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National Court of Papua New Guinea |
PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]
WS 812 OF 2020
CLEMENT KURAI
Plaintiff
v
FR LUKAS KAMBAO,
in his capacity as the Sari Parish Priest
First Defendant
ANTON KONDON,
in his capacity as the Sari Parish Church Board Chairman
Second Defendant
CATHOLIC DIOCESE OF WABAG BOARD OF TRUSTEES
Third Defendant
BISHOP ARNOLD AROWAE,
in his capacity as the Bishop of Catholic Diocese – Wabag
Fourth Defendant
WABAG: ELLIS J
27, 28 NOVEMBER 2025
CUSTOMARY LAND TRANSFER – October 2017 agreement signed and witnessed – agreed purchase price of K7,000 paid – claim for additional K13,000 not established – attempt to challenge September 2008 agreement out of time
Cases cited
L’Estrange v E Graucob Ltd [1934] 2 KB 394
Counsel
Clement Kurai, the plaintiff, in person
J. Lyaki, for the defendants
JUDGMENT
1 ELLIS J: The plaintiff sought orders in relation to the sale of land he owned to the Catholic church in Wabag. While the plaintiff was said to be “Clement Kurai and 5 others”, those five other people do not appear to have ever been named. As a result, these reasons refer to Mr Kurai as the plaintiff.
2 In the Writ of Summons filed on 12 October 2020, the claims of the plaintiff were set out as quoted below:
2. The Outstanding Land Payment the balance of K13,000.00; and
3 After meandering for five years, on 3 October 2025 these proceedings were allocated a hearing date of 27 November 2025 was set. Shortly before the hearing, the defendants’ lawyer filed a Notice of Ceasing to Act.
4 A request for an adjournment by Me Lyaki was refused because this matter had been allocated a hearing date one day short of eight weeks previously and there had been ample time for both parties to prepare for the hearing. It is not the case that the National Court is like a tap that can be turned off and on as and when desired. It is important that cases proceed on the dates allocated for the hearing so as not to waste the valuable resource of Court time and disturb the allocation of hearing time for other cases. By the time of the hearing, these proceedings were five years old and there was insufficient reason to delay the hearing any further.
Evidence
5 The evidence upon which the plaintiff relied comprised no less than 15 affidavits contained in a Court Book which was admitted as Exhibit A.
6 The evidence upon which the defendants relied was two affidavits: the affidavit of Fr Justin Hein filed on 4 March 2022 was admitted as Exhibit 1 and the affidavit of Bishop Justin A Soongie filed on 7 November 2022 was admitted as Exhibit 2.
7 A summary of the affidavit evidence upon which the plaintiff relied is set out below:
(1) The plaintiff’s first affidavit was on filed on 26 February 2021 (A15, ie from page 15 in Exhibit A). That affidavit referred to events prior to 12 October 2014 and referred to letters said to have been sent but copies of those letters were not annexed to that affidavit. Photos were provided that were said to show changes made to the land. Reference was also made to a mediation held on 3 February 2017. It was contended that both parties should have signed a formal agreement but “made a mistake by not doing so”. It is noted that a page was signed by Snr Sgt Kimala but not by either party and that an additional page, headed “Continued from page one”, was unsigned.
(2) The next affidavit that of the plaintiff’s lawyer (A44) which annexed two documents that were signed by him but not by the defendants’ lawyer.
(3) Next was another affidavit of the plaintiff (A55). Although this affidavit duplicated matters covered in the first affidavit, it did include an annexed copy of a document headed “Customary Land Transfer Agreement” signed in October 2017 (A72) and another signed document dated 15 October 2017 (A73). The body of that second document said:
I, Clement Kurai, the biological father of Newman Yopen and Rex Yopen who have previously sold the land that belonged to me to between the Church property and the river Lai without my consent at a total cost of K4,000.00 to the Catholic Church of Sari Parish now agree to the sale and receive an addition[al] K3,000.00 from the Catholic Church.
I will never claim the land back as was declared and signed under oath on the 09th September 2008 by my two sons.
That affidavit also annexed a third document, being a copy of a statutory declaration signed by the plaintiff’s sons and dated 9 September 2008.
(4) There was another affidavit from the plaintiff, sworn and filed on 12 October 2022 (A75). This affidavit referred to a mediation conducted on 11 September 2022. However, as the annexed document was only signed by the plaintiff, is does not carry any weight as it does not constitute evidence that an agreement was reached by the parties at that mediation.
(5) Yet another affidavit from the plaintiff was filed on 9 March 2023 (A84). This affidavit was in the form of a submission. It contended that the statutory declaration dated 9 September 2008 was “illegal null and void”. It also suggested that the statutory declaration dated 15 October 2017 was blank when he signed it and, contradicting himself, it was also suggested that his signature was “a copy and paste signature”. The plaintiff also suggested that his signature on the October 2017 agreement was forged.
(6) Next was the affidavit of Anton Nepe (A100) which referred to what was claimed to have been said during the mediation in February 2017. However, there are two reasons why this evidence has no probative force. First, what is said by during a mediation is not admissible: only any signed agreement arising from such a mediation is admissible. Secondly, anything that was said in February 2017 was overtaken by the documents dated October 2017, considered below.
(7) The affidavit of Tolai Kakipal (A103) referred to events said to have occurred more than six years prior to the commencement of these proceedings and does not advance the plaintiff’s case in any way.
(8) Robert Kamberan’s affidavit (A106) also referred to the February 2017 mediation. For the reasons indicated above, it does not assist the plaintiff’s case.
(9) Newman Clement provided an affidavit (A109) referred to events as far back as 2008 and to the February 2017 mediation. He referred to a payment of K3,000 after the initial payment of K4,000. However, he did not refer to or explain the documents dated October 2017.
(10) The affidavit of Cr Peter Komunt (A113) suggested he had signed: ”a piece of paper (which he did not identify) not knowing it was some sort of formal agreement over the piece of land between Clement Jurai and Sari Catholic Parish”. He purported to “withdraw his signature” from that document.
(11) The eleventh affidavit was that of the plaintiff (A116) which did no more than indicate that Peter Komunt died on 1 October 2023.
(12) A further affidavit from the plaintiff (A120) annexed a copy of a land valuation report which suggested that the unimproved value of the subject land was K450,000 as at 21 June 2021. However, that report did not indicate the qualifications or experience of its author, did not provide the reasoning upon which that assessment was based, and that author did not provide an affidavit: instead, his report was annexed to an affidavit from the plaintiff. Not only was that report hearsay, because it was provided via evidence from the plaintiff and not direct from the valuer, but it referred to documents without annexing copies of those documents to the report,
(13) On 24 June 2024 the plaintiff filed another affidavit (A150). This affidavit, for the first time, referred to land said to be “Ext 1” and “Ext 6” but did not adequately explain how that matter related to the issues in these proceedings or the orders that the plaintiff is seeking.
(14) The penultimate affidavit was the plaintiff’s affidavit filed on 18 October 2024 (A157) which included inadmissible evidence of an alleged offer of settlement and referred to a proposed Statement of Agreed and Disputed Facts. While that affidavit included a copy of a letter dated 6 May 2025 from Fr Lukas Kambao, that letter only contained his personal view that the Parish should listen to the plaintiff’s request for a further K13,000.
(15) Finally, the affidavit of the plaintiff filed on 30 June 2025 annexed a letter from the Police to the Public Solicitor’s office that was plainly the result of the plaintiff complaining to the Police that the Catholic Church had obtained his land fraudulently. However, making a complaint does not prove the correctness of that complaint.
8 The affidavit of Fr Hein referred to an agreement dated 16 October 2017 that was said to have been signed by the plaintiff and his
predecessor and witnesses by a Village Court Magistrate. A copy of that agreement was annexed. It was said that the amount referred
to in that agreement, namely K7,000 had been paid to the plaintiff.
9 Bishop Songie indicated that he attended a mediation that was conducted on 13 February 2017 but denied matters which the plaintiff alleged in relation to that mediation. In particular, he disputed the accuracy of the Mediation Brief compiled by Senior Sergeant Jack Kimala. Further, he denied the second page of that brief. His evidence was that K3,000 was paid to the plaintiff out of sympathy and that, when combined with the K4,000 paid to the plaintiff’s sons in 2008 constituted the K7,000 selling price referred to in the Customary Land Tenure Transfer Agreement dated 15 October 2017. This witness denied that the plaintiff signed a blank statutory declaration and denied the suggestion that Mr Kurai was illiterate.
10 When an opportunity was provided for cross-examination both the plaintiff and Mr Lyaki indicated they were content to rely on the evidence they had submitted.
Submissions
11 The plaintiff indicated that he was content to rely on his written submissions, which were marked for identification as MFI 1 (CB1). Mr Lyaki said he was content to rely on the evidence which the defendants had submitted.
12 In detailed written submissions (A1-15), the plaintiff suggested there were three issues requiring consideration: (1) whether the plaintiff’s sons were under age when they sold the land to the church, (2) whether the church agreed to purchase the land for K20,000, and (3) whether the Agreement dated October 2017 was binding. It was contended that the “combined effect” of those three issues was whether the acquisition of land was on just terms.
13 After setting out what were contended to be the relevant facts and listing the evidence upon which the plaintiff relied and fourteen decided cases, submissions were made on each of what were said to be the issues in this case.
Relevant law
14 It is long been the law that a person who signs a document is bound by that document, even if there was a failure to read its contents: L’Estrange v E Graucob Ltd [1934] 2 KB 394.
Consideration
16 There are multiple reasons why what the plaintiff suggested was the first issue must be rejected. First, section 16(2) of the Frauds and Limitation Act imposes a six-year time limit for cases in contract. As a result, the plaintiff’s attempt to revisit a contract made on 9 September 2008 in proceedings commenced on 12 October 2020 is well out of time. Secondly, there does not appear to be any evidence to establish the age of the plaintiff’s sons at the time when that agreement was made. Thirdly, even if that 2008 agreement was set aside, the plaintiff still needs to address the 2017 agreement.
17 As to the second issue, the plaintiff has failed to prove, on the balance of probabilities (ie more likely than not), that there was an agreement to buy the subject land from him for K20,000. His submissions did not refer to any such evidence, and the Court is unable to discern any such persuasive evidence.
18 Moving to the third issue, the Court finds that the October 2017 agreement was valid and binding. That document is in the proper form and was witnessed, including by a Village Court Magistrate. The plaintiff’s inconsistent contentions that his signature on that agreement was forged must be rejected, given that the multiple witnesses included a Village Court Magistrate. The inconsistent suggestions that the statutory declaration was blank when he signed it and that his signature was a "cut and paste” damage his credibility. The Court finds that page, dated 15 October 2017, to have been signed by the plaintiff, two representatives of the church and witnessed by a community member.
19 Even if it could be said that the plaintiff’s evidence should not be rejected, in the absence of any cross-examination, the Court is left with evidence from the plaintiff, suggesting the October 20917 agreement is not valid, and evidence from the defendants which suggests that agreement is valid. When there is competing evidence from both parties, and no basis for deciding between that competing evidence, the position is that the plaintiff has failed to prove his case.
20 The suggestion Cr Peter Komunt did not know the nature of the document he was signing does not assist the plaintiff because it is not necessary for a witness to know what he is singing as all a witness is doing is verifying a signature. Also, what occurred prior to October 2017 is not relevant because any such events were overtaken by that agreement. Further, what was said and done at the February 2017 mediation is of no consequence as that did not result in a binding agreement.
22 The reference to section 53 of the Constitution is not relevant as that section refers to the compulsory acquisition of land. It is not open to the plaintiff to air an allegation that the subject land was not acquired on just terms. First, that issue was never raised in the Writ of Summons, which was never amended. Secondly, the question in this case is whether the October 2017 agreement is valid and binding.
24 That is a question of contract law which requires that there be an offer, acceptance of that offer and consideration. The documents signed and witnessed in October 2017 make it clear there was both an offer and acceptance of that offer. There was plainly consideration in that the October 2017 agreement referred to an amount of K7,000 and it was not disputed that K7,000 was paid, in amounts of K4,000 and K3,000.
24 What was said by the first defendant, Fr Lukas Kambao, in his letter dated 6 May 2025 cannot possibly considered to have bound the church as it is clear he was only expressing a personal view that the Parish should listen to the plaintiff’s request for a further K13,000. Finally, in view of the submissions lodged and the plaintiff expressing a preference to speak in English during the hearing, it cannot be accepted that he is either illiterate or understand to understand what he signed.
Costs
25 As the defendants have been successful, they are entitled to an order for costs as the usual position is that the unsuccessful party is ordered to pay the costs of the successful party. However, the defendants’ representative has indicated that an order for costs is not sought. Hence, each party should pay heir own costs.
Orders
16 For the reasons set out above, the following orders are made:
1 Verdict for the defendants.
2 As a result, the proceedings are dismissed.
3 Each party is to bear their own costs of these proceedings.
4 Time is abridged so that these orders may be entered forthwith.
Orders Accordingly.
__________________________________________________________________
Lawyer for the defendants: J. Lyaki
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