Kamangv Joshua [2013] PGNC 205; N5236 (10 May 2013)

N5236

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CIA NO 65 0F 2011

PAUL KAMANG
Appellant

V

LINA JOSHUA
Respondent

Madang: Cannings J
2013: 5 April, 10 May

LAND – contract of lease – whether land the subject of a lease was customary land or Government land – whether District Court erred in law in holding that land was Government land – whether District Court erred in declaring a breach of contract and false misrepresentation by party holding itself out as owner of customary land

The respondent entered into a lease over a block of land with an incorporated land group of which the appellant was chairman on the understanding that the land was customary land and that the group was its owner. The respondent paid a lease fee of K5,000.00 to the appellant before being told by lands officers that the group was not the owner. She asked the appellant to cancel the lease and refund the fee but the appellant refused. The respondent commenced proceedings in the District Court against the appellant alleging breach of contract and succeeded. The District Court ordered the appellant to refund the K5,000.00 fee and to pay damages of K1,000.00 to the respondent. The appellant appealed to the National Court on ten grounds, which overlapped and can be reduced to one: that the District Court erred by ignoring the appellant's tribe's ownership of the land, confirmed in 1932 by a court decision, which was still in force and which meant that the appellant's land group was the owner of the land, that it was not Government land, that there was no breach of contract or fraudulent misrepresentation by the appellant.

Held:

(1) The land in question was no longer customary land. It was Government land and neither the appellant nor the incorporated land group of which he was chairman and which was held out to the respondent as owner of the land has any legal interest in it.

(2) The District Court did not err in finding that there was a breach of contract and false misrepresentation by the appellant.

(3) There was no miscarriage of justice so the appeal was dismissed and the order of the District Court affirmed.

Cases cited

The following cases are cited in the judgment:

Custodian of Expropriated Property v Commissioner of Native Affairs (Re Jomba Plain) [1971-72] PNGLR 501
Galem Falide v Registrar of Titles and The State (2012) N4775
Nakun Pipoi v Viviso Seravo (2008) SC909
Paul Kamang v Madang Provincial Government (2011) N4394
Paul Kamang v Namba Tumu (2011) N4313

APPEAL

This was an appeal from a decision of the District Court.

Counsel

P Kamang, the appellant, in person
O Ore, for the respondent

10th May 2013

1. CANNINGS J: Paul Kamang appeals against an order of the Madang District Court (Mr W Seneka SPM presiding) that he refund K5,000.00 to the respondent, Lina Joshua, and pay her damages of K1,000.00, arising from a transaction concerning a residential block of land in Madang described as Section 64, Allotment 12.

2. An incorporated land group of which the appellant Mr Kamang is chairman, Matulon Land Group Inc, entered into a 40-year lease with the respondent in respect of Section 64, Allotment 12. In the lease and in the negotiations leading up to its execution the group held itself out as owner of the land and represented to the respondent that the land was customary land. The respondent paid an upfront 'lease fee' of K5,000.00 to the appellant before being told by provincial land officials that the group was not the owner. She asked the appellant to cancel the lease and refund the fee but he refused so she took the matter to the District Court. His Worship Mr Seneka upheld the respondent's complaint that the appellant and the group had made false representations to the respondent because the land was Government land in which the group and the appellant had no legal interest. The appellant, who was the prime negotiator on behalf of the group, and the group were guilty of a breach of contract. His Worship held that the appropriate relief was an order for a refund of the K5,000.00 lease fee and damages of K1,000.00.

3. The appellant relies on ten grounds of appeal but they overlap and can be reduced to one: that the District Court erred by ignoring the appellant's tribe's ownership of the land, confirmed in 1932 by a court decision, which was still in force, which meant that the appellant's land group (which had been incorporated as a vehicle by which the Matulon Tribe's ownership of land could be formalised) was the owner of the land, that it was not Government land, thus that there was no breach of contract or misrepresentation by the appellant.

4. The critical issue is whether this is Government land or customary land. The appellant maintains that it is customary land that has since time immemorial belonged to his tribe, the Matulon Tribe, which has in recent times been owned formally by Matulon Land Group Inc. He says that his tribe's right of customary ownership was confirmed by a decision of the Central Court of the Territory of New Guinea, constituted by Justice Phillips, on 25 May 1932, which has been reported as Custodian of Expropriated Property v Commissioner of Native Affairs (Re Jomba Plain) [1971-72] PNGLR 501. That decision is said to have confirmed that members of the Matulon Tribe have free and unrestricted rights of ownership over the area of land traditionally known as "Bidamen", of which Section 64, Allotment 12 forms a part. The 1932 decision has never been appealed against or set aside. The land, it is argued, has remained customary land ever since.

5. The same sort of argument has been put to the National Court in three other cases I have decided in the last two years: that the decision of Justice Phillips, which recognised the right of various tribes of customary ownership of tracts of land on the Jomba Plain in and around Madang town, must be enforced. The appellant Mr Kamang has been a party in two of the three cases: Paul Kamang v Namba Tumu (2011) N4313, Paul Kamang v Madang Provincial Government (2011) N4394 and Galem Falide v Registrar of Titles and The State (2012) N4775. Each case involved a different piece of land but in each case I have concluded that as a matter of law the land in question is Government land, it is no longer customary land. Justice Phillips' judgment, which followed an intense and fascinating inquiry into the history of customary land ownership in the local area, has largely been superseded by a declaration by the Minister for Lands in 1988 under the National Land Registration Act that Madang town land is National (or Government) land. This declaration became the subject of the Supreme Court case of Nakun Pipoi v Viviso Seravo (2008) SC909 in which an unsuccessful attempt was made to seek judicial review of the declaration.

6. I am obliged to reach the same conclusion in this case. The appellant has not put any new argument to the Court that makes me think that the previous cases have been wrongly decided or that for some reason Section 64, Allotment 12 should be treated differently. I find that it is Government land, which is presently the subject of a certificate authorising occupancy by the Department of Education. It is not customary land. Neither the appellant nor Matulon Land Group Inc has any legal interest in it. The District Court did not err by ignoring the appellant's tribe's or land group's ownership of the land or by failing to give effect to Justice Phillips's decision. The District Court's conclusion that there was a breach of contract and misrepresentation by the appellant was correct. The only qualification I would make is that I am not satisfied that the appellant acted with fraudulent or dishonest intent. I am sure that he genuinely believes that his tribe still owns the land. All grounds of appeal are dismissed. There has been no miscarriage of justice so the appeal must be dismissed and I will under Section 230(1)(c) of the District Courts Act affirm the decision appealed against.

ORDER

(1) The appeal is dismissed.

(2) The order of the Madang District Court of 10 March 2011 in DCC No 201 of 2010 is affirmed and shall be respected and enforced.

(3) The appellant shall pay the costs of the appeal to the respondent on a party-party basis, which shall if not agreed be taxed.

Judgment accordingly.
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Thomas More Ilaisa Lawyers: Lawyers for the Respondent