Johannes Leahy v Tom Otri

• Jurisdiction: Papua New Guinea
• Judge: Makail, J
• Judgment Date: 27 June 2009
• Citation: (2009) N3860
• Court: National Court
• Year: 2009
• Judgement Number: N3860

Full : WS NO 983 OF 2008; Johannes Leahy v Tom Otri alias Tom Kondup and Joel Otri alias Joel Kondup and Goimba Kot and the Registrar of Titles and Land Titles Commission (2009) N3860

National Court: Makail, J

Judgment Delivered: 27 June 2009

N3860

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

WS NO 983 OF 2008

BETWEEN

JOHANNES LEAHY

Plaintiff

AND

TOM OTRI alias TOM KONDUP

First Defendant

AND

JOEL OTRI alias JOEL KONDUP

Second Defendant

AND

GOIMBA KOT

Third Defendant

AND

THE REGISTRAR OF TITLES

Fourth Defendant

AND

LAND TITLES COMMISSION

Fifth Defendant

Mount Hagen: Makail, J

2009: 2nd May & 27th June

CONTRACT - Contract of sale of land - Dispute over terms of contract - Contract partly oral, written and by conduct - Whether contract was breached - Whether contract was repudiated - Effect of.

REAL PROPERTY - Dispute over land - Customary land - State lease - Agricultural purposes - Customary land converted to State lease - Lease/lease back lease - Registration of title - Indefeasibility of title - Land Act, 1996 - Sections 7,8,9,10,11,33 & 102 - Land (Tenure Conversion) Act, 1963 - Sections 7,8,9,10 & 11.

FRAUD - Claim of fraud - Proof of - Statutory breaches and irregularity - Tantamount to fraud - Land Act, 1996 - Sections 7,8,9,10,11& 102 - Land Registration Act, Ch 191 - Section 33.

PRACTICE & PROCEDURE - Pleadings - Claim of fraud - Whether fraud sufficiently pleaded - Effect of - National Court Rules - Order 8, rule 30.

Cases Cited:

Andrew Madiu -v- Mineral Resources Development Company Limited (2004) N2601

William Maki -v- Michael Pundia & PNG Motors [1993] PNGLR 337; (1993) N1137

Arnold Ningiga -v- Peter Lare Koavea [1988-89] PNGLR 312

Jacobs -v- Kwaindu [1991] PNGLR 366

Mondo Merchants Pty Ltd v Melpa Properties Pty Ltd and Koang No 47 Pty Ltd (1999) N1863

Koang No 47 Pty Ltd -v- Mondo Merchants Pty Ltd (2001) SC627

Mudge -v- Secretary for Lands [1985] PNGLR 387

The Papuan Club Inc -v- Nusuam Holdings Limited (No. 2) (2004) N2603

Koitachi Limited -v- Walter Schnaubelt (2007) SC 870

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

Steamships Trading Company Limited -v- Garamut Enterprises Limited & Ors (2000) N1959

Hi Lift Co Pty Limited -v- Miri Setae & Ors [2000] PNGLR 08; (2000) N2004

Ramu Nickel Limited & Ors -v- Honourable Dr Puka Temu & Ors (2007) N3252

Elizabeth Kanari -v- Augustine Wiakar & Registrar of Titles (2009) N3589

The Application of Rimbo Susu on behalf of Himself and Other Finschafen Landowners [1992] PNGLR 37

Yanta Development Association Inc & 3 Ors -v- Piu Land Group Inc & 3 Ors (2005) SC798

Legislations:

Land Act 1996

Land (Tenure Conversion) Act 1963

Land Registration Act, Ch 191

Texts:

GH Treitel, The Law of Contract, Sweet & Maxwell (11th ed 2003),

FH Lawson, Remedies of English Law, Butterworths (2nd ed 1980),

Osborn’s Concise Law Dictionary, Sweet & Maxwell (9th ed 2001)

Peter Butt, Land Law, Law Book Co (5th ed 2006)

Counsel:

Mr M. Tamutai, for Plaintiff

Mr S. Norum, for Defendants

JUDGMENT

27th June, 2009

1. MAKAIL, J: This case is about a dispute over a land called “Gipna” registered as a State lease, Portion 2488, Volume 13, Folio 124 in Mt Hagen Central of the Western Highlands Province, (the “land”). It is 4.1 ha big and is also known as “Goga”. On it is a coffee wet factory built by the plaintiff, a re-known coffee grower in the Western Highlands Province. The plaintiff says that the land is a customary land and he had purchased it from the first defendant and other customary landowners sometimes in 2000 for K116,000.00 under a contract of sale and is the owner of the land. He is aggrieved by the actions of the first, second and fourth defendants to, first, convert the land to a State lease and secondly, transfer its title to the third defendant.

PLAINTIFF’S CLAIM

2. In his writ of summons filed on 27th August 2008 and further amended on 30th April 2009, he seeks the following orders:

“(a). A declaration that the conversion order (if any) issued by the LTC in favour of the First and Second Defendants to convert the customary Gipna Land to State Land under the name of the First and Second Defendants was made contrary to the LTCA [and] is therefore and null and void.

(b). A declaration that the Plaintiff is the owner of the customary land known as Gipna Land Kenta village Western Highlands Province as of 20th March 2000 or soon thereafter.

(c). A declaration that the First Defendant and the Second Defendant and any other former customary landowner of Gipna Land do not have anymore customary interest on the Gipna Land to State Land and are not entitled to enter or use the Gipna Land.

(d). An Order that the State Lease Title initially issued in the name of TOM OTRI and JOEL OTRI and later transferred to GOIMBA KOT by the Fourth Defendant in respect of Customary Land called GIPNA Land and now purportedly described as State Lease Volume 13 Folio 124 Portion 2488 Mount Hagen BE SET ASIDE forthwith.

(e). An Order for Specific Performance that the First Defendants with other Landowners corporate by all means with the Plaintiff to facilitate the issuance of State Lease to the Plaintiff pursuant to the Land Tenure Conversion Act 1963.

(f). An Order restraining the First and Second Defendants and the Third Defendant from interfering, intimidating, threatening with the Plaintiff, his agents or servants from conducting business or dealing with Gipna Land in whatsoever manner.

(g). Further and in the alternative, in respect of the First Defendant and the Third Defendant’s breach of Contract and/or interference with economic relations:-

(i) K115,000.00 for loss of purchase price.

(ii) A K300,000.00 for loss of Improvements.

(iii) Future Economic loss of K14,000.00 per month of mesne profits from 10th December 2004 (when title was obtained to 31st of March 2013 (the expected rental period) at a sum of K1,395,483.00.

(h). Any other orders this Court deems fit.

(i). Interest on damages at 8% per annum pursuant to the Judicial Proceedings (Interest in Debts and Damages) Act, Ch 52.

(j). The First, Second and Third Defendants pay the cost of these proceedings.”

3. On 20th January 2009, the plaintiff applied and obtained an exparte interim injunction restraining the defendants, their agents and servants from entering and interfering with the operations of the wet factory and property on the land. It remains on foot until the determination of the substantive dispute. Subsequent to the grant of the interim injunction, on 25th March 2009, the plaintiff applied and obtained leave of the Court to join the Land Titles Commission as fifth defendant in the proceeding as it was considered the involvement of the Land Titles Commission was necessary and relevant to the grant of title by the fourth defendant to the third defendant.

DEFENDANTS’ DEFENCE & CROSS CLAIM

4. By their amended defence and cross claim filed on 28th April 2009 the defendants first, admit that the first and second defendants’ other surname is “Kondup” and secondly, the third defendant purchased the land in dispute from the first and second defendants. But they deny there was interalia that any fraud on their part in the conversion of the land from customary land to a State lease and subsequently transfer its title to the third defendant. They also claim that the plaintiff had breached certain conditions of the contract of sale of land between him and the first and second defendants, when he did not fulfill them hence they repudiated the contract of sale and proceeded to sell the same land to the third defendant.

5. In their cross claim, they claim that the third defendant is the registered proprietor of the land under a State lease, therefore entitled to collect rent from the land for the lease between the plaintiff and OK Corporation Limited. They claim a total sum of K660,000.00 from 9th February 2005 to 31st December 2008 as unpaid rent due to the third defendant.

PLAINTIFF’S EVIDENCE

6. In terms of evidence, the plaintiff relies on the following affidavits:

1. His affidavit sworn on 16th January 2009 and filed on 21st January 2009 (exhibit “P1”);

2. His supplementary affidavit sworn and filed on 19th March 2009 (exhibit “P2”); and

3. His further supplementary affidavit sworn and filed on 27th April 2009 (exhibit “P3”).

7. He also gave brief oral evidence and was cross examined by counsel for the defendants on his oral and affidavit evidence. Further documentary evidence and affidavits were admitted by consent and they are:

4. Map of Gipna land of 4.1 ha (exhibit “P4”);

5. Affidavit of Conrad Fox sworn and filed on 23rd March 2009 (exhibit “P5”);

6. Affidavit of Raim Kunjil sworn and filed on 27th April 2009 (exhibit “P6”);

7. Affidavit of Marcus Pup sworn and filed on 27th April 2009 (exhibit “P7”);

8. Affidavit of Kare Makinta sworn on 19th March 2009 and filed on 20th March 2009 (exhibit “P8”);

9. Affidavit of James Leahy sworn and filed on 01st May 2009 (exhibit “P9”); and

10 Affidavit of Cecelia Leahy sworn and filed on 29th...