Las Peles Shipping and Plantation Management Service Ltd v Buak [2015] PGNC 50; N5975 (21 May 2015)

N5975

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS NO. 639 OF 2013

BETWEEN:

LAS PELES SHIPPING AND
PLANTATION MANAGEMENT SERVICES LTD
Plaintiff/Respondent

AND:

COSMAS BUAK, PRESIDENT OF
BITAPAKA LOCAL LEVEL GOERNMENT
First Defendant/Applicant

AND:

AQUILA TUBAL, ACTING PROVINCIAL ADMINISTRATOR,
EAST NEW BRITAIN
Second Defendant/Applicant

AND:

EAST NEW BRITAIN PROVINCIAL GOVERNMENT
Third Defendant/Applicant

AND:

JOSIAH WARKUKUL, JOSHUA PTIMAK (WARD MEMBER),
JEFFERY MAKUPIT, MARTIN NIGIRAMU
and all of their family members,
friends, servants and agents
Fourth Defendant/Applicants

AND:

MAMAKUKA LAND GROPU INC.
Fifth Defendant/Applicant
Kokopo: Oli, AJ
2014: 2nd May
2015: 21st May

CIVIL JURISDICTION - Practice & Procedure – Application by additional third party to be joined in this proceeding – Considered applicant has sufficient interest in this matter – Fifth Defendant/Applicant did satisfy the basic ingredients on principles on joinder – Application granted.

CIVIL JURISDICTION - Practice & Procedure – Plaintiff/Respondent substantive relief for permanent injunction against the defendant/applicants – considered interference by defendant/applicants unjustified – considered interference amount to disturbance on the quite enjoyment of the plaintiff/respondent indefeasible title to the property – Considered interference amount to breaches of Constitutional rights – Grant permanent injunction against the defendant/respondents.

Cases Cited:

Mudge & Mudge v Secretary for Lands & Physical Planning & Ors [1985] PNGLR 387
Mamun Investment Limited v Paul Ponda& Ors [1995] PNGLR 1,
AGC (Pacific) Limited – v - Sir Albert Kipalan and 4 others (24/2/2000) N1944
Umapi Luna Pokameyu - v - James Siai Wamo (2004) N2718.
PNG International Hotels Pty Ltd - v - Registrar of Titles (2007) N 3207
Niugini Tablebirds Pty Ltd v Nasap N2018,
Niugini Tablebirds Pty Ltd v Nasap N2018,
Niugini Tablebirds Pty Ltd v Nasap N2018,

Counsel:

Mr. Paul Yange, for Plaintiff/Respondent
Mr. Robert Asa, for 1st & 4th & 5th Defendant/Applicant
Mr. Benedict Killian, for 2nd & 3rd Defendant/Applicant

DECISION

21st May, 2015

1. OLI, AJ.: The Plaintiff/Respondent filed Originating Summons on 25th November 2013 at Kokopo National Court and also filed this motion on the 25th day of November 2013, at Kokopo National Court and sought to move the Court for orders that:

1. Pursuant to Order 1, Rule 7 of the National Court Rules (NCR), the requirement of service of this Notice of Motion and related documents is dispensed with.
   
2. Pursuant to Order 12, Rule 1 of the NCR and Section 155(4) of the Constitution, the Defendant/Applicants, their members, servants or agents be restrained from entering onto or in any way interfering (including writing of letters, texting, emailing or telephoning) with the Plaintiff/Respondent's right to exclusive use and occupation of the Plantation known as Portion 64, Milinch Kokopo, Fourmil Rabaul, East New Britain Province covering an area of 242.5 hectares, described in Substituted State Lease Volume 120 Folio 146 (known as "Kulaon Plantation").
   
3. These orders are made returnable on the 11th of December 2013 at 9.30am.
   
4. That the Plaintiff/Respondent serve the Originating Summons, the Notice of Motion, the Affidavit of Bernard Uriap and the Undertaking as to Damages and this Order on the Defendant/Applicants within next three (3) days from the date hereof.
   
5. Defendant/Applicants are at liberty to apply on a 3 clear days notices to the Plaintiff/Respondent.
   
6. Costs shall be in the cause.
   
7. The time for entry of these orders be abridged to the time of settlement by the Registrar which shall take place forthwith.
   

2. However, in the substantive matter on the Originating Summons the Plaintiff/Respondent claims:

(1) Declarations that:

(a) The Plaintiff/Respondent is the registered owner of Portion 64, Milinch Kokopo, Fourmil Rabaul, and East New Britain Province covering an area of 242.5 Hectares, described in Substituted State Leave Volume 120 Folio 146 (known as "Kulaon Plantation".

(b) The First Defendant/Applicants letter dated 16 October 2013 addressed to the Plaintiff/Respondent has no legal basis and thus is an act of interference of the Plaintiff/Respondents unencumbered use and enjoyment of its Kulaon Plantation land.

(c) The First Defendant/Applicants letter dated 16 October 2013 addressed to the Plaintiff/Respondent has no legal basis and thus is unlawful, harsh and oppressive.

(d) The Second Defendant/Applicants letter dated 1st November 2013 addressed to Tzen Niugini Limited (a development partner of the Plaintiff/Respondent) has no legal basis and thus is an act of interference of the Plaintiff/Respondent unencumbered use and enjoyment of its Kulaon Plantation land with its development partner; TzenNiugini Limited.

(e) The Second Defendant/Applicants letter dated 1st November 2013 addressed to TzenNiugini Limited (a development partner of the Plaintiff/Respondent) has no legal basis and thus is unlawful, harsh and oppressive.

(2) Orders Sought:

(i) Quashing the First Defendant/Applicants letter dated 16 October 2013 addressed to the Plaintiff/Respondent.

(ii) Quashing the Second Defendant's letter dated 1 November 2013 addressed to the Plaintiff/Respondents development partner (Tzen Niugini Limited).

(3) A permanent injunction restraining the Defendant/Applicants, their servants, agents, officers, associates, employees and or family members from entering onto or in any way interfering with the Plaintiff/Respondent's right to exclusive use, occupation and development of the Kulaon Plantation.

(4) An order in the nature of interim injunction, pending the determination of this proceeding, restraining the Defendant/Applicants, 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 64, Milinch Kokopo, Fourmil Rabaul, East New Britain Province covering an area of 242.5 hectares, described in Substituted State Leave Volume 120 Folio 146 (known as "Kulaon Plantation").

(5) The time for entry of these orders be abridged to the time of settlement by the Registrar which shall take place forthwith.

(6) The Defendants to pay the Plaintiff/Respondents costs.

STATEMENT OF CLAIM

1. The Plaintiff/Respondent is a company registered under the Companies Act of Papua New Guinea.
   
2. The First Defendant/Applicant is the Local Level Government President of the Bitapaka Local Level Government in East New Britain Province.
   
3. The Second Defendant/Applicant is the Acting Provincial Administrator of the East New Britain Province.
   
4. The Third Defendant/Applicant is the Provincial Government which the First and Second Defendant/Applicants are accountable to and are responsible for.
   
5. The Kulaon Plantation (Portion 64, Milinch Kokopo, Fourmil Rabaul, East New Britain Province covering an area of 242.5 hectares, described in Substituted State Lease Volume 120 Folio 146 (known as "Kulaon Plantation") was purchased by the Plaintiff/Respondent from PNG Cocoa and Coconut Research Institute (as it then was) under a normal contractual sale and purchase arrangement. Title transfer on the property was produced on 23rd August 2004 and entered on 24 August 2004 (effectively transferring ownership to the Plaintiff/Respondent).
   
6. At the time of the purchase and transfer, the Plantation had fully grown mature cocoa and coconut trees (planted by the previous registered owners) stretching evenly all throughout the total land area covered in the title description. The consideration for the purchase included the value of the cash crops that were planted and growing upon the Plantation.
   
7. Up until recently, the cocoa pod borer disease had badly affected cocoa production on the Kulaon Plantation, along with other plantations that the Plaintiff/Respondent owns. This prompted the Plaintiff/Respondent to consider planting other cash crops and idea on oil palm was considered for Kulaon Plantation.
   
8. The Plaintiff/Respondent accordingly, entered into discussions with Tzen Niugini Limited in about April/May 2013 with a view to enter into a commercial arrangement with it to develop a Village Oil Palm Project.
   
9. Arising from series of meetings and discussions the Plaintiff/Respondent held with the management of Tzen Niugini Limited, it signed off on a Joint Venture Agreement with Tzen Niugini Limited to grow and develop oil palm.
   
10. On 6th October 2013, clearance work on the Plantation commenced. All coconuts, cocoa, banana and all other foods crops were removed from a large part of the plantation area.
    
11. On 16 October 2013, the Plaintiff/Respondent received a letter of that date (written by the First Defendant/Applicant) advising the Plaintiff/Respondent to suspend its clearance work and oil palm planting on Kulaon Plantation.
    
12. The Plaintiff/Respondent immediately informed its development partner (Tzen Niugini Limited) to cease activities until a working dialogue was reached with the First Defendant/Applicant.
    
13. After ceasing work for two (2) weeks, on 30 October 2013, the Plaintiff/Respondent caused a letter of that date and delivered to the First Defendant/Applicant requesting him to withdraw his letter so as to allow work to recommence. According to that letter, the Plaintiff/Respondent mentioned that should the First Defendant/Applicant fail to withdraw the letter by 4th November 2013, the Plaintiff/Respondent would consider legal action to stop such interference by authorities.
    
14. Whilst the letter was yet to be responded to by the First Defendant/Applicant, the Plaintiff/Respondent received a copy of a letter dated 1st November 2013 (from Tzen Niugini Limited) caused by the Second Defendant/Applicant addressed to Tzen Niugini Limited.
    
15. The developer under the letter head of its subsidiary company (East New Britain Palm Oil Limited) caused a letter dated 7th November 2013 to the Second Defendant/Applicant asking for the stop work notice to be lifted.
    
16. However, as there was no reply to those letters, the Plaintiff/Respondent (through its Managing Director, Mr. Bernard Uriap) approached the Second Defendant/Applicant at his office on 13thNovember 2013.
    
17. On the meeting of 13thNovember 2013, it became apparent that the Third Defendant/Applicant was asking to purchase the Kulaon Plantation from the Plaintiff/Respondent. However, the offer made to purchase the plantation was refused by the Plaintiff/Respondent.
    
18. On 14thNovember 2013, the Plaintiff/Respondent caused a letter of that date and asked for the Second Defendant/Applicant to withdraw the "Stop Work" notice within seven (7) days from 14th November 2013.
    
19. The seven (7) days given lapsed on 21stNovember 2013 and the Defendant/Applicants have not responded to the requests made by the Plaintiff/Respondent.
    
20. Arising from the Defendant/Applicants failure to reply, the Plaintiff/Respondent has no other option but to seek redress in court to determine the legality of the actions and the letters of the Defendant/Applicants, so as to resume work on the Kulaon Plantation.
    
21. For all of the above reasons, this Honourable Court is requested to grant the declaratory relief(s) and orders sought in the Originating Summons herein, endorsed by this Statement.
    

FACTS

3. The brief facts surrounding this matter is that the Plaintiff is the registered owner of Portion 64, Milinch Kokopo, Fourmil Rabaul, and East New Britain Province covering an area of 242.5 Hectares, described in Substituted State Leave Volume 120 Folio 146 (known as "Kulaon Plantation").
   
4. The First Defendant/Applicant caused a letter dated 16thOctober 2013 addressed to the Plaintiff/Respondent, who claim that he has no legal basis to issue such a letter amount to nothing less than an act of interference with the Plaintiff/Respondents unencumbered use and quiet enjoyment of its Kulaon Plantation land.
   
5. The letter dated 16th October 2013 by First Defendant/Applicant addressed to the Plaintiff/Respondent, since it has no legal basis render it unlawful and thereby, harsh and oppressive under section 39 of the Constitution.
   
6. The Second Defendant/Applicant's letter dated 1st November 2013 addressed to Tzen Niugini Limited (a development partner of the Plaintiff/Respondent) the Plaintiff/Respondent claim that it has no legal basis and thereby the letter amount to nothing less than an act of interference of the Plaintiff/Respondent's unencumbered use and quiet enjoyment of its Kulaon Plantation land with its development partner; Tzen Niugini Limited.
   
7. The letter dated 1st November 2013 bySecond Defendant/Applicant addressed to Tzen Niugini Limited (a development partner of the Plaintiff/Respondent), since it has no legal basis render it unlawful, harsh and oppressive under section 39 of the Constitution.
   
8. The Plaintiff/Respondent thereby seeks immediate remedy by:
   
   • (i) Quashing the First Defendant/Applicant's letter dated 16thOctober 2013 addressed to the Plaintiff//Respondent.
     
   • (ii) Quashing the Second Defendant/Applicant's letter dated 1stNovember 2013 addressed to the Plaintiff/Respondent's development partner (Tzen Niugini Limited).
     
   • (iii) A permanent injunction restraining the Defendant/Applicants, their servants, agents, officers, associates, employees and or family members from entering onto or in any way interfering with the Plaintiff/Respondent's right to exclusive use, occupation and development of the Kulaon Plantation.
     
   • (iv) An order in the nature of interim injunction, pending the determination of this proceeding, restraining the Defendant/Applicants, their servants or agents from interfering onto or in any way interfering with the Plaintiff/Respondent's right to exclusive occupation and use of the land known as Portion 64, Milinch Kokopo, Fourmil Rabaul, East New Britain Province covering an area of 242.5 hectares, described in Substituted State Leave Volume 120 Folio 146 (known as "Kulaon Plantation").
     
   • (v) The time for entry of these orders be abridged to the time of settlement by the Registrar which shall take place forthwith.
     
   • (vi) The Defendant/Applicants to pay the Plaintiff/Respondent's costs.
     
9. However, there is an amended motion by Mamakuka Land Group Inc. to become a fifth party to be joined in this action. The application for Joinder is made pursuant to Amended Notice of Motion filed on 27th March 2014, seeking to join Mamakuka Land Group Inc. as a fifth defendant/applicant in this proceedings.
   
10. If the court were to grant the joinder application, the matter is to progress by pleadings as sought in amended Notice of Motion. If the application for joinder were to be refused; the court is to make a determination on whether the Interim orders of this court made on 11thDecember 2013 are to be made permanent along with the grant of the declarations sought in the Originating Summons filed herein.
    

ISSUE

11. There are two issues that emanate from this proceeding and they are:

(1). Whether or not the applicant Mamakuka Land Group Inc.should be joined as a fifth defendant/applicant in this action.

(2). Whether or not the Plaintiff/Respondent interim restraining order be made permanent against the defendants.

LAW

12. The law is well settled in this jurisdiction on joinder application under Order 5 Rule 8 of National Court Rules and interim restraining orders to be made permanent under Order 12 Rule 1 of the National Court Rules. Let me refer to both provisions hereunder.
    
13. The Joinder application is made pursuant to Order 5, Rule 8 of the National Court Rules (NCR) and it reads:
    

"8. Addition of parties. (8/8)

(1) Where a person who is not a party—

(a) ought to have been joined as a party; or

(b) is a person whose joinder as a party is necessary to ensure that all matters in dispute in the proceedings may be effectually and completely determined and adjudicated on."

14. The fourth defendant/applicant applies to be joined as a party basically because the applicant claims it has sufficient interest in the proceedings. The applicant submits that application to be joined as a party in this proceeding is necessary to ensure that all matters in dispute in the proceedings can be effectively and completely adjudicated on. It is anticipated that it will assist the Court whether to grant the permanent restraining order to Plaintiff/Respondent, will depend very much on the outcome of the application by fifth defendant/applicant. If the court finds and grants the application in favour of the fourth defendant/applicant as a potential owner of the subject land in question, the relief sought by plaintiff/respondent will have a dramatic impact on the Plaintiff/Respondent case now before the court.

15. However, the Plaintiff/Respondent basically seeks permanent restraining order against the defendant/applicants under Order 12 Rule 1 of the National Court Rules, on the premise that it has an indefeasible title to portion 64, who has exclusive occupation and use of the land known as Portion 64, Milinch Kokopo, Fourmil Rabaul, East New Britain Province covering an area of 242.5 hectares, described in Substituted State Lease Volume 120 Folio 146 (known as "Kulaon Plantation"), the subject of this proceeding.

Order 12 Rule 1 reads:-

1. &#1eneral relief. (40/1)

The Court may, at any stage of any proceedings, on the application of any party, direct the entry of such judgementake srder e natf the case requires, notwithswithstanditanding thng that that the applicant does not make a claim for relief extending to that judgement or order in any originating process.

16. The Plaintiff/Respondent rely pursuant to Order 12, Rule 1 of the NCR and Section 155 (4) of the Constitution, that the Defendant/Applicants, their members, servants or agents be restrained from entering onto or in any way interfering (including writing of letters, texting, emailing or telephoning) with the Plaintiff/Respondents right to exclusive use and occupation of the Plantation known as Portion 64, Milinch Kokopo, Fourmil Rabaul, East New Britain Province covering an area of 242.5 hectares, described in Substituted State Lease Volume 120 Folio 146 (known as "Kulaon Plantation").

APPLICATION OF LAW TO THE FACTS

17. I shall now deal with the two issues one after the other and I will deal with the first issue:

(1). Whether or not the applicant Mamakuka Incorporated Land Inc should be joined as a fifth defendant/applicant in this action.

18. The fifth defendant/applicant filed an application supported by four (4) affidavits. The primary affidavit being the one deposed and filed by Jeffrey Makupit sworn on 7 March 2014 and filed on 10 March 2014. I will discuss main essential point supporting their application here below.

The Law on Joinder Application

19. The principles on joinder are well established in this jurisdiction and the common law jurisdictions. Among many of them, His Honour Justice Kandakasi in Umapi Luna Pokameyu v. James Siai Wamo (2004) N2718 enunciated the principles adopted by Justice Sakora in AGC (Pacific) Limited v. Sir Albert Kipalan and 4 others (24/2/00) N1944 and subsequently followed by Davani J in PNG International Hotels Pty Ltd v Registrar of Titles (2007) N3207 and many others. These principles are:

(i) Whether the applicant has sufficient interest in the proceedings;

(ii) Whether the applicant's joinder as a party is necessary to ensure that all matters in dispute in the proceedings can be effectively and completely adjudicated on.

The Applicant Evidence in Support of the Application

20. The summary of the four (4) Affidavits in support are as follows:

(i) Mamakuka ILG (herein"Mamakuka") was incorporated to represent the interest of the people of Makurapau, Malakuna, Kulaon and Karu, all in the Bitapaka Local Level Government area

(ii) It was registered on 21 September 2004.

(iii) Prior to the registration of Mamakuka Land Group Inc. certain members of the group entered into an agreement with the Plaintiff/Respondent whereby the Plaintiff/Respondent was to buy the subject Plantation from its former owners and to sell the plantation back to them (landowners) for a price of K450,000.

(iv) The price of K450,000.00 was fixed to be realised at the end of the period of five (5) years. That is the landowners would buy back the Kulaon Plantation at the end of five years.

(v) The Memorandum of Agreement (MOA) was signed on 18th April 2001 and was to end on 18 April 2006.

(vi) The landowners allege that the Plaintiff/Respondent did not take any meaningful steps to sell the Plantation to them at the end of the five years agreed period.

(vii) The landowners further claim that they paid K50, 000 to one Francis Semgogo (a director of the Plaintiff/Respondent company), as deposit of the purchase price. Cheque was never made out to the Plaintiff/Respondent but paid cash to Semgogo.

The Plaintiff/Respondent is opposing the joinder application and relies on the affidavits of Bernard Uriap and Allan Benjamin both sworn on 2nd April and filed 3rd April 2014. The summary of their affidavits can be summed up in this way.

The witness Bernard Uriap, the director of the Plaintiff/Respondent company states that:-

(a) Mamakuka Land Group Inc. wasn't a party to the agreement referred to in MOA dated 18th April 2001.

(b) The witness claim that landowners' representative signatories in the MOA document didn't take any meaningful steps to buy the plantation within the 5 years period as agreed.

(c) The witness confirm that landowners wrote him letters after the expiry of the period, however, no steps were taken to implement the MOA terms on the buy back Kulaon Plantation by the landowners for K450,000.

(d) The witness confirm that he did wrote them a letter offering his revised purchase price of Kulaon Plantation stands at K803,000 to take it or leave it.

(e) The witness further confirms that there was no response from the landowners whether they accept or refuse the offer by him on behalf of the plaintiff/respondent company.

(f) The witness further stated that the due to non response by the landowners to purchase the Kulaon Plantation the Plaintiff/Respondent entered into a Joint Venture with third party to turn the Kulaon Plantation into oil palm farm land, arising from which substantial work has been undertaken up to the time, the project was disturbed by provincial authorities at the request of the defendant/applicants.

The witness Allan Benjamin is the spokesman for the landowners, his affidavit evidence could be summed up in this way as follows. He stated that:

(a) He is a member of the land owning group who signed the relevant Memorandum Of Agreement (MOA) dated 18th April 2001 between Plaintiff/Respondent and Kulaon Landowners.

(b) He further claimed that he and his group members contributed money to the purchase of the plantation from the plaintiff/respondent as agreed in the MOA.

(c) The witness claim that he caused two (2) requests by letter were caused to be delivered upon the defendant/applicants asking for a financial report and update on the funds contributed and as to the actions taken to purchase the Kulaon plantation.

(d) The witness further confirms that there was no reply to those letters. It seemed, as far as he was concerned, that the funds contributed were or may have been misappropriated.

(e) The witness confirms that the alleged misuses of funds were reported to the Police Fraud Squad Office here at Kokopo Police Station OIC CID division and were told that the investigations will be undertaken. But to date that investigation is still pending.

24. The central question that arises is whether Mamakuka Land Group should be joined as a party in this proceeding. In order to address the issue the consideration on the evidence and the law discussed so far is as follows:

(1) That the evidence must show that Mamakuka Land Group Inc has sufficient interest in the proceedings; and

(2) Mamakuka Land Group Inc. joinder as a party is necessary to ensure that all matters in dispute (ownership of Kulaon Plantation) in the proceedings can be effectively and completely adjudicated.

25. The background facts of the applicant is that it was an Incorporated Land Group called "Mamakuka" under section 11(1)(c) of the Land Groups Incorporation Act 1974 thus is given the name Mamakuka Land Group Inc. the legal corporate entity and has the capacity to sue and be sued in its registered name. The section 11 (1) (a) of the same Act gives it a corporate status enabling it to enter into any agreements or execute any commercial documents for any commercial purposes.

26. At this juncture, I turn to the very MOA that the landowners made an agreement with the Plaintiff/Respondent. The MOA document is the living legal document containing parties' intentions and expressed interests in any business developmental deals. It is very interesting to note that some members of the fifth defendant/applicant were signatories to the said MOA of 18th April 2001 and this was refered to as Annexure "A" by Mr. Bernard Uriap in his affidavit of 22nd April 2014, a director of the Plaintiff/Respondent company. I refer the said MOA here below for ease of reference and for purpose of completeness.

"A"

MEMORANDUM OF AGREEMENT

Date: BETWEEN: AND:

18th April 2001 KULON LANDOWNERS BITAPAKA LOCAL LEVEL GOVERNMENT KOKOPO LAS PELES SHIPPING AND PLANTATION MANAGEMENT SERVICES LIMITED P O BOX 289, RABAUL EAST NEW BRITAIN PROVINCE

It has been agreed between the above two said parties on the following Conditions:

1. Kulon Land Owners agreed with the above Company to purchase Kulon Plantation on their behalf. Should the Landowners group have the money available within five (5) years, they can purchase the plantation back from the said Company.
   
2. Las Peles Shipping and Plantation Management Services Limited must honour the agreement that the total cost of the plantation worth of K450, 000.00 must remain for a period of five (5) years. Unless there is any change of the cost if both parties agree to what would be changed or redeveloped in the plantation and that would be easier for the Landowners to purchase back the plantation from the Company.
   
3. Last Peles Shipping and Plantation Management Services Limited must recognize the Landowners at the end of each year. By this the Company must pay K1, 000.00 to the Landowners account and also to the other group called KULAPAU with the company giving them the same recognition and also must pay them another K1, 000.00 to their account each year if there are no disturbances to the company's management by the Landowners.
   
4. Landowners and the company must form up a combine security force to comb down on stealing of cocoa and copra as well as other plantation assets. Such actions are threats to the plantation management.
   
5. Landowners must not in any way interfere with the company and its management during the five (5) years management period.
   
6. Redevelopment in the plantation must be decided between the two parties in which both parties must agree whether or not the redevelopment proceeds.
   
7. Any differences between the company and the Landowners must be attended to by the company's management and the Landowners Executives in a round table discussion.
   

KULON LANDOWNERS	Signed
Malakuna – Mr. L. Otta Kabagap – Mr. E. Igirin Makurapau – Mr. B. Waninara Kulaun – Mr. N. Monon Karu – Mr. E. Prisen MAMAKUKA EXECUTIVES Mr. J. Makupit Mr. N. Topot Mr. M. Okole Mr. M. Peni Mr. A. Pukue SPOKESMAN Mr. Allan Benjamin	................................... ................................... .................................. ................................... .................................. ................................. ................................. ................................. ................................. ................................. ..................................

LAS PELES SHIPPING AND PLANTATION MANAGEMENT SERVICES LIMITED

Directors	Mr. Bernard Uriap Mr. Francis Semgoge	.................................. ..................................
___________________________ COMMISSIONER FOR OATHS		___________ DEPONENT

27. Turning to this case and considering the evidence before the Court, Mamakuka Land Group Inc. was never a party in the Memorandum of Agreement (MOA) dated 18th April 2001; hence it can't have standing to argue on any matter arising from that agreement. However, the members of Mamakuka Executives can enter into negotiation with the Plaintiff/Respondent on terms as reflected in the MOA. The simple reason is that Mamakuka Land Group Inc. is a separate legal person or corporate legal entity by operation of the law under the Incorporated Land Group Act that was never a party during the material time when the above MOA agreement was concluded and executed on 18th April 2001.

28. However, looking at the content of the MOA signed on 18thApril 2001, it is evidently clear that some members of Mamakuka Land Group Inc. Chairman Mr. Jeffery Makupit was a signatory as well as Mr. Nerrie Topot and Mr. Josiah Warkukul to the MOA after its incorporation on 21stSeptember 2004. The Mamakuka Land Group Inc incorporation obviously confirms its legal status and the legal capacity and ability to enter into the commercial economic entrepreneurial arena. The Mamakuka Land Group Inc. represent the interest of the landowner group and its business company is Mamakuka Investments Ltd.

29. However, given its corporate status and its legal capacity to sue and be sued under its legal title, the corporate interest was assumed by its office bearers, though in reality in time it was not present when the MOA was concluded and executed. Besides, the subject agreement is not an issue of contention before the court. The title and ownership of the plantation is even undisputed.

30. What the real concern is the second leg of the principles of joinder (whether Mamakuka Land group Inc) be a joinder as a party, is capable of effectively addressing and adjusting all matters in dispute in this proceeding. The evidence before the court overwhelmingly suggests that there is no dispute as to ownership and title to the property is registered in favour of the Plaintiff/Respondent and does not have any encumbrances registered against it. Therefore contention under second leg of the joinder principle is not under any great deal of concern and no potential dispute, if any the office bearers stand ready to take it on to have it resolved through the democratic Melanesian way around the table, as was recorded and referred to as a vehicle and one of the terms of the MOA clause under dispute resolution section at the last clause of the MOA.

31. The law must protect the corporate entity's estates and Land Registration Act is no exception.

32. The relevant provision is section 33 of the Land Registration Act that protects the registered owners of titled land. And it read as follows:

33. Protection of registered proprietor.

(1) The registered proprietor of an estate or interest holds it absolutely free from all encumbrances except—

• (a) in the case of fraud; and
• (b) the encumbrances notified by entry or memorial on the relevant folio of the Register; and
• (c) the estate or interest of a proprietor claiming the same land under a prior instrument of title; and
• (d) in case of the omission or mis-description of any right-of-way or other easement created in or existing on the same land; and
• (e) in case of the wrong description of the land or of its boundaries; and
  

33. However, section 11(1)(a) of Incorporated Land Group Act also give equivalent legal protection and recognition of estates and it reads:

S. 11 (1) An incorporated land group is a corporation.

(a) as to a tenancy from year to year or for a term not exceeding three years created either before or after the issue of the instrument of title of the registered proprietor; and (underline is mine)

(b) as provided in Section 28; and

(c) a lease, licence or other authority granted by the Head of State or a Minister and in respect of which no provision for registration is made; and

(d) any unpaid rates, taxes, or other money which, without reference to registration under this Act, are expressly declared by a law to be a charge on land in favour of the State or of a department or officer of the State or of a public corporate body.

(e) The operation of Subsection (1) is not affected by the existence in any other person of an estate or interest, whether derived by grant from the State or otherwise, which, but for this Act, might be held to be paramount or to have priority.

34. It is very obvious that none of the above grounds pleaded to set aside ownership of title, is raised in the joinder application by the defendant/applicants. It is therefore safe to conclude, that the Plaintiff/Respondent holds a clear title that is indefeasible and can't be disturbed accordingly.

35. Whether the MOA of 18th April 2001 as between plaintiff/respondent and the landowners is binding on parties to the MOA is another legal contention and it can be argued before the appropriate forum before a competent court of law. The legal issue could be contested is whether MOA is binding on parties, when the landowners propose to plaintiff/respondent to exercise their right under the clause 1 & 2 of the MOA to buy back the "Kulaon plantation land" at certain agreed fix purchase price at K450,000 at the end of five years from 2001 to 2006. The issue before me is whether the fifth defendant/applicant has demonstrated sufficient interest in the proceedings and whether the applicant's joinder as a party is necessary to ensure that all matters in dispute in the proceedings can be effectively and completely adjudicated on.

36. Having perused the content of the MOA referred to of 18th April 2001, I have confirmed that there were members of Mamakuka Executives who represent landowners interest in the MOA now, have formed the Executive Members of the Mamakuka Land Group Inc. These members are also named in their individual capacity in this proceeding as third defendant/applicants, namely Josiah Warkukul, Jeffery Makupit and Martin Nigiramu. I make particular reference to the content of the MOA in respect to parties' exercising their democratic rights and free will in reaching common grounds where meeting of minds confirm their intentions and commitment on specific express terms they are all happy with and are committed to be bound in discharging their part of the agreement in performance of their acceptance over offer and consideration over the propose purchase price of "Kulaon Plantation" land as landowners as (purchaser) with the plaintiff/respondent company representatives as (vendor).

37. The Memorandum of Agreement (MOA) of 18th April 2001 is made between two parties' namely Las Peles Shipping and Plantation Management Service Ltd as plaintiff/respondent and Kulon Landowners.

"It has been agreed between the above two said parties on the following Conditions:

Clause 1. Kulon Land Owners agreed with the above Company to purchase Kulon Plantation on their behalf. Should the Landowners group have the money available within five (5) years, they can purchase the plantation back from the said Company.

Clause 2. Las Peles Shipping and Plantation Management Services Limited must honour the agreement that the total cost of the plantation worth of K450, 000.00 must remain for a period of five (5) years. Unless there is any changes of the cost if both parties agree to what would be changed or redeveloped in the plantation and that would be easier for the Landowners to purchase back the plantation from the Company.

Clause 3. Las Peles Shipping and Plantation Management Services Limited must recognize the Landowners at the end of each year. By this the Company must pay K1, 000.00 to the Landowners account and also to the other group called KULAPAU with the company giving them the same recognition and also must pay them another K1, 000.00 to their account each year if there are no disturbances to the company's management by the Landowners.

38. The above three clause, in a nutshell basically make parties to come to an understanding as what they were committing themselves to, however Mr. Jeffery Makupit state in his affidavit that he confirmed the MOA event but did not understand nor he is aware of the time limit of five years being put on the landowners to buy back the Kulaon plantation land though he was a signatory to the MOA. He further claims that MOA was drafted by Plaintiff/Applicants team and it was drafted to suit their interest more than landowners. The MOA is a document that represent the intentions of parties to an event that will happen now and into the foreseeable future with a specific time period, according to each parties will and acceptance. For witness Jeffery Makupit to say that he was not aware of five year period given to landowners have the first right of refusal is normal part of any contract and if witness Jeffery Makupit did not know about it is indeed very unfortunate. The presumption is that you ought to know what you are signing for and witness was a signatory to the MOA of 18th April 2001 with other landowners' representatives. But one thing that is very clear is that there was a common understanding and meeting of minds by landowners' representatives that landowners will buy back the Kulaon Plantation land as landowners. The plaintiff/respondents do admit that fact as well. The issue is whether the commitment by landowners to buy back the Kulaon Plantation land in five years from the date of execution of the MOA or sometime in the near future as per the Clause No. 1 & 2 is the subject of another court proceeding, if parties do not resolve their differences informally outside of court.

39. What is before me is the application of joinder by fifth defendant/applicant in this proceeding. Since the executive members of Mamakuka Land group Inc. who represent the interest of the landowners on Kulaon Plantation, this fact alone is sufficient to warrant them to have standing and interest in the Kulaon Plantation in the negotiation process to resolve any niggling issues on buy back Kulaon Plantation by landowners potential buyers from the plaintiffs/respondents. Until the final future event happens on the prospect of buy back Kulaon Plantation by potential landowners including Kulon landowners, I am satisfied that fifth defendant/applicant that since the executive members of Mamakuka Land group Inc. who represent the interest of the landowners on Kulaon Plantation, this fact alone is sufficient to warrant them to have standing and interest in the Kulaon Plantation in the negotiation process to resolve any niggling issues on buy back Kulaon Plantation by landowners as potential buyers from the plaintiffs/respondents. I am satisfied with the foregoing deliberations and grant the application that the fifth defendant/applicant can be a joinder in this proceeding as a party.

Whether the Court should make permanent the interim orders of 11 December 2013 along with the grant of the declarations sought in the Originating Summons filed 25 November 2013 (with amendments to the second defendants as ordered on 11 December 2011).

40. The Court having granted the joinder application by Mamakuka Land Group Inc. the proper and logical thing to do in the circumstances in this case, including the fact that there is no evidence disputing title held by the Plaintiff or challenging the title in terms of Section 33 of the Land Registration Act; the interim orders sought be made permanent along with the grant of the orders sought in the Originating Summons are in order. And I make some reference and discuss some of the issues hereunder.

(a) The pertinent question that comes to mind is whether the Plaintiff/Respondent is the registered owner of Portion 64, Milinch Kokopo, Fourmil Rabaul, and East New Britain Province covering an area of 242.5 hectares, described in Substituted State Lease Volume 120 Folio 146 (known as "Kulaon Plantation".

(b) The protective relief that plaintiff/respondent seeking is whether the interim orders of the court made on 11 December 2013 should be made permanent.

41. Since there is no evidence in rebuttal substantively challenging title that the Plaintiff/Respondent holds, this evidence the plaintiff/respondent is accepted as uncontested evidence. The gist of plaintiff/respondents evidence as deposed to by witness Mr. Bernard Uriap in his affidavit is that he is the Managing Director of the Plaintiff/Respondent Company. The Plaintiff/Respondent is a company registered under the Companies Act of Papua New Guinea

42. The Plaintiff/Respondent owns the Kulaon Plantation (described in the Originating Summons). It was purchased by the Plaintiff/Respondent from PNG Cocoa and Coconut Research Institute (as it then was) under a normal contractual sale and purchase arrangement. The Title to the said property was transferred and was produced on 23rd August 2004 and entered on 24th August 2004 (effectively transferring ownership to the Plaintiff.

43. The history of the case reveals that the MOA was drafted after landowners' agreed to allow plaintiff/respondent to purchase the Kulaon Plantation first from former owners on their behalf as they did not have enough funds to buy the Kulaon Plantation land. However, both parties agreed in the MOA that plaintiff/respondent will use the land and after five years landowners will buy back the Kulaon Plantation from the plaintiff/respondent. This event is still pending to this date.

44. The landowners are quite disturbed to learn that accordingly on behalf of the Plaintiff/Respondent, Mr. Uriap has entered into discussions with Tzen Niugini Limited in about April/May 2013 with a view to enter into a commercial arrangement to develop a village oil palm project on the plantation.

45. Arising from series of meetings and discussions Mr. Uriap held with the management of Tzen Niugini Limited, the Plaintiff signed off on a Joint Venture Agreement with Tzen Niugini Limited to grow and develop oil palm and begin to commence mobilisation work to clear the land. This event has triggered the Provincial authorities' intervention to issue "Stop Work" notice as well as cause letters sent to the Plaintiff/Respondent and the developmental partner Tzen Niugini Ltd with Plaintiff/Respondent.

46. The parties took upon themselves with their legal counsels and agreed to have a combined meeting on 2nd December 2013, wherein parties discussed possibilities of settling this proceeding by consensus. During the discussions, the following resolutions were reached. They are as follows:

1. That there is no dispute as to the fact that the plaintiff has legal title to the plantation.
   
2. That there are no encumbrances affecting the plaintiff/respondents right to unhindered use and enjoyment of its plantation land.
   

100. That there is no improvement conditions placed on the title giving rise to restrictions on planting of any particular type of cash crop on the plantation.
     

4. That there is a dispute raised by Kulaon ward counsellor and certain group of people in and around the plantation area, who wants to buy out the plantation from the plaintiff/respondent.
   
5. That a meeting is to be called in the near future for the leaders of those concerned group to attend and have their views/position made known to the plaintiff/respondent and the defendant/applicants on the propose purchase of Kulaon Plantation by the landowners.
   
6. That it was also discovered that the first defendant/applicants letter referred to in the proceeding arose from the disputes raised by those people on the ground.
   
7. That the first defendant/applicant was merely causing the letter in the interest of the disputing parties with a view to avoid conflicting related situation in the plantation area.
   
8. That a meeting be called for those members involved with those interested groups and those in favour of the oil palm project. That meeting was to take place on Thursday, 5th December 2013.
   
9. Those on Thursday, 5th December 2013, the concerned leaders generally from Makurapau ward, Malakuna ward and Rainau ward were gathered at Ralum Country Club. In that meeting was Mr. Uriap with the 2nd & 3rd defendants' lawyer (Mr. Killian) and representatives from the plaintiff/respondent with their lawyer present.
   

At that meeting the following undertakings were made known. They are:

(i). (1) Leaders talked about their differences in their group.

(i) (2) That they were interested to buy out the plantation from the previous registered proprietor (PNGCCRI) but that they could not do so as they didn't have the finance to do so.

(i) (3) They invited the Plaintiff/Respondent to buy it with a view to buy it from the Plaintiff/Respondent later in times to come.

(i) (4) An agreement was signed between them that the landowner group were to buy the plantation from the plaintiff in 5 years time. The group didn't buy it as agreed. An extension of time was given but they didn't buy it. The agreement is void for lack of consideration. They were told that the title holder's rights prevail over the agreement and everything else.

(i) (5) They however pushed to buy the plantation from the plaintiff/respondent. They were then told that the plaintiff/respondent had already entered into a Joint Venture agreement with an oil palm developer (Tzen Niugini Ltd), following which work had commenced and clearance work half way through. And so they were told that the entire arrangement cannot be undone.

(i) (6) The landowner group was invited to participate in the spin-off business including provision of security services, contracts/sub-contracts and others they are capable of doing.

(i) (7) It was also resolved that the plaintiff/respondent would offer the landowners opportunity to buy shares in the plaintiff/respondent.

(i) (8) The landowners were to have a separate meeting of their own on Saturday, 7th December 2013 to decide on the above discussions.

47. In this case, the plaintiff/respondent claim that they have two clear titles to the two (2) plantation properties, which are registered in the name of the Plaintiff/Respondent's Company. One of them is the subject of this proceeding now before this court.

48. In the case of Niugini Tablebirds Pty Ltd v Nasap N2018, Judge Injia (as he then was) in determining claims arising from dispute over land boundary noted that the defendants had not countered the evidence from the surveyor engaged by the Plaintiff by bringing evidence from another registered surveyor, hence giving judgment to the Plaintiff.

49. To draw a comparative value from the above case authority is that the plantation in this proceeding is an alienated land giving rise to State Lease Titles. Customary claims or rights were terminated when the State acquired it under the Land Act. However, where customary landowners are coming from is basically from the business perspective that they be recognised as potential developers when former Kulaon Plantation owner PNGCCRI offered it to be bought back by traditional landowners in the area. This is where the conversation between Kulaon Landowners and plaintiff/respondent took place that culminated into concluding and execution of a historical milestone Memorandum of Agreement of 18th April 2001 between Kulon Landowners and Plaintiff/Respondent. Whilst it is not disputed that under the Land Registration Act, the claim for customary rights over State lease 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.

50. The above case also discusses the age old authorities in Mudge & Mudge v Secretary for Lands & Physical Planning & Ors [1985] PNGLR 387 alongside Mamun Investment Limited v Paul Ponda& Ors [1995] PNGLR 1, both of which can also be used as a guide in this matter.

51. In my final analysis of evidence before me, I find that the fifth defendant/applicants have shown that they have sufficient interest in that, since the executive members of Mamakuka Land Group Inc. also represented the interest of the landowners on Kulaon Plantation during the signing of the historical MOA of 18th April 2001, this fact alone is sufficient to warrant them to have standing and interest in the Kulaon Plantation, to be actively involved in the negotiation process to resolve any niggling issues on the proposed buy back of Kulaon Plantation by potential landowner buyers from the plaintiffs/respondents, and Mamakuka Land Group Inc. is placed in a very strategic position to further enhance the landowners interest on the subject land in question over the buyback proposal on behalf of the landowners in the MOA of 18th April 2001.

52. On the second issue on the plaintiff/respondents desire to have permanent injunctive relief or order issued against the defendant/applicants, the defendant/applicants do not dispute the plaintiff/respondent indefeasible title to the property and therefore are entitled to quite enjoyment of the property and protection by law over their property, as well. Therefore, I am satisfied in the circumstances of this case to grant the permanent relief sought in this proceeding. I do grant that relief sought now.

53. Having made the above second finding in favour of the plaintiff/respondent, I find it appropriate to grant relief sought in respect to the letters and "Stop Work" notices written by the second and third defendant/applicants to plaintiff/respondent and its development partner Tzen Niugini Ltd to be quashed forthwith. This I do so now.

CONCLUSION

54. Having considered the legal arguments by counsels and issues discussed in my above deliberations, I arrive at the following substantive conclusions. They are:

(a). That the fifth defendant/applicant be joined as a party in this proceeding is granted.

(b) That the Plaintiff/Respondent has indefeasible title to the property known as Portion 64, Milinch Kokopo, Fourmil Rabaul, East New Britain Province covering an area of 242.5 hectares, described in Substituted State Lease Volume 120 Folio 146 known as "Kulaon Plantation"). In other words, the Plaintiff/Respondent is the registered owner of the plantation.

(c). Since, the Plaintiff/Respondent has indefeasible title, an order in the nature of permanent injunction be granted restraining the Defendant/Applicants, 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 64, Milinch Kokopo, Fourmil Rabaul, East New Britain Province covering an area of 242.5 hectares, described in Substituted State Lease Volume 120 Folio 146 (known as "Kulaon Plantation").

ORDER

55. The Court accordingly makes the following orders:

1. That the application by applicant Mamakuka Land Group Inc to be joined as a party is granted.
   
2. That the Plaintiff/Respondent application for permanent injunction is granted against the defendant/applicants, their agent, servants, family members and others from interfering onto or in any way interfering with the Plaintiff's right to exclusive occupation and use of the land known as Portion 64, Milinch Kokopo, Fourmil Rabaul, East New Britain Province covering an area of 242.5 hectares, described in Substituted State Lease Volume 120 Folio 146 (known as "Kulaon Plantation").
   
3. That the parties' in this proceeding to bear their own cost.
   
4. The time for entry of these orders is abridged to the time of settlement by the Registrar which shall take place forthwith.
   

____________________________________________________________
Kamen Lawyers: Lawyer for the Plaintiff/Respondent
Warner Shand lawyers: Lawyer for the 1st, 4th & 5th Defendant/applicant
ENBP In-House Lawyer: Lawyer for the 2nd & 3rd Defendant/Applicant