The Evangelical Lutheran Church of Papua New Guinea v Jack David and Others

• Jurisdiction: Papua New Guinea
• Judge: Dowa J
• Judgment Date: 25 March 2022
• Neutral Citation: N10060
• Citation: N10060, 2022-03-25
• Counsel: S. Sor, for the Plaintiff,M. Murray, for the Defendants
• Hearing Date: 06 April 2022,25 March 2022,06 April 2021
• Docket Number: OS NO. 26 OF 2011
• Court: National Court

N10060

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

OS NO. 26 OF 2011

Between:

The Evangelical Lutheran Church of Papua New Guinea

Plaintiff

v.

Jack David, Yangi Benson, Jerot Justin, Moses Buaki, Tino Hombi, Catherine Steven, Wenti Meneva, Peter Loize & All Other Illegal Occupants of Portion 354, Milinch Malahang Fourmil Huon-Certificate of Title, Volume 34, Folio 26

First Defendants

and

Noka Builders Limited, Dambura Holdings Limited, Coastal Freighters Limited

Second Defendant

Lae: Dowa J

2021: 6^th April

2022: 25^th March

LAND LAW — state lease — plaintiff seeking declaratory relief of ownership of state lease — Indefeasibility of title under section 33 of Land Registration Act — Seeking orders for possession — and permanent injunctions from adverse dealings on land and from harassment or intimidation — defendants dispute ownership of land based on fraud-actual and constructive fraud discussed — court has no jurisdiction to deal with disputes over alienated customary land — the appropriate body to hear disputes over alienated customary land is the Land Titles Commission — Defendants' equitable interest to remain on property is limited — Orders granted in favour of the Plaintiff

Cases Cited:

Mudge v Secretary for Lands (1985) PNG LR 387

Pius Tikili v Home Base Real Estate Ltd (2017) SC1563

National Council of Young Men's Christian Association of PNG v Firms Services Ltd (2017) SC 1596

Albert Camilus v David Mota & others (2022) SC 2210

Godowan Investment Ltd v Wambea (2018) N7263

Yandu v Waiyu (2005) N2894

Kimas v Oala (2015) SC1475

Katumani & Ors v Elijah Yawing & Ors (2020) N8481

Yooken Paklin v The State (2001) N2212

Peter Wanis v Fred Sikiot and The State (N1350)

Enaia Lanyat v State (1996) N1481

Obed Lalip v Fred Sekiot and The State (1996) N1457

Jonathan Mangope Paraia v The State (1995) N1343

Samot v Yame (2020) N8266

Jure Investment v Conlife (2018) N7286

Paga Hill Development Company v Daure Kisu (2014) N5683

Laka v Nui (2013) SC1223

Robinson v Airlines Corp (1983) PNGLR 476

Medaing v Ramu Nico Management (MCC) Ltd (2011) SC144

Counsel:

S. Sor, for the Plaintiff

M. Murray, for the Defendants

Fiocco Nutley Lawyers: Lawyers for the Plaintiffs

Murray & Associates Lawyers: Lawyers for the Defendants

DECISION

25^th March, 2022

1. Dowa J: This is a decision on the substantive claims by the Plaintiff seeking various orders.

2. By Originating Summons, the Plaintiff seeks the following orders:

i) Judgment for possession of land contained in Certificate of Title Volume 34 Folio 26, Portion 254 Milinch of Malahang, Fourmil of Huon, Lae, Morobe Province (Portion 354);

ii) Leave to issue Writ of Possession pursuant to the judgment for possession.

iii) An order that all the defendants and their family members, relatives, dependants, agents, employees and servants whatsoever immediately deliver up vacant possession of the areas of Portion 354 they are illegally occupying.

iv) An order that all the defendants and their family members, relatives, dependants, agents, employees and servants whatsoever bread down their houses, structures, buildings and remove all their personal belongings, building materials whatsoever and food gardens and deliver up vacant possession of Portion 354.

v) An order in the nature of a permanent injunction restraining all the defendants and their family members, relatives, dependants, agents, employees and servants whatsoever from trespassing on Portion 354.

vi) An order in the nature of a permanent injunction restraining all the defendants and their family members, relatives, dependants, agents, employees and servants whatsoever from threatening, intimidating or otherwise harassing the Plaintiff, its associates, agents and employees living on Portion 354 or elsewhere; and

vii) An order that Mr Jack David be permanently restrained from holding himself out as the landowner of Portion 354 and representing or proposing to sell or lease any piece.

Background Facts

3. The Plaintiff is a Christian church organisation established under the Lutheran Church of Papua New Guinea Act. It is the registered proprietor of land, described as Portion 354, Milinch of Malahang, Fourmil of Huon, Lae, Morobe Province, contained in State Lease Volume 34 Folio 26.

4. Portion 354 is a huge land containing an area of 500 hectares. It contains substantial improvements, which include Martin Luther Seminary, the Lutheran Shipping Compound, and the Lutheran Development Services office.

5. The Defendants are also residing on vacant part of the land despite repeated requests by the Plaintiff to give up possession. Jack David, one of the first Defendants, disputes the Plaintiff's ownership to the subject land. Mr David says he is the traditional landowner of the land, Portion 354, and is entitled to sell, lease or deal with parts of the unused land.

6. This resulted in the current proceedings. The proceedings are vigorously defended by the Defendants led by the First Defendant.

Issues

7. The issues for consideration are:

a) Whether the Plaintiff is the registered proprietor of Portion 354, Milinch of Malahang, Fourmil Huon, Morobe Province.

b) Whether there is a bona fide dispute as to title.

c) Whether the Plaintiff is entitled to the reliefs it seeks.

The Plaintiff's Evidence

8. The parties proceeded with the trial calling their respective witnesses who gave both affidavit and oral evidence. The Plaintiff tendered the following affidavit evidence:

(1^st) Affidavit of Sesenga Narangeng sworn: 17/12/2010 & filed: 25/01/2011 marked as Exhibit P-1,

(2^nd) Affidavit of Sesenga Narangeng sworn: 18/02/11 & filed 21/02/2011 marked as Exhibit P-2,

(3^rd) Affidavit of Sesenga Narangeng sworn: 04/04/2011 & filed: 11/04/2011 marked as Exhibit P-3,

(4^th) Affidavit of Gai Pop sworn: 25/02/2015 & filed: 31/05/2016 marked as Exhibit P-4

(5^th) Affidavit of Danny Maliaki sworn: 25/02/20202 & filed: 31/05/2016 marked as Exhibit P-5

(6^th) Affidavit of Bernard Kaisom sworn: 11/06/2017 & filed: 13/06/2017 marked as Exhibit P-6.

9. The summary of the Plaintiff's evidence is this:

• The Plaintiff is incorporated pursuant to the Evangelical Lutheran Church of Papua New Guinea Act. On 25 March 1914, the then Leader of the Lutheran Church at the time Mr Johannes Flierl entered a written Contract of Sale with the Villagers of Yanga and Apo (now known as Butibum and Kamkumung) villages of Lae. Pursuant to that Contract of Sale, the villagers and clans of Yanga and Apo (Butibum and Kamkumung) sold about 500 hectares of land to the Lutheran Church.

• The 500 hectares of land was registered as Portion 270. The records of Portion 270 were destroyed in Rabaul during World War 11. A Land Titles Commission was set up in 1962 to hear the matter. After the hearing the records of Portion 270 were restored to the Register Book on 17^th April 1978 under the New Guinea Land Title Restoration Act 1951 pursuant to an order of the Land Titles Commission dated 6^th November 1962.

• On 3 August 1978 all properties held under Lutheran Mission New Guinea including Portion 270 were transferred to the Evangelical Lutheran Church of New Guinea Property Trust. In 1992 the then Portion 270 was conditionally surrendered and sub-divided into Portions 351 and 354. At around this time the Evangelical Lutheran Church of New Guinea had already changed its name to its present name.

• On 7 March 2003 the Plaintiff was registered as the registered proprietor of Portion 354. The three Villages of Yanga, Butibum and Kamkumung incorporated the entity, BUP Landowners Association Incorporated to enable discussions with the Plaintiff. The BUP Landowners Association Inc. consists of the respective landowners of three clans namely Busulum, Unapu and Poalu of Yanga, Kamkumung and Butibum. The Plaintiff had discussions with the BUP landowners Association Inc and gave Portion 351 back to the Busulum Clan.

• The clan leaders of BUP Landowners Association Inc have agreed that Portion 354 should remain with the Plaintiff because the Plaintiff is the rightful owner and because of the huge improvements erected by the Plaintiff on Portion 354. Portion 354 comprises of the Martin Luther Seminary, the Lutheran Shipping Compound and Lutheran Development Services Office, and a small vacant plot which the Defendants are now occupying.

• The Plaintiff has been trying to evict the Defendants from this plot for many years since 2003. The Plaintiff denies making any promises to the first Defendants to relinquish the whole or part of Portion 354 to the Defendants. The Plaintiff denies further that the land was fraudulently acquired. The witnesses Sesengo Narageng, Gai Pop and Danny Maliaki come from the same Busulum clan as that of Jack David, the First Defendant. They deny and dispute the claims by Jack David. They say their ancestors sold the subject land to the Plaintiff and Jack David does not represent the interest of the clan and is misleading them.

DEFENDANTS' EVIDENCE

10. The Defendants gave oral evidence and tendered the following affidavit evidence:

(1^st) Affidavit of Jack David sworn & filed 29/03/2012

Marked as Exhibit D – 1

(2^nd) Affidavit of Jack David sworn: 17/03/2020 & filed: 18/03/2012

Marked as Exhibit D – 2

(^3rd) Affidavit of Paul Joseph sworn: 17/03/2020 & filed: 18/03/2012

Marked as Exhibit D – 3.

11. This is the summary of the Defendant's evidence.

• Jack David is the leader of the Busulum clan of Butibum village, and chairman of the Busulum Land Group Inc. They are the traditional landowners of the land Portion 354. Mr David says the Defendants do not dispute that the Plaintiff has a registered title over the land, Portion 354. However, they dispute the validity of the title. He says his Busulum clan and ancestors, are the customary owners of the Malahang land part of which is Portion 354, under State Lease, Volume 34, Folio 26 (“Land”). The ancestors never sold this Land to the Plaintiff nor its predecessor the Lutheran Mission...