David Mota v Albert Camillus

• Jurisdiction: Papua New Guinea
• Judge: Cannings J
• Judgment Date: 27 July 2017
• Citation: (2017) N6810
• Court: National Court
• Year: 2017
• Judgement Number: N6810

Full : WS No 1418 of 2014; David Mota, representing Eno Incorporated Land Group and David John, representing Nakise Clan and Raymond Jack, representing Menem Clan and Alphonse Kurai, representing Otho Clan and Passingan Karien, representing Kathkathe Clan and Mesak Ruo, representing Lovuth Clan and Samson Waiyu, representing D9 Lessees and Mararea Land Group Incorporated and Darius Boas, Chairman, Meloks ILG for and on behalf of himself and Rigula Customary Landowners and Meloks Incorporated Land Group v Albert Camillus and Akami Oil Palm Limited and Henry Wasa, Registrar of Titles and Department of Lands and Physical Planning and the Independent State of Papua New Guinea (2017) N6810

National Court: Cannings J

Judgment Delivered: 27 July 2017

N6810

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

WS NO 1418 OF 2014

BETWEEN

DAVID MOTA, REPRESENTING ENO

INCORPORATED LAND GROUP

First Plaintiff

AND

DAVID JOHN, REPRESENTING NAKISE CLAN

Second Plaintiff

AND

RAYMOND JACK, REPRESENTING MENEM CLAN

Third Plaintiff

AND

ALPHONSE KURAI, REPRESENTING OTHO CLAN

Fourth Plaintiff

PASSINGAN KARIEN, REPRESENTING KATHKATHE CLAN

Fifth Plaintiff

AND

MESAK RUO, REPRESENTING LOVUTH CLAN

Sixth Plaintiff

AND

SAMSON WAIYU, REPRESENTING D9 LESSEES

Seventh Plaintiff

MARAREA LAND GROUP INCORPORATED

Eighth Plaintiff

AND

DARIUS BOAS, CHAIRMAN, MELOKS ILG FOR AND ON BEHALF OF HIMSELF AND RIGULA CUSTOMARY LANDOWNERS

Ninth Plaintiff

AND

MELOKS INCORPORATED LAND GROUP

Tenth Plaintiff

AND

ALBERT CAMILLUS

First Defendant

AND

AKAMI OIL PALM LIMITED

Second Defendant

AND

HENRY WASA, REGISTRAR OF TITLES

Third Defendant

AND

DEPARTMENT OF LANDS AND PHYSICAL PLANNING

Fourth Defendant

AND

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

Fifth Defendant

Madang: Cannings J

2015, 14th December

2016, 7th March

Kimbe: Cannings J

2017, 27 July

LAND – customary land – government land – Special Agricultural and Business Leases – whether fraud involved in granting of State Leases – meaning of “fraud” in Land Registration Act – actual fraud – constructive fraud.

CLAIMS BY AND AGAINST THE STATE ACT – whether Section 5 notice had to be given – limitation periods – Frauds and Limitations Act, Sections 16, 18 – deed of release – whether applicable when executed by a person associated with, but not, a plaintiff.

The Minister for Lands and Physical Planning granted 99-year Special Agricultural and Business Leases to the second defendant over two portions of land, which were formerly customary land. The plaintiffs claimed that they were genuine customary owners of the land and that they were not consulted on and did not agree to the leases being granted. They argued that the circumstances surrounding the granting of the leases to the second defendant involved actual fraud, and constructive fraud. They sought declarations that the leases were null and void and an order that the leases be quashed. A trial was conducted. The first defendant (a primary shareholder and director of the second defendant) and the second defendant argued that the proceedings should be summarily dismissed on three preliminary grounds: (a) non-compliance with Section 5 of the Claims By and Against the State Act; (b) being time-barred by Section 16 of the Frauds and Limitations Act; and (c) non-compliance with a deed of release. As to the substantive question of whether fraud was involved in granting of the two leases, the first and second defendants denied the allegations. They asserted that the genuine former customary landowners had agreed to their land being transferred, by signing purchase agreements, and had been paid accordingly. The third, fourth and fifth defendants (the Registrar of Titles, the Department of Lands and Physical Planning and the State) took no part in the trial.

Held:

(1) As to the preliminary issues: (a) Section 5 of the Claims By and Against the State Act did not apply as the plaintiffs were not making a “claim” against the State; (b) the proceedings were not time-barred by Section 16(1) of the Frauds and Limitations Act as: (i) this was not an action founded on simple contract or tort or any other form of action covered by Section 16(1); and (ii) the proceedings are properly regarded as a claim for declarations and other forms of equitable relief, in which case Section 16 does not apply; and (c) the deed of release did not apply as it was not executed by most of the plaintiffs.

(2) Under Papua New Guinea’s Torrens Title system of land registration the general principle is that once a lease of land from the State, including a Special Agricultural and Business Lease, is registered, an indefeasible title is conferred on the registered proprietor, subject only to the exceptions in Section 33(1) (protection of registered proprietor) of the Land Registration Act, including Section 33(1)(a), which states: “The registered proprietor of an estate or interest holds it absolutely free from all encumbrances except … in the case of fraud”.

(3) “Fraud” means actual fraud or constructive fraud (where it is proven that the circumstances in which a person has obtained title are so unsatisfactory, irregular and unlawful as to warrant the setting aside of title).

(4) Here, the plaintiffs failed to prove actual fraud.

(5) The plaintiffs proved constructive fraud as none of the elaborate procedures under Sections 10, 11 and 102 of the Land Act for acquisition by the State, by lease, of customary land, and granting of Special Agricultural and Business Leases over such land to third parties, were complied with. This was a case of extensive violation of statutory procedures for transfer of interests in customary land. It was proven that the circumstances in which the second defendant obtained title were so unsatisfactory, irregular and unlawful as to amount to constructive fraud, warranting the setting aside of title.

(6) The principal relief sought by the plaintiffs was granted: each Lease was declared null and void and quashed, and the Registrar of Titles was ordered to amend the Register of State Leases and all other records of the State under his control to give effect to the declarations. Costs followed the event.

Cases cited:

The following cases are cited in the judgment:

Doriga Mahuru v Hon Lucas Dekena (2013) N5305

Emas Estate Development Pty Ltd v John Mea & Ors [1993] PNGLR 215

Eric Kiso v Bennie Otoa & Ken Wutnalom (2013) SC1222

Gire Gire Estates Ltd v Barava Ltd (2016) N6473

Kathrine Mal v Commander, Beon Correctional Institution (2017) N6710

Koitachi Ltd v Walter Schnaubelt (2007) SC870

Kol Toki v Moeka Morea (2016) SC1588

Lae Bottling Industries Ltd v Lae Rental Homes Ltd (2011) SC1120

Leo Maniwa v Aron Malijiwi (2013) N5687

Louis Medaing v Ramu Nico Management (MCC) Ltd (2011) N4340

Mamun Investment Ltd v Nixon Koi (2015) SC1409

Mark Lakani v Gabe Ikupu (2015) N6067

Mond v Okoro [1992] PNGLR 501

Mudge v Secretary for Lands [1985] PNGLR 387

Musa Valley Management Company Ltd v Pepi Kimas (2010) N3827

PNG Deep Sea Fishing Ltd v Luke Critten (2010) SC1126

PNGBC v Jeff Tole (2002) SC694

The State v Lohia Sisia [1987] PNGLR 102

Vitus Kais v Sali Tagau (2016) N6159

STATEMENT OF CLAIM

This was a trial in which the plaintiffs sought declarations and orders regarding two Special Agricultural and Business Leases granted to the second defendant.

Counsel:

J N Tandawai, for the 1st, 2nd, 3rd, 4th, 5th, 6th, 7th, 9th & 10th Plaintiffs

R J Mann-Rai, for the 8th Plaintiff

G Lau & K Makeu, for the 1st & 2nd Defendants

27th July, 2017

1. CANNINGS J: This case is about two portions of land in the Central Nakanai area of West New Britain Province, which are the subject of Special Agricultural and Business Leases. The lessee or registered proprietor of each lease is the second defendant, Akami Oil Palm Ltd, a company of which Albert Camillus, the first defendant, is a primary shareholder and a director. The two portions, which are close to each other, in the vicinity of Mt Pago, near the junction of the Kapiura and Leaururu Rivers, are:

· Portion 104C, Milinch Megigi, Fourmil Talasea, West New Britain, an area of 231.2 hectares (also known as “Bialiki, Roka No 2”);

· Portion 2628C, Milinch Megigi, Fourmil Talasea, West New Britain, an area of 345.75 hectares (also known as “Bialiki, Roka No 3”).

2. The Minister for Lands and Physical Planning, on behalf of the State (the fifth defendant), granted Akami Oil Palm Ltd, under the Land Act 1996, a 99-year Special Agricultural and Business Lease over Portion 104C on 19 March 2008 and over Portion 2628C on 8 April 2008.

3. The plaintiffs claim that they are or represent the customary owners of the two portions of land or that they have lived on the land for many years with permission of the customary owners. The plaintiffs claim that the customary landowners were not consulted on and did not agree to the leases being granted to the second defendant. They argue that the circumstances surrounding the granting of the leases to the second defendant involved actual fraud, and constructive...