Patrick Yal v Mission of the Holy Ghost (New Guinea) Property Trust

• Jurisdiction: Papua New Guinea
• Judge: Cannings J
• Judgment Date: 27 October 2017
• Citation: (2017) N6530
• Court: National Court
• Year: 2017
• Judgement Number: N6530

Full : OS NO 479 OF 2015; Patrick Yal for himself and on behalf of Bamaia Wan Clan of Rempi, Madang District, Madang Province (First Plaintiffs) Pais Kob for himself and on behalf of Alopa Masualaug Clan of Mediba, Madang District, Madang Province (Second Plaintiffs) Joseph Kubali for himself and on behalf of Sarepi Clan of Budup, Madang District, Madang Province (Third Plaintiffs) Willie Kaitok for himself and on behalf of Barpi Clan Of Budup, Madang District, Madang Province (Fourth Plaintiffs) Albert Koli for himself and on behalf of Aleodik Clan of Budup, Madang District, Madang Province(Fifth Plaintiffs) v Mission of the Holy Ghost (New Guinea) Property Trust (First Defendant) Rd Fishing PNG Limited (Second Defendant) John Andrias, Secretary for Commerce, Trade and Industry (Third Defendant) Madang Marine Park Holdings Limited (Fourth Defendant) and The Independent State of Papua New Guinea (Fifth Defendant) (2016) N6530

National Court: Cannings J

Judgment Delivered: 27 October 2017

N6530

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

OS NO 479 OF 2015

PATRICK YAL FOR HIMSELF AND ON BEHALF OF BAMAIA WAN CLAN OF REMPI, MADANG DISTRICT, MADANG PROVINCE

First Plaintiffs

PAIS KOB FOR HIMSELF AND ON BEHALF OF ALOPA MASUALAUG CLAN OF MEDIBA, MADANG DISTRICT,

MADANG PROVINCE

Second Plaintiffs

JOSEPH KUBALI FOR HIMSELF AND ON BEHALF OF SAREPI CLAN OF BUDUP, MADANG DISTRICT, MADANG PROVINCE

Third Plaintiffs

WILLIE KAITOK FOR HIMSELF AND ON BEHALF OF BARPI CLAN OF BUDUP, MADANG DISTRICT, MADANG PROVINCE

Fourth Plaintiffs

ALBERT KOLI FOR HIMSELF AND ON BEHALF OF ALEODIK CLAN OF BUDUP, MADANG DISTRICT, MADANG PROVINCE

Fifth Plaintiffs

V

MISSION OF THE HOLY GHOST (NEW GUINEA)

PROPERTY TRUST

First Defendant

RD FISHING PNG LIMITED

Second Defendant

JOHN ANDRIAS, SECRETARY FOR COMMERCE, TRADE AND INDUSTRY

Third Defendant

MADANG MARINE PARK HOLDINGS LIMITED

Fourth Defendant

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

Fifth Defendant

Madang: Cannings J

2016: 6, 12 October

2017: 27 October

LAND – leasehold land, formerly freehold – Land (Ownership of Freeholds) Act, Chapter 359 – interests of traditional owners of land – compensation claim by traditional owners against the State for deprivation of rights and interests in land: Constitution, Section 53 (protection from unjust deprivation of property).

The plaintiffs claimed to be traditional owners of a portion of land earmarked for industrial development in a rural area. The land is formerly freehold land owned by the first defendant. In 1993-1994 an application was made under the Land (Ownership of Freeholds) Act Chapter 359 to the Minister for Lands to convert the land to leasehold land. The application was granted and the first defendant acquired a substitute lease over the land, which it transferred to a provincial government, which then transferred it to another party, which then transferred it to the second defendant, which then surrendered the lease to the State (the fifth defendant). The land was then subdivided into two new portions, with the second defendant being granted a State lease over one of the subdivided portions, while a State Lease over the other was granted to the fourth defendant. The plaintiffs sought declarations that in dealing with the land, the defendants, in particular the first defendant and the State, failed unlawfully to take into account their interests in the land arising from their traditional ownership of it, contrary to the Land (Ownership of Freeholds) Act, and that their interests in it had been adversely affected. They sought an order for compensation on just terms against the State as the “expropriating authority”, pursuant to Section 53(2) of the Constitution. The defendants argued that the proceedings should be summarily dismissed for various reasons: (a) abuse of process (as the National Court had no jurisdiction, this being a case concerning ownership of customary land); (b) res judicata (as the same land was the subject of a similar claim in previous proceedings, which was dismissed); (c) improper mode of commencement (as the proceedings are founded on allegations of fraud and should have been commenced by writ of summons); (d) being time-barred (failure to comply with the six-year limitation period under Section 16 of the Frauds and Limitations Act 1988; (e) failure to comply with Section 5 of the Claims By and Against the State Act 1996 (as the plaintiffs did not give notice of their intention to make a claim within six months after the occurrence out of which the claim arises). The defendants asserted that if their preliminary arguments failed, the proceedings should still be dismissed as the plaintiffs’ claims were misconceived.

Held:

(1) All preliminary arguments were dismissed: (a) there was no abuse of process as the Court was not determining any claim of customary ownership of land; (b) the facts in support of the res judicata defence were vague and unsubstantiated; (c) the plaintiffs’ case was not founded on fraud, so there was no obligation to commence proceedings by writ; (d) the claim was not time-barred under the Frauds and Limitations Act; (e) there was no evidence of failure to comply with Section 5 of the Claims By and Against the State Act.

(2) There was a failure on the part of the first defendant and the State, during the period that the application to convert the land from freehold title to a leasehold interest was made and determined, to acknowledge and take into account the enduring interests of the plaintiffs in the land arising from their being amongst its traditional owners and in continuing occupation and use of parts of the land, contrary to the obligations imposed on the first defendant and the State under Part IV (conversion of interests to avoid frustrations) of the Land (Ownership of Freeholds) Act. Conversion of the land from freehold to leasehold title was affected by illegality.

(3) The plaintiffs’ interests in the land was adversely affected by the actions of the defendants, to the extent that those interests had been compulsorily acquired by the State, as an expropriating authority, giving rise to an entitlement to just compensation on just terms under Section 53(2) of the Constitution.

(4) Declarations and orders were made accordingly.

Cases cited

David Mota v Albert Camillus (2017) N6810

Doriga Mahuru v Hon Lucas Dekena (2013) N5305

Galem Falide v Registrar of Titles (2012) N4775

Gawi & Kari v The State (2012) N4814

Gawi v png Ready Mixed Concrete Pty Ltd [1984] PNGLR 74

Joe Koroma v Mineral Resources Authority (2009) N3926

Lomot Chauka v Elthy Biang (2012) N4854

Mamun Investments Pty Ltd v Ponda [1995] PNGLR 1

Michael Kewa v Elias Mai Kombo (2016) SC1542

Mission of the Holy Ghost (New Guinea) Property Trust v Administration of the Territory of Papua and New Guinea [1969-70] PNGLR 365

Napanapa Landowners Association v Gaudi Logae (2016) SC1532

Roderick Tovo Bibilo v Gerard Balbagara (2008) N3291

Shaw v Commonwealth of Australia [1963] PNGLR 119

Simon Puraituk v The State (2007) N3204

Supreme Court Reference No 4 of 1980 [1982] PNGLR 65

Terry Shelly v Yawe Riyong (2017) SC1567

The following cases are cited in the judgment:

The State v Lohia Sisia [1987] PNGLR 102

Tin Siew Tan v Thomas John Pelis (1999) N1804

Titi Christian v Rabbie Namaliu (1996) SC1583

Vitus Kais v Sali Tagau (2016) N6159

ORIGINATING SUMMONS

This was a trial in which the plaintiffs sought declarations and orders for compensation against the State regarding alleged compulsory acquisition of their interests as traditional owners of land converted from freehold to leasehold title.

Counsel

G Pipike, for the Plaintiffs

B B Wak, for the First Defendant

B W Meten, for the Second Defendant

S Maliaki, for the Third and Fifth Defendants

27th October, 2017

1. CANNINGS J: This case is about a portion of land in the Vidar area of Madang District known for a long time as Portion 625, an area of 860 hectares. The plaintiffs are five local men who say they represent various clans who are amongst the traditional owners of the land. Some of them live on an area of five hectares around Budup village, which lies within the boundaries of Portion 625. They say that the traditional owners have been “shut out” of developments regarding the land and their interests have been ignored. They seek compensation from the State.

2. The land is formerly freehold land owned by the Mission of the Holy Ghost (New Guinea) Property Trust (the first defendant, “the Mission”). In 1993-1994 an application was made under the Land (Ownership of Freeholds) Act Chapter 359 to the Minister for Lands to convert the land to leasehold land. The application was granted and a State Lease over the land was granted to the Mission. The State Lease was subsequently transferred to a number of other parties before it was transferred to RD Fishing Ltd (the second defendant, “RD Fishing”).

3. RD Fishing later surrendered the lease to the State (the fifth defendant). The land was then subdivided into two new portions,...