Pius Nui v Jackson Laka (2012) N4698

• Jurisdiction: Papua New Guinea
• Judge: David J
• Judgment Date: 31 May 2012
• Docket Number: OS No.645 of 2009
• Citation: (2012) N4698
• Court: National Court
• Year: 2012
• Judgement Number: N4698

Full Title: OS No.645 OF 2009; Pius Nui v Jackson Laka (2012) N4698

National Court: David, J

Judgment Delivered: 31 May 2012

N4698

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

OS No.645 OF 2009

BETWEEN:

PIUS NUI

Plaintiff/Cross-Defendant

AND:

JACKSON LAKA

Defendant/Cross-Claimant

Mt. Hagen: David, J

2012: 10, 15 & 31 May

LAND LAW – State Land – by originating summons the plaintiff seeks, inter alia, vacant possession of the land - plaintiff is registered proprietor - permissive occupancy by defendant for over 26 years without any objection by plaintiff to activities of defendant – no rent charged by registered proprietor – defendant built a 3 x bedroom permanent house, fully furnished and kunai house on part of the land he occupies – defendant has gardens on the part of the land he occupies and on other parts of the land – that part of the land occupied by the defendant is regarded as home – state of current relationship between the parties not conducive to defendant remaining on the part of the land he occupies and the land generally - equitable interest acquired over land – defendant reluctant to vacate unless plaintiff pays him compensation for structural improvements effected on land - defendant is tenant at will – right of occupancy limited to the will of the plaintiff – just and equitable to make declaratory orders recognising the plaintiff as registered proprietor and the right to possession - the plaintiff is estopped from insisting on his full legal title – summary ejectment not warranted - defendant allowed to remain on land for not more than 12 months.

LAND LAW - Compensation - by cross-claim, the defendant seeks special damages in the sum of K240,259.00 for structural improvements he has effected on the land - defendant erected a 3 x bedroom permanent house with furniture and beddings, a kunai house on land and gardens – application of Latin maxim quicquid plantatur solo, solo cedit – plaintiff not interested in structural improvements – reliefs sought in defendant’s cross-claim refused.

The defendant and tribesmen moved onto the land prior to the plaintiff being issued with the title to land which is State land. After the plaintiff obtained title to the land, he allowed the defendant and tribesmen to remain on the land without objections to activities conducted on the land. The defendant has resided on the part of the land he occupies for a total of about 26 years. He made structural improvements such as building a permanent house and a kunai house and made gardens on the land. The plaintiff did not want the defendant to remain on the land anymore. The defendant was indisposed to leave unless he is paid compensation in the sum of K240,259.00 for structural improvements he effected on the land.

Held:

1. The defendant had an equitable interest in the land arising from his long period of permitted occupation.

2. The defendant was a tenancy at will whose occupancy of the land was limited to the will of the plaintiff.

3. The plaintiff was estopped from asserting his full legal rights as to possession of the land.

4. Summary ejectment was not available to the plaintiff. The defendant was permitted to remain on the land for a period not exceeding 12 months, i.e. to vacate by 31 May 2013.

5. Interim restraining orders granted on 23 November 2009 in the terms pleaded at paragraphs 3, 4 and 5 of the originating summons and extended on 11 December 2009 were made permanent.

6. The plaintiff’s claims for damages and interest were not pursued at the trial and considered abandoned.

7. All reliefs sought in the defendant’s cross-claim were refused.

Cases cited:

These cases are cited in the judgment:

Geita Sebea v Territory of Papua (1941) 67 CLR 544

png Ready Mixed Concrete Pty Ltd v The State of Papua New Guinea & Others [1981] PNGLR 396

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

John Jivetuo v The Independent State of Papua New Guinea [1984] PNGLR 174

Ume More v The University of Papua New Guinea [1985] PNGLR 401

Amos Bai as Representative of Lae Squatter Settlements v Morobe Provincial Government and The Independent State of Papua New Guinea [1992] PNGLR 150

Steven Charles Pickthall v Lae Plumbing Pty Ltd [1994] PNGLR 363

Siso Naso v National Housing Corporation (1999) N1947

Koang No 47 Limited v Monodo Merchants Limited and Melpa Properties Limited (2001) SC675

Papua New Guinea Banking Corporation v Jeff Tole (2002) SC694

Koitaki Farms Ltd v Kemoko Kenge and Other Squatters at Itikinumu Plantation (2001) N2143

John Kameku v Patilius Gamato (2004) N2512

Madiu Andrew v Mineral Resources Development Company Ltd (2004) N2601

Tony Yagon for himself & on behalf of settlers of Dylup Plantation v Nowra No 59 Ltd trading as Dylup Plantation (2008) N3375

Treaties cited:

Megarry & Wade, The Law of Real Property, 5th Edition, Stevens & Sons Limited, 1984

Counsel:

Koeya J. Peri, for the plaintiff

Noel L. Ako, for the defendant

JUDGMENT

31 May 2012

1. DAVID, J: INTRODUCTION: On 30 October 2009, the plaintiff/cross-defendant (hereinafter referred to as “the plaintiff”) commenced these proceeding by originating summons seeking the following reliefs:

“1. A declaration that the plaintiff is the registered proprietor of the property described as Portion 1232 Milinch of Hagen, Fourmil of Ramu, Western Highlands Province contained in State Lease Volume 102 Folio 198 containing an area of 49.5 hectares, be the same or a little more or less.

2. An order that the defendant, his family members, servants, associates, or representatives deliver up possession of the property to the plaintiff forthwith;

3. An order that the defendant, his family members, servants, associates, or representatives be restrained from threatening, intimidating, harassing the plaintiff, his family members, sons, daughters, servants, agents, associates or representatives;

4. An order that the defendant, his family members, servants, associates, or representatives be restrained from blocking any motor vehicles, truck, or movable machinery which engrosses upon the said property and the excess from the main highlands highway at Togoba to the plaintiff’s residence.

5. An order that the defendant, his family members, servants, associates, or representatives be restrained from blocking any road, access road or path way that leads into and out of the Plaintiff’s residence including his family members, sons and daughters.

6. An order for damages, interest and costs of this proceeding.” (sic)

2. On 16 November 2009, the plaintiff obtained a number of interim restraining orders ex-parte in the terms pleaded at paragraphs 3, 4 and 5 of the originating summons. By his notice of motion filed on 3 December 2009, the defendant/cross-claimant (hereinafter referred to as “the defendant”) made application to set aside these orders. On 11 December 2009, this application was refused and the interim orders were extended until further order of the Court.

3. By his notice of motion filed on 9 December 2009, the defendant sought, inter alia, leave to file a cross-claim against the plaintiff. I heard the application which was contested on 5 February 2010 and on 13 February 2010, I delivered my ruling. I granted leave and directed the defendant to file a cross-claim against the plaintiff within 14 days of the date of the ruling. I also issued further directions as to the filing of further pleadings after the filing of the cross-claim and the progression of the matter to trial.

4. In my ruling, I made a finding of fact that the plaintiff was the registered proprietor of all that piece or parcel of land described as Portion 1232 Milinch of Hagen, Fourmil of Ramu, Western Highlands Province which is contained in State Lease Volume 102 Folio 198 (the land). That is contained in paragraph 24 of my ruling where I said:

“I accept that there is no dispute that the plaintiff is the registered proprietor of the land. That fact is pleaded at paragraph 2 of the draft cross-claim as well.

5. Paragraph 2 of the defendant’s draft cross-claim read:

“The cross-defendant is the registered title holder of the property described as Portion 1232, Milinch of Hagen, Fourmil of Ramu, Western Highlands Province. The Cross-Defendant is capable of suing in his own name.”

6. For this reason, before the commencement of the trial, I enquired whether the parties, the defendant in particular, had any difficulty with me presiding over the matter so that I could recuse myself if that were the case. Both counsel had no objection. Mr. Ako for the defendant submitted that his client conceded that the plaintiff was the registered proprietor of the land therefore he had no difficulty with me presiding to determine the remaining issue(s) in the plaintiff’s originating summons as well as those raised in the defendant’s cross-claim. I therefore proceeded to hear the trial.

BRIEF BACKGROUND

7. On 25 February 2010, the defendant filed his cross-claim. On 24 March 2010, he filed his reply to the plaintiff’s defence to the cross-claim. Briefly, in his pleadings, he avers that he is an occupant and resident of the land, the registered...