Kaupa v Kase [2024] PGNC 232; N10901 (27 June 2024)

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BETWEEN:
GEORGE KAUPA of Kaupa Consultancy Services in his capacity as Consultants to the Third Plaintiff
First Plaintiff

AND:
AHUTA BADU, in his capacity as Chairman of the Third Plaintiff entity
Second Plaintiff

AND:
PASCOE KASE in his capacity as Secretary for the Department of Health
First Defendant

AND:
TIRI WANGA in his capacity as Acting Secretary for Lands Department
Second Defendant

FRAUDS AND LIMITATIONS ACT 1988 – time when cause of action accrued – interest in land – 1966 Land Titles Commission decision – elements of trespass and right to occupation of land – sufficient interest in land lacking – cause of action time barred.

Cases Cited
Bob v Stettin Bay Lumber Company Ltd (2008) N3440
Deukari v Kuglam and The State (2006) N3087 set out the elements
Eliakim Laki and 167 Others v Maurice Alaluku and Others [2000] N2001
Habolo Building & Maintenance Ltd v Hela Provincial Government [2016] SC1549
Kunton v Junias [2006] SC929
Seeto v Dekenai Constructions Ltd [2023] N10172
Tikal v Pau [2018] N7508
Urban Giru v Luke Muta and Others [2005] N2877

STATEMENT OF CLAIM
Trial on liability where the plaintiff sought to prove trespass by the defendants.

COUNSEL
Mr John Napu, for the First, Second and Third Plaintiffs
Ms Victoria Balio, for the Defendants

1.BRE, AJ: INTRODUCTION: The plaintiffs claim customary ownership of the land which currently sits the Laloki Psychiatry Hospital which is otherwise described as DA 599. The plaintiffs seek to prove ownership of the land and establish trespass by the defendants.

PLAINTIFF'S CLAIM

2. The plaintiffs filed this proceeding on 05 June 2017 and amended the Writ of Summons and Statement of Claim about two years later on 19 September 2019. The plaintiff claims the subject lands were previously acquired by the Crown from their ancestors in the 1900s and several decades later was reverted to the traditional landowners in 1966 by the colonial Land Titles Commission. The plaintiff further claims their ownership was recognised by the Local Land Court in the 1980s and upheld, despite an appeal by other competing landowner interests. The plaintiffs’ claim is that at all material times they are the customary landowners of lands known as DA599 which comprises a land area of 561,300 square meters under Portions 641 and 642 of Granville, Laloki, Central Province.

3. The plaintiffs claim the State has ignored their claims for compensation over the years and are claiming breach of statutory duties by the defendants in not recognising the decisions of the Land Titles Commission and the Local Land Court and seeking damages for trespass to the land by the State with the permanent placement of the Psychiatry Hospital at Laloki. The plaintiffs seek declaratory orders concerning ownership of the land, breach of constitutional rights, just compensation, special damages, interests and costs.

4. The defendants filed their Notice of Intention to Defend on 22 August 2017 but have not filed a Defence. The plaintiffs tried to obtain default judgement but was unsuccessful.

5. The plaintiffs relies on the following Affidavits which were tendered into evidence and accepted: -

6. The following evidence relied on by the plaintiffs were objected by the defendant and not accepted into evidence for the plaintiffs: -

7. The defendants rely on one Affidavit which is the Affidavit of the Secretary of Lands and Physical Planning, Benjamin Samson, filed on 27 May 2022 tendered into evidence, accepted and marked as exhibit 'D1'.

8. The plaintiffs filed their written submission on 10 November 2023 and counsel made oral submissions on it. Counsel's submissions were that the plaintiffs have sufficient proof of customary land ownership and sufficient interests in the land because of a 28 November 1966 decision by the then colonial Land Titles Commission to have the lands described as DA 599, 600 and 601 reverted to customary land ownership which the Local Land Court decision of 16 August 1988 affirmed.

Counsel also took issue with the Defendants relying on an affidavit when they have not filed a defence and submited that the failure to file a defence constitutes default to which liability should be entered for the plaintiffs.

9. Counsel for the State handed up written copies of her submissions and spoke to it. Counsel raised three preliminary issues concerning the competency of the proceedings on grounds of lack of Section 5 CBASA^[1] notice, time bar and the standing of the first plaintiff.

Counsel countered the plaintiffs substantive submissions on liability by submitting that the State acquired the lands on 28 and 20 February 1900 by Crown acquisition from the customary landowners and the lands have been in the legal possession of the State since then to date.
Counsel also submitted that the defendants had not discharged the elements of trespass.

The substantive issue for trial on liability concerns the issue of trespass and the evidence concerning ownership of the land which the plaintiff has the onus of discharging on a balance of probabilities.

11. On this issue, I am satisfied that there is evidence that Section 5 notice was issued to the Solicitor General. The evidence of Ahute Badu annexes a letter dated 15 February 2017 from the Attorney General granting an extension of time of up to 30 days to serve notice of intention to make a claim against the State. This was done by letter dated 27 February 2017. The affidavit of Steven Mondo, a clerk with Napu Lawyers deposed to serving the State with the letter dated 27 February 2017 on the same date. I accept that Section 5 notice was served on the State consistent with the extension granted.

12. Mr Napu relies on Tikal v Pau [2018] N7508 to submit that the defendants' failure to file a defence over two years constitutes clear default by the defendants and a finding of liability should be made against them. My view is that a finding of default is a discretionary matter and should rightly be sought by the plaintiffs at the interlocutory stage of the proceeding. I note from the Court file that the plaintiffs filed a Notice of Motion on 18 January 2022 seeking default judgment. This application was struck out on 27 September 2022 for want of prosecution. On 17 July 2023 his Honour Makail J directed that the matter proceeds to trial.

13. In Urban Giru v Luke Muta and Others [2005] N2877, his Honour Cannings J, found that all six preconditions of the checklist for default judgment were met, but refused the application because the statement of claim did not disclose a reasonable cause of action. Similar findings were made by the Court in Eliakim Laki and 167 Others v Maurice Alaluku and Others [2000] N2001 and Kunton v Junias [2006] SC929.

14. In Kunton v Junias the Supreme Court listed a number of factors a trial Judge could consider in exercising discretion to grant or refuse an application for default judgment and held that that list was not an exhaustive list. The list included matters pertaining to the merits of the pleadings, extent of the default, diligence in prosecuting the proceeding, impact on co-defendants and interests of justice.

In exercising my discretion, I consider that the preliminary issue of time bar goes to the substance and competency of the proceeding and the delay in making the default application at an interlocutory stage prevents me from exercising my discretion to make a finding on liability based on default. I therefore refuse the plaintiffs submissions on this issue. I now proceed to deciding the issue of time bar.

15. In considering this issue, I have taken into account the evidence of both parties as it pertains to key timelines and the merits of the case as it concerns ownership of the land. After carefully perusing the evidence, I set out the key timelines and events below:-

Time	Event
20 February 1900 28 February 1900 28 November 1966	DA 599 – Transfer of Land by Natives to the Crown –Territory of Papua, by Badu and Doriga of Buigara Village at Burune. Registration by the Registrar of Titles on 17 March 1905 of DA 600 - Transfer of Land by Natives to the Crown –Territory of Papua, by various named persons of Badili village, Kilakila. Notation in documents; 'Transfer of Land by Natives to the Crown' record of DA 599 and DA 600 that ''DA 599, 600 and 601, reverted to customary land by virtue of LTC decision dated 28 November 1996 72/3807".
16 August 1988 16 June 1989 15 August 1996	Local Land Court decision that DA 599 and DA 600 owned by customary landowners according to certain named customary groups. District Court dismisses appeal against Local Land Court decision by competing landowner group because of the 1900 transfer documents and the long delay since 1966 to contest the LTC decision. Certificate Authorising Occupancy(CAO) issued by Minister for Lands to the Department of Health for the purpose of psychiatric hospital for Portions 641, 642 and 739 Milinch Granville Fourmil Moresby Central Province, comprising 56.12 hectares.

16. The plaintiffs agree that the Crown acquired the land from the customary landowners on 20 and 28 February 1900 as contained in the transfer records of DA 599 and DA 600. However, they claim that the then Land Title Commission made a decision on 28 November 1966 transferring the lands in DA 599 and DA 600 back to the customary landowners. There is a notation on both DA 599 and DA 600 that reads:

''DA 599, 600 and 601, reverted to customary land by virtue of LTC decision dated 28 November 1966 72/3807".

17. The Land Title Commission decision of 28 November 1966 72/3807 is produced in the second plaintiff, Ahute Badu's evidence. The record indicates the Land Title Commission declared that DA 601 was owned by the group of natives represented by Edward Iorive by 'customary rights of tenure'. It does not indicate who the ‘group of natives’ are.

18. After 17 years on 01 August 1983, the Local Land Court heard an ownership dispute and decided some five years later on 16 August 1988 that:-

19. The evidence of the Secretary for Lands Benjamin Samson is that DA 599 and DA 600 were within DA 601 and purchased by the Crown on 20 and 28 February 1900. These lands were then surveyed as Portion 165 and depicted on survey plan catalogue 49/155 comprising 2,019 hectares. Portion 165 was further surveyed and subdivided into smaller portions, Portion 641, 642 and 739 which was transferred to the Health Department by the Minister for Lands on 15 August 1996 by CAO.

20. There is one glaring discrepancy in the plaintiff's case, there is no explanation about how the plaintiffs are connected to the persons named in the 1900 transfer nor the land groups mentioned in Local Land Court and District Court Decisions.

21. Aside from this discrepancy, I deduce from the evidence that the cause of action, if any, by the plaintiffs would have arisen from the Land Title Commission decision of 28 November 1966. If not, then the latest would be on 15 August 1996 when the Minister for Lands granted the CAO to the Department of Health.
Either way, the cause of action is well beyond the six years timeframe from the date 'when the cause of action accrued' to competently maintain a claim against the defendants. The plaintiffs' evidence indicates it started corresponding with the State from 2004, which is still outside the six-year time period. Even so, the fact of the correspondence is not a material consideration for purposes of deciding when the cause of action arose.

22. I find that the plaintiff's claim is based on the 28 November 1966 Land Title Commission decision. That decision did not acknowledge the Crown's ownership to the lands in DA 599 and DA 600 or DA 601. Even the Local Land Court decision is silent on the issue of the Crown/State's ownership. Both the Local Land Court and the District Court based their decisions on the 1900 Transfer document, but did not make any findings about the State's interest. It can be inferred that these two Courts were concerned only with deciding customary land interests. Still, if there were concerns about acquisition of the lands by the Crown/State by the parties to these actions, they appear to not raise them as they are not considered in the written decision of the District Court.

23. The relevant parts of the Frauds and Limitations Act 1988 (‘FLA’) in Section 16 (1) (a) and potentially Section 16 (5) reads:-

shall not be brought after the expiration of six years commencing on the date on which the cause of action accrued.

(5) An action shall not be brought upon any judgment after the expiration of 12 years commencing on the date when the judgement became enforceable."

24. For purposes of clarity, the exceptions in Sections 17 and 18 FLA mentioned in Section 16, are unrelated and irrelevant as they relate to admiralty actions and specific performance of a contract or an injunction or other equitable relief and will not be referred to.

25. The pleadings in the plaintiffs amended Statement of Claim for breach of statutory rights, trespass and damages for loss of enjoyment of land are causes of actions based on the law of torts and subject to the six-year time limitation.

26. If I take the Local Land Court decision date of 16 August 1988 or the District Court decision of 16 June 1989 to consider if Section 16(5) of the Frauds and Limitations Act 1988 applies, the cause of action would still be outside the twelve years' timeline by 29 and 28 years respectively.
Regardless, this would only apply to the parties to the Local and District Court actions not the defendants. The defendants' cause of action seem to be based on the 1966 decision.

27. Although counsel did not address the issue of recurring breaches, for completeness and especially given the plaintiffs cause of action is also in trespass, I have considered the Supreme Court's decision in Habolo Building & Maintenance Ltd v Hela Provincial Government [2016] SC1549 where it discussed a single occurrence and a series of occurrences when it came to ascertaining the cause of action for trespass or continuing negligent actions. However, the facts in Habolo can be distinguished with this case.

28. Here, it is not disputed that the Crown acquired the lands in 1900. The plaintiff is asserting rights to the land as a result of the 28 November 1966 Land Title Commission decision. The plaintiffs say that because of that decision the plaintiffs have customary rights to the land, which the State is now in unlawful possession of and is therefore committing trespass. To make a successful claim in trespass, the plaintiffs must prove on a balance of probabilities the following elements of the tort of trespass as set out in Seeto v Dekenai Constructions Ltd [2023] N10172 :-
(a) that the defendant entered the land, either directly (in person) or indirectly (eg. by propelling an object or a third party onto the land); and

29. I have noted earlier that the plaintiffs have not produced evidence to demonstrate how they are related to the parties in the Land Titles Commission decision of 28 November 1966 nor of the Local and District Court decisions and the length of time.

30. I am not satisfied that the plaintiffs have discharged on a balance of probability that the second and third plaintiffs have sufficient interest to the land through customary ownership. The first plaintiff does not have any interest in the land. He appears to be an advisor to the second and third plaintiffs. The State's evidence is that it acquired the lands through the colonial administration in 1900 and continues to own and occupy the land following the various subdivisions of DA 599, DA 600 and DA 601 and the issuance of the Certificate of Authorised Occupancy. My judgement is that the State has not committed trespass.

31. I find the cause of action arose on 28 November 1966 and factoring the time from that date to the date of filing of the initial Writ of Summons on 05 June 2017 is a period of 51 years which is clearly out of time and time barred pursuant to Section 16(1)(a) of the Frauds and Limitations Act 1988 and is statute barred from proceeding further.

32. My judgement is that the plaintiffs cause of action is time barred and must be dismissed with costs to the defendants. Therefore, it is not necessary to address the other issues.

Judgment accordingly,.
________________________________________________________________
Napu & Company Lawyers: Lawyers for the plaintiffs
Acting Solicitor General by his employed Lawyer: Lawyer for the Defendant

National Court of Papua New Guinea

Kaupa v Kase [2024] PGNC 232; N10901 (27 June 2024)