Estate of the late Jimmy Varika v Mendikwae Ltd [2018] PGNC 577; N7773 (27 July 2018)

N7773

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS 36 of 2014

BETWEEN:
THE ESTATE OF THE
LATE JIMMY VARIKA
Plaintiff

AND:
MENDIKWAE LIMITED
First Defendant

AND:
PAM LOGISTIC LIMITED
Second Defendant

Waigani: Hartshorn J
2017: 14^th February
2018: 27^th July

Trial

Cases Cited:

Eric Kiso v. Bennie Otoa and Anor (2013) SC1222
Jimmy Varika v. Mendikwae Ltd (2016) N6228
John Nilkare v. Ombudsman Commission (1995) N1344
Paga Hill Development Company (PNG) Ltd v. Daure Kisu (2013) N5255
Ronny Wabia v. BP Petroleum Development Ltd (2009) N4337

Counsel:

Mr. D. Bidar, for the Plaintiff
Mr. W. Bigi, for the First Defendant

27^th July, 2018

1. HARTSHORN J: This is a decision on whether the plaintiff is entitled to vacant possession of certain land, following a trial.

2. I permitted the trial to proceed in the absence of representation of the second defendant, Pam Logistic Ltd, as I was satisfied that counsel for the second defendant was present on 14^th October 2016, together with the other parties counsel, when the matter was set down for trial to be heard at 9.30am, 14^th February 2017.

Background

3. The plaintiff is the Estate of the late Jimmy Varika. Mr. Varika commenced this proceeding in January 2014 but died on 11^th March 2015. On 2^nd February 2016, Neil Marcus Daniel was granted probate of Mr. Varika’s Estate. On 25^th March 2015 it was ordered that the plaintiff be named in this proceeding as “The Estate of the late Jimmy Varika”. (I refer to Mr. Varika and the Estate of the late Jimmy Varika individually and together as the plaintiff). No issue has been taken by the defendants as to the capacity of the plaintiff.

4. The plaintiff pleads amongst others that:

a) At all material times the plaintiff was the registered proprietor of and entitled to the possession of the Fee Simple Estate to the land at Ikuri Maku, 2369C Milinch of Granville, Fourmil of Port Moresby (Land);

b) Between December 2010 and December 2011, the defendants wrongfully and without lawful excuse entered and took possession of the Land, conducted their businesses and continue to trespass upon the Land;

c) That a Notice to Quit and vacate the Land that was issued has not been complied with.
5. The plaintiff seeks a declaration that as the registered proprietor of the Land he is entitled to vacant possession of the Land. Consequential relief for amongst others, vacant possession and mesne profits are also sought.

6. The first defendant’s position is that it’s Managing Director, Mr. Mathias Merimba, holds a valid Special Agricultural Business Lease (SABL) and so the occupation of the Land by its servants and agents is not unlawful.

7. Further, because of what is alleged to have been an irregular conversion of customary land, the first defendant submits that pursuant to this court’s inherent jurisdiction under s. 155(4) Constitution to ensure justice, this court should order that the purported title that has been issued to the plaintiff should be revoked and that the Land revert back to its customary landowners with only the Chief having control over it pursuant to custom.

8. The second defendant pleads amongst others, that the plaintiff fraudulently and illegally obtained the title to the Land without the knowledge of the Land’s customary owners, the Iarogaha Incorporated Land Group of Korobosea Village are the customary owners of the Land and dispute the plaintiff’s title, the plaintiff has no right to the Land by birth, blood or origin and the plaintiff has failed to surrender the Owners copy of the title to the Land despite demand. The second defendant admits that it received an unsigned copy of a notice dated 29^th October 2013 which was issued in the name of the plaintiff.

Consideration

9. There is evidence before the court that has been tendered only on behalf of the plaintiff and the first defendant.

10. It is not disputed by the first defendant, that the SABL of Mr. Merimba was cancelled by the then Acting Registrar of Titles on 5^th September 2014. Mr. Merimba commenced proceedings to judicially review the cancellation of the SABL in proceeding OS (JR) 757/14 but according to the submissions of the first defendant that proceeding has been withdrawn.

11. The first defendant submits that Mr. Merimba was not given an opportunity to be heard in regard to the proposed cancellation of the SABL and no summons was issued to him pursuant to s. 160(1) Land Registration Act. The first defendant submits that the purported cancellation is invalid and that the SABL is still valid.

12. It is the case though, that the cancellation of the SABL has not been set aside. Until the cancellation of the SABL is set aside or quashed, the cancellation must be treated as valid. I refer to the following passage cited from In Review of Administrative Action (Law Book Co 1987) at 212 which has been referred to in John Nilkare v. Ombudsman Commission (1995) N1344, Ronny Wabia v. BP Petroleum Development Ltd (2009) N4337 and Paga Hill Development Company (PNG) Ltd v. Daure Kisu (2013) N5255:

“There is no such thing as an “absolute nullity”, something which everyone in every context can ignore with safety. Context is all important. Even an official act which is null in all sorts of contexts needs to be stopped by a judicial order if the bureaucracy is not to treat it as valid and effective. In order to obtain an appropriate remedy the right person must apply for an appropriate remedy against the right person at the right time....”

13. Further, there is no cross claim in this proceeding by the first defendant, and in which a claim is made for the SABL to be set aside and that the Land revert back to customary ownership. I note that the first defendant was unsuccessful in seeking leave to file a cross claim: Jimmy Varika v. Mendikwae Ltd (2016) N6228.

14. From a perusal of the submissions, pleadings and evidence, I concur with the plaintiff and am satisfied that:

a) On 2^nd October 1996, the plaintiff obtained a fee simple title to the Land;

b) Both the first and second defendants admit that they purported to buy parcels of land within the Land without the plaintiff’s knowledge and consent;

c) The first defendant’s purported land through its Managing Director is located on Portion 2369C containing 9.75 hectares under a purported SABL which has now been cancelled;

d) The second defendant’s purported land is located on Portion 2786C, containing 5 hectares. The second defendant does not have a registered title to Portion 2786C. No official title has been awarded in respect of Portion 2786C. Portion 2786C is a subdivision of Portion 2369C and was purportedly obtained by the second defendant 14 years after the plaintiff obtained title to Portion 2369C;

e) Notwithstanding that the plaintiff is the registered proprietor of Portion 2369C, the plaintiff’s approval was not sought and approval was not given prior to parcels of land within Portion 2369C being purportedly sold to the first and second defendants by third parties with no interest or title to transfer;

f) That the first and second defendants may have been under a mistaken belief that the plaintiff did not own Portion 2369C when they purportedly purchased land within Portion 2369C, does not affect the plaintiff’s title over Portion 2369C;

g) There are no proceedings, or any action taken either by the first and second defendants or other landowner or landowning groups to challenge the title awarded to the plaintiff on 2^nd October 1996 by the Land Titles Commission and reaffirmed on 5^th September 2014 by the Registrar of Titles;

h) Both the first and second defendants admit to receiving the eviction notice from the plaintiff on 29^th October 2013. They have refused to deliver up vacant possession of the Land to the plaintiff and continue to wrongfully occupy the Land therefore denying the plaintiff the right to quiet enjoyment of the Land.

15. I concur with the submissions of the plaintiff that this case concerns the indefeasibility of title to the Land in the plaintiff’s name. The plaintiff was successfully awarded a fee simple estate over Portion 2369C on 2^nd October 1996 and has continued to hold the title since then with no successful challenge by either of the defendants or by any landowner or landowning groups.

16. Despite there being allegations of fraud, there is no evidence of any fraud or of any steps taken by the defendants to challenge the plaintiff’s title to the Land. There are no appeals or court proceedings filed to challenge the plaintiff’s title. On 12^th February 2016, this court refused the application by the first defendant that sought leave to file a cross claim on the basis that there were serious allegations of fraud in the transfer of the title to the plaintiff. At [22] of the judgment I said:

“22. From a perusal of the submissions, the evidence relied upon, the proposed cross claim and a consideration of the relevant provisions of the Land Titles Commission Act 1962, I am not satisfied that Mendikwae has established that it has a serious question to be tried that has a real possibility of ultimate success.”

17. Over 20 years have elapsed since the grant of the fee simple title to the plaintiff and any claim against the title would very likely be statute barred.

18. I am satisfied that the plaintiff is entitled to the relief that is sought in its statement of claim as pursuant to s.33(1) Land Registration Act, the plaintiff holds an indefeasible title to the Land. I refer in this regard to amongst others: Eric Kiso v. Bennie Otoa and Anor (2013) SC1222. Given this it is not necessary to consider the other submissions of counsel.

Orders

19. The court orders the following:

a) It is declared that the plaintiff as the registered proprietor of the Fee Simple Estate to the Land at Ikuri Maku, 2369C, Milinch of Granville, Fourmil of Port Moresby is entitled to vacant possession of the Land as against the defendants;

b) It is ordered that:

i) the defendants and all other occupants deliver possession of the Land to the plaintiff;

ii) leave is granted to the plaintiff to issue a Writ of Possession to the Land;

iii)the defendants and all other occupants (by themselves, their agents or servants or otherwise) are restrained from remaining in possession of the Land and premises and from carrying out their businesses on the Land;

iv)the defendants are liable to the plaintiff for mesne profits from the Land from the time of occupation until possession is delivered to the plaintiff with such mesne profits to be assessed;

v) the defendants are liable for damages to the plaintiff, such damages to be assessed;

vi)the defendants shall pay interest to the plaintiff on the judgment for damages, pursuant to the Judicial Proceedings (Interest on Debts and Damages) Act (Chapter 52);

c) Time is abridged.
_____________________________________________________________
O’Briens Lawyers: Lawyers for the Plaintiff
Henaos Lawyers: Lawyers for the First Defendant
Stevens Lawyers: Lawyers for the Second Defendant