N9438
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS (HR) NO. 31 OF 2021 (IECMS)

BETWEEN
BEN GAMOA for and on behalf of himself and all other occupants of all that piece of land being Agricultural Lease over Portion 697 Milinch Granville, Fourmil, Port Moresby, National Capital District
Plaintiff

AND
TAMAKE HOLDINGS LIMITED
First Defendant/ Cross Claimant

AND
CROSS AGRITECH LIMITED
Second Defendant

AND
BEN GAMOA for an on behalf of himself and all other occupants of all that piece of land being Agricultural Lease over Portion 697 Milinch Granville, Fourmil, Port Moresby, National Capital District
Cross Defendant

Waigani: Tamade AJ
2021: 13th October
2022: 15th February

PRACTICE AND PROCEDURE – notice of motion seeking to dismiss proceedings for not disclosing a reasonable cause of action and for being an abuse of process – defendant cross-claims for summary judgment for vacant possession of the subject land for writ of possession to enforce possession of state lease

Facts

This is a ruling on a Notice of Motion seeking to dismiss the proceedings for not disclosing a reasonable cause of action and or an abuse of process and seeking summary judgment on the cross-claim for vacant possession of the subject land and for a writ of possession to enforce possession of the State Lease.

Cases Cited:

Amiau v Yalbees [2020] PGSC 133
Koitaki Farms Ltd v Kenge [2001] PGNC 59; N2143 
Kiso v Otoa [2013] PGSC 3
Mamun Investment Limited v Nixon Koi (2015) SC1409
Manikuni v Ly Cuong Long [2011] PGNC 213
Malewo v Faulkner (2007) PGNC 150, N3357 (20 November 2007)
Nodepa Plantation Ltd v Balat [2020] PGSC 25
Ready Mixed Concrete Pty Ltd v The State and Ors [1981] PNGLR 396
Simon Mali v The State (2002) SC690

Counsels:	

Mr Andrew Furigi, for the Plaintiff/Cross Defendant
Mr Bill Frizell, for the First Defendant/Cross Claimant

15th February, 2022

1. 	TAMADE, AJ: The Plaintiffs commenced proceedings by way of an Originating Summons seeking declarations over the land described as an Agricultural Lease, Portion 697 contained in State Lease Volume 34 Folio 135 located at ATS in National Capital District.

2. 	Subsequently, the Plaintiffs converted the Originating Summons into pleadings by directions of the Court and a Statement of Claim was filed on 16 July 2021.

3. 	The Plaintiffs are block holders who have settled on the subject land adjacent to the Air Transport Squadron (ATS) on the eastern side of the Jackson’s International Airport. The Plaintiffs say that they are long term occupants of the subject land having squatted over the years prior to the grant of the Agricultural Lease to the First Defendant in 2016.

4. 	The Plaintiffs allege that the land they have been squatting on was previously held by one Posa Kilori and then subsequently the land was given to the Second Defendant (Cross Agritech Limited) who subsequently transferred the land to the First Defendant in 2016. 

5. 	The Plaintiffs allege that the manner in which the subject land was transferred to the Second Defendant and then to the First Defendant was irregular and unlawful.

6. 	The Second Defendant was granted an Agricultural lease over the subject land on 16 June 2009.

7. 	The subject land was transferred to the First Defendant from the Second Defendant on 5 February 2016.

8. 	The Plaintiffs also claim in their pleadings that there were administrative defects in the issuance of the Agricultural Lease and the transfer of these ultimately to the First Defendant.

9. 	The application by the First Defendant before this Court seeks dismissal of these proceedings on the basis that the representative action by the Plaintiffs is not a properly constituted representative action and that alleged events of 2004 to 2009 are time-barred and also that all other administrative actions of the  Department of Lands, PNG Land Board and or the Registrar of Titles are time-barred as the Plaintiffs should have proceeded by way of judicial review and the time allowed for judicial review of the matter under Order 16 of the National Court Rules has lapsed and therefore the matters complained of are time-barred.

Are these proceedings before the Court a properly constituted representative action?

10. 	 In The case of Malewo v Faulkner (2007) PGNC 150, N3357 (20 November 2007), the late Justice Davani considered the issue of considerations in a representative claim. Her Honour stated that where proceedings are commenced as a representative action, the endorsement on a writ must show that and not the statement on the title which is a mere description. This is in regard to Order 4 Rule 20 of the National Court Rules where it states that:

“1) Before a Writ of Summons is issued, it must be endorsed,
a)	Where the Plaintiff sues in a representative capacity, with a Statement of the capacity he sues”

11. 	 I am of the view that Order 4 Rule 20 is also applicable to matters proceeded by way of Originating Summons as it addresses representative actions.

12.  The case of Simon Mali v The State (2002) SC 690 is Supreme Court authority for the following requirements in representative actions that have also been discussed by Justice Batari in the case of Manikuni v Ly Cuong Long [2011] PGNC 213 also quoting Malewo v Faulkner as:

a)	Intending Plaintiffs must be named and identified in the proceedings
b)	Each and every intended Plaintiff must give specific instructions evidence in writing to their lawyers to act for them.
c)	Any person in whose name proceedings are commenced and who claims to represent other intended Plaintiffs must produce an authority to the Court to show that he was authorised by them to file proceedings as a class representative.

13. 	The Statement of Claim filed by the Plaintiffs on 16 July 2021 and the initial Originating Summons filed on 17 December 2020 states that “Ben Gamoa for and on behalf of himself and all the other occupants of all that piece of land being agricultural lease over Portion 697 Milinch Granville Fourmile Port Moresby National Capital District. “

14. 	The schedule attached to the Statement of Claim has a list of intended Plaintiffs represented as Block Holders at ATS with their block numbers but there is no signature or authority.

15. 	 In the Affidavit of Ben Gamoa sworn on 29 June 2021 and filed on 16 July 2021, Mr Gamoa states that he and other identified Plaintiffs in the schedule to the Statement of Claim have given specific instructions in writing to Furigi Lawyers to act for them. Annexure A to that Affidavit attaches a copy of the “Block Holders Consent and Authority” in a one-page general statement stating that they authorise Ben Gamoa to represent them and that they appoint Andrew Furigi of Furigi Lawyers to act as their lawyer. The “authority’ lists Block Numbers and names of persons and their signatures on the authorization form. What is interesting to note is that the block holders say in their authority that they authorise Ben Gamoa and indemnify him against all liability, loss, costs, charges or expenses arising from the powers under the authority and Consent.

16. 	 Mr Furigi submitted that as the Plaintiffs were many, they were identified according to the Block Holder concept having held blocks of land within the subject land complained of. For convenience, they have all signed the consent and that they satisfy the requirements of representative action.

17. 	I am of the view that the Block Holder concept identifying the Plaintiffs is not expressed in clear terms on the endorsement on the State of Claim and there are no signatures on the schedule of names in the initial Originating Summons and in the Statement of Claim.

18. 	I am of the view that the requirements of Order 4 Rule 20(1) of the National Court Rules are not met in this case, where a Plaintiff sues in a representative capacity, the originating document must be endorsed with a Statement of the capacity in which the lead Plaintiff sues. This is the requirement in the case of Malewo v Faulkner.

19. 	Again, in the case of Simon Mali v The State, each Plaintiff must provide written authority that demonstrates that they understand the nature of the proceeding and they have specifically authorised the lawyers to represent them and such instructions must be specifically in writing. This ensures that if costs are incurred in proceedings, the identified and named Plaintiff can be held accountable for costs.

20. 	Mr Furigi makes submissions that because there are many Plaintiffs, it was convenient to proceed the way that they did in the authority and consent documents and signatures attached to a schedule.

21. 	I am of the view that it is not enough for all Plaintiffs to give their word to indemnify one person to represent them. Blanket approvals don’t go to satisfy the requirement for individual authority and that they understood the measure of their consent in being bound to a court proceeding as is stated on case-law referred to herein.

22. 	 I am not satisfied that the requirement for representative actions is met in this proceeding.

Are these proceedings an abuse of process as they are time-barred and do not disclose a reasonable cause of action?

23. 	The First Defendant also claims that paragraphs 3 to 21 in the Plaintiff’s Statement of Claim concern events that arose from the year 2004 to 2009 and these alleged events are statute-barred pursuant to the Frauds and Limitations Act.

24. 	The First Defendant relies on the case of Nodepa Plantation Ltd v Balat [2020] PGSC 25 where the Supreme Court discussed the case in similar facts to this current case on transfer and registration of a State Lease. Nodepa v Balat established that fraud is a tort within the ambit of section 16 of the Frauds and Limitations Act and therefore a period of 6 years is the time period for an institution of any claim on tort. A cause of action in regard to allegations of fraud dealing with land should start from the date of registration of the transfer to the registered owner. 

25. 	The Plaintiff’s cause of action challenging the State Lease currently held by the First Defendant would begin from the date in which it was granted to a Posa Kilori, and then registered to the Second Defendant on 16 June 2009 as pleaded in paragraph 3 of the Statement of Claim before the transfer to the First Defendant.

26. 	 The Plaintiff’s cause of action is time-barred as proceedings are filed well outside the six years’ time limit as stipulated in section 16 of the Frauds and Limitations Act.

27. 	The Plaintiffs allegations against the Registrar of Titles, PNG Land Board and or the Department of Lands are also proceedings that should properly be commenced by way of judicial review proceedings if it seeks to challenge the grant of the State Lease to the Second Defendant challenging the administrative process. Proceedings for judicial review seeking orders such as certiorari should be commenced within 4 months from the date the decisions were made as set out in Order 16 of the National Court Rules. Any anticipated claim for judicial review is therefore time-barred.

28. 	The First Defendant also states that the pleadings in the Plaintiff’s Statement of Claim do not plead any fraud against the First Defendant as would come within the exception to the principle of indefeasibility of title. In this instance, if fraud is not pleaded, perhaps the cause of action against the First Defendant would be one which should have proceeded by way of judicial review however this matter has come by way of pleadings.

29. 	In the case of Kiso v Otoa [2013] PGSC 3, the Plaintiff in the lower Court only alleged fraud against the transferor of the State Lease and not on the part of the purchaser who was the registered proprietor who had purchased the land. The Supreme Court discussed the principle of indefeasibility of tile and the limited exceptions to the principle. A registered proprietor holds the title to a State Lease free of any encumbrance or claim except as to fraud. There are no allegations of fraud as against the First Defendant, the current registered proprietor of the subject land.

30. 	Mr Furigi implores the Court to consider the plight of the many squatters on this particular land who have resided on this land for many years and that had they had known earlier about the State Lease being granted to the Second Defendant, they would have taken appropriate action. The Plaintiffs had only become aware after evictions proceedings were filed against them in the District Court. It is a sad plight however the Court’s hands are bound by the law. In the case of Mamun Investment Limited v Nixon Koi (2015) SC1409, the Supreme Court said that the cause of action for a claim on fraud does not accrue from when the alleged fraud is found or discovered and therefore knowledge of when the alleged fraud was discovered or came to the knowledge of the claimants is unnecessary. The cause of action for any alleged fraud in regard to the registration and transfer of State Leases runs from the time the State Lease is registered in the name of the registered proprietor.

31. 	In considering all these matters as to bringing the matter in a representative capacity and the proceedings being time-barred as well as disclosing no cause of action, I am satisfied that this matter should be dismissed on the reasons expanded in this judgment.

Cross-Claim- summary judgement

32. 	 I now consider the First Defendant’s cross-claim seeking judgment for vacant possession of the subject land and a Writ of Possession as the First Defendant is the registered proprietor.

33. 	The Plaintiffs have not argued the cross-claim in detail however the First Defendant seeks that it is entitled to the cross-claim summarily as there is no defence to the cross-claim by the Plaintiffs. 

34. 	The Plaintiffs have been in adverse possession of the land and the First Defendant as the registered proprietor is entitled to exclusive possession of the land. 

35. 	 The case of Ready Mixed Concrete Pty Ltd v The State and Ors [1981] PNGLR 396 is a similar case concerning land in Lae where some 500 plus occupants had been squatting on the land. The Court ruled in that matter that the right of squatters on the land is one of equity as they do not have any legal right to remain on the land. The Court gave considerable time for the occupants to remain on the land and afterwards for the titleholder to take exclusive possession.

36. 	The Ready Mixed Concrete Case above is cited in the case of Amiau v Yalbees [2020] PGSC 133 in regard to the equitable interest of settlers who have been occupying land over a long period of time without authority and or without objection from the registered proprietor. A settler who has squatted on land belonging to someone else has only to be given sufficient time to vacate the said land if they have been on the land for a considerable amount of time and have set up dwelling structures etc.

37. 	I find that the Plaintiffs are only entitled to an equitable remedy of sufficient notice to vacate the subject land and give possession to the First Defendant as the registered proprietor.

38. 	From the affidavit of Mr Ben Gamoa the principal Plaintiff, he states that he settled on the subject land in 2005 and there are more than 2000 settlers who have settled on the land. The Statement of Claim filed on 16 July 2021 pleads that during the 1980s and 1990s, communities were formed, and they settled on the subject land in anticipation of a community development project which will see these settlers having legal rights over blocks of land in this area. It will take some time for these settlers to completely give vacant possession to the First Defendant.

39. 	In Koitaki Farms Ltd v Kenge [2001] PGNC 59; N2143 (9 July 2001), Kandakasi DCJ also observed in that decision that where settlers have squatted on land at the will of the landlord for a considerable time, they are entitled to reasonable notice to vacate. The residents on the subject land were therefore given a period of not less than 12 months to be issued notices to vacate the subject land. Plaintiff’s in this case has not arrived on the land at the will of the landlord. They have squatted over the land over some time and the land has passed on now to the hands of the First Defendant.

40. 	 In Ready Mix Concrete v The State, the squatters had arrived on the land from 1969 and were therefore living on the land for about 12 years to 1981, they were given 1 year to 6 months to vacate the subject land.

41. 	 What is therefore a reasonable time to allow for the Plaintiffs and all who currently reside on the subject land to give vacant possession to the First Defendant? I consider 6 months as a reasonable time period for the Plaintiffs and all who currently reside on the subject land to completely give vacant possession to the First Defendant.

42. 	I, therefore, make the following orders:

1)	These proceedings are dismissed for the reasons given in this decision.
2)	The First Defendant’s cross-claim against the Plaintiffs is granted as follows;
a)	The First Defendant is entitled to vacant possession of the subject land described as State Lease Volume 34 Folio 135 Portion 697.
b)	The Plaintiffs, and their servants and agents shall give vacant possession of the subject land to the First Defendant within six (6) months from the date of these orders.
c)	Should the Plaintiffs’ fail to give possession of the subject land to the First Defendant within six months from the date of these Orders, a Writ of Possession shall be issued to the First Defendant to enforce this judgment forthwith.
3)	Costs follow the event. The Plaintiffs shall meet the First Defendants costs of these proceedings.
4)	Time is abridged to the date of these orders to take effect forthwith.

Orders accordingly.
________________________________________________________________
Furigi Lawyers: Lawyers for the Plaintiff/ Cross Defendant 	
Warner shand Lawyers: Lawyers for the First Defendant/Cross Claimant