Vanimo Jaya Limited v EMO Holdings Ltd and Others
| Jurisdiction | Papua New Guinea |
| Judge | Linge AJ |
| Judgment Date | 13 March 2023 |
| Neutral Citation | N10159 |
| Citation | N10159, 2023-03-13 |
| Counsel | Ms. Emily Dauma, for the Plaintiff,Mr. A Donigi, for the First and Second Defendants |
| Docket Number | WS No. 991 OF 2017 |
| Hearing Date | 22 November 2022 |
| Court | National Court |
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
WS No. 991 OF 2017
Between:
Vanimo Jaya Limited
Plaintiff
v.
EMO Holdings Ltd
First Defendant
and
Moile Resource Owners Ltd
Second Defendant
Waigani: Linge AJ
2022: 22nd November
CUSTOMARY LAND — acquired under Special Agricultural & Business Lease (SABL) — subsequently divided into two (2) separate customary titles under Voluntary Customary Land Registration (VCLR) — for agro-forestry development.
Vanimo Jaya Limited the holder of a Special Agricultural & Business Lease (SABL) as portion 248C filed this proceeding to basically enforce its rights it claims is breached by the defendants. The first claim is against the first defendant for trespass and encroachment upon the said SABL. The second claim is against the second defendant for breach of Mediation Agreement as endorsed by Order of 5 October 2015 in OS No.411 of 2013 and enforcement of the judgment in OS No. 904 of 2016.
Held:
1. The plaintiff's pleadings on trespass and breach of agreement are vague and as a result the plaintiff has not established his cause of action and the claims are hereby dismissed.
2. The registration of two customary titles under Voluntary Customary Land Registration (VCLR) as portions 277C and 276C replaces and super cedes SABL 248C.
3. The entry by Emo Holdings Limited on to portion 277C was consented to and at the invitation of Moile Resource Owners Limited, the customary and registered owner of portion 277C under VCLR on a lease-lease arrangement.
4. Portion 277C on which Emo Holdings Limited operates is owned by Moile Resource Owners Limited, the second defendant, comprising of members of the One tribe and the claim by Vanimo Jaya Limited on it fails on the principle of jus tertii.
Cases Cited:
Papua New Guinean Cases
Malawa v Pidi [2019] PGNC11; N7675
Sam Samoua v Access Venture Ltd [2013] N5325
Mudge v The Secretary of Lands [1985] PNGGLR 387
Rimbunan Hijau v Ina Inai (2017) SC160
Re Era Taora Land (1971) FC 18
Kanga Kawira & Ors v Kepaya Bone & Ors (2017) N6802
Overseas Cases
League Against Cruel Sports v Scott [1985] 2 All ER 489
Doe d Carter v Barnard, [1849] 13 QB 945
Counsel:
Ms. Emily Dauma, for the Plaintiff
Mr. A Donigi, for the First and Second Defendants
Nelson Lawyers: Lawyers for the Plaintiffs
Ama Wali: Lawyers for the First and Second Defendants
JUDGMENT
13th March, 2023
1. Linge AJ: This is my ruling on liability. The plaintiff was a holder of a Special Agricultural and Business Lease (hereinafter “SABL”) in the Aitape area in West Sepik sued the first defendant for trespass and encroachment upon the said SABL. The plaintiff also alleges that the second defendant breached the Wewak Heads of Agreement (hereinafter the “Mediation Agreement”).
2. The contested trial was conducted on the 18 November 2022. Counsels of parties made oral submissions.
Background
3. On 12 December 2005 Vanimo Jaya and One-Uni Development Corporation signed a Memorandum of Agreement (hereinafter “the MOA”) for the development of an Agro Forest project involving harvesting of all timber from the 40,000 hectares customary land and oil palm planting.
4. Thereafter on the 19 July 2006 the State entered into a lease agreement with customary owners purportedly represented by One-Uni. It was a form of Lease Lease back arrangement in which the landowners agreed with the State for them to lease their customary land to the State.
5. The National Gazette No. G143 of 20 July 2006 published a Notice of Direct Grant under Section 102 of the Lands Act, that shows Vanimo Jaya and One—Uni Development Corporation were granted a Special Agricultural and Business Lease (hereinafter “SABL”) containing an area of 47, 626 hectares of customary land described as Volume 13, Folio 177, Portion 248C, Milinch Tadji, Fourmil Aitape, West Sepik Province for 99 years from 20 July 2006 to 19 July 2105 as tenants in common.
6. On the 14 May 2007 Vanimo Jaya bought out One-Uni 50 % shares in the tenancy in common for consideration of K2, 000.00. The transferee in the transfer was one Ignas Aro of the Uni Tribe.
Facts
7. The plaintiff claims that on or about 20 December 2016, the first defendant encroached on the SABL when it landed a ship full of logging equipment on site and allegedly conducted logging operations by clear felling of trees for export.
8. The first defendant maintains that its entry into the area was agreed to and at the invitation of the second defendant, who are customary owners of major parcel of the SABL.
9. On the 1 August 2013 Moile Resources Owners Ltd on behalf of 57 Incorporated Land Groups (ILG) and Julian Pewa, the Chairman filed OS No. 411 of 2013 challenging the validity of the plaintiff's SABL. The case was resolved by Court annexed Mediation concluded on the 10 September 2015 by the signing of the Mediation Agreement. The customary landowners who signed the Mediation Agreement included Julian Pewa of the One Tribe and Ignas Aro from the Uni Tribe; the latter also signed for Vanimo Jaya Limited. On the 5 October 2015 the Court in the said proceeding issued Orders endorsing the Mediation Agreement.
10. The plaintiff having been aggrieved by the implementation of the Court Orders of 5 October 2015 in OS No.411 of 2013 especially by the second defendant and Julian Pewa then filed OS No. 904 of 2016-Vanimo Jaya v Julian Pewa and Moile Resources Owners Limited.
11. The decision of Court in OS No. 904 of 2016 was delivered on the 11 May 2017 which as claimed by the plaintiff, ruled for the plaintiff to be maintained as the main developer by the second defendant in the subject SABL as per Terms 2 and 3 therein.
12. This proceeding filed by Vanimo Jaya Limited is basically to enforce its rights it claims is breached by the defendants. These are trespass and encroachment by the first defendant and beach of the Mediation Agreement as endorsed in OS No.411 of 2013 and to enforce the judgment in OS No. 904 of 2016. The plaintiff claims that by virtue of these orders, its investments in the Portion 248C SABL, Vanimo Jaya must remain the only developer or investor for any agro-forestry projects within the original boundaries of Portion 248C.
Evidence
13. The parties rely on affidavits filed as follows:
For the plaintiff
1. Affidavit of Ignas Aro filed on 24 September 2018.
2. Affidavit of Chew Pang Heng:
(i) filed on 24 September 2018;
(ii) filed on 13 December 2018;
(iii) filed on 14 June 2019.
3. Affidavit of Kevin Lakuna filed on 8 February 2019.
4. Affidavit of Camron Ninwale filed on 19 August 2022.
5. Affidavit of Philipus Wita filed on 6 October 2022.
6. Affidavit of Godfried Soropo filed on 6 October 2022.
7. Affidavit of Mathew Gawing filed on 7 October 2022.
For the defendants
1. Affidavit of Julian Pewa filed on the 1 April 2015 in OS 411 of 2013 between the same parties.
2. Affidavit of Julian Pewa filed on the 1 February 2020 between the same parties.
3. Affidavit of Julian Pewa filed on the 16 November 2019 in OS 443 of 2019 between the same parties.
4. Affidavit of Julian Pewa filed on the 2 February 2022 in OS 293 of 2021 between the same parties.
5. Affidavit of Andrew Yuangi filed on the 23 December 2022 in OS 293 of 2021 between the same parties.
6. Affidavit of Anthony Donigi filed on the 18/5/2017 in OS 904 of 2016 between the same parties.
7. Affidavit of Anthony Donigi filed on the 4/7/2017 in OS 904 of 2016 between the same parties.
Submissions
For the plaintiff
14. Ms. Dauma of counsel for the plaintiff presents three (3) issues which she based her submission. I refer to each in seriatim.
1 Whether the first defendant's commercial logging operations in Tadji, Aitape, West Sepik Province amounts to trespass upon the plaintiff's SABL area of Portion 248C?
15. In opening her submission, Counsel referred me to Malewa v Pidi [2019] PGNC11; N7675 and Sam Samoua v Access Venture Ltd (2013) N5325, cases which sets out the elements of the tort of trespass. I will scrutinize these elements in my consideration shortly.
16. Ms. Dauma submits that there is evidence of transfer of the shares in the entry in the journal or memorial in the Registrar of titles which reads, “from One-Uni Development Corporation of its shares to Vanimo Jaya Ltd, the whole of the land now held by Vanimo Jaya Ltd on the 11 May 2007 “from One-Uni Development Corporation of its shares to Vanimo Jaya Ltd, the whole of the land now held by Vanimo Jaya Ltd.”
17. She submits that the actions of the first defendant on the 20 December 2016, when it encroached on the SABL by landing a ship full of logging equipment on site and allegedly conducted logging operations by clear felling of trees for export amount to trespass.
18. Counsel also referred me to Rimbunan Hijau v Ina Inai (2017) SC 1605 a case in which the Supreme Court considered the term “actual possession” and held that unlike the common law position where actual possession is required, it is not necessary to prove possession or actual possession of land in Papua New Guinea as a precondition to a claim in trespass.
2. Whether the Second Defendant's commercial arrangements for logging operations in Portions 277C, Tadji, Aitape, amounts to a breach of the Mediation Orders of 05/10/2015 (OS No. 411 of 2013 and the Mediation Agreement of 11/09/2015?
19. Counsel submits that the second defendant is a party to the Mediation Agreement dated 10 September 2016 and is bound by the signatures of its directors namely, Martin Wingkolo and Julian Pewa. The Mediation Agreement was then formalized into a Court Order dated 5 October 2015, in OS No. 411 of 2013.
20. It follows that the Mediation Agreement and the Court Order of 5 October 2015, in OS No. 411 of 2013 are both binding on both the plaintiff and the second defendant in this proceeding.
21. Further Counsel contends that the plaintiff has exclusive commercial agro-forestry rights to be exercised in partnership with the landowners of Portions 276C and 277C, guaranteed by...
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