Loa v Kimas [2014] PGNC 209; N5849 (29 December 2014)

N5849

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS. NO. 903 of 2011 (JR)

BETWEEN

ARUA LOA, ARENI IGO AND LAKANI OALA
Plaintiffs

AND

PEPI KIMAS, SECRETARY FOR LANDS AND PHYSICAL PLANNING
First Defendant

AND

BENJAMIN SAMSON, DEPUTY REGISTRAR OF TITLES
Second Defendant

AND

HONOURABLE DR. PUKA TEMU, MINISTER FOR LANDS AND PHYSICAL PLANNING
Third Defendant

AND

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Fourth Defendant

Waigani: Kandakasi, J.
2014: 17th August
2014: 29th December

EVIDENCE – Best evidence rule – Need for proper explanation of whereabouts and inability to produce original – Copies need to be properly certified by custodian or relevant and appropriate officers – Lack therefore of – Evidence inadmissible.

EVIDENCE - Evidence Act - Section 35 - Requirement for notice of intention to use affidavits - Affidavit filed by a party no longer a party to the proceedings - Fairness required notice of intention to use especially when the affidavit is not the subject of any specific order under s. 34 of the same Act - Application to use therefore declined.

LAND LAW – Land dealings – Customary land to State land – Relevant process and procedure – Need for compliance – Need for keeping of proper records – Failures and effect of – No proper acquisition or conversion of customary land to State land – Land remains customary land – All State dealings on such land null and void and of no effect.

LAND LAW – State land – Licenses and leases over State land – Purpose, process and procedure – Need for keeping of proper records – Failures and effect of – No proper grant of licenses of leases.

Cases Cited
Papua New Guinea Cases cited

Takoa Pastoral Co Ltd v. Dr Puka Temu (2009) N3711.
Yange Langan v. Independent State of Papua New Guinea (1999) N1369.
Steven Pirika Kamma v John Itanu & Ors (No 2) (2008) N3261.
Spirit Haus Ltd v Robert Marshall (2004) N2630.
Mudge v Secretary for Lands [1985] PNGLR 387.
Koang No 47 Limited v. Monodo Merchants Limited and Melpa Properties Limited (2001) SC675.
Shell Papua New Guinea Ltd v. Speko Investment Limited and Peandui Koyati (2004) SC767
The State v. Hekavo [1991] PNGLR 394.
The State v. John Bill White (No 1) [1996] PNGLR 262.
The State v. Raphael Kimba Aki (2001) N2039.
Fred Bukoya v. The State (2007) SC887.

Overseas Cases cited:
Hocking v. Ahlquist Bros Ltd [1944] 1 KB 120

Text Books & Other Publications
J M E Garrow & J D Willis, The Principles of the Law of Evidence in New Zealand.
Phipson On Evidence, 13th edition, para 5-01 - 02 "the best evidence rule".

Counsel:

G. Gelu, for the Plaintiffs.
S. Sukwianomb,for the Defendants.

27th January, 2015

1. KANDAKASI J: This case concerns one of the most important and scarce commodities namely, land. The case is before me at a time when there is much debate and issue around customary land being allegedly sold to and or otherwise acquired by the State and other third parties, mainly foreign interests while customary landowners are losing out.

2. In this case, Arua Loa, Areni Igo and Lakani Oala (the plaintiffs) claim they and other customary land owning groups living in Hanuabada Village are the traditional or customary owners of portion of land off the Poreporena Freeway opposite the Curtain Brothers Camp, described as Portion 2585 or 2585C, Milinch Granville, Fourmil Moresby, in the National Capital District. The plaintiffs also claim that they allowed for their land to be acquired by the State under s. 7 (a) of the Lands Act 1996. That their further claim was for the purposes of having it converted into a State lease to be leased back to them by way of a Special Agriculture and Business Lease (SABL) under s. 11 of the Act. Additionally, the plaintiffs claim that, although the State initially observed that condition by granting them such a lease, it failed to continue to observe it by cancelling the lease issued in their favour and instead issued a State Lease in favour of Garamut Enterprises Limited (Garamut). The State takes issue with the plaintiffs' claims and contents that it acquired the land during the colonial administration. It thus claims the land was already State land described as Portion 764, parts of which became Portions 2585 or 2585C. Given that, the State argues further that the grant of the SABL was in error and it corrected it by cancelling it.

3. The State Lease granted to Garamut had a life of 5 years commencing on 17th January 2008 and expiring on 16th January 2014. Obviously the expiry date arrived prior to the hearing and delivery of decision in this matter. Following the expiry of the lease, Garamut chose not to further participate in the proceedings. Hence this case proceeded to the final hearing only as between the State and the Plaintiffs.

Relevant Issues

4. After the grant of leave for judicial review, the matter came before me for the substantive review. In respect of what is before me there are a number of important questions presented for this court to consider and determine. They have been identified by the parties per the statement of agreed and disputed facts and issues for trial endorsed by the Plaintiffs and the in house lawyer for the Lands Department dated 1st April 2014 and handed up in Court. The issues are as follows:

(a) Did the State acquired Portion 764?

(b) Is parts of Portions 764 now described as Portion 2585 or 2585C?

(c) If the answer to question (b) is in the negative, is Portion 2585 or 2585C State Land pursuant to Instruments of Lease dated 20th September 2010 and Notice of Direct Grant gazetted on 23rd September 2010 in Gazette No G215?

5. Of these questions, the first issue is critical. A negative answer to the first question could lead to a negative answer to the remaining two questions, thereby rendering any detailed consideration of those questions unnecessary. It makes sense therefore that, I should deal with the first issue first.

Did the State Acquire Portion 764?

6. The first issue requires a consideration of the correct process and procedure for the acquisition of land by the State. This is important because, unlike many other countries in the world, land in Papua New Guinea is in the hands of customary or traditional landowners, which for most people in PNG is the only assest they have. Customary land accounts for about 97% of the total land mass in the country, reason of which, the demand for land in PNG is very pronounced and there are presently a lot of land grabbing by many people mainly by foreigners and a few very aggressive Papua New Guineans.

7. Once we have established the correct process and procedure for the acquisition of land by the State in the country, the next step will be to consider what happened in this case by turning to the relevant evidence on point and then determine if the correct process and procedure for the State's acquisition of land was followed to form the foundation for the claim by the State that it acquired Portion 764.

Process and procedure for State acquiring land

8. Turning than to a consideration of the process and procedure for a valid acquisition of land by the State, I note the starting point is the Lands Act 1996.[1] Of particular application is ss.5, 7, 10, 11 and 12. These provisions clearly state that the State can acquire land in any of three ways. These are by:

(a) Agreement under s. 7 (a) of the Act; or
(b) Compulsory acquisition under s.7 (b); or
(c) Declaration of State land under s. 5.

9. Sections 10 and 11 provide as to how the State could acquire land by Agreement. These provisions are clear and self-explanatory. They read:

"10. Acquisition of Customary Land by agreement.

(1) Subject to Section 11, customary land shall be acquired in accordance with this Section and shall be authenticated by such instruments and in such manner as are approved by the Minister.

(2) The Minister, on behalf of the State, may acquire customary land on such terms and conditions as are agreed on between him and the customary landowners.

(3) Subject to Subsection (4), the Minister shall not acquire customary land unless he is satisfied, after reasonable inquiry that the land is not required or likely to be required by the customary landowners or by persons on whom the land will or may devolve by custom.

(4) Where the Minister is satisfied, after reasonable inquiry that any customary land is not required or likely to be required for a certain period but is of the opinion that the land may be required after that period, he may lease that land from the customary landowners for the whole or a part of that period.

11. Acquisition of Customary Land for the grant of special agricultural and business lease.

(1) The Minister may lease customary land for the purpose of granting a special agricultural and business lease of the land.

(2) Where the Minister leases customary land under Subsection (1), an instrument of lease in the approved form, executed by or on behalf of the customary landowners, is conclusive evidence that the State has a good title to the lease and that all customary rights in the land, except those which are specifically reserved in the lease, are suspended for the period of the lease to the State.

(3) No rent or other compensation is payable by the State for a lease of customary land under Subsection (1)."

10. In my view, in order for there to be a valid or proper and legal acquisition of customary land under the agreement regime, the acquisition must be:

(1) authenticated by instruments in such manners and form as may be approved by the Minister for Lands;

(2) on such terms and conditions as are agreed to between the Minister and the customary landowners;

(3) upon the Minister being satisfied after reasonable inquiry that the land is not required or likely to be required by the customary landowners or by persons on whom the land will or may devolve by custom for a certain period of time;

(4) on being satisfied under item (3) the Minister may lease that land from the customary landowners for the whole or a part of that period; and the lease must be

(5) for the purposes of granting a special agricultural and business lease of the land; which is

(6) evidenced and confirmed by an instrument of lease in an approved form, executed by or on behalf of the customary landowners; and

(7) at no rent or other compensation payable by the State.

11. Turning then to the next process, which is by compulsory acquition, I note this process is provided for by ss. 12 – 18 of the Act. Of these provisions, ss. 12 and 13 are most relevant. They read:

"12. Compulsory Acquisition.

(1) The Minister may, on behalf of the State—

(a) after the expiration of a period of two months after the service of a notice to treat, or of notices to treat under Section 13, in relation to any land; or

(b) at any time where, after diligent search and inquiry, he is satisfied that the owner of the land cannot be located; or

(c) at any time after he has given a certificate under Section 13(6) in relation to any land,

by notice in the National Gazette, declare that the land, other than any interest in respect of which a notice to treat has been withdrawn, or any chattel, is acquired by compulsory process under this Act for a public purpose specified in the notice.

(2) On the publication of a notice under Subsection (1), the land or chattel to which the notice applies is—

(a) vested in the State; and

(b) freed and discharged from all interests, trusts, restrictions, dedications, reservations, obligations, contracts, licences, charges and rates.

13. Notice to treat.

(1) The Minister shall not acquire land by compulsory process under this Act unless he has first caused to be served on each of the owners of the land, or such of them as can, after diligent inquiry, be ascertained, a notice inviting the person on whom the notice is served to treat with the Minister for the sale or surrender to the Minister, on behalf of the State, of his interest in the land.

(2) A person served with a notice to treat in respect of land shall, not later than two months after the service of the notice, provide the Minister with particulars of—

(a) the interest claimed by him in the land; and

(b) the amount for which he is agreeable to sell his interest in the land; and

(c) the name and address of any other person known to him to have an interest in the land and the nature of that interest.

(3) On receipt of the particulars referred to in Subsection (2), the Minister may—

(a) treat with the person providing the particulars for the acquisition of his interest by agreement; and

(b) notwithstanding anything in this Act, enter into an agreement with that person for the acquisition.

(4) The Minister may, by written notice to a person served with a notice to treat, withdraw the notice to treat.

(5) Where the owner of an interest in land, who has provided the particulars referred to in Subsection (2), suffers loss by reason of the notice to treat having been given and withdrawn, the State is liable to pay to him such compensation as is determined by agreement between the owner and the Minister or, in the absence of agreement, by action as determined by a court of competent jurisdiction.

(6) This Section does not apply in a case where the Minister certifies that there are special reasons why the Section should not apply."

12 These provisions clearly provided for the process or the way in which the State can compulsorily aquire land in the country. What is clear is that the Minister for Lands must:

(1) Diligent inquiry into and ascertain the owners or persons who have any interest of the land it proposes to acquire;

(2) Serve a notice inviting the person (s) he identifies as owners of the land to treat with the Minister for the sale or surrender to him on behalf of the State the identified land or the owner's interest in the land for a public purpose;[2]

(3) On the publication of a notice under s.13(1), the land or chattel to which the notice applies becomes vested in the State free of any charges and any interests;

(4) Within two months from the date of the service of the notice, the identified owner must specify:

(a) the interest claimed by him in the land; and

(b) the amount for which he is agreeable to sell his interest in the land; and

(c) the name and address of any other person known to him to have an interest in the land and the nature of that interest;

(5) May on receipt of the above particulars treat with the owner of the land or enter into an agreement with that person for the acquisition; and

(6) By notice in the National Gazette, declare that the land, is acquired by compulsory process under the Act for a public purpose specified in the notice in cases where:

(a) notice to treat is not withdrawn; or

(b) despite diligent search and inquiry, the owner cannot be located; and or

(c) a certificate under s. 13 (6) has been issued.[3]

13 According to s. 13 (6), where special reasons exist and the Minister for Lands certifies to that effect, the requirments for notice may be dispensed with. Unless, such a certificate is issued the process set out above needs to be followed.

14. This leaves us to now turn to a consideration of the final process of land acquisition by the State, namely, "declaration of State land," under s. 5 of the Act. This provision reads:

"5. Declaration of State Land.

(1) The Minister may, by notice in the National Gazette, declare that any land that appears to him not to be customary land shall, unless good cause is shown to the contrary, be conclusively deemed for all purposes, at the expiration of three months from the date of publication of the notice, to be State land.

(2) A notice under Subsection (1) shall set out—

(a) the name or names (if any) by which the land the subject of the notice is known; and

(b) a description or plan of the land; and

(c) the position of the land; and

(d) an estimate of the area of the land,

and the Departmental Head shall immediately give a copy to the Custodian for Trust Land.

(3) Subject to this section, on the expiration of three months from the date of publication of a notice under Subsection (1) the land shall be deemed conclusively for all purposes to be State land.

(4) Where, before the expiration of three months from the date of publication of a notice under Subsection (1), a claim that the land the subject of the notice is customary land is made to the Minister by or on behalf of a citizen, the Minister shall refer the matter to the Land Titles Commission.

(5) Where a claim is made under Subsection (4), the land the subject of the claim shall not be deemed to be State land until the Land Titles Commission has decided the claim, and—

(a) where no application for review or appeal is made under the Land Titles Commission Act 1962—the period prescribed for applying for review or making an appeal has expired; and

(b) where an application for review is made under that Act—the Commission has concluded the review and any re-hearing arising from it; and

(c) where an appeal is made under that Act—the National Court has decided the appeal.

(6) This Section does not affect a right, title, estate or interest in the land the subject of a notice under Subsection (1) in force under, or continued in force by, an Act."

15. As can be seen, aquistion by declaration has its own process. The process is this:

(1) The Minister may, by notice in the National Gazette, declare that any land that appears to him not to be customary land shall, unless good cause is shown to the contrary, be conclusively deemed for all purposes, at the expiration of three months from the date of publication of the notice, State land;

(2) The notice must set out the following:

• (a) the name or names (if any) by which the land the subject of the notice is known; and
• (b) a description or plan of the land; and
• (c) the position of the land; and
• (d) an estimate of the area of the land.
  

(3) The Departmental Head must immediately give a copy of the notice to the Custodian for Trust Land;

(4) Unless there is a claim of a customary ownership or interest in the land within three months from the date of the notice, on the expiration of that period the land can be deemed conclusively for all purposes to be State land;

(5) If however, the land is customary land, a claim must be lodged with the Minister for Lands by or on behalf of a citizen claiming such right or interest within three months from the date of publication of a notice; and

(6) If a claim of customary ownership or interest is received, the Minister must refer the claim to the Land Titles Commission; and

(7) A referral to the Land Titles Commission must be determined and until then and after the expiry or the conclusion of any appeal or review, nothing becomes final.

16. The process of aquistion through declaration has outline above is according to ss.5 (6) subject to any right, title, estate or interest in the land, the subject of a notice that is in force or continuing in force by or under any Act of Parliament.

17. From the foregoing, it should logically follow that, when there is a challenge on the State's ownership of a particular piece of land, the State should be able to demonstrate under which of the three ways it has acquired the land. Whilst the principle of he who alleges must prove it[4] applies, it will be necessary in the State's defence and in defence of its property as well as in the public interest that, it has to establish to the satisfaction of the Court that, it properly acquired the land at the first place. This would not be such a difficult task for the State has it has or should have proper records of all State land and all dealings on them. The State through the Department of Lands with the office of the Registrar of Titles has the primary and sole responsibility and is the custodian of all titles to all alienated land and all other land dealings which are mostly in the form of State Leases. Since, we follow the Torrens Title System, the Registrar of Titles is expected and is required to keep proper records of all titles and every transaction on each and every land that has a title.[5] That should be from the very beginning of a creation of a State interest to the latest transaction on or concerning State land. In the case of any dispute concerning any transaction on any title or whether a piece of land is State land or not, the records should speak for themselves and they should resolve the issue. This would conform well with another principle of law, namely, no extrinsic evidence can be allowed to contradict what is represented in a written record.[6] The keeping of proper records is very important to establish firmly amongst others, in respect of any State or alienated land that the State owns the particular portion of land, which becomes the subject of any claim by traditional land owning groups. As time goes by, with increase in population and commerce and industry, the demand on and for land will become a serious problem, as is already begininig to happen now. It follows without much saying therefore that, the State having the dual role of a landlord and as an authority that must protect her people's right to land, needs to keep proper records of all land acquired and or owned by the State. This will help fight against any land grabbing from their traditional owners or even from the State by foreign and other commercial and or personal interests. It will also ensure that, the State secures land it already has or acquires in future.

Present Case

18. This leads us to the next question of, if indeed the State acquired the land the subject of this proceeding, what process did it employ to do so. The plaintiffs claim the process and procedure under s. 11 was employed in their case, resulting in the grant of a SABL to them over Portion 2585C on 7th October 2010. The evidence the plaintiffs' called and the evidence from the Lands Department file produced to the Court, by order of the Court, support the plaintiffs' claim. The evidence also shows clearly that the State cancelled the SABL on 05th November 2010. The reasons for the cancellation as given by the State through the Registrar of Titles were:

(1) "The subject land is not customary land but State Land as indicated on Survey Cat. Plan 49/2613. The customary lands are Portions 2584 and 2579 and not Portion 2585"; and

(2) "There is already a title registered as State Lease Title Volume 32 Folio 23 over this portion of land as an Urban Development Lease (UDL) Title to Garamut Enterprises Limited and having titles over the same parcel/portion of land is contrary to the Land Registration Act 1981 where only one title be it Special Agricultural and Business Development Lease, State Lease or Certificate of Title must be registered against a parcel/portion/allotment."

19. The Lands Department file consists of six simple manila folders, with no file indexes and document binders to hold the papers together in each of the files. They are clearly messy with clear evidence of a complete lack of proper file creation, file entry, maintaining of the same and proper keeping of records. The contents of each of these files are in essence set out in the affidavit of Mr. John Ofio, then Acting Secretary, Department of Lands sworn on an unknown date and filed on 9th March 2012.

20. There is nothing in these files which show that the State acquired the land described as Portion 764 apart from claims by the State and Garamut's witnesses who have filed affidavits. Instead, the contents of these files reveal the following going by the earliest in time first:

(1) A Comtronics Niugini Pty Ltd by letter dated 12th October 1998 expressed an interest in the land. There was no response and action on that;

(2) By Department of Lands internal memorandum dated 12th May 2000, Chief Lands officer for the Southern Region recommended issuance of license to occupy in Baibua No. 8 Limited's favor in these terms:

"Thus, it is a considered view that this "ownership" of the 44% of the "Bubue Development Site" and the Marara Idibana Clan's preparedness to gorego (sic) the return of Portion 2398 and transfer their remaining land interest to the State by "Agreement" for a commercial lease is of mutual benefit to the state (sic) and the landowners."

(3) On 22nd May 2000 a license to occupy over Portion 2399 was issued in favor of Baibua No.8 Limited, which was a company owned by the Mavara Iduhu clan in Hanuabada Village on their application;

(4) By special meeting, the National Capital District Physical Planning Board held on 04th March 2005, approved an application for Declaration of a Subdivision Zone subject to an environmental plan.

(5) On 18th August 2005, an exemption from advertisement of the land was gazetted in favor of Garamut Enterprises Limited (Garamut). Exemptions are governed by s. 69 of the Lands Act and are very specific. There is nothing in the Lands Department files or the evidence before me which shows the lead up to this gazettal and more so by which particular reason under s.69 came that exemption;

(6) By facsimile memorandum from an Aldrich to the Secretary of Lands, dated 31st August 2005, he informed the gazettal was an error in view of the license to occupy in favour of Baibua No.8 Limited and asked for a correction;

(7) Extracts of what appears to be a Lands Board meeting Number 01/2006, 05/2007 shows that there was a recommendation for a grant of a UDL to Garamut;

(8) By notice dated 17th March 2008, Garamut was informed that it was successful in its application for Portion 2399. This document also shows in hand writing alterations to the reference 04116/2399 to 04116/2585 as well as the actioning officer in one copy from a Simon Bendo with a cross out and replaced with someone signing for an Amato. There is no explanation in any manner or form for these alterations;

(9) Original State Lease in favour of Garamut for a UDL for 5 years commencing 17/01/2008 over land described as Portion 2585, Granville, Moresby, NCD containing an area of 18.49 hectares delineated in survey plan (class Urban One (1)) catalogue no. 49/2613. This was subject to road and other associate drainage and plans submitted to and approved by Lae Urban Local Government engineer but later crossed out and replace with "National Capital District Commission engineer" on 03rd July 2009. That was on request from Garamut by letter dated 01st July 2009. I note this was done with an extraordinary and unprecedented speed at least in my limited knowledge of how long it takes for government departments and in particular the Lands Department to do anything. Further, I note that, what happened here appears to be unprecedented as a new and clean title with the correct details would be issued after a recall and cancellation of the wrong one or the one with errors.

(10) By undated letter, Kabua Gairo Land Group Inc took issue with the Land Board meeting having considered Garamut's application without considering their interest and questioned the issuance of the UDL;

(11) On 17th January 2011, a Mr. Mase Peter lodged a caveat against Portion 2585 claiming construction work then taking place on the land crossing or encroaching into his customary land.

21. There are other documentary evidence attached to the affidavits of Mr. Ofio and two affidavits of Mr. Jack Bakus, Chief Government Surveyor sworn respectively on 5th and 10th November 2012 and the joint affidavit of Messrs Partick Kobal, Xavier Eko and Jack Bakus but sworn and signed only by the last two. The State also seeks to use the affidavits of Mr. Scott Lanes and Mr. Xavier Eko sworn respectively on 19th July 2012 and 14th November 2012, both filed on 11th April 2013.
    
22. Whilst I am prepared to admit into evidence the affidavits by Messrs Ofio and Jack Bakus as they were filed for the State through the Department of Lands, I am not quite prepared to do the same for the affidavits of Messrs Scott Lanes, Xavier Eko and the joint affidavit of Messrs Xavier Eko and Jack Bakus. The reason of this is simple, dealing firstly with affidavits of Scott Lanes and Xavier Eko.
    
23. Firstly, the only document of any relevance on the issue under consideration is annexure "C" to Scott Lanes affidavit. That document is a copy of a purported purchase agreement between the then natives of the land described as "Bubue" and the then Colonial Administration on 21st December 1966. It has the identifying references N.L.D. 1202, POR 894, M/Granville, F/Moresby. I take the initials "N.L.D." to mean Native Land Dealing, "POR" to mean Portion, "M" to mean Milinage and "F" to mean Fourmil. The State offers no explanation as to where the original of this document is, and why it could not be produced and admitted into evidence.
    
24. Secondly, there is no evidence from the custodian of the original document from whom the copy might have been obtained. Thirdly, following on from that, there is no certification by the custodian or an authorized and appropriate officer as to the document being a genuine copy of its original. The law in relation to admission into evidence of documentary evidence is clear.
    
25. Justice Doherty summarized the relevant principles in these terms in the case of The State v. Hekavo [1991] PNGLR 394:
    

"It has been said[7] that in all cases it is necessary to produce the best evidence available to prove any particular fact. This became known as the 'best evidence rule' and is referred to[8] 'as the best evidence must be given which the nature of the case admit.' It must be brought to the court in the form which gives the best guarantee of its credibility and that the circumstances of the case admit."

26. Later in The State v. John Bill White (No 1) [1996] PNGLR 262, her Honor again speaking about the principles said:
    

"... in order to adduce proof of each element [of an offence] the maxim 'the best evidence must be given of which the nature of the court case permits' is considered a fundamental principle of the law of evidence. Phipson[9] considers that it applies in three slightly different senses ... i.e. that the nature of the fact admitted, or that the circumstances would allow, or that the party could produce and if there was inability to obtain better evidence than there could be some justification to resort to inferior forms of evidence such as hearsay by interested witnesses or copies of documents."

27. I had opportunity to consider the principle in my decision in The State v. Raphael Kimba Aki (2001) N2039. There I observed that:
    

"The best way to prove a case against an accused person which accords well with the right to a 'fair hearing' within the meaning of s. 37(3) of Constitution is to call witnesses to give evidence under oath and be subjected to cross-examination... Admitting into evidence written statements or affidavits by consent may leave unanswered or not clarified questions or points in the evidence. ... This eliminates the risk of the statement or affidavit not necessarily containing what its deponent or author is really saying and may be one that may not stand up under cross-examination. It also accords well with the fundament principle that 'the best evidence must be given of which the nature of the court case permits'...

3. There is however, nothing preventing the admission into evidence affidavits or statements pursuant to statutory provisions such as s. 102 of the District Courts Act (Chp.40) or under ss.34, 35, and 36 of the Evidence Ac (Chp.48) which permits that to be done ... and or with the consent of the parties:...

4. Admission of statements or affidavits by consent is permissible provided there is no doubt or a challenge to the facts in them; the facts of the case are uncontroverted; they are relevant ... and are admissible in form ... and their admission will not prejudice the accused and thus amount to an unfair trial ...

5. If the deponents or the authors are readily available and can easily be called without causing substantial hardship and costs to the parties and a delay in a prompt disposal of the matter, they should be called instead of admitting their affidavits or statements to avoid infringing the 'best evidence rule' and to accord the accused person his right to a 'fair hearing'... especially in relation to allowing admission of statements where it was difficult to get the witness to testify in the court because of fear for the witness' life.

6. Ultimately, the Court still has the power to even refuse accepting into evidence statements or affidavits if it considers it is not in the best interest of justice having regard to the above principles and order the witnesses to be called to give the evidence in question. ..."

28. Later the Supreme Court in Fred Bukoya v. The State (2007) SC887, found that the State breached the principle when:
    

"There was no evidence that the witnesses were not available, or that calling them would incur hardship, cost or delay. Not requiring the witnesses to be called offended the "best evidence" rule and resulted in the Appellant not receiving a fair hearing..."

29. In the present case, I find that the copy of the document annexed to Mr. Scott Lane's affidavit does not qualify under the "best evidence rule". As already noted, the State through the Department of Lands with the office of the Registrar of Titles is the primary and sole custodian of all titles to all alienated land or all other land in which the State has an interest. Then, given that we follow the Torrens Title System, the Registrar of Titles is expected and is required to keep proper records of all titles and other records and every transaction on each and every land that has a title. That should be from the beginning of a creation of a State interest through to the latest transaction on or concerning any land in which the State has an interest. It should follow therefore that, in the event of any dispute concerning any transaction on any title or whether a piece of land is State land or not, the records should speak for themselves and resolve the issue. Here, the evidence is not from a responsible officer in the Department of Lands or the Registrar of Titles, who should simply produce the records starting with the initiation of the process of purchase or aquisiton of the land by the State from the customary owners and end with the lastest transaction of and concerning the land.
    
30. Again as already note, the Lands Department's files now in Court, do not have any such record. Instead, they show a complete lack of any proper record keeping. There are loose papers in each of the files with no proper index. Also, there is no proper explanations for changes to a few of the documents including the UDL tittle issued to Garamut as noted already. There is not a single explanation for this serious lack of proper records and proper admendments to tittle documents, save only for a mere claim of the relevant lands file gone missing or lost. Such a claim can not be accepted. A lot of pertinent question beg appropriate and detailed answers for example, how did the files go missing? Who last had the files and when did they go missing? How did they go missing and what is the explanation for that? What about any computer records? Did such records also go missing or the Lands Department does not have such electronic records. If there are no computer records, why is that the case?
    
31. Finally, the affidavit was prepared and filed for Garamut. Following on from that, the State did not file and serve any notice in accordance with the provisions of s. 35 of the Evidence Act. Additionally, these affidavits were not the subject of any specific order under s. 34 of the same Act. In fairness, notice of the State's intention to use these affidavits should have been given to the Plaintiffs. If that was done, the Plaintiffs could have had the opportunity to consider and come prepared to address the issue. The submission for the Court to admit these affidavits at this late stage is not only too late but is an untidy way of running and concluding a trial. For if I were to admit these affidavits into evidence, allowance would certainly have to be made for the Plaintiffs to consider and respond. That would entail a reopening of the State's case, without the State expressly making such an application and meeting of each of the requirements for the opening of a party's case after closing.
    
32. Given all the above factors, I am disinclined to granting the States application. Coming to an opposite decision will effectively be an acceptance of unacceptable failures of a government department, namely the Department of Lands, tasked with an important task of taking and keeping of proper records. Accordingly, I refuse the State's application.
    
33. Other evidence before me in the form of various affidavits filed by all parties to this proceeding clearly produced copies of a number of maps under different references giving various descriptions of the land, its total land area and other details. This caused a lot of confusion and uncertainty as to the proper identification of the land, its correct boundaries and current status. I therefore ordered a joint inspection and survey and a joint report from all of the parties' surveyors to be provided. A joint survey with field inspection took place on 28th November 2012, after which a Joint Identification Survey of Portion 764 map was produced. That map is annexure "E" to the joint affidavit intended for all three surveyors but sowrn and signed only by Messrs Xavier Eko and Jack Bakus, the respective surveyors of Garamut and the State on 14th December 2012 (the joint affidavit) and not Mr. Patrick Kobal for the Plaintiffs. As would be apparent, instead of submitting a joint report per the Court orders, the surveyors submitted two separate reports. One of that is by way of the joint affidavit. The other is also by way of an affidavit by Mr. Patrick Kobal a surveyor previously in the employ of the State, sworn on 11th February 2013 (Mr. Kobal's affidavit), for the plaintiffs. The cause of these separate reports is apparent from Mr. Kobals Affidavit who says at paragraph 15 of his affidavit that, he did not sign the joint report because it was inconclusive on the question the surveyors were to help resolve, which question according to him was, whether or not Portion 2585C or 2585 was witing Portion 764.
    
34. A detail account of what the surveyors did is given by Merssers Eko and Bakus in the joint affidavit, which Mr. Kobal deposes to in part. The only main area of difference is in the conclusion on the question of whether Portion 2585C or Portion 2585 is within Portion 764. The joint affidavit answers that question at paragraph 41 in terms of Portion 764 being State land and "all other plans showing land derived from, or demarcated with, or superseded or exercises from Portion 764 is still State land". On the other hand, Mr. Kobal answers this question in the negative. He reasons at paragraph 12 of his affidavit and else where that, Portion 764 was always customary land and remains as such. At pargraph 8 of his affidavit he says Portion 2585C or 2585 was not and is not within Portion 764.
    
35. A correct answer to the main question of whether or not Portion 764 is State land will come from a consideration of all of the evidence before the Court. In these state of confusion, I consider it important and necessary that I should consider all relevant evidence whether admitted or not but is before the Court in the absence of any satisfactory explantion and evidence from the Department of Lands and hence the State.
    
36. I find a few factors are very critical. First, is the point already made about the need to keep proper records and such records resolving the kinds of issues presented in this case. Secondly, following on from the first reason, there emerges the second factor from the way in which the maps are explained. As already mentioned, there are various maps under various descriptions and references. The least that should have come from the Lands Department's surveyor or any other witness from that Department should be a detailed and comphrensive articulation with the necessary and relevant supporting evidence from when the land was first acquired, how that was done and all transactions on the land to date. Included in that should have been a production and explanation of all maps of the land from the very beginning to the present, detailing and explaining all the changes that were brought upon the land and the corresponding maps. This the State through the Lands Department, especially its officers from the Secretary down to the technical people in that Department and the office of Surveyor General of PNG failed to do.
    
37. All we have is a copy of the document marked as annexure "C" to Mr. Scott Lane's affidavit, a further copy of which is annexure "D" to the joint affidavit. These evidence consists of a few documents which deal with and concern a land described as "POR 894, M/Granville, F/Moresby" (or Portion 894, Milinch Granville, Fourmil of Moresby) having the reference "N.L.D. 1202" (or Native Land Dealing number 1202). This is the only evidence before the Court that goes into a purchase of any of the portions of land that has been mentioned in this proceeding. If despite, my earlier decision against its admission, this documents were to be considered it does not assist the State at all as will become apparent in the discussion of the other factors.
    
38. Thirdly, the joint affidavit does not properly explain in any manner and form what process, be it administrative or technical the authors have used to arrive at the conclusion that Portion 764 is the same as the land described as "POR 894, M/Granville, F/Moresby" (or Portion 894, Milinch Granville, Fourmil of Moresby) having the reference "N.L.D. 1202" (or Native Land Dealing number 1202). As I indicated earlier, the State had and does have the onus to demonstrating when and how Portion 764 came into existence from Portion 894, Milinch Granville, Fourmil of Moresby, especially when portion 894 with the reference NLD 1202 still exists on all of the relevant maps. A good example of that is the map under reference 49/2613 registered on 06th July 2007, which appears to be the latest map which positions Portion 894 above Portion 2580. There is no explanation in any material respect from the State here has to how Portion 894 has been taken up by Portion 764.
    
39. Fourthly, other evidence adduced by the parties make it clear that, other land in the vicinity of the land the subject of this proceeding, which are now taken up by the Poreporena Freeway was customary land. The State successfully negotiated with the traditional landowners to give their land for valuable consideration for the construction of a road linking Spring Garden Road in Hohola with Konedobu, which later became know as the Poreporena Freeway and for Curtain Brothers (the company engage to construct the Freeway) to use for its construction site office. This was done by agreement, which also provides for a return of the the portion of land not required by the Freeway, in particular Portion 719, per clause 6 of the agreement dated 10th August 1995 between the State and customary land owners which included the Plaintiffs.[10] The following documents found in the Lands Department files lend support to this position:
    
    • (1) Department of Lands internal memorandum dated 12th May 2000, by Chief Lands officer for the Southern Region recommending issuance of license to occupy in favour of a customary land owner company Baibua No. 8 Ltd's favor in these terms:
      

"Thus, it is a considered view that this "ownership" of the 44% of the "Bubue Development Site" and the Marara Idibana Clan's preparedness to gorego (sic) the return of Portion 2398 and transfer their remaining land interest to the State by "Agreement" for a commercial lease is of mutual benefit to the state (sic) and the landowners";

(2) Grant of license to occupy over Portion 2399 in favour of Baibua No.8 Limited on 22nd May 2000;

40. Survey plan maps 49/33 certified on 10th November 1964, 49/795 cretified on 04th February 1966, 49/2284 registered on 04th August 1998, 49/2612 registered on 03rd July 2007 and 49/2613 registered on 06th July 2007, copies of which are annexed to Mr. Patrick R Kabol's affidavit sworn on 11th February 2013, respectively as annexure "B", "C", "D", "E" and "F" lend further support to the Plaintiffs' claim. Further copies of survey plan maps 49/2613 and 49/2284 are respectively annexure "A" to the two affidavits of Mr. Bakus sworn respectively on 5th and 10th November 2012.
    

41. Fifthly, a close examination of the shape and sketch map of the land as specified in the colonial administration's purchase documentation does not match what appears in and is described as portion 764. If there were any developments on the land that made it necessary for any change in the decripition and more so its orginal shape, that should be clearly explained by the State. To be convincing, any explanation provided by the State should result in no increase or reducation of the original shape and size unless, the State is able to establish by appropriate evidence that it acquired nearby land and or had returned parts of the land back to the traditional landowners or something has happened to either reduce or increase the total land mass. No such evidence is before the Court in any congent and convincing manner and form.

42. Finally, an original map of the relevant land area under plan 49/33, a copy of which is annexure "B" to Mr. Kobal's affidavit clearly shows that most of the land was customary or native land. There is no indication of Portion 764 on it. The first time that portion appears is under survey plan 49/795, a copy of which is annexure "C" to Mr. Kobal's affidavit. A further copy of this map is also annexure "C" to the joint affidavit, that is proceeded by annexure "B" which is a copy of the original survey. Both the survey and the map show Portion 719, which was intended to be taken up by a road linking Spring Garden Road to Konedobu, but was later abandoned and the land was to be returned to the customary owners.[11] Nevertheless, the road plan remained with an alternative route. Map plan 49/2284 a copy of which is annexure "D" to Mr. Kobal's affidavit and annexure "F" to the joint affidavit then came into existence clearly showing where the road link was to be. This map also shows changes to Portion 764 to Portion 2399 and clearly indicates this portion as customary land. This is understandable because the evidence including the original survey instructions, which is annexure "A" to the joint affidavit, before the Court makes it clear that the then colonial administration was taking steps to acquire from the customary owners only land required by the planned road and nothing else. This map also shows where the road project was to run under the name Poreporena Freeway. That means, if the State did acquire land for purposes other than the road construction that has to be clearly proven but has not been done at all in any manner and form by the State or Garamut.

43. After the construction of the Freeway, it seems clear to me that map 49/2612[12] came into existence, which shows where the Freeway currently runs. This map also shows that Portion 2399 changed to Portion 2583C, with the "C" indicating customary land[13] and a small part of it to the right hand side becoming Portion 2580. Additionally, this map shows that the Freeway took up most of the State land purchased under NLD 1202 which laid close to the former Portion 2399. That left no significant amounts of State land left for any other purpose. However, if there were any left and not required by the road project, they were to be returned to the customary owners. Despite this, as Mr. Kobal puts it, then came map 49/2613,[14] created on 3rd July 2007 and registered or approved in a record time of 3 days on 6th July 2007 corrupted the correct record. That corruption resulted in the creation of Portion 2585 and converted Portion 2583C to 2584C. What Mr. Kobal says, is obvious from the fact that the whole of Portion 2585 did not exist under any of the previous maps. The Joint Identification Survey of Portion 764 under the Court's order and its report on a correct identification of the boundries of the original Portion 764, per annexure "E" to the joint affidavits makes the corruption very obvious. Annexure "E" to the joint affidavit shows where things are at present. According to this map the part of the land showing as Portion 2585 on map plan 49/2613 is not shown, unlike the other Portions 479, 2397 (formerly 5770), 2398,719 and land area indicated as 16 Hohola. In the absence of any evidence to the contrary, it means portion 2585 is a recent creation, which takes up most of the undeveloped land from the various allotments at Casuarina Place and off the Freeway well before Curtain Brothers camp site on on its opposite of the Freeway and borders off with Portion 2584C, formerly Portion 764. There is certainly on evidence clearly establishing the States acquisition of the protion of land indicated under Portion 2585 at any time from the customary land owners. Hence it remains state land, unless and until at such times the State is able to establish to the contrary.

Decision on first main question

44. A careful consideration of all of the matters disussed above and all other evidence and material before the Court, makes it difficult to answer the first main issue in the affirmative. The State's argument has been that, it acquired Portion 764 based on its purchase or aquistion of Portion 894 under the reference NLD 1202. The evidence in the form of the document marked annexure "C" to Mr. Scott Lane's affidavit and annexure "D" in the joint affidavit though, not the best evidence, they do suggest that the State purchased Portion 894 on 21st December 1966. There is however, no evidence suggesting or explaining how and when Portion 894 became Portion 764. All there is are claims by the State's witnesses and those of Garamut and counsel's submission that the colonial administration and therefore the State acquired Portion 894 under reference NLD 1202 which eventually became Portion 764. This is contrary to other evidence before the Court, such as annexure "C" to both Mr. Kobals affidavit and the joint affidavit which show Portion 764 already existed prior to the coming into existence of Portion 894. It follows therefore that, if there was to be a conversion it would have been Portion 764 at the time when Portion 894 came into existence and not the other way around.

45. The State has not produced any convincing evidence which establishes its claim of having purchased or acquired Portion 764 at any time. The only exception to this would be any part of the land that formed and continues to be part of Portion 894, which may be located within the boundaries of what was formerly Portion 764. In respect of any such portions of land, I note that, the Poreporena Freeway has taken up most if not all of the land existing close to the former Portion 764. Annexeure "E" to Mr. Kobal's affidavit, which is the map on plan 49/2612, makes this very clear, which in turn is affirmed by the Joint Identification of Portion 764 report per annexure "E" to the joint affidavit. In these circumstances, I find there is no evidence that the State acquired Portion 764 and all other plans showing land derived from, or demarcated with, or superseded or exercised from Portion 764 at any stage. The same goes for Portion 2585. Instead, these portions of land had always been and continue to remain customary land except for the very small portions of land acquired under NLD 1202 as Portion 894 not already taken up by the Freeway, which in any case, needs to be returned to the customary landowners. For clarity the remaining portions of Portion 894 are located on the side of the Poreporena Freeway where Curtain Brothers are presently located and not along side the new Portion 2585.

Is parts of Portions 764 now described as Portion 2585 or 2585C?

46. Bearing the above discussions and answer to the first main question in mind, I now turn to a consideration of the second main question. That question is, is parts of Portion 764 described as Portions 2585 or 2585C? I consider it more easier to state the answer first and then provided the reasons for it. The answer is simple and straight forward. Niether of these portions of land come within the original portion, Portion 764 and in any case Portion 2585C appear not to exist. If however, the Portion number 2585C is an error when it should be Portion 2583C, or 2584C that would be part of Portion 764.

47. Mr. Kobal's affidavit and the joint affidavit of Messrs Eko and Bakus depose to how the joint survey by the parties surveyors as ordered by the Court were conducted on 28th November and 6th December 2012. The surveyors give conflicting answers to the question under consideration. However, the various maps as discussed above are very instructive. When the Joint Identification of Portion 764 survey map, which is annexure "E" to the joint affidavit is viewed against maps 49/33,[15] 49/795,[16] 49/2284,[17] and 49/2612[18] they clearly put map 49/2613,[19] out of line or any proper context. This is why, Mr. Kobal says map 49/2613 corrupted the record and caused much confusion. I accept Mr. Kobal's suggestion that this corrupted the records and went on to create Portion 2585, which did not exist prior to the coming into existence of map 49/2613. No evidence of any sort is before the Court demonstrating any acquisition of the portion of land now described as Portion 2585 under any description by the State at any time and therefore being available for leasing out to Garamut or any other person.

48. Repeating for emphasis what we already noted above, annexure "C" to Mr. Kobal's affidavit shows the whole of Portion 764. That came out of a wholly customary land as noted in annexed "B" to Mr. Kobal's affidavit. The formerly Portion 764 was substantially customary, which is deplicted in most of the maps in evidence before the Court. This changed to Portion 2399 as noted on survey plan 49/2284, registered on 4th August 1998. That change was necessitated by the Poreporena Freeway which took up some of the land which in turn appears to have necessitated a change of the land to Portion 2583C and Portion 2580. Annexure "E" to the same affidavit, which is a map on plan 49/2612 retains the boundaries of the original Portion 764 but had the portion number replaced by Portion 2583C and 2580. Then accordingly to Mr. Kobal's affidavit, came survey plan 49/2613, registered in a record time of 3 days on 06th July 2007 as opposed to a well known delayed process in the Lands Department. This last process by a vinculum (hook symbol) tried to make part of the land applied for and granted to Garamut within the boundries of the former Portion 764. Mr. Scott Lane's affidavit of 19th July 2012 claims at paragraph 2 that portion 2399 was State Land which is contradicted by the very copy of the map he annexes to his affidavit as annexure "A" clearly indicating customary land both above and below the portion number. This last process also resulted in the Portion numbers changing to Portion 2584C and 2585. This according to Mr. Kobal, caused much confusion and has corrupted the records. The State has not adduced any evidence providing or disclosing the reasons for bringing into existence map 49/2613 and in particular how Portion 2585 came into existence, including how and when the State acquired it. In the abscene of any such evidence, I accept Mr. Kobals suggestion that, these unexplained steps were taken with extraordinary speed for the purposes of facilitating the UDL in favour of Garamut. I find that in the rush those who facilitated the eventual grant of the UDL got it all wrong from the beginning for a number of reasons .

49. First, in the absence of any evidence to the contrary, I find that the State had not acquired Portion 2585. That is why it does no show or appear in any of the earlier maps. It only came into existence in July 2007 per map 49/2613, which has no resemblance to the land acquired under portion 894 or the land receiving some attention from the State as early as 1966 in the form of Portion 764. Secondly, per Mr. Scott Lane's affidavit, Garamut applied for Portion 2399. That was despite the land being clearly described as customary land. Portion 2399 was in turn formerly Portion 764 which was customary land. Thirdly, Portion 2399 did not become Portion 2585 at any time. According to the last rushed change, Portion 2399 became Portion 2584C. Fourthly, despite the lack of any aquistion by the State of Portion 2585, people in the Department of Lands facilitated and enable the grant of the UDL in favour of Garamut over Portion 2585. In so doing those who were responsible in my view, did so fraudulently against the traditional or customary owners of the land. Sitting in the National and Supreme Courts for a while now, I have come across more cases of possible fraud facilitated by the Registrar of Titles and other officers of the Department of Lands. This must stop and the only way to do that is to have proper investigations and those responsible being criminally charged and proceeded with. I would therefore strongly recommend (since I cannot direct the police) that the police take the relevant and necessary steps right away.

If the answer to question (b) is in the negative is Portion 2585 or 2585C State land?

50. Again let me start with an answer to the question. Portion 2585 or 2585C are not State land. The reasons for this is straight forward. First, I have already found Portion 2585C does not exist. If however, it is a misreading, miswriting or misdiscription for Portion 2583C or 2584C it is not State land given that its forerunner is Portion 764 which I found was at all material times customary land even to the present day.

51. Secondly, although Portion 2585 appears on map 49/2613, there is no evidence before the Court that shows clearly when and how, the State acquired this portion of land. All of the evidence before the Court fail to demonstrate when the State initiated any of the processes under the Lands Act for a proper acquisition of the land and when it concluded that process. Without any evidence to that effect, any claims of the land in question being State Land cannot be sustained.

52. In view of the foregoing reasons, the mere grant of a State lease and gazetting of the same or any other process or step does not render the land State land or interest. The State or any person claiming the existence of a State land or interest must first establish that fact by appropriate evidence, more particulary clear proof of any acquisition by the State. Any failure in that regard would also result in a failure of the claim. The direct grant and gazetting of the same in this cases does not render the land subject of the grant, State land. This is particularly so in the absence of any credible and convincing evidence from the State through the Department of Lands that the State acquired the land at any point in time.

53. In summary, I find as follows:

(1) The State has failed to keep and produce proper records of its alleged aquistition and related activities or transactions regarding the various portions of land the subject of dispute in this case;

(2) From the evidence before the Court it is clear the State did through the than colonial administration acquire by a purchase agreement dated 21st December 1966, Portion 894 under Native Land Dealing number 1202, and additional portions of land per the Agreement between the State and the Poreporena Freeway Landowners dated 10th August 1995;

(3) The purpose for the acquisition of Portion 894 additional customary land was for a road project to link the Spring Garden Road in Hohola to Konedobu over the Burns Peak range, which is now the Poreporena Freeway;

(4) Portion 764 existed prior to the acquisition of Portion 894 and was therefore separate from Portion 894 and has since changed to Portion 2399 in 1998, then to Portion 2583C on 3rd July 2007 and later to Portion 2584C three days later on 6th July 2007, without in anyway merging with or otherwise becoming part of Portion 894;

(5) Most if not all parts of portion 894 which were located closer to former Portion 764 have been taken up by the Poreporena Freeway, with any that might be remaining and not required by the Freeway being due back to the customary landowners;

(6) Portion 2585 is a very recent creation with no evidence of when, why and how it was acquired by the State but there is evidence of people in the Department of Lands working extraordinarily fast to process and have Garamut granted a UDL over it, thus suggesting its purpose and that it was done so fraudulently in the absence of any evidence of the State's acquisition of the land;

(7) In the abscene of any proper evidence of a valid acquisition of Portion 2585 by the State, that portion remains customary land over which no State interest or right accrues for the purpose of issuing any State lease or any other interest except only and inaccordance with the requirements of the Lands Act and in any case with the consent of its customary owners;

(8) The UDL in favour of Garamut has since expired and Garamut is not pursuing the matter any futher; and

(9) Except only for the misdescription of the land, the Plaintiffs as customary owners of former Portion 764 and currently Portion 2584C and before that Portion 2583C and Portion 2399 were entitled and were correctly granted the SABL over it;

54. Having regard to the answers to the issues presented and the findings of fact, the Court has no hesitation in granting the review sought by the Plaintiffs with the following specific orders and one recommendation:

(1) An order in the nature of a Certiorari to remove into this Court and quash the decision of the Fourth Defendant made on 4th April 2008 to issue and grant a State Lease to the First Defendant described as Volume 32, Folio 23, over land described as Portion 2585 or Portion 2585C, Milinch Granville Fourmil of Moresby, National Capital District.

(2) An order in the nature of a Certiorari to remove into this Court and quash the decision of the Third Defendant made on 5th November 2010 to cancel the registration of a Special Agricultural and Business Lease in favor of the Plaintiffs described as Volume 42, Folio 100, over Portion 2585C or Portion 2585, Milinch Granville, Fourmil of Moresby, National Capital District.

(3) An order in the nature of a Declaration that the land within Portion 2585 or Portion 2585C or formerly, Portion 764, 2399, 2583C and more recently described as Portion 2584C, Milinch Granville, Fourmil of Moresby, National Capital District is or are customary land owned by the Plaintiffs, and the Geakone Laurina Sub-clan of Hohodae of Hanuabada Village, National Capital District.

(4) An order in the nature of a Declaration that the Fifth Defendant did not acquire the Land within Portion 2585 or Portion 2585C or formerly, Portion 764, 2399, 2583C and more recently described as Portion 2584C, Milinch Granville, Fourmil of Moresby, National Capital District, from the plaintiffs and the customary owners in due compliance of the requirements of relevant provisions of the Lands Act 1996 by reason of which the grant of lease to and registration of the land under the Land Registration Act (Chapter No. 181) in favour of the First Defendant as State Lease Volume 32, Folio 23, is unlawful, null and void and of no effect.

(5) Further and in consequence of the foregoing orders, an order in the nature of a Declaration that the indefeasible title granted to the First Defendant is null and void.

(6) An order in the form of a Declaration that the Special Agricultural and Business Lease granted in favor of the Plaintiffs described as Volume 42, Folio 100, over Portion 2585C or Portion 2585, Milinch Granville, Fourmil of Moresby, National Capital District which was cancelled by the Third Defendant shall subject only to a change of the Portion number to its original number 764, or as later changed to 2399, 2583C or 2584C, be restored by the Third Defendant and to have effect as if not cancelled save only for any past rents and charges due to the State.

(7) An order in the form of a declaration that, all grants of any State Lease, License or any interests of any nature, description or form over the land within Portion 2585 per survey map plan 49/2613 registered on 03rd and approved on 6th July 2007 without the expressed consent of the plaintiffs or the customary land owners are declared null and void and of no effect.

(8) The State shall pay the Plaintiffs costs, which costs shall be agreed by no later than 7th February 2015 and if not, taxed.

(9) The Court strongly recommends that the Police Force under the direction and control of its Commissioner immediately investigate into the possible fraud in this matter and keep the Court informed of the steps being take with the first report being submitted in 30 days from today.

(3) Time for the entry of these orders is abridged to the date of their signing by the Court.

____________________________________________________________
Gelu Lawyers: Lawyers for the Plaintiff
Solicitor General: Lawyer for the Defendants

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^[1] Unless specifically indicated otherwise, all references to statutory provision are based on the Land Act 1996.
^[2]“Compulsory acquisition of land for the construction of public schools, roads, bridges, airports, and other government infrastructure for public service and use may quite easily qualify for public purposes. Anything outside this may not easily qualify for public purpose. What matters in my view, is the intended use of the land and those who are intended to use it as well as the kind of goods or services that are to be provided: Takoa Pastoral Co Ltd v. Dr Puka Temu (2009) N3711.
^[3] This has to happen after the expiry of two months from the date of the service of notice to treat under s. 13 (1) fo the Act.
^[4] See for cases on point: Yange Langan v. Independent State of Papua New Guinea, (1999) N1369; Steven Pirika Kamma v John Itanu & Ors (No 2) (2008) N3261 and Spirit Haus Ltd v Robert Marshall (2004) N2630.
^[5] For cases on point see: Mudge v Secretary for Lands [1985] PNGLR 387 and Koang No 47 Limited v Monodo Merchants Limited and Melpa Properties Limited (2001) SC675.
^[6] Shell Papua New Guinea Ltd v. Speko Investment Limited and Peandui Koyati (2004) SC767.
^[7] In in Hocking v Ahlquist Bros Ltd [1944] 1 KB 120)
^[8] by J M E Garrow & J D Willis in the text The Principles of the Law of Evidence in New Zealand (at 17)
^[9] Phipson On Evidence, 13th edition, para 5-01 - 02 “the best evidence rule”.
^[10] Annexure “V” to Arua Loa Boko sworn on 24^th November 2011 and filed on 5^th Dcember 2011.
^[11] According to clause 6 of the Agreement between the State and the customary landowners dated 10^th August 1995 (annexure “V”to Arua Loa Boko’s affidavit of 24^th November 2011).
^[12] Annexure “E” to Mr. Kobal’s affidavit.
^[13] See paragraph 13 of Mr. Kobal’s affidavit.
^[14] Annexure “F” to Mr Kobal’s affidavit
^[15] Certified on 10^th November 1964, annexure “B” to Mr. Kobal’s affidavit.
^[16] Certified on 04^th February 1966, annexure “C” to Mr. Kobal’s affidavit.
^[17] Registered on 04^th August 1998, annexure “D” to Mr. Kobal’s affidavit.
^[18] Registered on 03^rd July 2007, annexure “E” to Mr. Kobal’s affidavit.
^[19]Rregistered on 06^th July 2007, annexure “F” to Mr. Kobal’s affidavit.