Arua Loa v Pepi Kimas

• Jurisdiction: Papua New Guinea
• Judge: Kandakasi, J
• Judgment Date: 29 December 2014
• Citation: (2014) N5849
• Court: National Court
• Year: 2014
• Judgement Number: N5849

Full : OS. NO. 903 of 2011 (JR); Arua Loa, Areni Igo and Lakani Oala v Pepi Kimas, Secretary for Lands and Physical Planning and Benjamin Samson, Deputy Registrar of Titles and Honourable Dr. Puka Temu, Minister for Lands and Physical Planning and Honourable Dr. Puka Temu, Minister for Lands and Physical Planning and The Independent State of Papua New Guinea (2014) N5849

National Court: Kandakasi, J

Judgment Delivered: 29 December 2014

N5849

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

OS. NO. 903 of 2011 (JR)

BETWEEN

ARUA LOA, ARENI IGO AND LAKANI OALA

Plaintiffs

AND

PEPI KIMAS, SECRETARY FOR LANDS AND PHYSICAL PLANNING

First Defendant

AND

BENJAMIN SAMSON, DEPUTY REGISTRAR OF TITLES

Second Defendant

AND

HONOURABLE DR. PUKA TEMU, MINISTER FOR LANDS AND PHYSICAL PLANNING

Third Defendant

AND

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

Fourth Defendant

Waigani: Kandakasi, J.

2014: 17th August

2014: 29th December

EVIDENCE – Best evidence rule – Need for proper explanation of whereabouts and inability to produce original – Copies need to be properly certified by custodian or relevant and appropriate officers – Lack therefore of – Evidence inadmissible.

EVIDENCE - Evidence Act - Section 35 - Requirement for notice of intention to use affidavits - Affidavit filed by a party no longer a party to the proceedings - Fairness required notice of intention to use especially when the affidavit is not the subject of any specific order under s. 34 of the same Act - Application to use therefore declined.

LAND LAW – Land dealings – Customary land to State land – Relevant process and procedure – Need for compliance – Need for keeping of proper records – Failures and effect of – No proper acquisition or conversion of customary land to State land – Land remains customary land – All State dealings on such land null and void and of no effect.

LAND LAW – State land – Licenses and leases over State land – Purpose, process and procedure – Need for keeping of proper records – Failures and effect of – No proper grant of licenses of leases.

Cases Cited

Papua New Guinea Cases cited

Takoa Pastoral Co Ltd v. Dr Puka Temu (2009) N3711.

Yange Langan v. Independent State of Papua New Guinea (1999) N1369.

Steven Pirika Kamma v John Itanu & Ors (No 2) (2008) N3261.

Spirit Haus Ltd v Robert Marshall (2004) N2630.

Mudge v Secretary for Lands [1985] PNGLR 387.

Koang No 47 Limited v. Monodo Merchants Limited and Melpa Properties Limited (2001) SC675.

Shell Papua New Guinea Ltd v. Speko Investment Limited and Peandui Koyati (2004) SC767

The State v. Hekavo [1991] PNGLR 394.

The State v. John Bill White (No 1) [1996] PNGLR 262.

The State v. Raphael Kimba Aki (2001) N2039.

Fred Bukoya v. The State (2007) SC887.

Overseas Cases cited:

Hocking v. Ahlquist Bros Ltd [1944] 1 KB 120

Text Books & Other Publications

J M E Garrow & J D Willis, The Principles of the Law of Evidence in New Zealand.

Phipson On Evidence, 13th edition, para 5-01 - 02 “the best evidence rule”.

Counsel:

G. Gelu, for the Plaintiffs.

S. Sukwianomb ,for the Defendants.

27th January, 2015

1. KANDAKASI J: This case concerns one of the most important and scarce commodities namely, land. The case is before me at a time when there is much debate and issue around customary land being allegedly sold to and or otherwise acquired by the State and other third parties, mainly foreign interests while customary landowners are losing out.

2. In this case, Arua Loa, Areni Igo and Lakani Oala (the plaintiffs) claim they and other customary land owning groups living in Hanuabada Village are the traditional or customary owners of portion of land off the Poreporena Freeway opposite the Curtain Brothers Camp, described as Portion 2585 or 2585C, Milinch Granville, Fourmil Moresby, in the National Capital District. The plaintiffs also claim that they allowed for their land to be acquired by the State under s. 7 (a) of the Lands Act 1996. That their further claim was for the purposes of having it converted into a State lease to be leased back to them by way of a Special Agriculture and Business Lease (SABL) under s. 11 of the Act. Additionally, the plaintiffs claim that, although the State initially observed that condition by granting them such a lease, it failed to continue to observe it by cancelling the lease issued in their favour and instead issued a State Lease in favour of Garamut Enterprises Limited (Garamut). The State takes issue with the plaintiffs’ claims and contents that it acquired the land during the colonial administration. It thus claims the land was already State land described as Portion 764, parts of which became Portions 2585 or 2585C. Given that, the State argues further that the grant of the SABL was in error and it corrected it by cancelling it.

3. The State Lease granted to Garamut had a life of 5 years commencing on 17th January 2008 and expiring on 16th January 2014. Obviously the expiry date arrived prior to the hearing and delivery of decision in this matter. Following the expiry of the lease, Garamut chose not to further participate in the proceedings. Hence this case proceeded to the final hearing only as between the State and the Plaintiffs.

Relevant Issues

4. After the grant of leave for judicial review, the matter came before me for the substantive review. In respect of what is before me there are a number of important questions presented for this court to consider and determine. They have been identified by the parties per the statement of agreed and disputed facts and issues for trial endorsed by the Plaintiffs and the in house lawyer for the Lands Department dated 1st April 2014 and handed up in Court. The issues are as follows:

(a) Did the State acquired Portion 764?

(b) Is parts of Portions 764 now described as Portion 2585 or 2585C?

(c) If the answer to question (b) is in the negative, is Portion 2585 or 2585C State Land pursuant to Instruments of Lease dated 20th September 2010 and Notice of Direct Grant gazetted on 23rd September 2010 in Gazette No G215?

5. Of these questions, the first issue is critical. A negative answer to the first question could lead to a negative answer to the remaining two questions, thereby rendering any detailed consideration of those questions unnecessary. It makes sense therefore that, I should deal with the first issue first.

Did the State Acquire Portion 764?

6. The first issue requires a consideration of the correct process and procedure for the acquisition of land by the State. This is important because, unlike many other countries in the world, land in Papua New Guinea is in the hands of customary or traditional landowners, which for most people in PNG is the only assest they have. Customary land accounts for about 97% of the total land mass in the country, reason of which, the demand for land in PNG is very pronounced and there are presently a lot of land grabbing by many people mainly by foreigners and a few very aggressive Papua New Guineans.

7. Once we have established the correct process and procedure for the acquisition of land by the State in the country, the next step will be to consider what happened in this case by turning to the relevant evidence on point and then determine if the correct process and procedure for the State’s acquisition of land was followed to form the foundation for the claim by the State that it acquired Portion 764.

Process and procedure for State acquiring land

8. Turning than to a consideration of the process and procedure for a valid acquisition of land by the State, I note the starting point is the Lands Act 1996.

Unless specifically indicated otherwise, all references to statutory provision are based on the Land Act 1996.

1 Of particular application is ss.5, 7, 10, 11 and 12. These provisions clearly state that the State can acquire land in any of three ways. These are by:

(a) Agreement under s. 7 (a) of the Act; or

(b) Compulsory acquisition under s.7 (b); or

(c) Declaration of State land under s. 5.

9. Sections 10 and 11 provide as to how the State could acquire land by Agreement. These provisions are clear and self-explanatory. They read:

“10. Acquisition of Customary Land by agreement.

(1) Subject to Section 11, customary land shall be acquired in accordance with this Section and shall be authenticated by such instruments and in such manner as are approved by the Minister.

(2) The Minister, on behalf of the State, may acquire customary land on such terms...