Doriga Mahuru, Maiva Mahuru, Mahuru Doriga, Max Doriga & Kuruku Nao v Hon Lucas Dekena, Minister For Lands & Physical Planning and John Ofoi, Acting Secretary, Department of Lands & Physical Planning and Henry Wasa, Registrar of Titles and The Independent State of Papua New Guinea and Ava Mika, Kila Gabutu & Michael John Madi (2013) N5305

• Jurisdiction: Papua New Guinea
• Court: National Court
• Judge: Cannings J
• Judgment Date: 01 August 2013
• Citation: (2013) N5305
• Judgment Number: N5305
• Year: 2013
• Docket Number: OS (JR) NO 964 OF 2011

Full Title: OS (JR) NO 964 OF 2011; Doriga Mahuru, Maiva Mahuru, Mahuru Doriga, Max Doriga & Kuruku Nao v Hon Lucas Dekena, Minister For Lands & Physical Planning and John Ofoi, Acting Secretary, Department of Lands & Physical Planning and Henry Wasa, Registrar of Titles and The Independent State of Papua New Guinea and Ava Mika, Kila Gabutu & Michael John Madi (2013) N5305

National Court: Cannings J

Judgment Delivered: 1 August 2013

N5305

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

OS (JR) NO 964 OF 2011

DORIGA MAHURU, MAIVA MAHURU,

MAHURU DORIGA, MAX DORIGA & KURUKU NAO

Plaintiffs

V

HON LUCAS DEKENA

MINISTER FOR LANDS & PHYSICAL PLANNING

First Defendant

JOHN OFOI, ACTING SECRETARY

DEPARTMENT OF LANDS & PHYSICAL PLANNING

Second Defendant

HENRY WASA, REGISTRAR OF TITLES

Third Defendant

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

Fourth Defendant

AVA MIKA, KILA GABUTU & MICHAEL JOHN MADI

Fifth Defendants

Waigani: Cannings J

2013: 26 April, 1 August

JUDICIAL REVIEW – decision to grant Special Agricultural and Business Lease – whether Minister failed to act in accordance with statutory preconditions for acquisition of customary land by the State and for granting of lease for special agricultural and business purposes: Land Act, Sections 10, 11 and 102 – whether errors of law committed in decision-making process culminating in granting of State Lease – remedies – principle of indefeasibility of title – whether constructive fraud established.

LAND – customary land – acquisition of customary land by the State for lease-leaseback purposes – Land Act, Sections 10 and 11 – whether agreement of all customary landowners necessary – grant of leases for special agricultural and business purposes – Land Act, Section 102.

The Minister for Lands and Physical Planning granted a 99-year Special Agricultural and Business Lease (SABL) to the fifth defendants over a portion of land in the National Capital District that was 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 lease being granted to the fifth defendants. They applied for judicial review of the decisions regarding the grant of the lease on five grounds relating to alleged breaches by the Minister of Sections 10, 11 and 102 of the Land Act 1996. They argued that the circumstances surrounding the granting of the lease to the fifth defendants involved constructive fraud. They sought declarations and orders to quash the decision to grant the lease and a permanent injunction restraining the defendants from dealing with the land. The fifth defendants, supported by other defendants, argued two jurisdictional points: (a) that the plaintiffs were estopped by the doctrine of res judicata by two previous judicial decisions from claiming customary ownership of the land and (b) that the National Court had no jurisdiction to determine the judicial review as it involved a dispute over customary land ownership, a matter falling outside the jurisdiction of the Court. As to the merits of the grounds of review the fifth defendants, supported by other defendants, argued that the plaintiffs failed to establish any of the grounds as they were not customary owners of the land and had failed to adduce evidence of any errors of law and not exhausted procedures available under the National Court Rules to obtain the evidence necessary to support their case. The defendants further argued that in the event that any ground of review succeeded the plaintiffs should still be denied relief as they had not proven constructive fraud sufficient to defeat the fifth defendants’ indefeasible title to the land.

Held:

(1) The doctrine of res judicata provided no bar to the relief sought by the plaintiffs as it was not clear from the two previous judicial decisions relied on (a 1959 decision of the Native Land Commission and a 2008 decision of the Local Land Court) that the question of ownership of the land had been determined in favour of the fifth defendants to the exclusion of the plaintiffs.

(2) A distinction must be drawn between two categories of land cases: (a) those in which there is a dispute about whether land is customary land or competing claims to ownership of customary land and (b) those in which the dispute centres on interpretation or application of previous judicial decisions as to the status of land or its customary ownership. Only in category (a) cases does the National Court lack jurisdiction. The present case falls into category (b) and the National Court has jurisdiction.

(3) The plaintiffs adduced sufficient evidence for the Court to find that they were amongst others genuine customary owners of the land and they were not consulted on and did not agree to the transactions resulting in the grant of the lease to the fifth defendants.

(4) The plaintiffs’ evidence had the effect of imposing on the defendants the evidentiary burden of showing that the alleged breaches of Sections 10, 11 and 102 of the Land Act did not occur; and that evidentiary burden was not discharged.

(5) The Court found by reasonable inference, based on the plaintiffs’ evidence and the defendants’ failure to adduce evidence that was reasonably expected, if it existed, to be readily available to them, that the procedures in the Land Act were not followed. Four grounds of review were upheld.

(6) Notwithstanding the general principle of indefeasibility of title there is an exception where it is proven that the circumstances in which a person has obtained title are so unsatisfactory, irregular and unlawful as to amount to constructive fraud for the purposes of Section 33(1)(a) of the Land Registration Act. Here the errors of law proven by the plaintiffs were so numerous and serious as to amount to constructive fraud.

(7) The number and seriousness of the errors of law and the finding of constructive fraud warranted exercise of the Court’s discretion by granting the principal relief sought by the plaintiffs. The decision to grant the lease was quashed and the lease was declared null and void and the court granted consequential relief to reflect those conclusions.

Cases cited

The following cases are cited in the judgment:

Dale Christopher Smith v Minister for Lands (2009) SC973

Elizabeth Kanari v Augustine Wiakar (2009) N3589

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

Galem Falide v Registrar of Titles (2012) N4775

Hi-Lift Company Pty Ltd v Miri Setae [2000] PNGLR 80

Joe Koroma v Mineral Resources Authority (2009) N3926

Kapiura Trading Ltd v Bullen (2012) N4903

Koitachi Ltd v Walter Schnaubelt (2007) SC870

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

Lae Rental Homes Ltd v Viviso Seravo (2003) N2483

Lavu v Thompson & NBPOL (2007) N5018

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

Mark Ekepa v William Gaupe (2004) N2694

Mision Asiki v Manasupe Zurenuoc (2005) SC797

Mosoro v Kingswell Ltd (2011) N4450

Mudge v Secretary for Lands [1985] PNGLR 387

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

Open Bay Timber Ltd v Minister for Lands and Physical Planning (2013) N5109

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

Ramu Nickel Ltd v Temu (2007) N3252

Roderick Tovo Bibilo v Gerard Balbagara (2008) N3291

Ronny Wabia v BP Exploration Operating Co Ltd [1998] PNGLR 8

Steamships Trading Company Ltd v Garamut Enterprises Ltd (2000) N1959

The Papua Club Inc v Nusaum Holdings Ltd (No 2) (2004) N2603

The State v Lohia Sisia [1987] PNGLR 102

Thomas Taiya Ambi v Exxon Mobil Ltd (2012) N4844

West New Britain Provincial Government v Kimas (2009) N3834

Yakananda Business Group Inc v Minister for Lands (2001) N2159

JUDICIAL REVIEW

This was a review of decisions resulting in the Minister for Lands and Physical Planning granting a Special Agricultural and Business Lease to the fifth defendants.

Counsel

T Anis, for the plaintiffs

I Mugugia, for the first, second, third and fourth defendants

S Soi, for the fifth defendants

1 August, 2013

1. CANNINGS J: The plaintiffs, Doriga Mahuru and four others, apply for judicial review of administrative decisions resulting in the Minister for Lands and Physical Planning granting a Special Agricultural and Business Lease to the fifth defendants, Ava Mika and two others, over an 8.51-hectare block of land at Taurama Valley in the National Capital District.

2. The land is next to Vadavada settlement on the northern side of Taurama Road. It is known traditionally as “Manuaga”. The Minister granted the lease to the fifth defendants on 25 June 2010. The plaintiffs say that they are the customary owners of Manuaga. They say they were not consulted on and did not agree to the transactions that culminated in the lease being granted to the fifth defendants. They apply for judicial review on various grounds based on alleged breaches of the procedures in the Land Act relating to customary land and the granting of Special Agricultural...