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National Court of Papua New Guinea |
PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]
OS No. 17 OF 2024 (IECMS)
BETWEEN:
RODNEY SEKE BERAPU
Plaintiff
AND:
MARK KINDAGEL
Second Plaintiff
AND:
THE NATIONAL CAPITAL DISTRICT COMMISSION
Defendant
WAIGANI: BRE AJ
17 DECEMBER 2024; 17 JANUARY 2025
LAND – public road reserve – whether equitable interests acquired – occupied for 20 years without knowing status of land – whether entitled to reasonable notice.
The plaintiffs built homes and resided for 20 years on land zoned as public utility reserved by the State for the construction of a public road. The plaintiffs initially acquired the land from customary landowners. The NCDC served infringement and demolition notices on 16 November 2023 following a pick-up survey.
Held
Cases cited
Amaiu v Yalbees [2020] SC2046
Gawi v PNG Ready Mixed Concrete Pty Ltd [1984] PNGLR 74
Inwards v Baker [1965] EWCA Civ 4; (1965) 2 QB 29
Ipata v Obe [2018] N7593
Koima v Pat [2020] N8181
Koitaki Farms Ltd v Kemoko Kenge and Other Squatters at Itikinumu Plantation [2001] N2143
Kove v Poó [ 2022] SC2231
Medaing v Ramu Nico Management (MCC) Ltd [2011] SC1156
Nanguan v Chairman, Board of Directors, PNG Maritime College [2017] N6711
Nesai v Numa [2023] N10247
Powi v Southern Highlands Provincial Government [2006] SC844
Ready Mixed Concrete Pty Ltd v The State, Samana and Kiamba [1981] PNGLR 396
Tony Yagon & Settlers of Dylup Plantation v Nowra No 59 Ltd [2008] N3375
Wama v Parkop [2018] N7323
Counsel
Mr. T.Noki for the Plaintiffs
Ms. M. Tusais with Ms S. Teno for the Defendant
DECISION
1. BRE AJ: This is a contested hearing on declarations sought by the plaintiffs that they have acquired equitable interest in parcels of land located between Portion 2641 and Portion 2304 located at ATS, Jacksons, NCDC.
2. The plaintiffs also seek declarations that they are entitled to reasonable notice of one year six months or alternatively, the road reserve route be varied or that they be compensated.
4. The undisputed facts are that the plaintiffs resided for 20 years on land reserved as a public road. The land is a 60.35 wide road corridor with the plaintiffs residential dwellings built on the road reserve.
5. The NCDC contends the plaintiffs have encroached on land zoned as a public utility and have illegally erected their buildings and resided there without proper physical planning and building approvals and as such are precluded from seeking redress in equity.
6. The plaintiffs submit they are not precluded from seeking relief in equity because they purchased the land from a customary land incorporated group and believed the land was customary land. That they recently on 16 November 2023 became aware of the NCDC's interest when they were issued with infringement and demolition notices.
7. The issue for determination concerns whether the plaintiffs are precluded from acquiring equitable interests in the land and if not, whether one year six months is a reasonable period for notice to vacate. In submissions, the plaintiffs counsel sought one year.
8. After careful perusal of the evidence, I find that the plaintiffs mistakenly believed that the land was customary land. They purchased the land on 15 October 2004, from Dubara Idubana Land Group. Both lands were purchased at K6000.00 each. The transaction is reflected in writing and annexed to the plaintiffs affidavits. The Dubara Idubana Land Group states in the agreement that the lands are customary lands which belong to them and is disposed to the plaintiffs for the consideration received. It is obvious now that the customary landowners misrepresented themselves to the plaintiffs.
9. The background facts are that the first plaintiff is a retired PNGDF colonel and along with his colleague the second plaintiff's late father, a sergeant, built the homes as their retirement homes. The properties comprise three high covenant houses with amenities such as water, electricity and sewerage. The value of the homes in March 2022 was K870,000.00 and K205,000.00 respectively.
10. The NCDC tendered registered survey plans of the area obtained from its archives. The relevant survey plans were registered by the Surveyor General on 12 July 1994, 16 December 2002, 29 May 2008 and NCD's own recent zoning plan, dated 28 October 2024.
The plaintiffs also produced a private survey of the area, which is not dated. Apart from the surveys, google images and pictures of the property were produced into evidence by both parties to show the location of the properties and the status of the land.
It is obvious from these maps that the plaintiffs' buildings are located within the boundaries of the road reserve.
Knowledge of road reserve?
11. The NCDC submitted that the plaintiffs occupation was illegal and prevented them from seeking redress in equity. This goes to the knowledge of the plaintiffs at the relevant times when acquiring the land, building their residential houses and other structures like fencing and during the time of their 20-year occupation. The NCDC has the onus of proving with direct evidence the plaintiffs knowledge about the status of the land and the physical planning and building board permission requirements and whether these apply to customary lands.
12. In support of its contention, both the City Manager Mr Ravu Frank and Director Compliance Ms Amanda Binoka explain the law and process of planning and building approvals, the role of its Boards and the NCDC and deposes that had the plaintiffs applied for physical planning and building board approvals they would have discovered that the land was a public road reserve and that they would not be allowed to build nor reside on the land. These witnesses are persons experienced in their occupations and I accept their evidence on the process and reasons for the physical and building board approvals.
13. However, I do not place much weight to their assumptions as it disregards the plaintiffs belief that the land was customary land which I infer, would mean that the plaintiffs had no compelling reason to apply for nor obtain physical planning or building approvals. This point was addressed by the NCD in their application earlier to set aside the interim restraining order but did not succeed as I was not persuaded that those laws apply to buildings on customary land which largely are undeveloped lands governed by customary law. The critical consideration here is the state of mind of the plaintiffs regarding the status of the land following the transaction from the Dubara Idubana Land Group.
14. At the relevant time of acquisition of the land on 15 October 2004, the plaintiffs appeared to have no reason to doubt the representations of the Dubara Idubana Land Group that the land was customary land.
15. The first plaintiff deposes to confirming with officials who were surveying lands at that time that the land was customary land. However, I give little weight to this evidence as the proper course to confirm the status of the land would be to conduct a search of official government records with the Surveyor General’s Office or the NCDC’s office.
16. The private survey relied on by the plaintiffs does not indicate when the survey was conducted. This survey covers the boundaries of the road reserve. I agree with Ms Tusais submissions that, that survey could have alerted the plaintiffs to the status of the land. However, there is no direct evidence about when the plaintiffs became aware of this survey.
17. The evidence of the NCDC from Amanda Binoka collaborated by the City Manager shows the NCDC taking physical stock of the land recently from 31 July 2023 to August 2023 when it conducted a pick-up survey and planning exercise along the length of the ATS to 9mile/ Bushwara road.
18. Amanda Binoka explains the reason for the survey to ensure the road was properly demarcated in preparation for clearing and constructing
an alternate road link for public use to ease traffic congestion experienced on the current highway.
She deposed that the survey revealed several structures built along the road corridor by occupiers.
As a result of these findings, infringement and demolitions notices were issued to occupiers, most of whom complied with the notices, pulled down their structures and vacated the area.
19. Both plaintiffs received the infringement and demolition notices on 16 November 2023. Two months later on 30 January 2024, a demolition order was issued by the chairman of the building board and served on both plaintiffs. The demolition order gave both plaintiffs fourteen (14) days' notice to demolish their structures and vacate the land.
19. The reasons stated on the infringement and demolition notices include both plaintiffs said to be encroaching on land zoned as a public utility reserved for a public road, having no proof of land title nor planning and building approvals and thereby occupying the lands illegally, with their buildings and structures by statutory order required to be demolished and the land cleared. No time was given in these notices.
20. The notices also indicated that the administrative right of appeal was limited to proving the applicant had the necessary planning and building board approvals.
The plaintiffs therefore sought interim restraining orders in February 2024 which I granted.
Law on equitable Interest of Land
21. The law is settled that long term occupiers of land have an equitable interest in land and are entitled to reasonable notice. See Ready Mixed Concrete Pty Ltd v The State, Samana and Kiamba [1981] PNGLR 396, Gawi v PNG Ready Mixed Concrete Pty Ltd [1984] PNGLR 74 and Amaiu v Yalbees [2020] SC2046.
Views on illegal occupation
22. In my view, the gist of the NCDC’s submission implies knowledge by the plaintiffs of the status of the land at the time of acquisition and at any time during the 20-year occupancy. However, the evidence adduced from the survey maps falls short of proving this contention. The survey maps do not prove the plaintiffs were aware of the status of the land prior to the purchase of the land, during its purchase nor at any time during their 20-year occupancy of the land.
The only credible evidence is that of the plaintiffs becoming aware of the NCDC’s interest and the status of the land after they received the statutory notices on 16 November 2023.
This is collaborated by the NCDC's survey from 31 July to 24 August 2023 which shows the NCDC became actively interested in the area only recently. I infer, it had no business reason to do so earlier, until recently, to address traffic congestion experienced by the travelling public and to pave the way for property development in the area.
23. Unlike the landmark cases of Ready Mix and Amaiu v Yalbess, and other cases such as Nanguan v Chairman, Board of Directors PNG Maritime College [2017] N6711, where the settlors occupied the land with the full knowledge of the registered owners, the NCDC had no direct knowledge of the plaintiffs occupation of the road reserve until after it conducted the pick-up survey.
The evidence clearly shows both parties recently became aware of each other's interests in the lands from 31 July 2023 and 16 November 2023.
24. I am also not convinced that physical planning and building board approvals are required for erecting buildings on customary land. It should apply to developed or properly zoned registered or alienated lands. This issue was not addressed by both counsels, but I consider it as a relevant factor going to the knowledge of the plaintiffs.
25. I find that the plaintiff’s had a mistaken but genuine belief that the land they purchased in 2004 and resided on for 20 years was customary land.
26. I accept that if the plaintiffs had done proper due diligence earlier, they would have realised their mistake. However, the same assumption is true for the NCDC. If it had vigilantly monitored its public utility zones within the city, it would have addressed the occupation and minimised delays and saved costs. Ultimately, these are assumptions which the court will not dwell on further.
27. The allegation of illegal conduct was discussed in Koima v Pat [2020] N8181. That case concerned compensation arising from compulsory acquisition for additional commercial buildings built and operated as a business on land zoned for residence. The registered proprietor obtained no physical planning and building approvals for the commercial buildings nor the re-zoning of his land to commercial land. He had applied and received acknowledgement letters for the application. While awaiting decisions on the applications, he built a mini supermarket. Hence, his conduct in building the commercial building without receiving the proper regulatory permissions was held to be illegal conduct which prevented him from being compensated for those buildings.
28. In Koima v Pat the plaintiff was aware of the state of his land and the planning and building permissions required. The facts in Koima v Pat are distinct from this case.
29. In any case, the NCDC slept on its rights. While it may be impractical, to know of every public utility zone in the NCD, the NCDC had the registered surveys for the area showing the status of the land from 1994, 2002 and 2008 but did nothing earlier, to oppose occupiers along the road corridor.
30. Ultimately, I find that the plaintiffs are not precluded from accessing equity because they had a genuine but mistaken belief
in the status of land.
Therefore, the plaintiffs' long-term occupation and improvements to the land means they have acquired an equitable interest in the
lands they occupied, entitling them to reasonable notice.
Reasonable Notice
31. The next issue for determination is whether the period of one year six months is reasonable notice?
32. The plaintiffs also sought compensation which was opposed by the NCDC that they had no lawful interests in the land and no right to be compensated. I accept NCDC's submission. The plaintiffs only have equitable interests which does not grant any legal rights to the land except to reasonable notice to vacate the land. Therefore, no entitlement to compensation arises for the plaintiffs.
33. However, I observe that the survey maps confirm the plaintiffs evidence that the land was initially demarcated as customary land
Porton 1635 until it was subdivided in registered survey cat 49/2645 registered on 29 May 2008 and again in the NCDC October 2024
new zoning plan.
This begs the question of the social responsibility of the relevant State authorities whether it be NCDC or the Surveyor General and
whether they have any statutory obligation to inform occupants who may be interested parties of the surveyed land and development
plans.
34. Further, the City Manager’s evidence on the development plans for the ATS to 9Mile/Bushwara road link is that the pick-up survey and pegging exercise is the preliminary stage of preparing the land for clearance and construction of the road. He explains that there are several stages to be completed which include demarcating the boundaries of the survey, drawing up a road construction plan, allocating budget and constructing the road which are all dependent on the clearance. While I accept his evidence as credible in deposing to the processes involved in preparing for and building a road, I find his evidence falls short of clarifying the timeframes for each stage and particularly how soon the road construction is to commence so as to demonstrate urgency and aid the Court in balancing public and private interest as it concerns the issue of timing.
34. In Ipata v Obe [2018] N7593 and Wama v Parkop [2018] N7323 the NCDC gave two and four months' notice respectively to occupiers to demolish structures so the NCDC could construct a road. A
contractor had been engaged the previous year. In my view, it appeared urgent that the land be cleared so the road can be constructed
with the contractor ready to commence the roadworks.
This is not the case here. It appears NCDC will not be prejudiced by further delay. There appears to be no urgency.
35. On the other hand, the plaintiffs require more time because of financial constraints and lead time which they estimate will take them about a year to dismantle their permanent buildings, obtain land and build. They have provided evidence from a carpenter and a company that provides modular homes to support the time required.
36. The first plaintiff has taken concrete steps to secure a State land title on 11 July 2024. According to his evidence it would take one year to build on the land either by demolition and re-building or through purchasing a kit home to build on the land. The first plaintiff is employed with a resource company.
37. The second plaintiff and his family however depose to having financial difficulties and being unable to secure any land. They require eight months to find funds. The second plaintiff does not indicate whether he or any of his families have consistent income.
Public verses private interests
38. I therefore ask, should the private interests of the plaintiffs outweigh the public interest?
In Gomai v Narere [2017] N6964 and PNG Power Ltd v Piel [2020] N8568 the court held that public interests overrides private interest. In Gomai v Narere, Gomai sought compensation for building a property on the land before vacating it. The property was located in Kimbe Town which the
local authorities required it be demolished to build a commercial centre. In PNG Power Ltd v Piel, PNG Power Ltd required vacant land to build electricity transmission lines on lands which occupiers had purchased from customary
landowners. In both cases, the issue of competing interests of public and private interest were not fully canvassed, so I am not
aided by these cases nor from counsels’ submissions in considering relevant factors. I therefore fall back on the evidence
which are the facts of this case.
39. The public will benefit from an alternate road link to the current highway which is congested during peak hours. The plaintiffs are standing in the way of this development. These are two families interest over the larger public interest for the road construction to start and be completed on schedule.
40. However, the NCDC has not provided evidence to indicate the schedule or timeframe to commence the actual road construction. The NCDC has started the initial stage to confirm the road boundaries and clear the land to build the alternate road link. A contractor was engaged to complete this task of clearing the area and surveying the boundaries within three months at a substantial cost of about K2million. The work has halted at the plaintiffs’ area due to the existing injunctions. However, there is no evidence on what stage of completion the clearance phase is except an implication that it is only the plaintiffs and this proceeding that is delaying further progress. If so what about progress on the other parts of the road link, have the road demarcations being finalised for those parts? There is no evidence of that. It does not aid the Court to not get a sense of timing or urgency.
According to the City Manager's evidence the next stages are to draw up the road construction plan, allocate the budget and construct the road. There is no sense of timing for drawing up the road construction plan or whether NCDC have obtained all information to confirm the boundaries of the road link and what the status is of the entire length and breadth of the road link from 9mile/Bushwara to ATS.
Existing caselaw on time frames and its application
42. I therefore refer to existing caselaw referred by counsels to be guided on the timeframes to apply. Of the caselaw there are three cases of groups of people occupying State land or a road reserve. In Wama v Parkop [2018] N7323, the Court held that three months' notice was sufficient while in Ipata v Obe, the Court held two months' notice was sufficient.
In Nanguan v Chairman, Board of Directors, PNG Maritime College the Court held the plaintiffs were entitled to reasonable notice but did not specify any time.
43. The distinguishing facts amongst these three cases, are that Wama v Parkop and Ipata v Obe concerned land in NCD which NCDC required to construct new roads and had already selected the contractor a year prior and in my
view and with respect, it appeared urgent that the land be vacated for the completion of the public road.
Whereas in Nanguan v Chairman, there was no road construction in progress, but the eviction commenced as a result of ongoing law-and-order issues affecting a school.
The settlors occupied government land some of which was road reserve. The proceedings lasted five years. The Court considered three
months notice from the conclusion of the proceeding was reasonable, to vacate the land.
44. The distinguishing factor in this case compared to that of Wama v Parkop [2018] N7323 and Ipata v Obe [2018] N7593 is that there is no evidence of any urgency in the form of a contractor already engaged and ready to start work on constructing the road link. No evidence of vital timeframes has been furnished to assist the Court decide the issue of timing.
In Ipata v Obe the occupiers claimed they were residing on customary land, however, there was no evidence produced in support of this assertion. The proceeding in Ipata v Obe lasted one year 11 months, while in Wama v Parkop the court proceeding lasted four years. The times ordered were in addition to the time spent in court. There was no discounting of the times passed because of the proceedings.
45. In Wama v Parkop and Ipata v Obe the NCDC provided prior awareness followed by three months' notice which was held to be reasonable. In both cases, the occupiers resided on government land. That was required for the construction of a public road.
46. The plaintiffs have built very good homes of the high covenant type, and it will be difficult to move at short notice of 14 days as stated in the respective demolition order. However, their decisions and actions in 2004 have unfortunately resulted in their fate today.
47. With respect, Wama v Parkop, Ipata v Obe and Naguan were constitutional rights cases where the Court held that there was no breach of constitutional rights as the law pertaining to eviction
or demolition was observed by the NCDC. The Court exercised its discretion to grant the shorter period of two months and four months'
notice respectively.
The facts of those three cases are easily distinguishable from this case.
48. In Readymix v The State the Court divided the settlors into two groups depending on the year of occupation and awarded the group that stayed the longest a period of one year and the other group, a period of six months. In Amaiu v Yalbees, the Supreme Court did not specify any time but held that the settlors were entitled to reasonable notice.
49. What is reasonable notice is a question of fact and must be determined on a case-by-case basis. In this regard, I find that the plaintiffs' circumstances are different to the cases cited above.
50. I consider the passage of time as a result of this proceeding is not a determinate factor but is one consideration amongst many. The length of the Court proceedings is less than the above cited cases
Here, the proceeding has taken 11 months from February 2024 to January 2025.
From commencement of proceedings in February 2024 to December 2024, a period of 10 months passed, along with time factored from 16
November 2023, from the date of the demolition notice, a period of 13 months has passed.
The road project was, according to NCDC, delayed by 13 months. However, the evidence establishes that it was only recently both parties practically knew of each other's presence and interests in the land. It is not a case of implied knowledge or tacit approval of occupation of the land as in the other cited cases. The plaintiffs have occupied the road reserve unknowingly for 20 years. The plaintiffs are entitled to seek redress before the Court and should not be penalised for the time taken up by the proceedings.
The time taken up by the Court proceeding are also a period of uncertainty for both parties and for that reason, should in my view
not be a determinant factor in considering what the relevant notice period would be.
In any case, the plaintiffs have not rested on their laurels but used this time to secure land, confirm costs and resources and time
needed to demolish their homes and vacate the land.
51. This is a Court of Justice. Equity comes to the aid of those who have a claim in equity. In my view, a party seeking redress from the Court to exercise its equitable jurisdiction, appeals to the inherent jurisdiction of the Court to do justice as required. Equity is said to apply so injustice is not done. See Inwards v Baker [1965] EWCA Civ 4; (1965) 2 QB 29.
The inherent power of the Court is derived from Section 155(4) of the Constitution. Section 155(4) of the Constitution has been explained by the Supreme Court to mean " a general grant of power to the Court to develop and grant such remedies as are appropriate for the protection of rights already existing and granted by other law, including the Constitution." See Powi v. Southern Highlands Provincial Government [2006] SC844 and Medaing v Ramu Nico Management (MCC) Ltd [2011] SC1156.
52. Here, the right requiring protection is that of equitable interest rendering a right to reasonable notice before vacating the land. His Honour Cannings J held in Nesai v Numa [2023] N10247 that this right to notice is subject to the constitutional right to the full protection of the law where the Milne Bay Provincial Administration were found to forcefully evict settlors without notice in order to address law-and-order challenges in the area.
53. The law is clear, the plaintiffs cannot reside on land zoned by the State as a public utility reserved for the benefit of the
public and must vacate the land.
The plaintiffs' occupation does not give them any legal interest in the land, they have no legal rights to the land except to occupy
it a little further in the time permitted by the Court so they can organise their exit.
CONCLUSION
54. I consider the following factual findings crucial to my decision to grant further time to the plaintiff to demolish their structures and vacate the land.
1) There is no evidence from the NCDC about the timelines it would take to complete each stage of the phases leading up to constructing the road to demonstrate urgency.
2) The plaintiffs have adduced sufficient evidence to demonstrate their need for additional time.
3) Both parties recently knew of each other's interests in the land. There was no long-term tacit approval of the plaintiffs occupation by the NCDC nor implied knowledge by the plaintiffs of the status of the land as a road reserve.
55. The time scale applying in the cases cited range from 12 months in Ready Mixed Concrete Pty Ltd v The State at the top end of the timescale to two months in Ipata v Obe at the low end of the time scale.
56. Therefore, after carefully weighing the evidence and the law, I consider it just and equitable to grant time of six months from the date of this decision for the plaintiffs to demolish their structures and vacate the land. I do not consider a period of 12 months as sought by the plaintiffs to be reasonable because the NCDC has demonstrated it has commenced the first stage leading up to the construction of the road. I expect this time would also assist the NCDC in proceeding with certainty on the next stages of its plans to construct the road.
57. Given the circumstances of the plaintiffs, I exercise my discretion not to make any order for costs.
58. The interim restraining orders remain until the expiry of six months from the date of this order.
ORDER
59. The formal Orders of the Court are:
Orders accordingly,.
_____________________________________________________________
Lawyers for the first and second plaintiffs: Lane Lawyers
Lawyer for the defendant: NCDC Legal Division
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