Evangelical Lutheran Church of Papua New Guinea v David [2022] PGNC 528; N10060 (25 March 2022)

N10060

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS NO. 26 OF 2011

BETWEEN:

THE EVANGELICAL LUTHERAN CHURCH OF PAPUA NEW GUINEA
-Plaintiff-

AND:

JACK DAVID, YANGI BENSON, JEROT JUSTIN, MOSES BUAKI, TINO HOMBI, CATHERINE STEVEN, WENTI MENEVA, PETER LOIZE & ALL OTHER ILLEGAL OCCUPANTS OF PORTION 354, MILINCH MALAHANG FOURMIL HUON-CERTIFICATE OF TITLE, VOLUME 34, FOLIO 26
-First Defendants-

AND:

NOKA BUILDERS LIMITED, DAMBURA HOLDINGS LIMITED, COASTAL FREIGHTERS LIMITED
-Second Defendant-

Lae: Dowa J
2021: 6^th April
2022: 25^th March

LAND LAW – state lease -– plaintiff seeking declaratory relief of ownership of state lease –Indefeasibility of title under section 33 of Land Registration Act- Seeking orders for possession- and permanent injunctions from adverse dealings on land and from harassment or intimidation - defendants dispute ownership of land based on fraud-actual and constructive fraud discussed- court has no jurisdiction to deal with disputes over alienated customary land– the appropriate body to hear disputes over alienated customary land is the Land Titles Commission - Defendants’ equitable interest to remain on property is limited- Orders granted in favour of the Plaintiff

Cases Cited:
Mudge -v- Secretary for Lands [1985] PNGLR 387
Pius Tikili -v- Home Base Real Estate Ltd (2017) SC1563
National Council of Young Men’s Christian Association of PNG -v- Firms Services Ltd (2017) SC1596
Albert Camilus -v-David Mota & others (2022) SC2210
Godowan Investment Ltd v Wambea (2018) N7263
Yandu v Waiyu (2005) N2894
Kimas v Oala (2015) SC1475
Katumani & Ors v Elijah Yawing & Ors (2020) N8481
Yooken Paklin v The State (2001) N2212
Peter Wanis v Fred Sikiot and The State N1350
Enaia Lanyat v State (1996) N1481
Obed Lalip v Fred Sekiot and The State (1996) N1457
Jonathan Mangope Paraia v The State (1995) N1343
Samot v Yame (2020) N8266
Jure Investment v Conlife (2018) N7286
Paga Hill Development Company v Daure Kisu (2014) N5683
Laka v Nui (2013) SC1223
Robinson v Airlines Corp [1983] PNGLR 476
Medaing v Ramu Nico Management (MCC) Ltd (2011) SC144

Counsel:
S.Sor, for the Plaintiff
M. Murray, for the Defendants

DECISION

25^th March, 2022

1. DOWA J: This is a decision on the substantive claims by the Plaintiff seeking various orders.

2. By Originating Summons, the Plaintiff seeks the following orders:

1. Judgment for possession of land contained in Certificate of Title Volume 34 Folio 26, Portion 254 Milinch of Malahang, Fourmil of Huon, Lae, Morobe Province (Portion 354);
2. Leave to issue Writ of Possession pursuant to the judgment for possession.
3. An order that all the defendants and their family members, relatives, dependants, agents, employees and servants whatsoever immediately deliver up vacant possession of the areas of Portion 354 they are illegally occupying.
4. An order that all the defendants and their family members, relatives, dependants, agents, employees and servants whatsoever bread down their houses, structures, buildings and remove all their personal belongings, building materials whatsoever and food gardens and deliver up vacant possession of Portion 354.
5. An order in the nature of a permanent injunction restraining all the defendants and their family members, relatives, dependants, agents, employees and servants whatsoever from trespassing on Portion 354.
6. An order in the nature of a permanent injunction restraining all the defendants and their family members, relatives, dependants, agents, employees and servants whatsoever from threatening, intimidating or otherwise harassing the Plaintiff, its associates, agents and employees living on Portion 354 or elsewhere; and
7. An order that Mr Jack David be permanently restrained from holding himself out as the landowner of Portion 354 and representing or proposing to sell or lease any piece.
   

Background Facts

3. The Plaintiff is a Christian church organisation established under the Lutheran Church of Papua New Guinea Act. It is the registered proprietor of land, described as Portion 354, Milinch of Malahang, Fourmil of Huon, Lae, Morobe Province, contained in State Lease Volume 34 Folio 26.

4. Portion 354 is a huge land containing an area of 500 hectares. It contains substantial improvements, which include Martin Luther Seminary, the Lutheran Shipping Compound, and the Lutheran Development Services office.

5. The Defendants are also residing on vacant part of the land despite repeated requests by the Plaintiff to give up possession. Jack David, one of the first Defendants, disputes the Plaintiff’s ownership to the subject land. Mr David says he is the traditional landowner of the land, Portion 354, and is entitled to sell, lease or deal with parts of the unused land.
   

6. This resulted in the current proceedings. The proceedings are vigorously defended by the Defendants led by the First Defendant.

Issues

7. The issues for consideration are:

1. Whether the Plaintiff is the registered proprietor of Portion 354, Milinch of Malahang, Fourmil Huon, Morobe Province.
2. Whether there is a bona fide dispute as to title.

100. Whether the Plaintiff is entitled to the reliefs it seeks.
     

The Plaintiff’s Evidence

8. The parties proceeded with the trial calling their respective witnesses who gave both affidavit and oral evidence. The Plaintiff tendered the following affidavit evidence:

(1^st) Affidavit of Sesenga Narangeng sworn: 17/12/2010 & filed: 25/01/2011 marked as Exhibit P-1,

(2^nd) Affidavit of Sesenga Narangeng sworn: 18/02/11 & filed 21/02/2011 marked as Exhibit P-2,

(3^rd) Affidavit of Sesenga Narangeng sworn: 04/04/2011 & filed: 11/04/2011 marked as Exhibit P-3,

(4^th) Affidavit of Gai Pop sworn: 25/02/2015 & filed: 31/05/2016 marked as Exhibit P-4

(5^th) Affidavit of Danny Maliaki sworn: 25/02/20202 & filed: 31/05/2016 marked as Exhibit P-5

(6^th) Affidavit of Bernard Kaisom sworn: 11/06/2017 & filed: 13/06/2017 marked as Exhibit P-6.

9. The summary of the Plaintiff’s evidence is this:

• The Plaintiff is incorporated pursuant to the Evangelical Lutheran Church of Papua New Guinea Act. On 25 March 1914, the then Leader of the Lutheran Church at the time Mr Johannes Flierl entered a written Contract of Sale with the Villagers of Yanga and Apo (now known as Butibum and Kamkumung) villages of Lae. Pursuant to that Contract of Sale, the villagers and clans of Yanga and Apo (Butibum and Kamkumung) sold about 500 hectares of land to the Lutheran Church.
  
• The 500 hectares of land was registered as Portion 270. The records of Portion 270 were destroyed in Rabaul during World War 11. A Land Titles Commission was set up in 1962 to hear the matter. After the hearing the records of Portion 270 were restored to the Register Book on 17^th April 1978 under the New Guinea Land Title Restoration Act 1951 pursuant to an order of the Land Titles Commission dated 6^th November 1962.
  
• On 3 August 1978 all properties held under Lutheran Mission New Guinea including Portion 270 were transferred to the Evangelical Lutheran Church of New Guinea Property Trust. In 1992 the then Portion 270 was conditionally surrendered and sub-divided into Portions 351 and 354. At around this time the Evangelical Lutheran Church of New Guinea had already changed its name to its present name.
  
• On 7 March 2003 the Plaintiff was registered as the registered proprietor of Portion 354.The three Villages of Yanga, Butibum and Kamkumung incorporated the entity, BUP Landowners Association Incorporated to enable discussions with the Plaintiff. The BUP Landowners Association Inc. consists of the respective landowners of three clans namely Busulum, Unapu and Poalu of Yanga, Kamkumung and Butibum. The Plaintiff had discussions with the BUP landowners Association Inc and gave Portion 351 back to the Busulum Clan.
  
• The clan leaders of BUP Landowners Association Inc have agreed that Portion 354 should remain with the Plaintiff because the Plaintiff is the rightful owner and because of the huge improvements erected by the Plaintiff on Portion 354. Portion 354 comprises of the Martin Luther Seminary, the Lutheran Shipping Compound and Lutheran Development Services Office, and a small vacant plot which the Defendants are now occupying.
  
• The Plaintiff has been trying to evict the Defendants from this plot for many years since 2003. The Plaintiff denies making any promises to the first Defendants to relinquish the whole or part of Portion 354 to the Defendants. The Plaintiff denies further that the land was fraudulently acquired. The witnesses Sesengo Narageng, Gai Pop and Danny Maliaki come from the same Busulum clan as that of Jack David, the First Defendant. They deny and dispute the claims by Jack David. They say their ancestors sold the subject land to the Plaintiff and Jack David does not represent the interest of the clan and is misleading them.
  

DEFENDANTS’ EVIDENCE

10. The Defendants gave oral evidence and tendered the following affidavit evidence:

(1^st) Affidavit of Jack David sworn & filed 29/03/2012

Marked as Exhibit D – 1

(2^nd) Affidavit of Jack David sworn: 17/03/2020 & filed: 18/03/2012

Marked as Exhibit D – 2

(^3rd) Affidavit of Paul Joseph sworn: 17/03/2020 & filed: 18/03/2012

Marked as Exhibit D – 3.

11. This is the summary of the Defendant’s evidence.

• Jack David is the leader of the Busulum clan of Butibum village, and chairman of the Busulum Land Group Inc. They are the traditional landowners of the land Portion 354. Mr David says the Defendants do not dispute that the Plaintiff has a registered title over the land, Portion 354. However, they dispute the validity of the title. He says his Busulum clan and ancestors, are the customary owners of the Malahang land part of which is Portion 354, under State Lease, Volume 34, Folio 26 (“Land”). The ancestors never sold this Land to the Plaintiff nor its predecessor the Lutheran Mission Finschhafen (” LMF”), led by its then Mission leader Johannes Flierl as alleged.
  
• On 25/03/1914, Mission leader Johannes Flierl bought a portion of land from the Yanga Villagers known as “Delum Muki” in Yanga village and not “Malahang” from the Busulum clan in Butibam village. The defendants produced a copy of the English version of the Contract for Sale dated 25/04/1914 which states the name of the land purchased as ‘Delum Muki’. The original Contract of Sale was written in German.
  
• Although the Plaintiff and its predecessor, the LMF bought the land ‘Delum Muki’ from Yanga villagers in 1914, the Certificate of Title, Volume 27, Folio 118 dated 16/01/1942 issued to the LMF was in respect of land described as Part Malahang which the Plaintiff is relying on. The Plaintiff’s predecessor divided the land Part Malahang into Portions 270 and Portion 271. The first Defendant’s Busulum clan and its land is in the Portion 270, which was also known as Malahang Plantation.
  
• On 6/11/1962, the Land Titles Commission (TLC), when re-establishing ownership of Portion 270, in its final order made on that date, awarded an estate in fee simple of part of Portion 270 to the LMF delineated and edged red on the map annexed “A” to the order, and awarded an estate in fee simple of the other part of Portion 270 to the Director of District services and Native Affairs as trustee for the Natives delineated and marked purple on the said map. A copy of the Final Order was annexed to the affidavit of Jack David.
  
• The defendants say despite repeated requests by the defendants’ lawyer, the plaintiff has refused to disclose to them the original copy of the LTC final order of 6/11/1962 for them to confirm the portions of land given back to the landowners. The defendants believe that part of Portion 270 was given back to the landowners which includes what is now known as Portion 354.The first defendant says the Plaintiff’s Certificate of Title to Portion 354 is therefore defective and void, as it is issued subject to the conditions and restrictions imposed by the Land (Tenure Conversion) Act 1963. This would involve acquisition and conversion of customary land into Freehold or fee simple land. As the Busulum clan was not involved in the sale and transfer of its land in 1914 to the Plaintiff’s predecessor, it was wrong to include portions of their land in the later transactions.
  
• The first defendant says since 1980, they made representations to the Plaintiff and its predecessor, the Evangelical Lutheran Church of New Guinea including the late Head Bishop Kigasung for the Church to correct the wrong they had done and return whatever unused parts of their land at Malahang in Portion 270. Although a resolution was made to return unused parts of Portion 270 to the first defendant’s Busulum clan, the promises were not implemented.
  
• Much worse the land in Portion 270 was further sub divided into Portions 351 and 354. The defendant says there are no documents to show the process followed in the eventual issuance of the title in Portion 354. The first defendant says any rights and interest acquired by the Plaintiff in Portion 354 are tainted with fraud and are illegal and the land be returned to the customary landowners.
  
• In response to the evidence given by the Plaintiff’s witnesses, the defendants said the witnesses Gai Pop and Danny Maliaki were not telling the truth and were only trying to defend the Plaintiff.
  

Submissions of Counsel for the Parties

12. Mr. Gor, counsel for the Plaintiff submitted that the Plaintiff is the registered proprietor of Portion 354 and has an indefeasible title to the property by virtue of sections 32 and 33 of the Land Registration Act. The Defendants are unlawfully squatting on the land and dealing with same. The only way the Plaintiff’s Title to the property can be challenged is by reason of fraud and other exceptions under section 33(1) of the Land Registration Act. Mr Gor submitted that although the First Defendants challenged the validity of the Title, they have not produced any evidence to prove the allegations.

13. Mr. Murray, counsel for the Defendants submitted that although the Plaintiff has a registered title over Portion 354, the validity of the title is questionable. The land was not properly acquired from the original landowners. A purchase of customary land called “Delum Muke” by the Lutheran Mission Finschhaffen in 1914 did not include the Malahang land (Portion 354) owned by the First Defendant’s Busulum clan. That the 1962 Land Titles Commission hearing which restored the records of the land originally described as Portion 270 changed the name from Delum Muki to Malahang. It did not properly record the details of the land that was mapped out and recorded on the plan annexed to the Certificate of Title. Mr Murray submitted that there was no proper conversion of the customary land (Malahang) into freehold land as required by the Land (Tenure Conversion) Act 1963. The Title currently held by the Plaintiff includes portions of land belonging to the First Defendant’s clan which was illegally converted and therefore the first Defendant and his clan are entitled to dispute ownership and reside on the land and deal with same as customary owners.

Consideration of the issues

Whether the Plaintiff is the registered proprietor of the land, Portion 354, Milinch of Malahang, Fourmil Huon, Lae Morobe Province.

14. The Plaintiff has produced a certificate of title issued under State Lease, Volume 34 Folio 26 over the subject land, Portion 354, in the name of Evangelical Lutheran Church of Papua New Guinea. Section 32 of the Land Registration Act provides that where an instrument of title describes a person as the proprietor of an estate or interest, that person is the registered proprietor of the estate or interest. Section 33 of the Land Registration Act provides that a registered proprietor of an estate or interest holds it absolutely free from all encumbrances except for fraud and other exceptions set out in (1)(a) to (f). (Mudge -v- Secretary for Lands (1985) PNG LR 387).

15. The defendants have not disputed that the Plaintiff is registered as proprietor of Portion 354. They are, however, disputing the validity of the Plaintiff’s Title over the property.

16. I find as a matter of fact from the undisputed evidence that the Plaintiff is the registered proprietor of land described as Portion 354, Milinch of Malahang, Fourmil Huon, Lae under State Lease, Volume 34 Folio 26.

Whether there is a bona fide dispute as to the title.

17. The Defendants filed a Defence and a Crossclaim. The defendants, especially Jack David, while acknowledging that the Plaintiff is the registered title holder of Portion 354, they dispute the validity of the title. The Defendants allege that the title issued to the Plaintiff, in so far as it covers the land described as Malahang is invalid. The First defendant alleges Malahang land remains customary land. It was never sold to the Lutheran Mission in 1914. The land that was purchased by the Lutheran Mission Finschhafen was Delum Muki in Yanga village. The defendants allege, the map annexed to the Certificate of Title wrongly included the land as part Malahang. The defendants submit that the subsequent divisions of land into Portions 270 and 271 and eventual creation of Portion 354 after a Land Titles Commission hearing were done illegally. The Defendants submit that the land remains customary land belonging to the Busulum clan.

18. The Plaintiff maintains that it has an indefeasible title over Portion 354 under section 33 of the Land Registration Act. The only exception to indefeasibility of title is fraud. Counsel for the Plaintiff submits further that the defendants have not produced evidence of fraud raising a bona fide dispute as to title.

19. I prefer the evidence of the Plaintiff in so far as the history of the process involving the eventual issuance of state lease over Portion 354 is concerned. That in 1992 the original Title over Portion 270 was conditionally surrendered and subdivided into Portions 351 and 354. After discussions with the original customary landowners of Busulum of Butibam, Unapu of Kamkumung and Poalu of Yanga villages, the Plaintiff released Portion 351 back to the original landowners. All the clan leaders of the said villages through BUP Landowners Association agreed for the Plaintiff to retain Portion 354. There is logic in this arrangement as the evidence shows Portion 354 contains substantial improvements which comprises of Martin Luther Seminary, the Lutheran Shipping Compound, and the Lutheran Development Services Office. The defendants are occupying a small vacant plot only which the Plaintiff has instituted these proceedings to evict.

20. The law on section 33 (1) of the Land Registration Act is settled. A registered proprietor has indefeasible title under section 33 of the Land Registration Act, except for fraud and other exceptions listed in subsection (1). Fraud can be either actual or constructive fraud. Refer: Mudge -v- Secretary for Lands (1985) PNG LR 387, Pius Tikili -v- Home Base Real Estate Ltd (2017) SC1563, National Council of Young Men’s Christian Association of PNG -v- Firms Services Ltd (2017) SC 1596 and Albert Camilus -v-David Mota & others (2022) SC 2210.

21. The Defendants raised serious allegations disputing the Plaintiffs title based on fraud against the Plaintiff. The defendants are arguing that the circumstances of granting the State Leases to the Plaintiff were so unsatisfactory, irregular, or unlawful as to be tantamount to fraud. I am aware of the strong line of Supreme Court authority in the cases cited above to support the principle of constructive fraud. The allegations of constructive fraud are levelled against the Plaintiff, the Land Titles Commission and the Department of Lands and Physical Planning. The latter two are not parties to these proceedings. It would be improper and unfair to deliberate on the issues of fraud without their involvement. The defendants are indirectly seeking a review of the various administrative decisions. They are questioning various processes involving various legislation in the initial acquisition and subsequent creation of various titles over land including Portion 354, the subject of these proceedings. This process is available under Order 16 of the National Court Rules which provide for Judicial Review of quasi-administrative decisions.

22. Whilst the allegations are serious, the Defendants have not taken any proper and appropriate action or steps to challenge the title in some tangible ways to raise the issue of bona fide dispute as to title. The First Defendant and the other customary landowners have not commenced any proceedings challenging the title obtained by the Plaintiff. The title was issued many years back. The Defendants and the other customary landowners have been aware since. The validity of the title was not challenged so far, in a Court of competent jurisdiction or the Land Titles Commission.

23. The onus of challenging the validity of title rests on the defendants. In Godowan Investment Ltd v Wambea (2018) N7263, Cannings J said this at paragraph 9 of his judgment:

“The fact that the leases were granted to and registered in the name of the plaintiff gives rise to the presumption that it has good and indefeasible title subject only to the exceptions prescribed by Section 33(1) of the Land Registration Act (Mudge v Secretary for Lands [1985] PNGLR 387). The onus of proving a case of fraud or that any of the other exceptions in Section 33(1) applies rests with the person who challenges the title of the registered proprietor (Niugini Properties Ltd v Londari (2014) N5727).”

24. I am also guided by a National Court decision in Yandu v Waiyu (2005) N2894, where the Court (Cannings J) in dealing with an eviction matter held that:

“2. If the registered proprietor of a State Lease commences proceedings in the District Court to enforce their interest in the land there is no bona fide dispute about title to the Land unless some other person demonstrates that they have taken some distinct, formal, legal steps to disturb that title.”

25. In the present case, the Defendants have not demonstrated to the Court that they have taken appropriate legal steps to disturb the Plaintiff’s title. Therefore, in my view there is no bona fide dispute about title.

26. Secondly, where customary land is alienated, the process of determining customary ownership and land rights is now vested with the Land Titles Commission. I say this because the allegations concern customary land rights and interests. The allegations are raised by Jack David, holding himself out as a customary landowner. Jack David’s standing as a landowner and his customary land rights and interests are challenged by the other landowners who gave evidence for the Plaintiff. In the circumstances, the National Court does not have jurisdiction to deal with the issues raised by the Defendants.

27. In Kimas v Oala (2015) SC1475, the Supreme Court settled the law. At paragraphs 6 and 7 of its judgment the Court said, and I quote:

“6. It is settled law that the National Court has no jurisdiction to hear and determine disputes concerning ownership by custom of any land, including a dispute as to whether any land is or is not customary land. Such disputes fall within the exclusive jurisdiction of the Land Titles Commission under section 15 (determination of Disputes) of the Land Titles Commission Act, which states:

The Commission has, subject to this Act, exclusive jurisdiction to hear and determine all disputes concerning and claims to the ownership by custom of, or the right by custom to use, any land, water or reef, including a dispute as to whether any land is or is not customary land and may make all such preliminary inquiries and investigations as it deems necessary for the purpose of hearing and determining the disputes and claims.

7. Section 15 has been given full effect by the courts over many years. As soon as it becomes apparent that a case involves a dispute about whether a land is or is not a customary land, the court should divest itself of jurisdiction. Such disputes fall within the exclusive domain of the Land Titles Commission.”
28. Applying the reasonings in Kimas v Oala, I have expressed a similar view in Katumani & Ors v Elijah Yawing & Ors (2020) N8481. At paragraph 28 of my judgment, I said:

“28. Since the Defendants have raised substantial dispute over ownership, I will address them as well, so the parties have proper and informed understanding of the process involved in furthering their interests. It is trite law that both the district and National Courts have no jurisdiction to deal with disputes over customary land. Such disputes can be dealt with in the first instance by following the procedures and processes in the Land Dispute Settlement Act. Where a title is issued over customary land as in the present case, a disputing party can mount a case with the Land Titles Commission pursuant to section 15 of the Land Titles Commission Act”.
29. Based on these two reasons, I find the defendants have not appropriately challenged the Plaintiff’s title to the property, Portion 354.

No evidence on Fraud

30. Thirdly, even if I am wrong about my views expressed in paragraphs 19 to 29 of my judgment, I am not satisfied with the evidence of the Defendants. They have not proven the allegation of fraud challenging the title of the Plaintiff. The evidence on allegations of fraud was presented mainly by the First Defendant, Jack David. Mr David’s evidence was rebutted by the Plaintiff’s witnesses, namely Sesengo Narageng, Bernard Kaisom, Gai Pop, and Danny Maliaki. Messrs Pop and Maliaki gave evidence that they come from Butibam village and are members of the Busulum clan, the same clan as that of Jack David. That their ancestors gave their land to the Plaintiff willingly and that Jack David does not represent them, and he is misleading everyone. I prefer the evidence of Gai Pop and Danny Maliaki as credible and witnesses of truth. Their evidence is consistent with the documentary and historical evidence given by the Plaintiff’s Church officials, Messrs Sesenga Narangeng and Bernard Kaisom.

31. On the other hand, the Defendants had difficulty in proving the allegations of fraud. They blame the Plaintiff and the Land Titles Commission and the Lands Department for failing to provide information, documents and evidence of the process involving the acquisitions, the conversions and eventual creation of Portion 354. They question the orders and records of the 1962 Land Title Commission hearing. The defendants allege foul pay in the way the description of the land in the original title under the name Delum Muki was changed to Malahang purposely to include the Defendants land, but they did not produce any documentary evidence. The onus was on the Defendants to bring the necessary evidence. One would think all lands documents would either be in the Lands Department and/or in the office of the Land Titles Commission. The Defendants could have summonsed the relevant Departments to produce the records if they desired which they failed to do. It is trite law that he who alleges must prove.: Refer: Yooken Paklin v The State (2001) N2212, Peter Wanis v Fred Sikiot and The State (N1350), Enaia Lanyat v State (1996) N1481; Obed Lalip v Fred Sekiot and The State (1996) N1457; Jonathan Mangope Paraia v The State (1995) N1343, and Samot v Yame (2020) N8266.

32. For the forgoing reasons, I find there is no bona fide dispute as to title. It follows as a matter of course that the Defendants have not proven their crossclaim challenging the title of the Plaintiff. The Plaintiff, therefore, remains the registered proprietor of Portion 354 until such time when it is legally challenged in a proper forum.

Whether the Plaintiff is entitled to the reliefs it seeks.

33. The Plaintiff seeks several reliefs in the originating summons. I will consider each one of them.

Vacant Possession

34. The first, third and fourth reliefs sought is a judgment for vacant possession and for the Defendants to deliver up vacant possession. This will involve the demolition and removal of any buildings, homes, structures, and improvements done on the property. As I have found, the Plaintiff is the registered owner of the Property, Portion 354. There is no bona fide dispute as to title. The Defendants and other unauthorised persons are illegally squatting on parts of Portion 354. It appears the Defendants, relatives and other persons have been residing on the land for many years. They have built homes and structures on the land. One might argue, the Plaintiff has not done enough and allowed the Defendants, and their agents to move in and settle on the land. However, the evidence shows the Defendants, especially the first Defendants knew many years back that the Plaintiff had a Title over the property. The evidence shows the Plaintiff has taken steps, requesting the Defendant to stay clear off the land. They commenced these proceedings in 2011. They have even obtained restraining orders at the commencement of these proceedings which the defendants failed to comply. The Plaintiff is entitled to take up possession of the property and there is no good reason for refusing it. This may be difficult for the defendants, but it should not be a surprise as the defendants knew or ought to have known the consequences of settling on someone’s land without their consent.

35. In the case of Godowan Investment Ltd v Wambea (2018) N7263, Cannings J, in dealing with a similar case said this at paragraphs 19-20 of his judgment:

“19. I have no hesitation in granting orders generally in terms of paragraphs 3 and 4. Such orders follow naturally from the declaration that the plaintiff is the registered proprietor of the State Leases over Section 173, Allotments 6, 7 and 8. The person who will be directly affected by such orders is the second defendant. He has erected buildings and other structures on the subject properties and conducts his businesses there. He invested in and improved the properties without the consent of the registered proprietor. That is a risk he voluntarily took and he has to bear the consequences of taking such a risk.

20. There is no evidence or suggestion that the plaintiff by its conduct acquiesced in the second defendant’s conduct. In fact the evidence shows the contrary. The plaintiff warned him on several occasions that he was acting unlawfully. He took no notice and continued to develop the properties. There is no good reason for refusing the relief sought in the originating summons.”
    

36. I am of the same view as that of his honour in the above case. I am therefore inclined to grant orders for vacant possession and for the defendants to deliver up vacant possession within the time frame the Court considers reasonable.

Writ of Possession

37. The second relief is an order for leave to issue Writ of Possession. The Court has upheld the application for vacant possession. For the same reasons and as a matter of course, leave to issue a Writ of Possession shall be granted.

38. The law is settled. If a person moves in and settles on someone else’s land and builds homes and structures, he does it at his own peril. Such persons are entitled to an equitable interest of being granted a reasonable time to remove their structures and vacate the property. Refer: Jure Investment v Conlife (2018) N7286, Paga Hill Development Company v Daure Kisu (2014) N5683 and Laka v Nui (2013) SC1223. In my view, a period of four (4) months is reasonable for the Defendants, their families and servants or agents to remove their homes and structures and deliver up vacant possession.

Permanent Injunction

39. The fifth and sixth reliefs are for an order in permanent injunction restraining all the Defendants, their families from trespassing on the subject land, and from threatening, intimidating or otherwise harassing the Plaintiff, its associates, agents, and employees living on the subject land.

40. Generally, a grant of an interlocutory injunction is discretionary. Its purpose is to maintain status quo until final determination. See Robinson v Airlines Corp (1983) PNGLR 476. A permanent injunction on the other hand is more serious and is sparingly granted. The Supreme Court in Medaing v Ramu Nico Management (MCC) Ltd (2011) SC144 discussed the law on permanent injunction. At paragraphs 58-63of the judgment, the court said, and I quote:

“58. The law in relation to the grant of permanent injunctions is summarised in the text Spry, Equitable Remedies, Injunctions and Specific Performance, Seventh Edition (1980). At pg.392, Spry (supra) states;

"In all cases, it is a matter of discretion whether an injunction will or will not be granted; but the manner of exercise of that discretion depends on the precise nature of the particular rights that it is sought to protect and on all other material circumstances."

59. Spry (supra) quotes further at pg.393 from the case Pride of Derby and Derbyshire Angling Association Ltd v. British Celanese Ltd [1953] ch.149 at 189, which states;

"An injunction may nonetheless, be refused, as a matter of discretion, should it appear to be unjust or 'highly unreasonable' to grant it, by reference to established equitable considerations such as laches, hardship, acquiescence, the absence of clean hands or such other matters. Further, statutory rights must be taken into account by the Court."
41. The Plaintiff, as the registered owner, is entitled to peaceful use of the property. It is not highly unreasonable or unjust to grant the orders sought. I will therefore grant an order for permanent injunction against the defendants.

Restraining Orders against Jack David
42. The seventh Relief is an order that the Defendant, David Jack be permanently restrained from holding himself out as the landowner of Portion 354 and selling any piece of land. The relief sought is ambiguous. The evidence shows David Jack is one of the leaders of the Musulum clan, the original customary landowners of the land Portion 354. Although his claims as leader in a representative role and customary ownership rights are disputed, he remains a leader in his own right. The issues of customary land rights and interests is not a matter for this Court to determine. Whilst the land has been alienated, and is now owned by the Plaintiff, it is not proper for the Court to grant orders sought by the Plaintiff. The Defendant David Jack should not be restrained from representing his people in pursuing their interests in the subject land. They have made serious allegations, and those should be pursued in a proper forum. Except that David Jack be restrained from dealing with the land, I am not inclined to grant orders in terms as requested by the Plaintiff.

Cost

43. Finally, as to cost, it is discretionary matter. Generally, an order for cost is awarded to a successful party in a contested hearing. The proceedings have been vigorously defended and substantial cost is incurred. The proceedings have been filed in 2011 and got heard in 2021. It is not clear why the proceedings have been delayed. It is the Plaintiff’s duty to get the case to an expedited hearing. In the circumstances, I am inclined to apportion cost, but will hear from the parties first.

ORDERS

44. The Court orders that:

1. Judgment be entered for the Plaintiff for possession of land contained in Certificate of Title Volume 34 Folio 26, Portion 254 Milinch of Malahang, Fourmil of Huon, Lae, Morobe Province (Portion 354).
   
2. Leave is granted to issue Writ of Possession pursuant to the judgment for possession, which shall take effect four (4) months from date of this order.
   
3. All the Defendants and their family members, relatives, Dependants, agents, employees, and servants whatsoever deliver up vacant possession of the areas of Portion 354 they are illegally occupying within (4) months from date of the order.
   
4. All the Defendants and their family members, relatives, Dependants, agents, employees, and servants’ whatsoever break down their houses, structures, buildings and remove all their personal belongings, building materials whatsoever and food gardens and deliver up vacant possession of Portion 354 within four (4) months from the order.
   
5. A permanent injunction is hereby granted restraining all the Defendants and their family members, relatives, dependants, agents, employees, and servants whatsoever from trespassing on Portion 354.
   
6. A permanent injunction is hereby granted restraining all the defendants and their family members, relatives, dependants, agents, employees, and servants whatsoever from threatening, intimidating or otherwise harassing the Plaintiff, its associates, agents, and employees living on Portion 354 or elsewhere.
   
7. Cost is reserved. (After hearing parties, the Court ordered the Defendants to pay 50% of the Plaintiff’s cost after being taxed).
   
8. Time be abridged.
   

Fiocco Nutley Lawyers: Lawyers for the Plaintiffs

Murray & Associates Lawyers: Lawyers for the Defendants