disharmony and instability within the tribe. Living together in one community is causing friction. He is not wanted on the land anymore. He fears for his own safety and the safety of his parents and brothers. The defendant should be ordered to remove his house and go back to where he belongs so that the community can live in harmony.

45.	He does not have any problem with the defendant's parents and brother. There is no reason to evict them from the land. 

46.	He is not interested in the defendant's houses or his belongings so the defendant can remove them. He is also not interested in the defendant's gardens and their produce. He can harvest them if not already harvested.

47.	Apart from the dwelling house, the defendant has nothing else on the land. His mother and brothers have traditional houses there. 

48.	All other families who live on the land respect him and the plaintiff and they are peace makers and law abiding citizens. The defendant's presence is a concern to the tribe and he should be ordered to deliver the portion of the land he occupies to the plaintiff forthwith.

49.	The defendant admits that the plaintiff has a good title over the land. There is therefore no reason for the defendant to remain on the property. 

50.	The defendant has been restrained, but the situation is tense and warrants an order for him to be evicted from the land. Otherwise, there will be an all out tribal warfare.

51.	The plaintiff is a former member of the Western Highlands Provincial Assembly, was a businessman and a well respected leader of the Jika Nungapil tribe and other tribes within the Togoba area. The plaintiff has the ability to satisfy any judgment made against it on the cross-claim, but the filing of the cross-claim does not give the defendant a license to remain on the land.

52.	The defendant's continuous presence on the land is a threat to the society. His continuous presence on the land will result in further altercation between him and the defendant as both of them are from the same tribe.

UNDISPUTED & CONTESTED FACTS

53.	From the pleadings and evidence adduced before me, I set out below the undisputed and contested facts of the present case which I consider to be relevant in determining the issues raised by the originating summons and the cross-claim.

Undisputed facts

54.	The land is situated at Togoba, about 10 kilometres outside of Mt. Hagen in the Western Highlands Province. It covers an area of about 49.5 hectares. The plaintiff is the registered proprietor of the land. The State Lease over the land was issued to the plaintiff on or about 2 April 1987. The plaintiff is from the Jiga Nungapi tribe while the defendant is from the Jiga Walpil tribe. In 1983, the defendant's tribe moved onto the land. The defendant was aged about 15 years then. Prior to moving onto the property in 1983, the defendant was living at his village at Pang which is situated up on the mountain past Togoba station. Some of the defendant's people still reside there. The defendant and his family reside on part of the land which covers an area of about 5,985 square metres. The plaintiff does not charge rent. In 1998, the defendant built a permanent house and a kunai house on part of the land he occupies. Electricity and water supply are connected to the house. There is an access road from the main road to the land which is used by everyone. He has made gardens on the part of the land he occupies and on some parts of the land as well and he has continued gardening even up to now despite this action. The defendant is unemployed and relies on the garden produce for his sustenance either for consumption or for earning an income. The defendant wants to remain on the part of the land he occupies which he and his family regard as home. However, if the plaintiff pays him compensation in the sum of K240,259.00 as per the Valuation Report compiled by the late Noah Kana for the structural improvements he has effected on the land, he will remove his house and stuff and leave. The plaintiff does not want the permanent house, kunai house, the defendant's belongings and the gardens and the crops so the defendant can remove them and harvest the gardens and leave.

Contested facts

55.	The defendant is not a squatter or trespasser because he and his family moved on to the land prior to the plaintiff obtaining title to the land and even after the plaintiff obtained title, he has permitted him to remain on the part of the land he occupies and use the land including effecting improvements and making gardens there and on other parts of the land without objection until this action. The defendant built the permanent house and other improvements on the part of the land he occupies in 1998, some 12 years after the plaintiff acquired title to the land and he knew or ought to have known that he was building the permanent house and making other improvements on land he did not own and he also knew or ought to have known the consequences should the plaintiff take out ejectment proceedings. The defendant and his family regard the land they occupy and use as their home and want to remain there, but since the plaintiff no longer approves of his living there, the question is how long should the defendant continue to remain on the land and whether he should be compensated for the structural improvements he has effected on the land. The valuation placed on the structural improvements as per the Valuation Report compiled by the late Noah Kana was grossly exaggerated and over-valued. The plaintiff states that the defendant is not entitled to be compensated for the structural improvements or any other relief he is seeking in the cross-claim. 

ISSUES

56.	Two main contentious issues arise from these proceedings for my consideration and determination. These are:

1.	Whether the defendant has any interest recognizable by the Court which would defeat or limit the plaintiff's right as the registered proprietor of the land?

2.	If the defendant has, whether the defendant is entitled to be paid special damages by the plaintiff for the value of structural improvements he has effected on the land?

FIRST ISSUE – INTEREST IN LAND
Submissions by the plaintiff

57.	It was submitted by Mr. Peri of counsel for the plaintiff that since the defendant concedes that the plaintiff is the registered proprietor of the land, the defendant, his servants, associates, or representatives including his family members should be ordered to deliver up possession of the land to the plaintiff. Counsel further submitted that the defendant and his family settled on the land by invitation of the plaintiff conditional upon keeping the peace within the community. That condition was breached because he has caused disharmony within the community. That warrants his removal from the land. 

Submissions by the defendant

58.	Mr. Ako for the defendant submitted that his client does not take issue with the fact that the plaintiff was currently the registered proprietor of the land.

59.	However, counsel invited the Court to consider the plaintiff's attitude and conduct towards the defendant after he obtained title to the land which was effective as of 15 November 1984 before the plaintiff was allowed to assert his rights under the title. Counsel submitted that after obtaining the title, the plaintiff sat on his rights for 25 years. He did not give any notice to quit to the defendant prior to the commencement of these proceedings nor did he indicate to the defendant what improvements he was allowed to erect on the land. The plaintiff should therefore be prevented from asserting his rights under the title until reasonable compensation and repatriation expenses for the defendant and his family are paid by the plaintiff and that reasonable time, say 12 months be given to him to vacate the land. 

60.	Counsel invited the Court to consider and be guided by John Kameku v Patilius Gamato (2004) N2512 as to what was a reasonable time to vacate the land.

61.	In John Kameku (supra), a piece of State land was occupied by some squatters for nearly 50 years. Some erected permanent buildings and had grown fruit trees such as coconuts and mangoes and were engaged in small businesses such as trade stores and raised chicken and pigs for sale without any objection from the defendants. After the defendants commenced an eviction exercise whereby the settlers were given 30 days by written notice to quit the land, the plaintiff filed an action for himself and on behalf of other settlers by originating summons seeking; declarations that the notice to quit was harsh and oppressive and he and the others he represented had acquired an equitable interest in the land; and a restraining order from being forcibly evicted from the land. The Court held that the eviction exercise carried out by the defendants after only 30 days notice was given was not only harsh and oppressive, but inhumane and was not reasonably justifiable in a democratic society having regard to the inherent dignity of the human person. The Court accordingly declared the eviction unlawful.

Reasons for decision

62.	From the undisputed facts, I find that the plaintiff has title to the land by virtue of him being the registered proprietor.

63.	From the undisputed facts, I also find that the defendant moved onto the land with some members of his tribe in 1983 when he was aged about 15 years which was before the plaintiff obtained title to the land. From the undisputed facts, I also find that since the plaintiff obtained title to the land which was effectively in November 2004, he has allowed the defendant and his tribesmen to remain on the land, build their houses and use the land for their sustenance.

64.	It is also not disputed that the defendant occupies part of the land. On this part of the land, the defendant has built a permanent house fully furnished, a kunai house and he has made gardens. The defendant built his house in 1998. The defendant has also made gardens elsewhere on the land. The Valuation Report compiled by the late Noah Kana indicates that the construction of the permanent house is timber framed, low-set on treated timber piers, timber flooring, "v" crimped external cladding, ply lined with a ceiling, adjustable glass louver windows fly wired, 2 verandahs with timber flooring and a corrugated galvanized iron roof. There are 3 bedrooms, a kitchen, dining area and a lounge. 	The photographs attached to Andrew Nui's affidavit, Exhibit 1 confirms the external description of the permanent house. 

65.	The law applying to landlords and squatters appears to be that proposed in png Ready Mixed Concrete Pty Ltd v The State of Papua New Guinea & Others [1981] PNGLR 396 where it was held that a group of illegal settlers on State land had acquired an equitable interest analogous to a licence to remain on the land by virtue of their long occupation without the applicant there who had been granted leases to certain lands the squatters were on and the State taking any action despite being aware of their existence. There, Miles, J held:

"The State having raised no objection to the presence of the occupants, they should be regarded as having an equitable interest analogous to a licence." 

66.	The Court further held that the applicant was estopped from insisting on his full legal rights. The Court went on to allow some of the occupants to remain for periods of 6 months and others for 12 months based on period of occupation. 

67.	The legal proposition advanced by Miles, J was accepted as correct by the Supreme Court in Herman Gawi v png Ready Mixed Concrete Pty Ltd [1984] PNGLR 74. That legal proposition has been applied in many subsequent cases some examples of which are; John Jivetuo v The Independent State of Papua New Guinea [1984] PNGLR 174; Amos Bai as Representative of Lae Squatter Settlements v Morobe Provincial Government Amos Bai and The Independent State of Papua New Guinea [1992] PNGLR 150; Siso Naso v National Housing Corporation (1999) N1947; Koang No 47 Limited v Monodo Merchants Limited and Melpa Properties Limited (2001) SC675; Koitaki Farms Ltd v Kemoko Kenge and Other Squatters at Itikinumu Plantation (2001) N2143; Tony Yagon for Himself & on behalf of Settlers of Dylup Plantation v Nowra No 59 Ltd trading a Dylup Plantation (2008) N3375. 

68.	In Koitaki Farms Ltd, Kandakasi, J observed in relation to this legal proposition:

"That in effect recognized the principle that, squatters or tenants at will have no right or interest over and above the rights and or interest of a landlord… Subsequent decisions of the National Court as in Jivetuo v The Independent State of Papua New Guinea [1984] PNGLR 174, and Bai v Morobe Provincial Government [1992] PNGLR 150 continue to recognize the right of the State as a landlord to evict people who have for some time squatted on State land. These have been made subject to the squatters limited right in equity to be given notice to vacate within a period that is reasonable and not harsh or oppressive. These again recognises the fact that, a landlord's right and interest cannot be extinguished or overridden by the limited equitable interest of a tenant at will or an illegal squatter." 
 
69.	In Koitaki Farms Ltd, the plaintiff, the owner of land at Sogeri in the Central Province took out an action against people residing on its land to exhume and remove a dead relative buried on the land without its consent. It also sought a number of declaratory orders that the plantation was owned by the plaintiff; the defendants and anyone else living on the premises without the plaintiff's expressed consent was an illegal squatter; and the defendants and the other Southern Highlanders living on the plantation were squatters and they do not have any property right in the plantation. The defendants were former employees of the previous owner of the land employed as labourers who had remained on the land. They had been in continuous occupation of the land for over 25 years with the consent and knowledge of the plaintiff and the previous owners of the land. The Court found that the defendants were not strictly squatters, but tenants or licensees at will. Their long uninterrupted occupation gave them limited right in equity to continue to occupy the land and subject to reasonable notice being given to vacate. The Court ordered the plaintiff to serve the defendants with notices to vacate the land within a period of not less than 12 months from the date of service of the notices and that it was conditional upon payment of the defendants' full repatriation costs to their home villages in the Southern Highlands Province. 

70.	The defendant is neither a trespasser nor a squatter. Rather, he can be categorized as a settler. He had been on the land for more than 26 years prior to and after the plaintiff obtained title to the land and commencement of this action. He and his family have stayed on the land for a long time with the approval of the plaintiff either expressly or by implication before being requested by the plaintiff to leave because there has been falling out and their relationship has gone sour. It is not disputed that the defendant's occupation of the land is rent free. It is alleged by the plaintiff that the defendant is causing disharmony within the community living on the land which amounts to a breach of the condition of his permissive occupation of the part of the land he occupies therefore he wants him evicted forthwith. At this juncture, I would take the issue of the originating summons by the plaintiff seeking immediate delivery of possession to him of the land as sufficient demand for possession to bring to an end the tenancy or licensee at will. 

71.	I accept Mr. Ako's submissions that the defendant has acquired an equitable interest through his long occupation and the plaintiff is estopped from insisting on his full legal rights.

72.	Summary ejectment is not available to the plaintiff in the circumstances. Reasonable time will have to be given for him to vacate the land. I think a period of not more than 12 months would be sufficient.

SECOND ISSUE – SPECIAL DAMAGES FOR VALUE OF STRUCTURAL IMPROVEMENTS

Submissions by the plaintiff

73.	The plaintiff submitted that the Court could make an order for compensation for the defendant's houses if the plaintiff wanted them including the beddings and furniture. However, the plaintiff does not want them therefore the defendant should dismantle and remove them and take them to his village at Pang.

74. As to the garden crops, counsel submitted that the defendant has already harvested and sold them for his sustenance including paying school fees for his children and funding the permanent house he has built on the land. 

75.	The plaintiff further submitted that no reliance should be placed on the affidavit of the late Noah Kana because it was based on information received from the defendant who could not even state in his own evidence how much he had expended to build his permanent house nor did he produce any receipt from any hardware store on material bought for the construction of the house and to buy the beddings and furniture hence hearsay. 

Submissions by the defendant

76.	It was submitted by the defendant that since he has an equitable interest in the land, he should be reasonably compensated for the improvements he has effected on the land and that such payment must be done before the defendant is requested to vacate the land. The value of the improvements was K240,259.00 as per the Valuation Report by Moody Real Estate Limited it was further submitted. Counsel referred me to Tony Yagon in support of the submission.

77.	In Tony Yagon, contract labourers from nearby villages were employed and allowed to settle on a plantation established in the 1920s. Their descendants, the settlers, 80 years after, were still living on the plantation having been allowed to remain on the land by successive owners of the plantation which had become the subject of a State Lease. The owner had a dispute with the settlers and obtained an eviction order in the District Court under the Summary Ejectment Act. The settlers appealed to the National Court. The National Court allowed the appeal. It held that as the settlers had a licence to be on the land by their long period of permitted occupation, an essential precondition to the making of an order under Section 6 of the Summary Ejectment Act was absent. On the question of whether compensation should be paid, the Court said it was not the right time to address the issue as the District Court did not have jurisdiction to deal with a compensation claim. It made these observations however:

"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.

In the present case it might well be argued that the settlers have been given more than enough time to leave as this case has been going on for four years; and there may well be an argument to say that they deserve no compensation or that any compensation should be nominal as they have enjoyed rent-free occupation and use of the land for a long time. Perhaps it would set a bad precedent for people in the position of the settlers to be paid compensation..."

78.	Apart from the value of the improvements, it was further submitted that the total amount of compensation that ought to be paid to the defendant should reflect the long number of uninterrupted years he has been in occupation of the part of the land he occupies for including the developments he has done; the cost of demolishing all the improvements; the repatriation expenses; the plaintiffs conduct in not asserting his rights under the title for 25 years and the defendant's legitimate expectation that he would live on the land for all his life. In addition to these reasons, it was further submitted that the defendant being self employed and having expended considerable resources and time to develop the land, he did not consider the need to find an alternative place to settle his family. 

Reasons for decision

79.	The defendant has indicated his willingness to leave the land, but that is conditional upon the plaintiff settling his cross-claim which is special damages for the value of the structural improvements effected on the property. According to the particulars pleaded at paragraph 5 of the defendant's cross-claim and reaffirmed by the Valuation Report compiled by the late Noah Kana, structural improvements effected on part of the land he occupies are the permanent house and the kunai house, furniture and beddings and garden crops.

80.	It is settled law that a claimant cannot claim reliefs he has not pleaded even if there is evidence of it. see Ume More v The University of Papua New Guinea [1985] PNGLR 401; Steven Charles Pickthall v Lae Plumbing Pty Ltd [1994] PNGLR 363; Papua New Guinea Banking Corporation v Jeff Tole (2002) SC694; and Madiu Andrew v Mineral Resources Development Company Ltd (2004) N2601.

81.	In the defendant's cross-claim, the damages he claims is limited to special damages for the value of the structural improvements he effected on the land. All other claims sought by the defendant through his submissions which fall outside the reliefs pleaded such as the cost of demolishing or dismantling of all improvements, repatriation costs and others alluded to above will not be considered. 

82.	Is the defendant entitled to the special damages he is claiming?

83.	The Latin maxim "quicquid plantatur solo, solo cedit" forms part of the law in Papua New Guinea: see Geita Sebea v Territory of Papua (1941) 67 CLR 544. The maxim means whatever that is affixed to the soil belongs to the soil. In Megarry & Wade, The Law of Real Property, 5th Edition, Stevens & Sons Limited, 1984 at p.731, the learned authors when discussing the question of fixtures said this about the maxim. 

"The general rule as to fixtures is quicquid plantatur solo, solo cedit (whatever is attached to the soil becomes part of it). Thus if a building is erected on land and objects are permanently attached to the building, then the soil, the building and the objects affixed to it are all in law "land" i.e, they are real property, not chattels. They will all become the property of the owner of the land, unless otherwise granted or conveyed." 

84.	In applying the maxim to the present case, all the structural improvements effected by the defendant on the land, apart from the furniture and beddings, belong to the plaintiff. The furniture and beddings would be treated as chattels. Hence, the defendant would be under no obligation to compensate the defendant for the time and effort he has put into effecting the improvements and also the expenses he has incurred in the course. 

85.	The plaintiff does not want the defendant's "structural improvements". He only wants back the piece of the land that the defendant occupies and uses.

86.	Moreover, I consider that if I were to grant the special damages the defendant seeks, it could amount to unjust enrichment. The defendant has already benefitted immensely from the occupation and use of the land for a long time rent free as is demonstrated by the building of the permanent house and the payment of his children's school fees and for his sustenance from income received from the sale of garden produce and for personal consumption whereas the plaintiff has not benefitted financially either in terms of the income he would have received charging rent and insisting on retaining the "structural improvements". 
 
87.	I am satisfied on the balance of probabilities that the defendant is not entitled to be paid special damages by the plaintiff for the value of structural improvements he has effected on the land.

ORDER

88.	The formal orders of the Court are:

1.	A declaration that the plaintiff is the registered proprietor of all that piece or parcel of land described as Portion 1232 Milinch of Hagen and Fourmil of Ramu which is contained in State Lease Volume 102 Folio 198 containing an area of 49.5 hectares (be the same a little more or less).

2.	That the defendant, his family members, servants, associates or representatives deliver up possession of the land to the plaintiff not later than 31 May 2013.

3.	The interim restraining orders granted on 23 November 2009 in the terms pleaded at paragraphs 3, 4 and 5 of the originating summons and extended on 11 December 2009 are made permanent.

4.	The plaintiff's claims for damages together with interest were not pursued at the trial and considered abandoned.

5.	All reliefs sought in the defendant's cross-claim are refused.

6.	The parties shall bear their own costs.

7.	The time for the entry of this order is abridged to the date of settlement by the Registrar which shall take place forthwith.

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Warner Shand Lawyers: Lawyers for the Plaintiff
Mirupasi Lawyers: Lawyers for the Defendants