Leo Maniwa v Aron Malijiwi

• Jurisdiction: Papua New Guinea
• Judge: Gavara-Nanu J
• Judgment Date: 04 July 2014
• Court: National Court
• Docket Number: OS JR No. 983 OF 2011
• Citation: (2013) N5687
• Year: 2013
• Judgement Number: N5687

Full Title : OS JR No. 983 OF 2011; Leo Maniwa for himself and on behalf of Kowiru village and Others as per attached Schedule v Aron Malijiwi in his capacity as Director of Limawo Holdings Ltd & Director of Sepik Oil Palm Plantation Ltd and Hui Teck Lau in his capacity as Director of Wewak Agriculture Development Ltd & Director of Sepik Oil Palm Plantation Ltd and Limawo Holdings Ltd and Wewak Agriculture Development Limited and Sepik Oil Palm Plantation Limited and Honourable Puka Temu - in his capacity as Minister of Lands & Physical Planning and Pepi Kimas in his capacity as Secretary, Department of Lands & Physical Planning and The Independent State of Papua New Guinea (2013) N5687

National Court: Gavara-Nanu J

Judgment Delivered: 4 July 2014

N5687

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

OS JR No. 983 OF 2011

BETWEEN:

LEO MANIWA for himself and on behalf of Kowiru village

First Plaintiff

AND:

OTHERS AS PER ATTACHED SCHEDULE

Second Plaintiff

AND:

ARON MALIJIWI in his capacity as Director of Limawo Holdings Ltd & Director of Sepik Oil Palm Plantation Ltd.

First Defendant

AND:

HUI TECK LAU in his capacity as Director of Wewak Agriculture Development Ltd & Director of Sepik Oil Palm Plantation Ltd.

Second Defendant

AND:

LIMAWO HOLDINGS LTD

Third Defendant

AND:

WEWAK AGRICULTURE DEVELOPMENT LIMITED

Fourth Defendant

AND:

SEPIK OIL PALM PLANTATION LIMITED

Fifth Defendant

AND:

HONOURABLE PUKA TEMU - in his capacity as Minister of Lands & Physical Planning

Sixth Defendant

AND:

PEPI KIMAS in his capacity as Secretary, Department of

Lands & Physical Planning

Seventh Defendant

AND:

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

Eighth Defendant

Waigani: Gavara-Nanu J.

2013: 20 Nov & 11 December

2014: 4 July

PRACTICE & PROCEDURE - Land Law - Special Agricultural & Business Lease - Land Act, 1996; ss. 10, 11 and 102 – Land Groups Incorporation Act 1974, ss. 5 (2) (c), (6) and 33 (1) - Constitution; ss. 5 and 53 - Meaning of meaningful consultation with landowners discussed.

Cases cited

Doriga Mahuru & Ors v. Hon. Lucas Dekenai & Ors (2013) N5305

Musa Valley Management Company Limited & Musa Century Limited v. Pepi

Kimas & Ors (2010) N3827

Counsel

H. Walley, for the First & Second Plaintiffs

T. Boboro, for the First to Fifth Defendants

4th July, 2014

1. GAVARA-NANU J.: The plaintiffs seek review of the decision of the Minister for Lands and Physical Planning, Hon. Puka Temu, made on 2 September, 2008, to grant a Special Agricultural and Business Lease (SABL) over their customary land described as Portion 144 C, East Sepik Province, to Sepik Oil Palm Plantation Limited, the fifth defendant, which is the developer.

2. The plaintiffs seek an order in the nature of certiorari to quash the decision and to restore the land to them. This is the principal relief sought. The other relief are consequential which are sought by way of declarations. These relief relate to environmental damage, validity of agreements for the developer to clear forests, to harvest logs and to plant oil palm on the land.

4. The plaintiffs submitted that their land was acquired by the State which converted it into SABL without their consent. They submitted that a purported consent for their land to be converted to SABL was given fraudulently by a small and selected group of people who had vested interests. They further argued that even if the consent was given by the people who may have had authority to give consent, the landowners were not consulted, as such the consent was fraudulently given and was in breach of mandatory statutory requirements under the Land Act 1996, Land Groups Incorporation Act 1974, Forest Act 1991 and the Constitution.

5. The plaintiffs argued that the SABL was granted specifically in breach of ss. 10, 11 and 102 of the Land Act, ss. 7 (1) and 8 of the Environment Act, 2000, s. 90B of the Forest Act, ss. 5 (2) (c), 6 and 33 (1) and (2) of the Land Groups Incorporation Act 1974 and s. 53 of the Constitution.

6. The plaintiffs submitted that there was no awareness conducted by the defendants nor was there any meaningful consultation with the landowners before their land was acquired by the State for the SABL.

7. The defendants submitted that the SABL was properly and lawfully issued to the fifth defendant, they argued that the consent of the landowners was obtained before the SABL was issued. They said all the relevant requirements for the grant of SABL were complied with. In support of these arguments the defendants also adduced the Minutes of a public meeting held at Turumu Primary School, East Sepik Province on 25 July, 2008. That meeting was attended by individuals and representatives of 56 Incorporated Land Groups (ILGS). The affidavit of Michael Sino, the Acting Deputy Provincial Administrator for East Sepik sworn on 5 November, 2012, deposes that the meeting was conducted to gauge the views of the landowners about the Oil Palm project in their land and the SABL. Michael Sino chaired that meeting. He deposes that the meeting was widely publicized and even people from outside of the SABL area attended. He says the plaintiffs did not raise any objections to the SABL being granted and the oil palm project.

8. Aron Malijiwi, the first defendant and the Chairman of Limawo Holdings Ltd, which is the landowner company and a joint venture company with Wewak Agriculture Development Ltd, confirms in his affidavit that a public meeting was held at the Turumu Primary School on 25 July, 2012. Joseph Then who is the Executive Director of Sepik Oil Palm Plantation Limited and General Manager of Wewak Agricultural Development Limited also swore an affidavit on 5 November, 2012, in support of the evidence of Aron Malijiwi.

9. Sepik Oil Palm Plantation Ltd has two shareholders, Limawo Holdings Ltd, which holds 2,000 shares and Wewak Agricultural Development Ltd, the fourth defendant, which holds 8,000 shares. The Directors of Sepik Oil Palm Plantation Ltd are Hui Teck Lau also known as Sumitro Lau, the second defendant, Nyi Then also known as Joseph Then and Aron Malijiwi.

10. Wewak Agriculture Development Ltd has one shareholder, viz, Wewak Agricultural Development Ltd, which holds 10,000 shares.

11. The Directors of Wewak Agricultural Development Ltd are Hui Tech Lau or Sumitro Lau, Chiong Ming Ting and Ngi Then or Joseph Then. The Wewak Agricultural Development Ltd is an investment company, it also looks after the finances of the developer, Sepik Oil Palm Plantation Ltd in partnership, with the landowner company Limawo Holdings Ltd.

12. Limawo Holdings Ltd has 47 individual shareholders and 55 ILGs all holding 1,000 shares each.

13. The plaintiffs argued that acquisition of their land in the manner it was acquired by the State to convert it into a SABL for 99 years was also unconstitutional as it breached s. 53 of the Constitution. They argued that they have been unfairly deprived of the use, benefit and enjoyment of their land.

14. The plaintiffs submitted that when their land was acquired for SABL, the acquisition breached the requirements under ss. 9, 10, 11, 12 and 102 of the Land Act 1996. They argued that the purported consent given by the Directors of Limawo Holdings Ltd was not authorized by the landowners. They argued that most, if not all the landowners were not aware of that consent.

15. The plaintiffs have argued that ss 5 (2) (c), 6 and 33 (1) and (2) of the Land Groups Incorporation Act 1974 and ss. 37A of the Survey Act, Chapter 95 were also breached by the defendants. In regard to the breaches under the Land Groups Incorporation Act, 1974, the plaintiffs claimed that there were no applications for recognition by Land Groups with list of their members by the Registrar of Incorporated Land Groups. As to the breaches of the Survey Act, the plaintiffs submitted that there was no survey information collected on the land by the land offices and no surveys were done on the land. In regard to the breaches of the Land Act, the plaintiffs argued among other things that the Instrument of lease was not issued on an approved form. The plaintiffs argued that other requirements for land acquisition of customary land under ss. 9, 10 and 11 of the Land Act, were either not complied with at all or were not fully complied with by the Minister for Lands before the SABL was issued to the fifth defendant.

16. The defendants have raised issues regarding the authority of the principal plaintiffs to bring this application on behalf of other landowners. After carefully perusing and considering the materials before the Court I am satisfied that the principal plaintiffs have the authority of the landowners to bring this application to Court. There is overwhelming evidence showing that landowners have agreed for the principal plaintiffs to make this application. The principal plaintiffs have also acted under the authority of duly executed Powers of Attorney which have been signed by the elders of the Kowiru and Kaubaraka villages, which are in the SABL area.

17. In regard to the consent, it was signed on 2 September, 2008, by four people and witnessed by three people. The four...