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National Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
OS. NO 87 OF 2020
BETWEEN:
PNG POWER LIMITED
Plaintiff
AND:
JOHN PIEL
First Defendant
AND:
JONATHAN KUMBA
Second Defendant
AND:
PHILIP TUKUYAWINI
Third Defendant
Waigani; Kangwia J
2020: 01 & 07 September
LAND LAW – plaintiff seeking declarations over portions of customary land acquired through various MOAs with customary landowners – first defendant also purchased parts of the customary land subject of dispute – plaintiffs use of land is to construct tower – defendants allege plaintiffs have encroached on their land - main issue is, who has the better right over the piece of land on which Tower 07 is or is to be constructed or erected – first and second defendant’s interest is private in nature whereas plaintiff’s interest is public - public interest must supersede all other interests - declared that Portion 2997C, Milinch, Granville Fourmil of Port Moresby was purchased outright by the Plaintiff from the customary landowners of Vaga ILG Inc – defendants are restrained from interfering with the quite enjoyment of Kilakila Power substation and the Registered transmission towers on the registered Powerline Reserve Route
Cases Cited
Sale Homoka v Benedict Okina Batata (2017) N6780
Wak v Wia [2008] N356
Victor Golpak v Patrick Alonggerea & Ors (1993) PNGLR 479
Marcoes (PNG) Ltd v Kundi (2012) N4621
Gabutu v Russo [2020] N8197
(Maso v Pat [2016] N6550)
Rei v Arita Tatana Incorporated Land Group Inc (2019) PNGNC 394
Counsel
A. Samol, for the Plaintiff in OS 87 of 2020
D. Korowa, for the Plaintiff in OS 99 of 2020
C. Kup-Ogut, for the First Defendant
No appearance for the Second Defendant
M. Korowa, for the Third Defendant
07th September, 2020
1. KANGWIA J: This is the decision on two related proceedings registered as OS 87 of 2020 and OS 99 of 2020.
2. In both proceedings the Plaintiffs claimed various declarations over portions of customary land which were acquired through different Memorandum of Agreements (MOA hereon) with customary landowners.
3. The facts not in dispute are that on 17 March 2011 and 24 August 2012 a MOA was signed between PNG Power Limited (Plaintiff hereon) and Vaga Land Group Inc. (Vaga hereon) for a consideration of K750, 000. 00. The Plaintiff made partial payment and the balance were to be paid upon registration. On 24 August 2012 the MOA was amended by the Plaintiff and Vaga.
4. The Plaintiff through two MOAs with Vaga who was the representative of the customary land owners, purchased a piece of land surveyed and described as Portion 2997C, with a consideration of K750, 000. 00 for purposes of setting up a power station and electricity transmission towers.
5. On 08 June 2011 John Piel (First Defendant hereon) entered into an agreement of sale for two hectares described as Claim no. 45 of customary land with one Vani Goasa and Charlie Goasa as owners and controllers on behalf of Vaga. On 12 October 2012 an agreement of occupancy and consent over a portion of land measuring 50m x 400m was entered into between the First Defendant and Vaga.
6. On 27 May 2013 the agreement was varied by another agreement between the First Defendant and one Thomas Goasa and one Gaudi Goasa on behalf of late Vani Goasa with variation with 6.4 ha.
7. The Plaintiff proceeded to set up tower no. 07 on what the Plaintiff claimed was a reserved easement for transmission lines.
8. The Defendants intervened and restrained the Plaintiffs from proceeding with the constructions.
9. The First and Third Defendants alleged that the Plaintiffs had encroached upon their land and were erecting a transmission tower upon a surveyed land they owned described as Portion 3390, Varahe, Pari Road, Milinch Granville, Fourmil Moresby, National Capital District (portion 3390 hereon).
10. It is also undisputed that various surveys were caused to be done by both parties which covered the portion of land in dispute.
11. On 16 March 2020 the Plaintiff commenced proceedings under OS 87 of 2020 seeking orders for declaration that their MOU with the customary landowners was valid and lawful.
12. The matter went to mediation but failed to reach a settlement. During the mediation process the Plaintiff discontinued proceedings against the Second Defendant.
13. The main issue is, who has the better right over the piece of land on which Tower 07 is or is to be constructed or erected.
14. The Plaintiff relied on the affidavits of 09 witnesses filed in Court without any objections.
15. In submissions Ms. Samol for the Plaintiff, submitted that the Plaintiff on behalf of the State, complied with the requirements under s 10 of the Land Act to acquire customary land on portion 2997C and the transmission easement through an agreement with landowners for a public purpose.
16. This was a government Approved Project valued at millions of kina through funding from the Asian Development Bank hence the State through the Plaintiff was authorized to purchase customary land through an agreement. It was submitted that PNG Power as a government entity was obliged to give effect to government policies which it did.
17. The Plaintiff stressed that the initial stages of acquisition of portion 2997C through the sale, transfer of land deed and deed of release, they were first in time. The Minister for Lands executed a land deed and the land was now alienated to the State and therefore, the declaratory orders were sought under the originating summons.
18. It was further submitted that the First Defendant did not acquire or own portion 3390C as it did not exist.
19. It was also submitted that the First Defendant relied on a questionable survey plan when the actual survey plan by the Acting Surveyor General showed that the easement ran between Portion 3205C and portion 2726C; that tower 07 was on the powerline reserve which was outside the First Defendant’s portion 3390C. This was supported in the affidavit of Assistant Surveyor General of PNG who deposed that upon purchase of Portion 2726C by PNG Power, survey was done solely for the power transmission lines.
20. It was then submitted that the agreement entered into between the First Defendant and the landowners was void pursuant to s132 of the Land Act and should be nullified; that the First Defendant breached s132 of the Land Act when the First Defendant as a natural citizen and one Vani Goasa on behalf of Vaga entered into an agreement.
21. It was submitted that Vaga were the rightful applicants for conversion. It involved a substantial land area being varied and amended. The agreement entered into between the First Defendant and landowners was void pursuant to s10 of the Land Act.
22. It was further submitted that the First Defendant was not authorized by s7 of the Land (Tenure Conversion) Act. This provision requires that a citizen may apply for conversion to the Land Titles Commission in the prescribed form. (see Sale Homoka v Benedict Okina Batata (2017) N6780. The Court in that case held that the Act enabled customary landowners to convert their customary land to fee simple which is a freehold right to land. The First Defendant failed to do this.
23. It was also intimated that the First Defendant did not have a legal basis to apply under s7 of the Land Tenure Conversion Act for conversion of title. It was then submitted that because the purchase of the land was not under law, the First Defendant did not have an interest in equity. It was further submitted that the Plaintiff as a State entity and the State had a legal interest under contract and the Land Act. It was submitted that the Plaintiff did not trespass or unlawfully encroach on the First Defendants land as Tower 07 was outside portion 3390C which was created by virtue of an occupancy agreement only and within the powerline reserve.
24. It was finally submitted that the Plaintiff through the State acquired the customary land rightfully under due process and was not encroaching as the towers were erected on an easement. Therefore, the orders sought by the Plaintiff should be granted.
25. For the First Defendant Mr. Kup-Ogut Submitted that the National Court did not have jurisdiction to deal with interests arising from customary land. The land on Portion 3390 and 2997C acquired by the First Defendant and the Plaintiff respectfully were customary land. He referred to the case of Wak v Wia [2008] N3356 and Victor Golpak v Patrick Alonggerea & Ors (1993) PNGLR 479 as supporting his submission.
26. It was also submitted that the Plaintiff did not acquire the easement for the towers. Various deviations were made to include easement and in the latter MOU and execution of the deed by seven individual members of the Vaga clan signed in their personal capacity.
27. It was also submitted that the pleadings were vague and inadequate disclosing no cause of action. While referring to the case of Marcoes (PNG) Ltd v Kundi (2012) N4621 it was argued that the Plaintiff relied on a MOA executed for portion 2997C to claim that it also covers other land located along the anticipated power line.
28. It was further submitted that the Plaintiffs MOA, the execution of the deed and the payments made with seven customary landowners was a private transaction between a company and a customary land owner group.
29. It was countered that the First Defendant acquired Portion 3390 without objection from the Vani family from Vaga clan and the Plaintiff which was endorsed by Vaga for which he paid K100, 000. 00 to the family and took possession of it and developed it since 2011. It was finally submitted that the Plaintiff and the First Defendant were equal and separate and did not intersect. The State leases were yet to be given after alienation and conversion. Therefore, the proceeding should be dismissed with costs.
30. It was reiterated in submissions that the First defendant acquired 02 hectares within Gaverehia land and then a further 4.4 hectares after his property was burnt down. The sale and purchase of Portion 3390 was under an agreement on 11 June 2011. It was approved by Vaga through its executives led by Goasa Geita through the execution of the certificate of occupancy and consent agreement. The sale was affirmed by other members of the Vaga clan.
31. Due to the burning down of his residence, and through a varied agreement the further 4.4 hectares were added. Both pieces of land were surveyed and registered as Portion 3390 on 18 March 2015. It is pending issue of State Lease.
32. It was submitted that the First Defendant lawfully acquired portion 3390. The Plaintiff has not proved that it has an interest in portion 3390 which would entitle it to enter for purposes for erecting Tower 07.
33. It was also submitted that even though the Plaintiffs two MOAs with landowners did not contain the details in the survey plan it was recently drawn up and registered. The deed of release was executed with seven members of the Vaga clan in their personal capacity. An undertaking was given to pay K500, 000. 00 in exchange for the State Lease.
34. It was then submitted that the amended MOA added a clause to include transmission line easement for purpose of a sub-station.
35. It was further submitted that the law on the process for acquisition of customary land, either an easement, right, power or privilege by the State is provided by s 7 to 10 of the Land Act 1996. Reference was made to the case of Gabutu v Rosso [2020] N8197 which highlighted that land can be acquired through compulsion or agreement. Valuation and survey work, does not confer an interest as stated in the case of Maso v Pat [2016] N6550).
36. The documents including the Valuer Generals Certificate, the deed of release, the authentication certificate, Gazettal notice, sale and transfer of land deed, and certificate of alienability would have mentioned any of the easement routes but that was not the case.
37. It was stressed strongly that the pleadings were vague and inadequate and did not disclose a cause of action. The Plaintiff relied on the MOA over portion 2997C to claim that it covered the easement also.
38. The Plaintiffs transaction with Vaga clan members was a private transaction that is incomplete. The payment of K200, 000. 00 was made to seven members who signed the MOU to transfer. According to the surveyor the easement that would be part of the land still remained customary land and not settled.
39. Finally, it was submitted that both parties have utilized the same process to acquire two different portions. The Plaintiff has no standing to argue that its acquisition was valid and the First Defendants not. The First Defendant had a substantial interest on portion 3390 but the Plaintiff and its contractors had illegally entered the land. The proceeding should be dismissed with costs.
40. The Plaintiff in OS 99 of 2020 sought the following orders:
41. Mr. Korowa for the First and Second Plaintiffs submitted that by a MOA dated 28 October 2012 with Vaga Incorporated Land Group and Badiri Guards Ltd. (a company owned by Vaga Inc.) they purchased the land from the customary landowners to establish a pharmaceutical center.
42. The Plaintiff will suffer loss of investment and inconvenience and therefore were entitled to compensation from PNG Power. It was submitted that PNG Power had breached the Physical Planning Act, Land Act, Land Tenure conversion Act and Incorporated Land Groups Act. Work had been undertaken without any approval hence the project is deemed unlawful and illegal.
43. The affidavits relied on by PNG Power were untrue. The Plaintiff and PNG Power were given user rights by the customary Landowners. By using the user right PNG Power had created an easement where pylons with high voltage will pass through. The issue of easement was never brought to the attention of stakeholders during their meetings. A substantial amount of investment will be lost and inconvenience caused when the easement is completed.
44. The final submissions made were for two related Court proceedings. In both proceedings the legal right of each party relating to acquisition of customary land is in issue. It is understood interim injunctions issued on 24 April 2020 are current until final determination.
45. I start with the submission by the First Defendant that the National Court lacked jurisdiction to deal with this matter since it related to customary land. It is not in dispute that the proceeding related to customary land. The law is settled that the National Court has no jurisdiction to deal with matters relating to customary ownership over land. (see Victor Golpak v Patrick Alongerea & Ors PNGLR 491.
46. Be that as it may, the current proceedings do not relate to a dispute over customary ownership. The Plaintiff and the Defendants are not customary landowners of the land referred to. The proceedings relate to the interest acquired by the parties who seek to enforce them. The National Court has jurisdiction.
47. There is evidence that earlier agreements have been amended. There is nothing untoward about such action. The customary landowners are entitled to amend or even terminate earlier agreements. There is also evidence of two surveys done on the same land. The law on the issue of one survey over an existing survey is settled.
48. Where there is already a surveyed boundary, already duly registered under the law, a subsequent proposed survey, plan or design on top of the original survey is illegal. (see Rei v Arita Tatana Incorporated Land Group Inc (2019) PNGNC 394)
49. The Law governing acquisition of customary land is the Land Act.
50. Pursuant to s 7 of the Land Act it provides two modes of acquisition of customary land in the following manner;
7. Modes of acquisition.
The Minister may, on behalf of the State, acquire land—
(a) by agreement; or
(b) by compulsory process,
in accordance with this Act.
51. This provision relates to land where the State has an interest in land to acquire. The Minister for Lands is mandated to acquire land for the State either through negotiation or compulsorily. This provision does not apply to the current proceedings.
8. Rights that may be acquired.
(1) Land acquired by agreement or by compulsory process under this Act may be an easement, right, power, privilege or other interest that did not previously exist as such in, over or in connection with the land.
52. The provision under ss (1) relate to the various interests over land acquired or yet to be acquired and applies to the present case. The dispute over land the subject of these proceedings relates to ownership and includes easements over the land already acquired through agreement. Land under this provision would include customary land.
Division 3. Acquisition by Agreement
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.
53. The provision relevant to these proceedings is ss (1). There are various conditions that are required to be met to acquire customary land. Firstly, this provision is subject to s 11. Secondly, land acquired shall be authenticated by such instrument and in such manner as are approved by the Minister. In mandatory terms the Minister is mandated to authenticate the acquisition of customary land. In the present cases there is no evidence that the Minister authenticated the acquisition of the various land portions referred to.
54. The specific provision relating to disposal of customary land is provided under s 132 of the Land Act which provides;
132. Disposal of Customary Land.
Subject to Sections 10 and 11, a customary landowner has no power to sell, lease or otherwise dispose of customary land or customary rights otherwise than to citizens in accordance with custom, and a contract or agreement made by him to do so is void.
55. This provision prohibits the disposal of customary land in any way by customary landowners. The exception is that it is subject to s. (10) and (11) of the Land Act. The provision also permits customary landowners to dispose of the land to citizens in accordance with custom. The provision further prohibits disposal of a customary land by contract or agreement, even to citizens.
56. The provision under s132 of the Land Act also applies to the present proceedings. From the provision under s132, it is obvious that the current proceedings revolve around the disposal of customary land.
57. The present cases overtly involved disposal of customary land. The disposal of customary land in the present case are fraught with irregularities which were referred to in submissions by the counsels.
58. In all the agreements and sale of customary land referred to and relied on, Vaga as the chief vendor of customary land was in breach of s 132 of the Land Act. Some of its decisions have led to unwanted differences and disputes like the present proceedings.
59. There is also evidence that people alleging to be acting on behalf of Vaga have executed MOAs with the parties in these proceedings to dispose of their customary land. There is no evidence that those who claim to represent Vaga have standing or authority to dispose of customary land. It is questionable whether the various agreements entered into by persons claiming to be representatives of Vaga can be deemed as valid.
60. The Plaintiff entered into two agreements with the landowners. The First Defendant also entered into two agreements. The second agreement in both cases related to alterations to the first agreement.
61. The evidence in the Plaintiff’s second agreement with Vaga, shows that the Plaintiff paid K500, 000. 00 to a number of persons who signed the agreement over customary land as representing Vaga. The First Defendant also paid money to pay vendors who claimed to be customary landowners.
62. The Plaintiff in case number OS 99 of 2020 also entered into an agreement with Vaga to pay K15, 000. 00 per month on portion 3286C, which was later re surveyed and allocated to PNG Power.
63. These evidences and the transactions referred to clearly demonstrate that Vaga landowners breached the prohibition prescribed under s 132 of the Land Act.
64. The parties in these proceedings despite their seeming innocence as purchasers, became accomplices in the breach of s 132.
65. The landowners have made no appearance in Court as defendants in OS 99 of 2020. Despite that, the customary landowners are entitled to terminate agreements directly by choice or under various circumstances facing them.
66. This leads me to only one conclusion. That is to declare all the agreements reached between Vaga and the parties in these proceedings as unlawful and void ab initio. The outcome of this conclusion of the Court is that all land acquired and currently under dispute revert to the customary landowners. The position taken by the Court if affirmed will entail unenviable consequences to the parties and others in the same situation.
67. Even though counsels have not addressed this issue, I should in the interest of justice and in the exercise of discretion decline to invalidate the transactions relating to the disposal of customary land as I consider the Parties in these proceedings to be innocent purchasers.
68. On the same token, it is considered that the interest of the First Defendant and Fourth Defendants are private in nature. Conversely the interest of the Plaintiff is a public interest. The Plaintiff is a State institution established specifically to provide electricity to the public.
69. Under those circumstances public interest must take precedence over private interest which confers a better right over the land on which the electricity tower was to be erected.
70. From a perusal of the registered survey plan tendered into Court through the affidavit of Stanley Keluku sworn on 22 April 2020, it shows the powerline route covering numerous portions. The powerline route does not cover portion 3390.
71. This validates the claim that the Plaintiff was first in time with the powerline reserve as opposed to the survey plan relied on by the First Defendant which includes portion 3390.
72. The evidence also exposed numerous irregularities against all parties including the Plaintiff. Despite all that I consider that the public interest must supersede all other interests.
73. As for the Plaintiff in OS 99 of 2020 and the First Defendant in OS 87 of 2020 their remedy lay in damages. The issue of damages has not been specifically claimed or argued and therefore no orders are made
74. The following orders are made;
________________________________________________________________
In House Lawyers: Lawyers for the Plaintiffs
Kup & Co Lawyers: Lawyers for the First Defendant
Kipoi Lawyers: Lawyers for the Fourth Defendant
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URL: http://www.paclii.org/pg/cases/PGNC/2020/351.html