PNG Cocoa Coconut Institute Ltd v Patengvui [2013] PGNC 320; N5458 (19 November 2013)

N5458

PAPUA NEW GUINEA
[IN THE NATIONAL COURT JUSTICE]

OS NO. 917 OF 2011

BETWEEN

PNG COCOA COCONUT INSTITUTE LIMITED
Plaintiff

AND

LAWRENCE ANTON PATENGVUI, as Chairman
Of Moglon Welfare Association Inc
First Defendant

AND

MOGLON WELFARE ASSOCIATION INC,
Together with all of its members, associates, Friends and agents
Second Defendant

Kokopo: Oli, AJ
2013: 19th November

Cases Cited:

Mudge & Mudge v Secretary for Lands & Physical Planning & Ors [1985] PNGLR 387
Mamun Investments Limited v Paul Ponda & Ors [1995] PNGLR 1
Moge Nambuga Milimb Investment Pty Ltd v Bulda Kauga (2011) N4227
Niugini Tablebirds Pty Ltd v Nasap N2018,

Counsel:

Paul Pori Yange, for the Plaintiff
Orim Kivu, for the Defendants

DECISION

19th November, 2013

1. OLI, AJ: The plaintiff filed an Originating Summons against the defendants on 1st December 2011 claiming:
   
   • (1) Declaration that:
     
     • (a) The Plaintiff is the registered owner of the of Portion 2, Milinch Kokopo, Fourmil Rabaul, East New Britain Province covering an area of 218.26 hectares, described in Substituted State Lease Volume 121 Folio 128 (known as "Portion 2, Livuan").
       
     • (b) The Plaintiff is the registered owner of the of Portion 240, Milinch Kokopo, Fourmil Rabaul, East New Britain Province covering an area of 173 hectares and 14 acres, described in Substituted State Lease Volume 123 Folio 64 (known as "Portion 240, Londip Plantation").
       
     • (c) The survey plan completed by Registered surveyor John Bavul on 10th May 2011 concerning Portion 2, Milinch Kokopo, Fourmil Rabaul, ENB described in the said Volume 121 Folio 128 and Portion 240, Milinch Kokopo, Fourmil Rabaul, ENB described in the said Volume 123 Folio 64 respectively covers the total areas of 218.26 hectares and 173 hectares and 14 acres in respect of the Plantations confirms the boundaries of the Plantations.
       
     • (d) The Plaintiff has not carried out or extended its activities on any land outside of its registered total land area.
       
   • (2) An order in the nature of interim injunction, pending the determination of these proceedings, restraining the defendants, their servants or agents from interfering onto or in any way interfering with the plaintiff's right to exclusive occupation and use of the land known as Portion 2, Milinch Kokopo, Fourmil Rabaul, East New Britain Province covering an area of 218.26 hectares, described in Substituted State Lease Volume 121 Folio 128 (known as "Portion 2, Livuan") and Portion 240, Milinch Kokopo, Fourmil Rabaul, East New Britain Province covering an area of 173 hectares and 14 areas, described in Substituted State Lease Volume 123 Folio 64 (known as "Portion 240, Londip Plantation"), herein 'the Plantation"
     
   • (3) A Permanent injunction restraining the defendant's, their servants, agents, officers, associates employees and or family members from entering onto or in any way interfering with the Plaintiff's right to the exclusive use and occupation of the Plantations.
     
   • (4) The time for entry of these orders be abridged to the time of settlement by the Registrar which shall take place forthwith.
     
   • (5) The defendants to pay the Plaintiff's costs.
     
2. This matter was listed by the Assistant Registrar after advising the parties that the matter will be listed for Summary Determination on 22nd October 2013 Call-Over for lack of attention by the parties. The Plaintiff has responded positively to the due notice and attended to get his client's case and the relief sought be obtained through the Court. Neither the defendant's counsel nor the defendants attended on the call-Over date on 22nd October 2013 at 9.30am.
   
3. The Court record shows that the Plaintiff did file a notice of motion under Order 12 Rule 1 of the National Court Rules and s. 155 (4) of the Constitution on 2nd December 2011 with supporting affidavit by witness Mr. Ephraim Tade, Acting Executive Manager, Corporate Services Division (Plantation Manager) to seek an interim injunctive Order against the defendants, their servants, agents, officers, associates employees and or family members from entering onto or in any way interfering with the Plaintiff's right to the exclusive use and occupation of the Plantations. The Plaintiff move the motion on 6th December 2011 and the Court granted the motion and issued an interim injunctive order against the defendants and their agents restraining them from entering and interfering onto or in any way interfering with the plaintiff's right to exclusive occupation and use of the land known as Portion 2, Milinch Kokopo, Fourmil Rabaul, East New Britain Province covering an area of 218.26 hectares, described in Substituted State Lease Volume 121 Folio 128 (known as "Portion 2, Livuan") and Portion 240, Milinch Kokopo, Fourmil Rabaul, East New Britain Province covering an area of 173 hectares and 14 areas, described in Substituted State Lease Volume 123 Folio 64 (known as "Portion 240, Londip Plantation"), herein 'the land".
   
4. The matter returned to Court this 22nd October 2013 with Plaintiff's Counsel Mr. Yange in attendance whilst lawyer on record for defendants' Mr. Kivu is not present nor has advised the plaintiff's counsel for his non attendance today though his office was advised of today's hearing by plaintiff's counsel. Mr. Yange submit that what is returnable before the Court is the Interim Orders of the Court made and entered on 6th December 2011 which was returnable before the Court on 9th December 2011, 7th February 2012, 9th March 2012 and were mentioned in each of those dates and extended to the subsequent dates.
   
5. On the 9th March 2012, the proceedings have been fixed for hearing on Friday, 13th April 2012 at 9.30 am.
   
6. The Plaintiff is here to apply to make permanent the interim orders and to secure the balance of the relief sought in the Originating Summons.
   
7. It is apparent from the file search that the defendants have not filed notice of intention to defend as required under the National Court Rules and this is despite of service of the documents upon the defendant's and the notice of hearing on 13th April 2012 and seek to have the matter proceed ex parte hearing.
   
8. The plaintiff's counsel move to proceed with the matter ex parte and rely on two reasons in his submission and they are:
   
   1. The item 3 in the Court Order made on 12th March 2012 specifically makes it known to the defendant's that "Should the Defendant's fail to attend the hearing, it shall proceed Ex parte". Meaning if the Defendants fail to attend the hearing on 13th April 2012 at 9.30am, the proceedings shall proceed Ex parte. Affidavit of service of First Constable Joe Tumul sworn and file on 12th April 2012 confirms service of letter advising of today's hearing.
      
   2. The Order 4 Rule 33 of the National Court Rules provides that:-
      

Rule 33 - Absence of party (5/9)

The Court may proceed with a hearing in the absence of:-

(a) A plaintiff, where has dad due notice of the hearing; or

(b) A defendant, where:-

• (i) He is in default of giving notice of intention to defend, or
  
• (ii) He has had due notice of the hearing.
  

9. The Court having heard the Counsel and reading the materials in the file confirms the plaintiff's counsel submission and Court hereby grant the application to proceed with the hearing Ex parte. This is consistent with Order 4 Rule 33 (b) (i) of the National Court Rules, that the Court can proceed to hearing the matter as the defendant's have failed to file Notice of Intention to Defend.
   
10. Despite service of the Originating Summons upon the Defendants, there is no evidence from them disputing the Titles, nor have they engaged another surveyor to dispute the survey undertaken by Mr. John Bavul Surveyors in advancing their arguments on the boundaries. In the case of Niugini Tablebirds Pty Ltd - v - Nasap N2018, Justice Injia (as he then was) state "in determining claims arising from dispute over land boundary noted that the defendant's had not counted the evidence from the surveyor engaged by the Plaintiff by bringing evidence from another registered surveyor, hence giving judgment to the plaintiff." The defendants in this matter have not filed notice of intention to defend nor shown any interest to challenge the interim Court Order that restrained them since it was issued on 6th December 2011, and let alone their lack of commitment to provide a counter evidence from another registered surveyor to support their legal proposition in this case in respect to Portion 2 and Portion 240 was indeed their clan land. The legal status and position in the above case is no different to this case on foot and I respectfully apply the same conclusion in this case, as well.
    
11. The properties in questions were once a upon a time customary land, however, once the customary land were alienated land giving rise to State Lease Titles, Customary claims or rights are terminated when the State acquired it under s.11 of the Land Act. Under the Land Registration Act, the claim for customary rights will have to fail. The case of Moge Nambuga Milimb Investment Pty Ltd – v – Bulda Kauga (2011) N4227 describes a similar kind of case, which discusses all of the relevant principles that unfold in this case. The above case also discusses the age old authorities in Mudge & Mudge v Secretary for Lands & Physical Planning & Ors [1985] PNGLR 387 alongside with Mamun Investments Limited v Paul Ponda & Ors [1995] PNGLR 1, both of these cases provide and address issues referred to above of which can also be used as a guide in this matter.
    
12. The plaintiff's counsel in his submission highlights three substantive issues for Courts consideration and seek subsequent endorsement as permanent orders against the defendants. The three substantive issues are as follows:
    
    • (1) Whether the plaintiff is the registered owner of Portion 2, Milinch Kokopo, Fourmil Rabaul, East New Britain Province covering an area of 218.26 hectares, described in Substituted State Lease Volume 121 Folio 128 (known as "Portion 2, Londip Plantation"); and
      
    • (2) Whether the Plaintiff is the registered owner of the of Portion 240, Milinch Kokopo, Fourmil Rabaul, East New Britain Province covering an area of 173 hectares and 14 acres, described in Substituted State Lease Volume 123 Folio 64 (known as "Portion 240, Londip Plantation"); and
      
    • (3) Whether the survey plan completed by Registered surveyor John Bavul on 10th May 2011 concerning Portion 2, Milinch Kokopo, Fourmil Rabaul, ENB described in the said Volume 121 Folio 128 and Portion 240, Milinch Kokopo, Fourmil Rabaul, ENB described in the said Volume 123 Folio 64 respectively covers the total areas of 218.26 hectares and 173 hectares and 14 acres in respect of the Plantations confirms the boundaries of the Plantations.
      
13. The Court having heard the plaintiff's counsel's legal arguments as per his extract of submission supported by affidavit of Mr. Ephraim Tade, the principle witness in this matter and relevant documents in respect to two Titles in favour of the plaintiff, the Court is satisfied, with the evidence before it make the following conclusive findings as follows:
    
    • (i) That the plaintiff is the registered owner of the two (2) plantations properties described in the Originating Summons; copies of Titles are annexed as annexure "B" in respect to Portion 2 and annexure "C" in respect to Portion 240.
      
    • (ii) That the Plantations were purchased by the Plaintiff (under its former name (PNG Cocoa and Coconut Research Institute) from the Westpac Bank (PNG) Limited respectively through Mortgage sale and the transfer arrangements. Title transfer on Portion 2 was produced on 7th January 1999 and entered on 19th March 1999 and Title transfer on Portion 240 was produced on 29th October 1998 and entered on 6th November 1998.
      
    • (iii) At the time of the respective purchase and transfer, the Plantations had fully grown mature cocoa and coconut tress stretching evenly although out the total land area covered in the respective Title descriptions. The consideration for the purchase included the value of the cash crops that were planted and growing upon the Plantations.
      
    • (iv) Upon purchase and transfer of ownership, the Plaintiff has also brought other permanent improvements including erecting of buildings and extension of cash crop activities (planting of cocoa, coconuts and presently into Balsa) together with research activities for its purposes as a government funded entity.
      
    • (v) The defendant's on the contrary at all material times giving rise to this proceeding, the First, Second and Third Defendants individually or collectively for and on behalf of the Fourth Defendant ( under its letter head), caused letters to the Plaintiff disputing its (the Plaintiff's) ownership of certain parts of the Plantations, alleging that the Plaintiff had encroached upon their customary land, beginning with demands to release the Plantations to them, leading to the Plaintiff wasting a lot of time and resources to address their concerns, all of which were unnecessary as against the Plaintiff's legitimate interest.
      
14. The Court after hearing the Plaintiff's counsel submissions and perusal of the documents on file has provided a prima facie case on the evidence before it that Plaintiff has a valid claim and Court unreservedly grant the application in favour of the plaintiff in the terms of the attached Court Order issued hereunder with cost, if not agreed be taxed.
    

COURT ORDER

15. The Court Orders:

1. A Declaration that the Plaintiff is the registered owner of Portion 2, Milinch Kokopo, Fourmil Rabaul, East New Britain Province covering an area of 218.26 hectares, described in Substituted State Lease Volume 121 Folio 128 (known as "Portion 2, Livuan").
   
2. A Declaration that the Plaintiff is the registered owner of Portion 240, Milinch Kokopo, Fourmil Rabaul, East New Britain Province covering an area of 173 hectares and 14 acres, described in Substituted State Lease Volume 123 Folio 64 (known as "Portion 240, Londip Plantation").
   
3. A Declaration that the survey plan completed by Registered surveyor John Bavul on 10th May 2011 concerning Portion 2, Milinch Kokopo, Fourmil Rabaul, ENB described in the said Volume 121 Folio 128 and Portion 240, Milinch Kokopo, Fourmil Rabaul, ENB described in the said Volume 123 Folio 64 respectively covers the total areas of 218.26 hectares and 173 hectares and 14 acres in respect of the Plantations confirms the boundaries of the Plantations.
   
4. A Declaration that the Plaintiff has not carried out or extended its activities on any land outside of its registered total land area.
   
5. That the interim Orders of the Court made on 6th December 2011 and extended on various dates up to today's date is made permanent, permanently restraining the defendants, their servants or agents from disputing or, unlawfully entering, destroying properties belonging to the Plaintiff or in any way interfering with the Plaintiff's right to exclusive occupation and use of the land known as Portion 2, Milinch Kokopo, Fourmil Rabaul, East New Britain Province covering an area of 218.26 hectares, described in Substituted State Lease Volume 121 Folio 128 (known as "Portion 2, Livuan") and Portion 240, Milinch Kokopo, Fourmil Rabaul, East New Britain Province covering an area of 173 hectares and 14 areas, described in Substituted State Lease Volume 123 Folio 64 (known as "Portion 240, Londip Plantation"), herein 'the Plantation".
   

(6) The Defendants can enter on the Plantation for any normal commercial purposes authorized or permitted or allowed or excusable by the Plaintiff.

(7) Abridgement of time for the entry of these orders.

(8) The Defendants shall pay the Plaintiff's costs of this proceeding, which shall be taxed, if not agreed.

________________________________________________________________
Kaman Lawyers: Lawyer for the Plaintiff
Kuvi & Associates Lawyers: Lawyer for the Defendants