Mokagaha Land Group Incorporated v Tanomotu Land Group Incorporated [2025] PGNC 44; N11166 (4 March 2025)

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AND:
TIRI J WANGA as the Acting Secretary for Department of Lands and Physical Planning
Second Defendant

AND:
CHRIS MANDA as the Acting Surveyor General – Department of Lands and Physical Planning
Third Defendant

AND:
ANDIE MALO as the Director of Customary Land Registration – Department of Lands and Physical Planning
Fourth Defendant

FRAUD - constructive fraud – irregularities and breaches in approval of customary land group and customary land registration - discrepancies goes to the root of title – serious irregularities and breaches amounting to constructive fraud - title cancelled.

The plaintiff claims there is constructive fraud in the customary land registration process applied to issue registered title to the first defendant of land that it claims to own by customary tenure. The first defendant is the registered proprietor of 199.25 hectares of land known as Ugava Siguna Via located in Porebada, Hiri West, Central province.

Berr v Yango (No.2) [2015] N5859
Camilus v Mota [2022] SC2210
Emas Estate Development Pty Ltd v. John Mea [1993] PNGLR 215
Goi v Bank South Pacific Limited [2023] SC2349
H.R. Holdings Ltd v Taka [2023] SC2411
Kawira v Bone [2017] N6802
Kimas v Loa [2015] SC1475
Koitachi Ltd v Walter Schnaubelt (2007) SC870
Muku v Yama [2019] N7948
Paga No. 36 Ltd v Ealedona [2018] PGSC 17
Peyape v Waiya [2021] SC2109
PNG Deep Sea Fishing Ltd v Critten [2010] SC1126
Steamships Trading Ltd v Garamut Enterprises Ltd [2002] N1959
Tikili v Home Base Real Estate Ltd [2017] SC1563

Writ of Summons
Trial on liability by affidavits where the plaintiff sought to prove constructive fraud.

Counsel
Ms P Tamutai for the plaintiff
Ms C Kalu appearing with Mr G Garo for the first defendant
No Appearance – for the second to the sixth defendants

1. BRE AJ: Mokagaha Incorporated Land Group and Tanomotu Incorporated Land Group are from Kouderika Porebada in Hiri West, Central Province. They are both incorporated as customary landowning groups.
The Tanomotu ILG is the registered proprietor of lands known as Ugava Siguna Via which the plaintiff refers to as Ugava (Via) Siguna, Iva. I will refer to these lands as the 'disputed land'.
The plaintiff challenges the first defendant’s title raising allegations of constructive fraud in the process applied to obtain the formal land title.
The disputed land is formally registered as P2738C, Milinch Granville, Fourmil Moresby.

2. The plaintiff alleges constructive fraud was committed in the process of obtaining title to the disputed land and alleges irregularities in the manner in which the third and fourth defendants granted title to the disputed land by allegedly, ignoring its survey plan labelled S152 which it lodged earlier in time on 24 April 2014 to that of the first defendant’s S186, lodged later in time on 20 January 2015.

3. The plaintiff claims the local Land Court confirmed its ownership to the disputed land and other lands listed in its portfolio as an Incorporated Land Group (ILG).

The plaintiff also alleges a derivative interest exists of the Baptist church which is located on the lands at its invitation and with the knowledge and consent of the first defendant, however, this was not brought to the attention of the Registrar of Incorporated Land Groups ('Registrar ILG') and Director Customary Land Registration('Director CLR') by the first defendant.
Additionally, the plaintiff alleges its objections to the first defendant’s intention to register the lands were not considered by the Director CLR.

4. The first defendant’s case is that it applied on 27 March 2013 for registration of the disputed lands which is prior to the plaintiff’s application.
The first defendant claims there were no objections of its intent to register as an incorporated land group nor to obtain title for the disputed land.
It disputes the validity of the local Land Court decision relied on by the plaintiff and alleges it is a false record.

5. The first defendant’s defence is that it complied with the processes and had played no part in interfering with the internal process of verification and approval of the Department of Lands and Physical Planning, that it did not commit any actual or constructive fraud and its title to the disputed lands has been properly issued.

6. The State defendants have not filed any defence nor evidence and the plaintiff's allegations against them are deemed to be proved unless there is evidence to the contrary.

7. The plaintiff relies on the following evidence^[1] which were tendered into evidence, accepted and marked as exhibits:-

The First Defendant's evidence

8. The first defendant relies on the following evidence^[2] which were tendered into evidence, accepted and marked as exhibits: -

9. The issue for deliberation is whether there are sufficient irregularities in the process of registering customary land that amount to constructive fraud which renders the first defendant's registered land title tainted with fraud and should be cancelled?

10. The relevant laws are the laws on fraud and the laws governing the registration of customary land groups and customary land registration being the Land Groups Incorporation Act chapter 147 (LGIA) and Land Registration Act chapter 191 (LRA).

11. The plaintiff challenges the indefeasible nature of the State lease. Section 33 of the Land Registration Act Chapter 191 ( LRA) protects the holder of a state lease title from any challenge to the title unless the challenger can prove fraud or any of the other circumstances specified in section 33(1) (b) to (h) which concern other rights to the land such as a lien, license etc,.

(1) The registered proprietor of an estate or interest holds it absolutely free from all encumbrances except–

(a) in the case of fraud;" (Emphasis added)
12. The Supreme Court provides two differing views regarding the interpretation of the term 'fraud' in section 33 LRA. See Timothy v Timothy [2022] SC2282 and Camilus v Mota [2022] SC2210 and Emas Estate Development Pty Ltd v Mea [1993] PNGLR 21 and Tikili v Home Base Real Estate Ltd [2017] SC1563.

13. One view is that fraud means actual fraud while, another view is that fraud includes constructive or equitable fraud and can mean both constructive and actual fraud. The Supreme court succinctly captures these views in Timothy v Timothy. These two views are by three member benches with equal composition. The views have not been clarified yet by a five-member bench and so it is still open to consider these two views in interpreting what fraud means in section 33 LRA. See H.R. Holdings Ltd v Taka [2023] SC2411.

14. Thus, I adopt and apply the broad interpretation that the term, 'fraud', in section 33 LRA includes constructive fraud. Apart from the reasons of the Supreme Court in Camilus v Mota in applying constructive fraud to the meaning of the term 'fraud' in section 33 LRA, of its suitability to the circumstances of our country as discussed, I would with respect, add another reason why I accept the broad view. That is of the current lack of freedom of information legislation which prevents aggrieved parties from seeking reasons from public decision makers who would be bound by such legislation to disclose reasons for their decisions. This is especially vital with decisions taken by the second to the fifth defendants regarding land, a sensitive and highly contested matter in our country. As such, I do not find persuasive, defense counsels' submissions that fraud in section 33 LRA means actual fraud.

15. Constructive fraud refers to irregularities in the statutory processes that are unsatisfactory or unlawful that it amounts to fraud. See Koitachi Ltd v Walter Schnaubelt Koitachi [2007] SC870, PNG Deep Sea Fishing Ltd v Critten [2010] SC1126 at [19] to [22], Paga No. 36 Ltd v Ealedona [2018] PGSC17, Emas Estate Development Pty Ltd v. John Mea [1993] PNGLR 215, Steamships Trading Ltd v Garamut Enterprises Ltd [2002] N1959 and Camilus v Mota [2022] SC2210.
The Supreme Court explained in H.R. Holdings Ltd v Taka at [48] that:-

"if Emas line of authorities^[3] was and is the prevailing view, a plaintiff or a party wishing to succeed on that basis, needs to do more than just pleading and demonstrating a case of constructive fraud. A plaintiff must plead and then produce credible evidence clearly establishing against a registered title holder conduct that is illegal, irregular, improper, or so unsatisfactory that amounts to bad faith and it is tantamount to fraud, warranting the setting aside of registration of title."

16. Circumstantial evidence is adduced to prove constructive fraud. Circumstantial evidence requires a rationale and reasonable inference to be drawn based on the evidence adduced. The evidence should prove the particulars of constructive fraud as pleaded in the statement of claim. See Goi v Bank South Pacific Limited [2023] SC2349.

17. Here, the plaintiff particularised its constructive fraud claim against each of the defendants in its statement of claim filed 7 March 2018 and alleged that: -

"as a result of the acts or omissions of the first, second, third and fourth defendants, the certificate of title to Portion 2738C over Ugava Siguna Iva land was fraudulently issued to the first defendant."
18. The burden of proof lies on the plaintiff to prove that circumstances leading up to the grant of the title were so unsatisfactory, irregular or unlawful as to be tantamount to fraud. See Berr v Yango (No.2) [2015] N5859.
The irregularities include breaches of the relevant legislation. See Muku v Yama [2019] N7948 and Lae Bottling Industries Ltd v Lae Rental Homes Ltd [2011] SC1120 And:-

"where the circumstances of the title transfer are so unsatisfactory, irregular or unlawful it is tantamount to fraud, warranting the setting aside of registration of title". See Tikili v Home Base Real Estate Ltd [2017] SC1563.

19. The plaintiff alleges constructive fraud has occurred from irregularities and breaches of the customary land registration process. I find from the evidence, submissions of counsels and from canvassing the laws that, the customary land group incorporation process is a critical first step to registering customary land, that, I consider it worthy to set out the law relating to each process to emphasise what statue law states about how disputes to the incorporation and registration processes are to be managed including how they are to be administered.

20. The LGI Act provides the legal framework for incorporating customary land groups. The purpose of the LGI Act is to encourage greater participation in the national economy by Papua New Guineans to better use their customary land by:-

(1) recognising customary groups as a body corporate with the power to acquire, hold, dispose of and manage its customary lands, and

(2) to provide for effectual self-resolution of disputes within the customary group.

21. Section 5 prescribes the process that a group of persons bound by common lineage and custom must comply with to incorporate a land group. These processes are specified in section 5(2) to include an application in the prescribed form and to include a copy of the proposed constitution of the group. The forms are prescribed in the schedules to the Land Groups Incorporation (Amendment) Act 2009. Section 5 reads:-

(1) Subject to Section 6, on application by or on behalf of the group the Registrar may recognize a customary group of persons as an incorporated land group, by issuing to it a certificate of recognition.

(d) contain further information as stated in Schedule 1 being such certified information required in the application form; and

(e) be accompanied by a sketch of the boundaries of the land to which the applicants claim ownership, including clearly marked areas of disputed boundaries if any, to which the applicants claim ownership as required under Schedule 2; and

22. Part of the application includes^[5] identification of the lands which the group clams right or ownership to under customary law which can be reflected in a sketch, drawing or plan which must contain a general description of the land including:-

2^[6]. If there is any dispute over the boundary or boundaries, the exact location of the disputed boundary or boundaries must be identified, and the nature of the dispute noted on the document."

23. Item 6 of Schedule 1 of the 2009 amendment to the LGIA further clarifies that a sketch map or drawing must clearly identify the lands which the land group claims ownership of according to customary land tenure of: -

" A description of the land and the nature of the interest therein to which the group claims an entitlement, including a plan, if available, or sketch map or drawing of the land over which the applicants claim ownership or an interest therein, with reference to which they seek to be incorporated, in a manner specified in the Schedule 2."

(Emphasis added).
24. Section 5A LGIA vests the power in the Registrar ILG to only decide internal disputes pertaining to composition of the land group to either reject the incorporation or withhold and proceed to decide the application only after sufficient evidence that the dispute has been resolved by the group. The Registrar has no powers under section 5A LGIA nor any other provision to settle customary land disputes. Section 5A LGIA^[7] reads:-

If it appears to the Registrar that there are internal disputes relating to the identity of the group's representatives, officers or membership, the Registrar shall determine whether to -

(b) withhold the processing of the application until the Registrar is satisfied, based on subsequent evidence, that the internal dispute has been settled and then proceed to incorporate the applicants.".

25. Section 5B requires the Registrar to publish the application in the National Gazette and to provide copies to the District Administrator and the Village Court to further disseminate so people within the local area are aware of the application. To ensure dissemination is done, subsection 2 prohibits the Registrar from issuing a certificate of recognition where(s)he does not receive from the district administrator, or a village court a notice confirming receipt and dissemination of the gazette. This aspect is not an issue between the parties but goes to demonstrate the extent of the legislature's intent to make the process of registration of an ILG and its portfolio of lands a consultative process at the local level and to people and clans situated where an applicant land group is from:

(a) cause notice of all applications for recognition made under Section 5 to be published in the National Gazette; and

(i) the district administrator in whose area the land-group or any of the property claimed on behalf of the land group is situated; and

(ii) the village court within whose jurisdiction members of the group reside and the district administrator or the village court in receipt of such notice shall further disseminate notice of the application and particulars in such manner they think most likely to ensure that it is widely known to persons having knowledge of or an interest in the affairs of the land group or its members.

(2) The Registrar shall not issue a certificate of recognition unless he receives from the district administrator, or a village court a confirmation notice of receipt of the documentation referred to in Subsection (1) and that they have complied with Subsection (1)(b)."

(a) give and promulgate the appropriate notice in accordance with Section 33; and
(b) call for and consider comments from any Local-level Government or Village Court to which notices are to be given under Section 33(1)(i) and (j), and from the proposed dispute-settlement authority; and
(c) consider any comments made by any person referred to in Section 33(2),

(2) The comments referred to in Subsection (1)(b) and (c) include comments on–

(a) any relevant matter referred to in Section 5(3), (4), (5) or (6)^[10]; and
(b) the proposed constitution; and
(c) the form and likely efficacy of the proposed method of dispute-settlement; and
(d) any other matter relevant to the question, how appropriate would the proposed recognition be,

and, in the case of the proposed dispute-settlement authority, whether he is willing and able to act.

26. The purpose of the LGIA is to provide a formal vehicle for customary land groups to commercially deal with their lands and partake in the economic development of the country by granting corporate legal personality to the incorporated land group. It primarily concerns itself with the membership of the proposed ILG and importantly, undisputed customary lands. Section 11 of the LGIA provides corporate legal personality to an ILG upon its registration. Section 11 reads:-

(a) is a corporation; and
(b) has perpetual succession; and
(c) may sue and be sued in its corporate name as set out in its constitution; and
(d) for the purpose of the more effective exercise and performance of its powers and functions, may do and suffer all things that a corporation may do or suffer."

27. Section 33LGIA provides the legal authority to the Registrar to publish formal notices in the gazette of all applications and decisions in granting incorporated land group status. Section 33 reads: -

(a) all applications for recognition under Section 5; and
(b) all grants of certificates of recognition under Section 5; and
(c) all applications for the variation of certificates of recognition under Section 9; and
(d) all variations of certificates of recognition under Section 9; and
(e) all orders for winding-up under Section 15; and
(f) all vesting orders under Section 18; and
(g) all orders for dissolution under Section 18,

(h) published in the National Gazette; and
(i) given to any Local-level Government in whose area–

(i) the group or any of the property of the group; or
(ii) any property that is proposed to become property of the group by virtue of the recognition,

(j) given to any Village Court within whose jurisdiction the group is, or will on recognition come.

(2) In addition, the Registrar shall publicly promulgate notice of a matter referred to in Subsection (1)–

(a) in such manner as he thinks most likely to ensure that it is generally known to persons having–

(i) a knowledge of or an interest in the affairs of the group or of the members of the group; or
(ii) a knowledge of the relationship between the group or members of the group and other persons and customary groups; and

28. The Land Registration (Amendment) Act 2009 (LRA 2009) prescribes a clear process in which an ILG can apply for formal registration of customary land listed amongst its portfolios. The process includes publication of a registration plan and calling for objections to the customary land sought to be registered.

Section 34D LRA provides for the application process to register customary land. Section 34D LRA is reproduced below: -

"(1) Subject to this Act, representatives of the Incorporated Land Group may apply to the Director in the prescribed form for registration of ownership of customary land or an interest in customary land.

(a)describing the land or parcels of land owned absolutely under customary tenure by the customary group including, its boundaries; and

(b) where necessary, the names of such individuals or customary groups which established derivative interests in the land, including the boundaries of the parcels of such land and the nature of the interest.

"(3) The Registration Plan shall be in such form and shall contain such particulars as are prescribed.".

29. Section 3 of the LRA 2009 provides a broad definition of "absolute ownership" to mean "a title which is not dependent upon any higher title, but which may be subject to and qualified by an interest derived from or dependent on that title." However, the LRA does not clarify what the ‘higher title’ is, which leaves it open for interpretation.

30. Section 34E LRA requires the Director CLR to verify the registration plan submitted for registration including by conducting physical inspection of the land sought to be registered.

"(1) Where an application has been made for the registration of customary land the Director shall as soon as practicable commence verification of the registration plan.

(a) conduct such investigations as are necessary to verify the membership of customary groups; and

(b) make such inspections of the land, together with appointed representatives of such customary groups as are necessary to verify the identity and the boundaries of parcels of land claimed by such customary land group as stated in the registration plan."

Section 34F requires the Director CLR to concern himself only with land that us absolutely owned by an ILG reads:-

"(1) Upon the completion of his investigation, the Director shall, as soon as practicable, prepare a Registration Plan showing -

(a) the land or parcels of land owned absolutely under customary tenure by the customary group, ^[11]including the boundaries; and

"(2) For the purposes of Subsection (1)(a), the Director shall concern himself only with the area of the land determined as being in the ownership of the clan."

Section 34G requires public notice to be issued for objections to be called of the land verified to be registered.

"(1) On the acceptance of a Registration Plan, the Director shall, as soon as practicable –

(ii) the procedure for making an objection to the contents of the Registration Plan; and

(iii) the period of not more than 90 days within which an objection can be made.

"(2) The Director shall cause a notice made under Subsection (1)(b) to be advertised in such a manner he considers appropriate to bring it to the attention of all persons who may have an interest in the land or parcels of land the subject of the Registration Plan."

31. Section 34H provides for the Surveyor General, where necessary, to adjust the registration plan after his investigations and survey of the registration plan and return it to the Director CLR for final acceptance.

On the receipt of a copy of the Registration Plan the Regional Surveyor shall, where necessary, prepare an Adjusted Registration Plan showing such adjustments as are necessary to indicate -

(b) any reservation, easement or other such interest acquired for public purposes by the State under any law; and

(c) any right, title or interest granted by the State under any law and shall return the Adjusted Registration Plan to the Director as soon as practicable."

32. The LRA 2009 provides the formal process for converting customary land into alienated land. The LRA does not authorise the Director CLR to decide disputes concerning the land sought to be registered by an ILG. The LGIA only allows the Registrar ILG to note beside the land portfolio of a land group that certain lands have been disputed, if he decides to proceed with the ILG application. Neither the Registrar ILG nor the Director CLR have the mandate to decide ownership disputes concerning customary lands.

33. Objections to the registration plan are to be made within the published time with the Director CLR obliged to consider the objections by not accepting the final registration plan or withholding its acceptance until the objection is decided. There is no reference in the 2009 LRA amendments on who is to settle the dispute nor to refer the parties to the local Land Court pursuant to the Land Disputes Settlement Act chapter 45 (LDSA). However, I would interpret the reference in section 34J(3) to the objection been settled by a competent authority such as the local Land Court or the Land Titles Commission, whichever is applicable. The relevant provisions are sections 34I, 34J and 34K LRA and are reproduced below: -

(1) A person who objects to the contents of a Registration Plan may, within the period specified in the notice, make an objection in writing to the Director.

(a) whether, in the case of an objection from an individual, the person is objecting in his personal capacity or as a representative of a customary group; and

(b) the matters in the Registration Plan which are the subject of objection; and

(b) the Registration Plan has been adjusted, where necessary, by the Regional Surveyor, the Director, shall, as soon as practicable, prepare the Final Registration Plan.

"(2) In preparing the Final Registration Plan, the Director shall take into consideration –

"(3) Where any objection made under Section 13 ^[16]conflicts with the Registration Plan or the Adjusted Registration Plan or both, the Director shall hear and determine the matter and shall not proceed with the preparation of the Final Registration Plan until the objection has been settled."

The application for registration on behalf of the Incorporated Land Group shall –

(ii) such order of the court, document or instrument forming a good root of title."

34. The legislature intended a straightforward process of registering undisputed customary lands belonging to an incorporated land group (ILG) and for a through Consultative process through the objection process so undisputed land is registered.

35. Having outlined the applicable law, I turn now to analyse the submissions and evidence of the plaintiff and the first defendant.

36. I reiterate my views that, the term ‘fraud’ in section 33 of the LRA, includes both actual and constructive fraud. The legal basis of the plaintiff's claim is in constructive fraud, so it is to the elements of constructive fraud that I apply my mind to deliberate.

37. The plaintiff has the onus to prove on a balance of probabilities, that constructive fraud occurred. The plaintiff must prove that there were such irregularities and breaches of the statutory processes of the LGIA and LRA that the defendants did not comply with, when granting the state lease title by their actions or omissions that are so unsatisfactory as to amount to constructive fraud being committed.

38. I have perused the evidence of both parties and draw particularly on the evidence of Ioa Mabata, Sibona Aubadi, Jimmy Doriga and Chinyere Kalu and have compiled the following chronology of events from the evidence with some of my observations noted against some events.

Time	Event
28 January 2002	Mokagaha initial registration as an ILG.
10 January 2008	Tanomotu #1 Kouderika initial registration as an ILG
27 March 2013	Tanomotu applies to incorporate as a land group pursuant to the 2009 LGIA amendments.
29 August 2013	RegistrarILG publishes gazette notice NG 379, that Tanomotu land group intends to apply for registration as an ILG . It lists 13 lands in its portfolio and at number 9 is land called 'via junction'. Interested persons are informed to object within 30 days. Note: There are no lands described as 'Siguna, Ugava, or 'Iva or Via' listed.
24 April 2014	The plaintiff sought to register a smaller portion of land area 5.92 hectares as surveyed in its survey plan P2746C described as Ugava (Via) and lodged it with the Surveyor General. Note: The Surveyor General approved survey plan P2746C one year two months later on 16 July 2015.
31 July 2014	National Gazette 327 published by Director CLR giving notice that Tanomotu #1 Kouderika intends to conduct a survey to register Ugava, Siguna, Via and calls for interested persons to object to the sketch survey plan within 90 days. The land area is 201.7 hectare.
20 October 2014	Mokagaha land group applies for registration as an ILG under 2009 LGIA amendment.
20 January 2015	The first defendant's survey plan P2738C for 199.25 hectares of the disputed land, Ugava Siguna Via, is lodged with the Surveyor General.
22 January 2015	Tanomotu land group survey plan P2738C of Ugava Siguna Via is approved by the Surveyor General for registration.
02 March 2015	The Surveyor General approves Mokagaha ILG's sketch map S152 for 4615 hectares of land, sea and Haidana island. These lands include Ugava, Siguna, Teite and others.
17 March 2015	National Gazette NG175 published by Registrar ILG. that Mokagaha land group applies to be incorporated and that it claims a total of 13 lands which includes Iva, Ugava and Siguna (4 and 5). Note: Ten objections were lodged with the Registrar ILG regarding the lands claimed by the plaintiff in NG175 of 17 March 2015.
26 March 2015	Corrigendum published by Registrar ILG in NG 212 of 26 March 2015 under s33G LGIA clarifying that Tanomotu ILG’s list of lands not included in the previous gazette NG 379 of 29 August 2013 are now included, which includes Ugava Siguna Via, the disputed lands. Note: This publication made no provision for notice to object as was done earlier in NG 379 of 29 August 2013, there is no notice for interested parties to object.
7 April 2015	The RegistrarILG gives notice in National Gazette NG 233 of 7 April 2015 that he will incorporate Tanomotu as an ILG.
5 May 2015	Registrar ILG writes to ten persons, including the Tanomotu. who objected to Mokagaha's its list of properties included in its ILG application, to resolve the objections within 7 days.
14 July 2015	Tanomotu ILG's sketch plan S186 for 2080 hectares of land with similar land boundaries to the plaintiff’s excluding the sea and island is approved by the Surveyor General. The lands include the disputed lands.
16 July 2015	The plaintiff's survey plan P2746C of Ugava (Iva) for 5.92 hectares is approved by the Surveyor General after one year two months. It was lodged with the Surveyor General on 24 April 2014^[17].
5 December 2015	The plaintiff writes to the Customary Lands Manager objecting to not register the survey plan Portion 2738C on grounds of customary ownership. Note: By this time P2738C was already approved to the first defendant on 22 Jan 2015 but without the lands in P2738C listed amongst its landholdings in its ILG application as published in NG379 of 29 August 2013.
9 December 2015	Pastor Matt Allen of the Capital City Baptist Church writes to the Surveyor General to object to the encroachment of the survey of Portion 2746C which houses their church property by another survey Portion 2738C.
15 July 2016	Director CLR publishes in NG480 that pending receipt of any objections within 30 days, he intends to accept the land investigation report and sketch survey of the first defendant of P2738C for Ugava Siguna Iva comprising of 199.25 hectares, as submitted by the first defendant. In the same Gazette, in the next section, the Director proceeds to state that he has accepted P2738C as the correct plan and will register it and issue customary land title to Tanomotu Incorporated Land Group.
12 August 2016	The plaintiff objects by letter dated 12 August 2016 to the Customary Lands Director in response to an advertisement in the newspaper dated 14 July 2016 raising concerns that the Director had failed to conduct a meeting of the landowners to establish the rightful owners and had not revoked the survey referred to in their letter of 5 December 2015. The plaintiffs request for the survey plan registration to be revoked. Annexed to the affidavit^[18] is a copy of the newspaper notice by the Director CLR informing the public that after consulting the Surveyor General he certifies P2738C for a land area of 199.25 hectares is the correct plan and will be accepted and registered to Tanomotu ILG.
6 September 2016	Corrigendum published in NG636 by a/Registrar ILG in National Gazette NG948 amending previous National Gazette NG175 of 17 March 2015 that due to objections the plaintiffs' lands are set aside for land mediation by local Land Court with only one property known as Bobonadina. Note: This affects plaintiff's survey plan P2746C.
8 September 2016	The Registrar ILG gives notice in National Gazette NG 651 of 8 September 2016 that he will incorporate Mokagaha as an ILG. Note: At time of incorporation as an ILG, Mokagaha had only one property, Bobonadina
7 December 2016	The A/Registrar of ILG publishes a corrigendum in National Gazette NG943/2016 that Mokagaha ILG’s lands 1-3 and 14-40 are reinstated to its portfolio after the decision of the local Land Court on proceedings LLC No 21 of 2015. The reinstated lands included the disputed lands. Note: The Plaintiff's survey plan P2746C remains pending.
20 December 2016	The Director CLR issues a certificate of title and State lease over P2738C to the Tanomotu ILG of the land area of 199.25 hectares which includes the disputed lands. Note: Five months later from 15 July 2016, despite plaintiff's objections, and A/Registrar ILG's reinstatement of the lands of the plaintiff, the Director CLR proceeds to issue title without considering the objections.
27 January 2017	The Surveyor General cancels Mokagaha ILG's survey plan 2746C upon the acting Secretary’s direction.
6 October 2017	The Registrar ILG publishes a corrigendum to further amend NG943 of 7 December 2016 to specify that the Mokagaha ILG’s lands including Iva/Ugava/Teite and Siguna, and lands listed 1-40 are set aside as they are already recognized under Tanomotu ILG.

Note:- A person(s), a group, the District Administrator, or the village court within the local level government of this particular land group may, within 30 days of publication of this notice, lodge with the Registrar of ILG an objection and reason thereof not to register this land group in accordance with Section 6 of ILG (Amended) Act 2009.

This notice serves to notify the general public and customary landowners within the Hiri Local Level Government (LLG) area that Tanomotu # 1 Kouderika Incorporated Land Group (ILG) is intending to conduct a survey to register their land known as Ugava Siguna Via.

NATIONAL GAZETTE
No. G175 PORT MORESBY, TUESDAY, 17 MARCH 2015
Land Groups Incorporation (Amended) Act 2009

NOTICE OF LODGEMENT OF AN APPLICATION FOR RECOGNITION AS AN INCORPORATED LAND GROUP
File No: 18203

The General public is hereby advised that, under section 33 of the Land Group (Amendment) Act, 2009, a Notice of Lodgement of an Application for Recognition as a Land Group for Tanomotu Incorporated Land Group, File number 17996 was published on the 05 September 2013 and the same was also Gazette on 29 August. 2013.

Due to Existing Leases made mentioned on the Gazette and the Media Publication above, Tanomotu Land Group now officially with-drawing the properties listed below:

Tanomotu Land Group owns the following Customary Land and Properties in Hiri Rural Local Level Government, Kairuku Hiri District Central Province.

Further, other property that was not included in the previous Gazette and Media Publication but Tanomotu Land Group claimed ownership is as follows:

40. After a careful perusal of the evidence from both parties, I make the following findings of fact on the approval of the incorporation process, sketch maps and survey plans.

41. The evidence reveals discrepancies that can be traced to the landholdings, sketch maps, and survey plans in the incorporation and registration processes that I find are of such a serious nature that it adversely affects the root of the registered title and in my view, amounts to constructive fraud. A good root of title is defined in Section 3 of the LRA (Amendment) 2009 that a “‘good root of title’ means a document or other source from which title to the interest claimed is traced.”

42. The evidence proves on a balance of probabilities that there was haste in registering the customary land to the first defendant where several fundamental processes in incorporating it as an ILG and registering its claimed land were not complied with, causing irregularities and breaches of mandatory processes in the LGIA and LRA that challenges the root of the first defendant’s title. The applicable normal processes which were not complied with by the A/Registrar ILG, Surveyor General and the Director CLR for the benefit of first defendant were; for:-

43. The corrigendum issued by the A/Registrar was an unlawful attempt to fix the blunder of incorporating the first defendant without the disputed land in the first defendant's customary land portfolio.

44. The Director CLR granted title without considering the objections of the plaintiff before accepting the final registration plan when the objection was made within time.

45. Meanwhile, the process applied for the plaintiff showed compliance with the incorporation and registration processes as follows:-

46. To me, it is abundantly clear that the processes applied by the Surveyor General, A/Registrar ILG and Director CLR, to grant title to the first defendant are irregular and in breach of the mandatory processes for incorporation; by not approving the sketch map before incorporating the first defendant and, in not considering objections to landholdings before approving P2738C contrary to Sections 5,6 and Schedule 2 LGIA Section 34F LRA and when granting the title contrary to sections 34G and 34J LRA.

47. The publication on 14 July 2014 that the first defendant intended to survey the disputed land Ugava Suguna Via, three months after the plaintiff lodged its survey plan P2746C for Ugava (Via) and without Ugava Suguna Via been in its portfolio of lands published nearly a year earlier on 29 August 2013, raises questions about the basis of the survey that was approved on 22 January 2015 of P2738C, the attempt at fixing the error by corrigendum of 26 March 2015 and ultimately its registration.

48. Section 34D and 34F LRA clearly mandates the Director CLR to deal only with undisputed customary land that is absolutely owned according to customary tenure by the land group. The Director CLR has clearly breached Sections 34D, 34F and 34J LRA; when he accepted the first defendant's survey plan P2738C as the final plan, without considering the plaintiff's objection of 12 August 2016.

49. The evidence clearly demonstrates that there were two sketch maps for substantially the same lands from two customary land groups, the plaintiff and the first defendant, claiming ownership to those lands. That there were also two survey plans of a smaller land area of 5.96 hectares within the same land area of 199.25 hectares from the plaintiff and first defendant. That these evidence were before the defendant officials demonstrating survey plan P2738C was not absolutely owned and there existed a dispute of conflicting interests for the land.

50. In addition, I find that the corrigendum^[24] was improperly used to bypass the mandatory objection or consultative process and to mischievously and with bad faith, include the disputed customary lands to the first defendant's portfolio. This is contrary to the scheme of the LGIA which allows for a consultative process before accepting claimed landholdings to register an ILG with its portfolio of lands and; contrary to the purpose of a corrigendum. A corrigendum should only be issued where the published gazette omits words that were included in the instrument authorising the gazette. Section 90 of the Interpretation Act chapter 2 clearly limits a corrigendum to the words contained in the original instrument authorising the gazette, and states: -

“gazette” includes any official publication of the National Government, whether or not it is described as a gazette;
“words” includes figures and symbols.

(2) Where it appears to the person or authority who signed an instrument referred to in Section 89(2)(b) that the words published in the gazette do not correspond exactly with the words of the instrument, the person or authority may direct the Government Printer–

(3) Where an instrument is republished under Subsection (2), the previous purported publication of that instrument shall be disregarded for all purposes."

51. Here, I find that the corrigendum published on 26 March 2015 in NG 212 relates to substantive matters affecting the root of the first defendant's ILG landholding or customary land registration, as it purported to or had the effect, in the absence of evidence of the initial instrument authorising the publication of the gazette; to bypass or circumvent the mandatory consultative or dispute process in the ILG incorporation process, that was already in progress by the plaintiff's ILG application. It is not a mere clerical fix to the gazette but a substantive matter of fact and law concerning ownership of disputed customary land. The proper course of action would be to revoke the earlier gazette and publish another gazette which would, call for objections, factor the legal requirement in Section 6 LGIA to because the disputed land was not published in the first defendant's initial incorporation application of 29 August 2013. This is a fundamental error of law and fact, and one that results in a unilateral decision of deciding customary land ownership, which the A/Registrar ILG is devoid of legal authority to do.

52. Further, I do not find the first defendant innocent of the actions or decisions by the defendant officials because I draw a reasonable inference from the evidence before me that the first defendant knew about the disputed lands being allocated to it. This is because the approval of its survey plan P2738C and the corrigendum assigning it the disputed land, were made before the A/Registrar's letter of 5 May 2016 urging it and the other objectors, to resolve the issue within seven days with the plaintiff. Yet, it did not do so in good faith, because I infer, it would expose the irregularities and would not be in its interest to disrupt the progress made in its favour to register the land.

53. All these discrepancies, in my view, amount to conduct either directly or indirectly, that are, unlawful, irregular, improper and so unsatisfactory as to amount to bad faith in not considering fairly the applications of both the plaintiff and the first defendant; and which conduct is tantamount to constructive fraud being committed in not granting a good root of title to the first defendant.

54. The scheme of both legislation is for the defendant officials and the Surveyor General to deal only with undisputed customary land that is absolutely owned according to customary tenure. This entails physical inspections and consultations with local clans and authorities, not a desk review of the applications. See Kawira v Bone [2017] N6802 at [38].

55. It is therefore just and equitable, that the title issued to the first defendant be declared void, set aside and cancelled; and the dispute be referred to the competent authority, the local Land Court to resolve the dispute of ownership by customary tenure of the disputed land, Ugava Siguna Via or Ugava (Via).

LOCAL LAND COURT DECISION LLC NO 21 OF 2015
57. The first defendant adduced evidence to challenge the credibility of the local Land Court decision which was relied on by the Registrar to include the disputed lands to the plaintiff on 7 December 2016. However, the Director CLR did not pay any attention to that gazette as he granted the title after twelve days.
Further, my views in finding irregularities does not consider in detail the local Land Court decision because in my view the proper course r to challenge a purported local land court decision is by appeal or to register a fresh case before the local Land Court to determine ownership.

58. In any case, to me, the evidence of both parties demonstrates there were clear disputes over the customary land, including this purported local land court decision, which the Registrar and the Director ought to have considered but did not either by design or default, nor have they referred the dispute to the local Land Court to mediate on before including it in the first defendant's land portfolio or in granting the State lease. This only adds to the discrepancies in the process in recognising customary landholdings and granting land title.

59. Derivative interest in the customary land sought to be registered is required to be indicated in the application process during the customary land registration process and made known to the Director CLR because of the legal effect of registration which is to conclusively capture all matters pertaining to that land and its registration, including the derivative interest. Section 34D(2)(b) and 34M LRA 2009 states: -

(1) Subject to this Act, representatives of the Incorporated Land Group may apply to the Director in the prescribed form for registration of ownership of customary land or an interest in customary land.

(a) describing the land or parcels of land owned absolutely under customary tenure by the customary group including, its boundaries; and

(3) The Registration Plan shall be in such form and shall contain such particulars as are prescribed."

(b) unless endorsed otherwise; shall be deemed to guarantee the area and the boundary of the land to which the entry relates; and

60. Once the customary land is registered, it is no longer governed by customary tenure but by the LRA and the ILG can grant derivative interests over the registered land as is done in Part VI of the LRA for normal State titles. See sections 34N and 34O LRA.

61. On the matter of inclusion of the derivative interest of the Baptist church and its school, there is no evidence that, that interest was made known to the Registrar and the Director during the application process by the plaintiff or the first defendant ILGs except for the uncontested evidence of the pastor which I accept that both parties invited the church onto the land and knew about the church’s existence. There is evidence also from the pastor that he wrote to the Surveyor General by letter dated 9 December 2015, nearly a year before the title was issued on 20 December 2016 to the first defendant raising possible encroaching of the first defendant's survey plan P2738C over the existing survey P2746C. This should have signalled to the Director CLR the Baptist church's interest in the land.

62. The Director CLR is mandated by section 34F LRA to deal only with undisputed land which is absolutely owned with no competing interests. Compliance with the process of registration plans rests with the first defendant applicant, who should have disclosed the derivative interest of the Baptist church. The Surveyor General is expected to know about this interest after receiving the letter and he also ought to have recorded the interest from his physical investigations or survey of the area in verifying the first defendant's registration plan and survey P2738C. The first defendant also ought to have disclosed this interest. These instances add to the irregularities in the process of registration of the disputed lands.
63. It appears from the first defendant's evidence that there are also other commercial interests in the land. It is proper that the land dispute is resolved through the land dispute settlement process before the local Land Court to enable the rightful landowners to participate fully in the development benefits of their land, to provide security of tenure to the various interests to the lands and enable the defendant officials to deal only with customary land that is not disputed and absolutely owned according to customary tenure.

64. The first defendant raised a competency issue that the plaintiff commenced the wrong mode of proceeding which should be commenced by judicial review to challenge the Registrar and Director's decision. In my view, it is not proper to raise preliminary issues of competency after trial has commenced with evidence of both parties tended and the issue raised as part of submissions on liability. The first defendant is bound by its conduct. See Peyape v Waiya [2021] SC2109 at [29].

65. To grant this relief would be equivalent to deciding a dispute over customary land, which even, the National Court is devoid of jurisdiction to do. See Kimas v Loa [2015] SC1475.

There is a clear conflict by the parties of the customary ownership of the lands. In addition, the local Land Court proceedings are being disputed by the first defendant. It is proper then to refuse the relief claimed.

66. Costs are discretionary. The Court would have been aided by evidence from the State officials to clarify the process and their actions or omissions. Their lack of defence is not to be treated lightly as it defies the proper administration of the land laws they are mandated by parliament to administer and to account for their administration to the Court in cases of dispute. As such, I exercise my discretion to order the State defendants through the State as their ultimate employer, to pay the costs of the plaintiff for this proceeding. Suct costs are to be paid on a party/party basis to be taxed if not agreed.

Judgment accordingly
____________________________________________________________________
Lawyers for the plaintiff: Tamutai Lawyers
Lawyers for the first defendant: Dentons PNG

^[1] Tab 11 of the Pleadings Book.
^[2] Tabs 17 and 20 of the Pleadings Book.
^[3] on constructive fraud.
^[4] Added by Land Groups Incorporation (Amendment) Act 2009.
^[5] Schedule 2.
^[6] Schedule 2 Item 2 LGIA 2009 Amendments.
^[7] See also section 5(3) LGIA.
^[8] Land Groups Incorporation (Amendment) Act 2009.
^[9] Supra.
^[10] Section 5(4), and (6) LGIA are repealed by the 2009 LGIA amendments s3(b).
^[11] Customary owners is defined in Section 3 of the 2009 LRA amendment to include an ILG

^[12] This reference appears to be a drafting error. The correct section is Section 34G(1)(b)(iii) prescribing a period of no more than 90 days. See 2009 LRA Amendment, section 11.

^[13] This reference appears to be a drafting error as it refers to the section in the amending legislation and not the section in the substantive LRA 2009 amendment. The correct reference should instead be to Section 34D.

^[16] Supra.
^[17] Evidence 'P1' para 26.
^[18] Evidence 'P1', annexure marked 'R1'.
^[19] NG 212 of 26 March 2015.
^[20] 20 to 22 January 2015.
^[21] NG 212 of 26 March 2015.
^[22] Evidence 'D2' (doc 76).
^[23] The plaintiff's sketch map S152 included the sea and island.
^[24] NG212 of 26 March 2015.

Property	Description
Portion 578 .... ..... ..... ..... .... .... .... ... ... .... .... Land Portion 11.... .... .... .... .... .... .... .... .... .... .... .... Land Portion 152..... ..... ..... ..... ...... ...... ....... ....... .... Land Portion 66..... ..... ..... ..... ...... ...... ..... ..... ..... ..... Land Deed of Attestation (DA 184) .... ..... ..... ..... ...... Land

Property	Description
*Ugava Siguna Via .... ..... ..... ..... .... .... .... ... ... .... .... Land (Portion 2738C)*

National Court of Papua New Guinea

Mokagaha Land Group Incorporated v Tanomotu Land Group Incorporated [2025] PGNC 44; N11166 (4 March 2025)