Tito v Tolopa [2022] PGNC 61; N9466 (17 February 2022)

N9466
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS NO 474 OF 2019

BETWEEN
ROSE NEE TITO for and on behalf of herself as the principal landowner and other landowners of Omo Village in Kavieng, New Ireland Province whose names appear in schedule 1 of original Originating Summons
Plaintiff

AND
Oswald Tolopa in his capacity as the Acting SECRETARY FOR Department of Lands & Physical Planning
First Defendant

AND
Department of Lands & Physical Planning
Second Defendant

AND
The Independent State of Papua New Guinea
Third Defendant

Waigani: Makail, J
2021:18^th August, 15^th October
2022: 17^th February

STATE LAND – Declaration of National Land – Land declared as an aerodrome – Land used for airport – Claim for settlement payment – Jurisdiction of – National Lands Commission – Proceeding dismissed – Abuse of process – Land Act, 1996– Section 5 – National Land Registration Act, 1977 – National Land Registration Act, Ch 357 – Sections 4, 10(2), 11, 25, 39 -46A & Schedule 1

STATE LAND – Acquisition of land – Land declared as an aerodrome – Land used for airport – Claim for compensation – Lack of proof of land acquired by State – No basis for an award of compensation – Proceeding dismissed – Land Act, Ch 185 – Section 5A – Land Act, 1996– Sections 5, 7, 13, 12, 23 & 25

Cases cited:

Nil
Counsel:

Mr. I. Kwaimani, for Plaintiff
Ms. Z. Waiim, for Defendant

JUDGMENT

17^th February, 2022

1. MAKAIL J: By an amended originating summons filed 12^th December 2019 the plaintiff for herself and on behalf of landowners of Omo village in Kavieng alleged that the defendants failed to compensate them for occupying their customary land. At present the land is identified as Portion 49 and comprises of an area of 84.58 hectares which houses the Kavieng Airport.

2. The plaintiff seeks an order for payment in the sum of K80,280,000.00 as land compensation based on a valuation report by CK Valuers & Realtors dated 21^stJune 2011 and a further order for payment of this sum to their lawyers’ trust account including interest at a rate of 2% under the Judicial Proceedings (Interest on Debts and Damages) Act, 2015 and legal costs.

3. According to the affidavits relied on by the plaintiff, she asserted that people of Omo village are the customary landowners of the subject land. The land was used by the State to build the Kavieng Airport but the owners were not compensated for their land. She and her late father Mr Epel Sikeng Tito had made many representations to the defendants for compensation but have not received any.

4. Out of frustration, she and her late father with Omo villagers shut-down the airport twice, first in 2010 and second in 2014. She asserted that Portion 49 was never part of the land which was declared by the then Minister for Lands as National Land on 6^th December 1984.

5. She further asserted that even after parties signed a consent order following a mediated agreement dated 27^th November 2015 and further amended it on 6^th June 2016 in proceeding OS No 674 of 2014: National Airports Corporations v. Epel Sikeng Tito and Rose Nee Tito, the defendants in the current proceeding made no compensation and have been passing the responsibility from one State agency to another.

6. As for the defendants, according to the affidavit of the current Secretary for Department of Lands and Physical Planning, Mr Benjamin Samson, the subject land was declared as National or State Land by National Gazette No. G75 on 6^th December 1984.

7. On 23^rd November 1990, the former Minister for Lands and Physical Planning Hon. Kala Swokin made a commitment to pay K4.41 million to the people of Bagail, Omo, Kulangit, Mongol and Pabliang.

8. The commitment of K4.41 million included K38,025.00 which comprised of K25,350.00 awarded by the National Lands Commission and K12,675.00 by the Minister for Lands and Physical Planning. The sum of K38,025.00 was paid in the 1980s and the balance remaining is K4,371,950.00.

9. On 15^th August 1991 the then Minister for Lands Hon. Hugo Berghuser MP, declared the land as an aerodrome under Section 5A of the Land Act, Ch 185 by a notice published in the National Gazette No. G72.

10. On 3^rd January 2011 the then Minister for Lands and Physical Planning, Hon. Lucas Dekena, MP, made a submission to the National Executive Council (“NEC”) on the outstanding State commitment of K4.41 million for payment of land occupied by Kavieng Town.

11. According to the NEC submission, K1,264,997.76 was to be paid to the Omo customary landowners who are currently represented by the plaintiff in this proceeding.

12. The NEC submission was approved by the NEC on 28^th March 2011 in Meeting No. 2/2011 as Decision No. 50/2011.

13. On 12^th April 2011, a cheque in the sum of K4.410 million was raised by the Department of Finance to Kavieng District Treasury. It is not known if funds were transmitted to the latter.

14. On 27^th October 2011 a sum of K266,000.00 was paid as the Member’s commitment for the Kavieng Airport. The Member referred to herein is the then Member for Kavieng Open, Hon. Martin Aini. He supported the plaintiff and her group to be compensated. Funds were transmitted from Department of Finance to the BSP bank account of Omo Properties C/- Kavieng Urban LLG PO Box 28, Kavieng for the customary landowners. The plaintiff confirmed receiving this sum of money.

15. According to a letter from the Acting Managing Director of National Airports Corporation (“NAC”) to Mr Samson dated 1^st October 2020, the then Prime Minister Hon. Peter O’Neill presented two cheques totalling K6 million on 11^th April 2019 to the NAC as payment to the landowners for the use of Kavieng Airport land.

16. Following that and after consultation with the New Ireland Provincial Government, NAC paid a sum of K6 million to the latter by way of a cheque on 18^th June 2019.

17. However, the plaintiff asserted that this payment was for the extension of Kavieng Airport and the money was paid to the people of Maiom village and not as compensation for Omo customary landowners. Omo customary landowners only received K266,000.00 for Portion 49 as part payment.

18. They engaged a Registered Valuer named “CK Valuers & Realtors” to carry out a detailed valuation of the land. It has done that and produced a valuation report dated 21^st June 2011. The valuation comprised of:

(a) Land and Interest in Land - K79,850.000.00
(b) Non-market and Intergenerational Fairness - K 430,000.00
Total - K80,280,000.00

19. Based on this background the whole drama and the delay in settling the plaintiff’s grievance could have been averted had parties turned their minds to the application of the National Land Registration Act 1977 and National Land Registration Act, Ch 357. These legislations play a vital role in settling the dispute in relation to whether Portion 49 has been declared National Land or remains freehold land.

20. The first significant declaration was by the then Minister for Lands, as it was known then, Hon. Bebes Korowaro when he published a notice in the National Gazette No. G80 dated 17^th November 1983 where he intimated his intention:

“to declare, not earlier than the expiry of three months following the date of publication of this notice in the National Gazette, that the land specified in the Schedule –

(a) being freehold land; and

(b) having been acquired before Independence Day in Papua New Guinea; and

(c) being required for a public purpose, namely urban development within a town,

is National Land.

Any person aggrieved by this notice may make representation to me within 60 days of:-

(a) the date of publication of this notice in the National Gazette; and

(b) notice given by me in accordance with Section 52 of the National Land Registration Act 1977”.

21. It is not disputed that the land specified in the Schedule referred to the land where the Kavieng Town is located. However, it is disputed that the Kavieng Airport land is part of and has been subject of the notice.

22. Following that, a second significant declaration was made by Minister Hon. Bebes Korowaro, MP, when he published a notice in the National Gazette No. G75 dated 6^th December 1984 where he declared the land specified in the Schedule, being freehold land as National Land. Note that the declaration was made under the National Land Registration Act, Ch 357 presumably because it superseded the 1977 Act.

23. Again, it is not disputed that the land specified in the Schedule referred to the land where the Kavieng Town is located but it is disputed if it included the Kavieng Airport land.

24. By the declaration, the land on which the Kavieng Town sits is now a National Land as of 6^th December 1984. It is no longer a freehold land. By applying Section 10(2) of the National Land Registration Act, Ch 357, a person aggrieved by the declaration may make a claim for settlement payment.

25. The third significant declaration is by the then Minister for Lands Hon. Hugo Berghuser, MP who declared the land specified in the Schedule as an aerodrome under Section 5A of the Land Act, Ch 185 by notice published in the National Gazette No. G72 dated 15^th August 1991.

26. The land specified in the Schedule is Portion 49. This is the land which the plaintiff asserted is where the Kavieng Airport is located. If that portion of land has not been declared as National Land, then it would not be available for an aerodrome.

27. The option open to the Minister is to have it declared as National Land. If the Minister takes up this option, it would pave the way for the plaintiff to make a claim for settlement payment pursuant to Section 10(2) of the National Land Registration Act, Ch 357.

28. A claim for settlement payment may be made under Part VI (Sections 39 to 46A) of the National Land Registration Act, Ch 357. Amongst others, it allows a person aggrieved by a declaration to make a claim to the National Lands Commission for a settlement payment for the land within the prescribed time or within such further time, as the Commission, in special and unusual circumstances, allows. The amount is calculated in accordance with the rates set out in Schedule 1 and awarded to that person or where it is just to do so in the case of a particular claim, the Commission may recommend to the Minister for Lands and Physical Planning to accept and make a determination.

29. The facts are quite sketchy and incomplete because it is not clear if the 1980s compensation in the sum of K38,025.00 which the plaintiff received included an award of K25,350.00 by the National Lands Commission presumably under Part VI of the National Land Registration Act, Ch 357.

30. What is clear though is that, the plaintiff admitted that she received a sum of K266,000.00 as Member’s commitment for the Kavieng Airport. The payment of this sum appears to be outside the claim for settlement payment regime under Part VI (Sections 39 to 46A) of the National Land Registration Act, Ch 357.

31. What then is the basis for the claim for K80,280,000.00? If it is for compensation for the use of Portion 49, there is no evidence from the parties that the land was acquired by the State under Section 7 of the Land Act 1996. Such evidence would be in the form of a notice published by the Minister for Lands and Physical Planning in the National Gazette where the acquisition is by compulsory process under Section 12 of the Land Act 1996 and after a notice to treat has been served under Section 13 of the Land Act 1996.

32. If the land was acquired by agreement under Sections 7(a) and 25 of the Land Act 1996, there is no evidence of an agreement between the plaintiff and the State to support the defendants’ assertion that the Portion 49 was acquired by agreement. It is all purely a speculation and mystery such that a legal proceeding for compensation for illegal use of Portion 49 can only be based on an action in trespass to land which the plaintiff does not allege.

33. One the other hand, an award of compensation for the acquisition of the land by the State through the Minister is another option open to the State to adopt as an acknowledgment of use of land for an aerodrome over the years. If the Minister takes up this option, it will pave the way for the plaintiff to submit a proposal for compensation to the Minister to consider having regard to the general principles of assessment of compensation under Section 23 of the Land Act 1996. Any payment made by the State to the plaintiff so far may be taken into account to determine the final sum to award.

34. In the result, the plaintiff has failed to establish that it is entitled to the relief sought and the proceeding is dismissed with costs, to be taxed, if not agreed.
________________________________________________________________
Marubu Lawyers: Lawyers for Plaintiff
Solicitor General: Lawyers for Defendants