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Kusup v Sipison [2023] PGNC 113; N10269 (26 May 2023)


N10269


PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]


H.R. (WS) NO. 14 OF 2019


BETWEEN:
MANDOR KUSUP for and on behalf of the NOB CLAN whose names appear in the Schedule A to this Writ
First Plaintiff


AND:
PAUL KAMANG for and on behalf of the MATULON CLAN whose names appear in the Schedule B to this Writ
Second Plaintiff


AND:
KUNKUN LANG & MICHAEL FAN for and on behalf of clan members of the LAUPAIN BILIAI CLAN whose names appear in the Schedule C to this Writ
Third Plaintiff


AND:
STEVEN BOGAS for and on behalf of members of the KAKON CLAN whose names appear in the Schedule D to this Writ
Fourth Plaintiff


AND:
MARTIN KUBAI for and on behalf of members of the ASUAPAIN CLAN whose names appear in the Schedule E to this Writ
Fifth Plaintiff


AND:
LULAL HOHEG for and on behalf of the members of the MAHOBAN CLAN whose names appear in the Schedule F to this Writ
Sixth Plaintiff


AND:
LARRY NALON for and on behalf of URIBU CLAN whose names appear in the Schedule G to this Writ
Seventh Plaintiff


AND:
JOSEPH MASIL for and on behalf of the members of GA GALI CLAN whose names appear in the Schedule H to this Writ
Eight Plaintiff


AND:
ANAKAI WEB MOR for and on behalf of members of BAU MALEHU CLAN whose names appear in the Schedule I to this Writ
Ninth Plaintiff


AND:
BAIBIN BIG for and on behalf of the members of KANURUA CLAN whose names appear in the Schedule J to this Writ
Tenth Plaintiff


V


LUTHER SIPISON as SECRETARY FOR LANDS & PHYSICAL PLANNING
First Defendant


AND:
BENJAMIN SAMSON as REGISTERAR OF TITLE OF PAPUA NEW GUNIEA
Second Defendant


AND:
HONOURABLE JUSTIN TKATCHENKO as MINISTER FOR LANDS & PHYSICAL PLANNING
Third Defendant


AND:
THE INDPENDENT STATE OF PAPUA NEW GUINEA
Fourth Defendant


Madang: Narokobi J
2022:31st May
2023: 26th May


PRACTICE AND PROCEDURE – Mode of proceedings – whether proceedings should have been commenced by way of judicial review under Order 16 Rule 3 of the National Court Rules – Whether option available where relief sought are declaratory orders only and no orders in the nature of prerogative writs claimed.


PRACTICE AND PROCEDURE – Standing to commence proceedings - whether plaintiffs have standing to make claim – Nature of interests of the plaintiffs - plaintiffs expressly identified by court and authority of competent jurisdiction.


RES JUDICATA – Principles of res judicata - whether claim barred by operation of res judicata – requirements of res judicata considered and applied.


HUMAN RIGHTS – Section 53 of the Constitution, “Protection from Unjust Deprivation of Property” - Whether claim for breach of s 53 of the Constitution has been made out – Considerations for claim of unjust deprivation of property.


LAND LAW - National Land Registration Act 1977 – Section 10 “Appeals Against Declarations of National Land” – Whether human rights claim for unjust deprivation of property to the National Court is an alternative to the settlement process stipulated in the National Land Registration Act – Liberal interpretation applied to reading of s 10 - Relevant Considerations considered.


The Plaintiffs claim to be the landowners of present Madang town. They say their interest was recognised by the pre-independence case of Custodian of Expropriated Property v Commissioner of Native Affairs (Re Jomba Plain) [1971-72] PNGLR 501 and also by the National Land Titles Commission. In 1988 the Minister for Lands declared certain areas in Madang town to be State Land pursuant to his powers under s 9 of the National Land Registration Act 1977. The Plaintiffs claim that they were not aware of the notice. The State has been willing to pay compensation over the years but for some reason this did not eventuate. The plaintiffs now claim negligence and breach of their rights under s 53 of the Constitution. The State has submitted that the claim should have come by way of a judicial review under Order 16, rule 3 of the National Court Rules, that the Plaintiffs lack standing and the defence of res judicata applied on account of previous decisions.


Held:


(1) Each of the plaintiffs in this case are identified in the pre-independence case of Custodian of Expropriated Property v Commissioner of Native Affairs (Re Jomba Plain) [1971-72] PNGLR 501 and also by the National Land Commission decision in 1996 to the land the subject of the proceedings. Accepting this evidence, the Plaintiffs have standing to come to court regarding land the subject of this proceeding.

(2) Where a Plaintiff (s) only seeks declaratory relief, they have a choice as to the mode of proceedings (Telikom PNG Ltd v Independent Consumer and Competition Commission (2008) SC906 followed). Here, the Plaintiffs seeks declarations only, and no other orders in the nature of prerogative writs have been sought. There is therefore no abuse of process with regards to the mode of proceedings instituted by the Plaintiffs.

(3) For a defence of res judicata to hold, the following must be shown to exist (Telikom PNG Ltd v Independent Consumer and Competition Commission (2008) SC906, per Injia DCJ (as he then was), para 16):
(4) After having considered the cases of Pipoi v Seravo, National Minister for Lands (2001) N2120, and on appeal, Pipoi v Seravo, National Minister for Lands (2008) SC909 and having considered the parties and the cause of action it is determined that the issue is not res judicata for the following reasons:

(5) Applying a liberal interpretation to the reading of s 10 of the National Land Registration Act under sch 1.5 of the Constitution and an interpretation that will promote the National Goals and Directive Principles as obligated by s 25(3) of the Constitution, especially National Goal two is on equality and participation and national goal three on national sovereignty and self-reliance, an election can be made after a declaration is made under s 9 of the National Land Registration Act for payment of just compensation under s 53 of the Constitution (Gabi v Nate (2006) N4020 considered).

(6) A condition for such an election must be that there is no dispute as to ownership of the land the State seeks to acquire.

(7) The lands the subject of the proceeding have been acquired compulsorily by the State pursuant to the National Land Registration Act. The evidence shows that there was no consultation, no social mapping, no demarcation of boundaries, and no prior notice before these lands were formally acquired by the State. The Plaintiffs have therefore established that there was an unjust deprivation of property pursuant to s 53 of the Constitution.

(8) All other reliefs sought are refused and a trial shall ensue to determine just compensation due to the Plaintiffs.

Cases Cited


The following cases are cited in the judgment:


Custodian of Expropriated Property v Commissioner of Native Affairs (Re Jomba Plain) [1971-72] PNGLR 501
Gabi v Nate (2006) N4020
Pipoi v Seravo, National Minister for Lands (2001) N2120
Pipoi v Seravo, National Minister for Lands (2008) SC909
Telikom PNG Ltd v Independent Consumer and Competition Commission (2008) SC906


Statutes Cited:


Constitution
Frauds and Limitation Act 1988
National Land Registration Act 1977


Counsel:


B, Wak, for the Plaintiffs
E, Manihambu for the Defendants


JUDGMENT


26th May, 2023


  1. NAROKOBI J: The Plaintiffs claim to be the landowners of Madang town, more specifically areas within Madang township referred to as “Jomba Plain,” “Modilon-Jomba,” “Wagol,” and “Wagol Reserve.” They say that these areas of land which houses the Madang township were not properly acquired by the State. In their view, the State had failed to exercise its duty properly under the National Land Registration Act 1977 to convert the said land to State land. The ownership status of these tracts of land was determined by the pre-independence case of Custodian of Expropriated Property v Commissioner of Native Affairs (Re Jomba Plain) [1971-72] PNGLR 501 (a case decided in 1932, hereafter also variously referred to as the “the 1932 decision”).

Background


  1. The claim is founded on negligence and breach of human rights under the Constitution. The Plaintiffs seek declaratory relief and an award of compensation for breach of their rights to s 53 of the Constitution, that is to say, they claim unjust deprivation of their property.
  2. The Plaintiffs come from the following clans, in and around Madang town:
  3. The contest for this land has a long history that spans more than a century, two world wars, two different colonial powers – Germany and Australia and now, a post-colonial independent State, Papua New Guinea. The history of this claim is well documented by Justice Philips in his decision in Custodian of Expropriated Property v Commissioner of Native Affairs (Re Jomba Plain), decided on 25 May 1932, when the territory of New Guinea was administered by Australia, under a trusteeship from the League of Nations.

The 1932 Decision


  1. The land the subject of the proceeding was purportedly acquired by the Imperial German government before the First World War. The New Guinea Company had a charter from the German government to conduct business in New Guinea, the northern part of Papua New Guinea, when the country existed as two separate territories. More specifically, as Justice Philips refers to the mandate in the 1932 decision:

...the New Guinea Company had certain exclusive rights in regard to the acquisition of land in Kaiser Wilhelmsland (the former German portion of the main island of New Guinea) and in the Bismark Archipelago. By Charter dated 17 May 1885, the Imperial German Government had granted the company the right to exercise, in these places, territorial sovereignty under the Imperial sovereignty together with exclusive rights, under the supervision of the German government to take possession of and dispose of ownerless land and conclude contracts with natives concerning land and rights over them.


  1. The company wanted areas of land, mainly to plant coconut and conduct other business ventures. The New Guinea Company purported to purchase two tracts of land in furtherance of this objective. In the first purchase, it entered into an agreement dated 9 November 1887 where it purported to purchase an area from the supposed landowners from Bilibili Island, a tract of land between the Gogol River and Gum River. The company then entered into a second agreement dated 13 September 1888 where it purported to purchase from the supposed landowners from Jabob Island, a tract of land between the Gum River and Friedrich Wilhelelmsafen. Friedrich Wilhelmsafen as I read the decision of 1932, is situated where the current Madang wharf is. Part of this land was surveyed and is now described as portions 37, 50, 51, 71 and 71a. After German defeat at the end of the First World War, New Guinea, became a trust territory of the League of Nations and was administered by Australia.
  2. Portion 72 is the area between Gogol River and Gum River, the subject of the 1887 agreement. I understand that this is not the subject of the proceedings as from my own knowledge of the area, it is still customary land, or at least the Madang township is not part of this area. Thirty six tribes have been identified as owners of that land, that is Yo, Sein, Marip, Aguru-Main, Aguru, Deiwol, Meltab, Mihilon, Meritab, Yagom, Onuru-Mamandaru, Omuru-Dele, Aua-Iaum, Aua-Heb, Aua-Lanu, Taitab, Maim, Naido, Bag, Mahor, Wabar, Gudine, Salalo, Battan, Wasuk, Gagalu, Ssa-Gala, Sso Proper, Sso-Helna, Gesup, Gun, Unuina, Nagi, Bahor, Mahoban and Od. None of them are parties to this proceeding.
  3. When the First World War ended, a special entity, Custodian of Expropriated Property was set up to take charge of properties, previously controlled by the Imperial German government. That entity took control of the Madang Township as it was purportedly owned by the New Guinea Company from the 1888 purchase. Traditional owners of the land disputed the fact that Madang township was properly acquired under the previous German Administration through the New Guinea Company. Their claim was taken on their behalf by the Commissioner of Native Affairs which is an entity established by the Australian colonial administration to protect the interest of the indigenous people.
  4. The Commissioner of Native Affairs had referred to the Central Court of the Territory of New Guinea under his obligations pursuant to the Land Registration Ordinance 1924-1931 the question of possible native rights under four pieces of land situated in the Administrative District of Madang in the Territory of Madang, respectively as “Jomba Plain,” “Modilon-Jomba,” “Wagol” and “Wagol Reserve.”
  5. Their claim was deliberated on in the case of Custodian of Expropriated Property v Commissioner of Native Affairs (Re Jomba Plain). That court conducted a comprehensive investigation into the ownership of the Madang township. Justice Philip said the court proceeding was “a long and arduous business.” He read hundreds of pages of documents, heard nearly 90 native witnesses and inspected a large area of land.
  6. At the time of the purchase in 1887 and 1888, the New Guinea Company was represented by a J.S Kubary, when it entered into these two agreements with the people in 1887 and 1888. The court found that he did not do a proper survey to determine the boundaries of the land. He had travelled by a sea vessel, a pinnace and engaged translators from Bergesin who were not familiar with the language of the Bilibili and Jabob Islanders. These Islanders were not the right customary landowners of these tracts of land. Subsequent attempts were made to survey the area, with certain areas marked as “reserves” for the local people as they used those areas for garden and growing sago, for which the company will excision from their area of interest. This was how the name “Wagol Reserve” came about.
  7. The court decided that the two landowners who sold the land, that is from Bilibili Island and Jabob Island were not the landowners of those tracts of land. The transaction was consequently invalid. These tracts of land therefore remain customary land. The court also decided that there were areas of land, in which the people accepted goods, and these tracts of land should remain with the colonial administration. The court further held that tracts of land where the colonial administration already had developments on it, the people should be compensated, and the land remain with the colonial administration, as it would cause undue hardship for the existing occupiers if the land is to be returned to the landowners.

State Acquisition


  1. The next significant event that occurred in this claim, happened in 1988, some 100 years later. On 14 January 1988 a National Gazette was published pursuant to s 9 of the National Land Registration Act 1977. That Gazette provided certain areas declared as State land. I have attempted to read the Gazette, which sets out the coordinates of areas in and around Madang town the subject of the declaration. It identifies areas which are already the subject of State leases. There are certain pages of the Gazette missing, but from what I am able to read, it refers to existing developments in Madang town.
  2. The plaintiffs say that they have not been able to challenge the notice because they were not aware of it. Most of them are illiterate persons. They have also tried unsuccessfully to make their claim in court, but was dismissed on technical grounds.
  3. Michael Fan deposes to an Order for Settlement from the National Land Commission dated 7 March 1996 which identified the 10 plaintiffs. Matulon Clan, Kakon Clan, Mahoban Clan and Asuapain Clan refused to receive payment. They said they wanted their land back. The others were awarded sums in the following amounts in the table hereunder by the National Lands Commission.
Clan
Area
Amount
Leader
Nop
80.65 ha
K16,725.36
Michael Kauas
Laupain Bilia
271.07 ha
K36,279.25
Gabud Malifun Kudam Aloi
Uribu
427.82 ha
K37,036.15
Kasa Sapush
Bau Malehu
39.95 ha
K26,310.38
Webb Nor
Ga Gali
239.03 ha
K22,877.25
Masil Do
Kanurua
222.00 ha
K31,029.00
Paile Uril

  1. In their evidence, they have also referred to another decision of the National Land Commission. Mandor Kusup, the Chief of the Nob Clan attaches a copy of the decision of the National Land Commission dated 2 February 1996, which awarded K22,877.25 to the Nob Clan for an area described as “Part Madang Township.”
  2. Michael Fan also attaches a support letter from Sir Peter Barter dated 27 June 2020 who says that he had made attempts to get the National Government to settle the landowners, but it has not been successful. The compensation was increased from an initial sum, but when it came to payment, the negotiations fell through. He says in his letter dated 27 June 2020:

The former Minister for lands, Hugo Berguser awarded K57,000.00 which was rejected. Prime Minister Julius Chan upon my request increased this by a further K500,000.00 following the successful Pacific Forum held in Madang. The committee lead by Peter Memafu mapped out the town and agreement was reached on ownership by the 23 clans and sub-clans but when it came to identifying the recognized clan leaders’ negotiations broke down and to my knowledge these fund were never paid, if they were used illegally. The end result is Madang Township has not been part paid.


  1. What is apparent is that there is ongoing discussions with the State to settle the Plaintiffs but for some reasons, the matter has stalled.

Previous Litigation


  1. There was a previous case which relied on the 1932 decision to make a claim against the State, that is the case of Pipoi v Seravo, National Minister for Lands (2001) N2120, and on appeal, Pipoi v Seravo, National Minister for Lands (2008) SC909.
  2. In Pipoi v Seravo, National Minister for Lands (2001) N2120, the plaintiffs described themselves as from Nob No 1 tribe. The court ruled amounts other findings relating to arguable case, undue delay and exhaustion of administrative remedies that the plaintiff lacked standing and refused leave to apply for judicial review. Justice Sawong who presided over the matter stated at the relevant parts:

The decision and findings show that the Applicants claim that he represents his clan and the Nob Tribe 1 does not have any basis. Nowhere in the decision of Mr Justice Philips is there any mention of a tribe called Nob Tribe 1. Nor can there be found the other clans, tribes, sub-clans mentioned by the Applicant in his affidavit in support of this application whose names appear in Justice Philips findings.


Moreover, there is no evidence that any of the people from the other tribes whose names appear in the judgement of Justice Philips have given any authority to the Applicant to bring this action. For instance, there is no evidence of any authority given to him by the people from Uauibu, Sisiak and Mahoban tribes in relation to the land described as Portion 50.


There are also no evidence to show that the members of the Biliau, Uaribu, Nob, Matulon and Mohaban have authorised the Applicant to bring this claim in respect of the land described or situated at "Modilon-Jomba" comprising Portion 37. Moreover non of the names mentioned by the Applicant in his affidavit show any resemblance to the names of the tribes who own portions of land between the Gum and Gogol Rivers and comprising Portion 72.


Furthermore, there is evidence that some of the people from the other tribes or clans have accepted the declaration made by the Minister and have received payments of compensation for this land.


  1. That decision was appealed in Pipoi v Seravo, National Minister for Lands (2008) SC909. The appeal related to error of the National Court based on standing, arguable case, exhaustion of administrative remedies and undue delay. All grounds were dismissed. The Supreme Court upheld the decision of the National Court.

Preliminary Issue No 1 – Standing


  1. The first question is that of standing. This is determined by asking whether the Plaintiffs have an interest capable of suing or being sued upon, that is a right capable of founding a cause of action? In this case this leads to the question of whether the Plaintiffs have an interest in the land the subject of the proceedings? This question will be answered by reference to the 1932 decision and the National Land Titles Commission decision of 1996.
  2. Six clans or tribes are expressly referred to in the 1932 decision as owners of specific areas in Portions 37, 50, 51, 71a, 71 and 72. They are as follows:
  3. Gesup and Sisiak are not expressly stated as part of this proceeding, but Larry Nalon says in his evidence that Sisiak comes under the Gagali clan. This is confirmed by Joseph Masil from the Gagali clan.
  4. Another point to note is that owners of Portion 72 are also not part of these proceedings. Portion 72 covers the land between the Gogol River and Gum River. That area as I previously alluded to is still owned and used by the customary landowners.
  5. The other tribes, that is Kakon, Asupain, Ga Gali, Bau Malehu and Kanurua may possibly be offshoots of these six tribes. According to their evidence, for instance Steven Bogas Namur of the Kakon clan, he says they are a clan from Yabob, and they own portion of land within the area from Gum River to Friedrich Wilhelnsafen (which was the subject of the 1888 agreement). Babin Baig from the Kanurwa Kiagri, the represting the tenth plaintiff refers to his two father Kasa Sapush and Nalon Gidik from the Uribu clan. Their interest was confirmed by the National Lands Commission who decided in 1996, that the following clans were to receive compensation as a result of the declaration made by the Lands Minister in 1988:
  6. Each of the Plaintiffs in this case are therefore identified by the 1932 decision and the 1996 decision of the National Land Titles Commission. There is no contrary evidence from the State that these are not the genuine clans and clan representatives. I therefore accept their evidence.
  7. Accepting this evidence, I find that the Plaintiffs have standing to come to court regarding land the subject of these proceedings. It is also in a way admitted to by the State that it is required to pay just compensation to the Plaintiffs through the Land Titles Commission.

Preliminary Issue No 2 – Mode of Proceedings


  1. The State has raised procedural issues with the propriety of the proceedings. It says that the proper mode of proceedings is by way of judicial review under Order 16 Rule 3 of the National Court Rules, to challenge the decision of the Minister. This is an important submission. On the other hand, the Plaintiffs submits that where a party only seeks declarations and does not seek other orders in the nature of prerogative writs, it has a choice as to the mode of proceedings. The Plaintiffs rely on the case of Telikom PNG Ltd v Independent Consumer and Competition Commission (2008) SC906 to support its proposition. I have read the statement of claim. The Plaintiff only seeks declarations, and no other orders in the nature of prerogative writs have been sought. Having regard to the Supreme Court decision on the point, I am of the view that the Plaintiffs’ submission should be upheld. There is therefore no abuse of process with regards to the mode of proceedings instituted by the Plaintiffs.

Preliminary Issue No 3 – Res Judicata


  1. The other issue raised by the State is the issue of res judicata. A defence of res judicata will hold, if the following factors are shown to exist (Telikom PNG Ltd v Independent Consumer and Competition Commission (2008) SC906, per Injia DCJ (as he then was), para 16):
  2. After having read these two decisions of Pipoi v Seravo (National Court and Supreme Court) and considered the proceeding now before me, I determine that the issue is not res judicata for the following reasons:
  3. This does not mean that I cannot refer to the Supreme Court’s decision for guidance, where necessary. As I alluded to above, in my view, this is a claim for protection from unjust deprivation of property under s 53 of the Constitution. Claims for negligence are required to be brought before the expiry of six years. More than six years have lapsed as the cause of action accrued in 1988, that is when the declaration was made by the Minister for Lands under the National Land Registration Act 1977. Human rights claims are not subject to the Frauds and Limitation Act 1989. The claim of the plaintiffs in so far as negligence is concerned is dismissed.

Considerations


  1. Having dealt with the objections raised by the State, it now leaves me to consider the substantive merits of the case, as I pointed out earlier. In my view, there is no dispute, and the State has accepted that it has acquired these properties which the Plaintiffs argue were their customary land as the 1932 decision found. But like what the Supreme Court said, I cannot reverse the clock. I am required to adopt a legal solution that caters for all relevant parties’ interests.
  2. Whilst I have said that res judicata does not apply here, there are useful observations made by the Supreme Court in Pipoi v Seravo, which I should take into account in deciding the merits of the case. It is instructive to note what the Supreme Court said in relation to the process applied by the State under the National Land Registration Act in this case:

52. There appears to be no oral and written submissions supporting this ground of appeal at the hearing of this appeal. Nevertheless, the Court is of the view that the appellants have not fully exhausted the administrative procedures permitted under the National Land Registration Act 1977. It is noted that the Ministerial Declaration was made on 14 January 1988. The appellants did nothing for nine years until 1 January 1997 when they filed an application before the Land Titles Commission, which was the wrong forum.


53. Under the provisions of the National Land Registration Act 1977, the appellants should have made representation to the first respondent pursuant to s.8 of that Act after a notice of intention to declare National Land had been gazetted. As a matter of procedural law, after the Minister has heard the representation, he may or may not proceed to make a declaration. But if such a declaration has been made, the claimant should then make a claim for settlement payment pursuant to s.10 (2). It should be pointed out here that, after a declaration of National Land has been made, the issue is no longer one of land ownership, but payment of compensation under s.10 of the Act. There is no way that the appellant’s could have raised the issue of ownership with the Minister under the National Land Registration Act 1997.


54. However, it is our view that, if the appellants said the interest of the claimants as to ownership was not considered by the first respondent when he gazetted his intention, the appellants should have sought a review there and then because there is a three months period under s.9 of the National Land Registration Act before the declaration is made. There is no evidence that the claimants including the appellants did that. The opportunity to raise the issue of customary ownership would have appropriately been raised and determined at that time.


55. In any case, after the s.9 declaration was made, the appellants should have applied for leave for judicial review; but instead, they initiated proceedings in the Land Titles Commission some eight years after the declaration by the third respondent. So we ask, what were the appellants doing in those eight years? They had the right to pursue their interest in Court, however they failed to exercise that right. They failed to follow proper procedures and after more than eleven years, they came to the National Court to seek leave to review the First Respondent’s decision to declare the land in question, National Land. Did they follow proper procedures to utilise the administrative avenue available to them at the relevant time? We do not think so.


  1. The Supreme Court also said the following:

80. We reiterate that, having carefully studied the judgment of Justice Phillips of 1932, and the learned trial Judge’s decision made on 1 June 2001, we have found that, the learned trial Judge’s decision in most of the questions raised in the application for leave before the learned trial Judge and now before us, were based on previous findings of facts by Justice Phillips. Given that, to rewind the clock almost ten years, would not be in the best interest of justice and certainly in the interest of the lessees of the various pieces of land in the Township of Madang covered in these proceedings. To do so will certainly cause substantial hardship to those who have been granted leases including the local Administration and the State. In our view, to grant the application for leave as the appellants are now seeking would be detrimental to good administration. We cannot imagine the mammoth task of surveying, documentation, changing title deeds, etc, etc. We are of the view that, the learned trial Judge was correct in his reasons in respect of this particular issue.


  1. The Supreme Court’s statement here was a similar approach to that of Justice Philips. The court said that in areas where there is development, these tracts will remain with the colonial administration, and compensation will be paid. For instance, the court said the following for the Modilon-Jomba area:

All of the pieces of land within the Modilon-Jomba area which were owned by the Biliau natives in 1888 and which they have never sold have been planted up by the New Guinea Company with coconut palms which have been bearing for many years. A plantation manager’s house and the usual plantation buildings also stand on this ground. I am of the opinion that the enforcement of the Biliau people’s rights of ownership that I find established over these pieces of land would result in undue hardship to the custodian; that it is possible adequately to recompense those natives for the loss of these rights; and that therefore I should exercise the powers given to the court under s. 27e of the Lands Registration Ordinance.


  1. There is evidence that the State was in fact going to pay the landowners for acquiring these tracts of land. That was how the current Plaintiffs were identified by the Land Titles Commissioner, Mr Nathanial Marum in 1996. This is from the evidence of Michael Fan and Martin Kubai. Martin Kubai attaches a letter from Mr Francis Irara, an officer of the Lands Department in Madang that compensation awarded to the 10 clans identified by the National Lands Commission is still sitting in a trust account pending a court order. This is an amount of K1,148,000.00. The only reason it was not paid out was because of the disputes amongst the clans.
  2. This has led me to the conclusion that it is not appropriate to question the decision of the Minister made in 1988 at this time. It will cause difficulty for those who are already occupying the land and have expensed monies to develop the property. What I can however consider is compensation for the use of their land.
  3. Section 53 of the Constitution provides for the protection of a person’s right to property. Any deprivation of property entitles the aggrieved person to just compensation. Enforcement of s 53 is provided for by ss 57 and 58 of the Constitution. I consider s 53 of the Constitution because s 10 of the National Land Registration Act provides clearly for the application of s 57 of the Constitution. Section 10 states:

10. Appeals Against Declarations of National Land.


(1) Subject to Sections 57 (enforcement of guaranteed rights and freedoms) and 155 (the National Judicial System) of the Constitution, and to Section 6–


(a) a declaration under Section 9 is not subject to appeal or review, and shall not be called in question in any legal proceedings; and


(b) compensation is not payable in respect of or arising out of any such declaration,


except as provided in this section.


(2) A person aggrieved by a declaration under Section 9, may in accordance with and subject to Part VI., make a claim for a settlement payment. (Emphasis added)


  1. I apply a liberal interpretation to the reading of s 10 of the National Land Registration Act (Constitution, sch 1.5). I also apply an interpretation that will promote the National Goals and Directive Principles as I am obliged to do under s 25(3) of the Constitution. National Goal two is on equality and participation and national goal three is on national sovereignty and self-reliance. The Plaintiffs’ evidence is clearly that they have been dispossessed and lack economic opportunities they would otherwise have if they have access to their traditional land. It is not appropriate to have the land returned back to them. They will, however, have to be compensated for the loss of their land.
  2. In my view, by applying a liberal interpretation of s 10 of the National Land Registration Act, has led me to the position that the Plaintiffs can either make their claim for just compensation by way of enforcement of their rights under s 57 of the Constitution or, to press their claim for settlement under the National Land Registration Act. They can make that election after a declaration is made under s 9 of the National Land Registration Act. This is only possible where there are no disputes as to ownership as is the present case here.
  3. This provides me the avenue to consider compensation for the plaintiffs by way of enforcement of their rights under s 57 of the Constitution for breach of their rights under s 53. I have also had regard to the views expressed by Deputy Chief Justice Injia (as he then was) in Gabi v Nate (2006) N4020:

31. In my view, the procedure under s.22(1) and s.23 of the Land Acquisition Act considered in Frame’s case is different to the procedure under the present Act. The Land Acquisition Act provides for assessment of compensation for land acquired under compulsory acquisition process for public purposes. Section 22(1) gives the Minister power to assess and award just, fair or reasonable compensation in accordance with principles or prescribed factors set out in s.19. Valuation of the land by the Valuer General was required to ascertain the value of production for the five years preceding the acquisition. Under s.23, a person aggrieved by the Minister’s decision could appeal to the National Court. The Supreme Court held that by implication, s.53 of the Constitution was to be read into the Act in respect of acquisition of land from citizens.


32. In respect to the National Land Registration Act, similar provisions do not exist. Compensation under this Act is calculated at a fixed rate, irrespective of the value of the land; improved or unimproved. This may no doubt sound arbitrary and oppressive to traditional landowners but that is the law and it has its own good policy reasons for it. Section 45(1) may as well be inconsistent with s.53(2) of the Constitution. But the issue of constitutional validity of s.45(1) and Schedule 2 of the Act was not advanced in these proceedings. If parties, in particular the respondents wish to challenge the constitutional validity of s.45(1), that is a matter for them. Under s.45, NLC is not given any power to assess compensation which is "just, fair or reasonable" in accordance with any prescribed principles or factors. Therefore, s.53(2) or any other provision of the Constitution cannot be read into the Act. The NLC powers are prescribed by s.45 and Schedule 2 and the NLC must accept the limits of its power.


  1. His Honour took the view that the formula to determine compensation under s 53 of the Constitution is not available in the settlement process commenced under the National Land Registration Act. He seems to suggest that they are two separate processes. This confirms the approach I have taken.
  2. Taking these provisions and case authorities into consideration, I find that where the Plaintiffs have sought redress under s 53 of the Constitution, it is an alternative means to the settlement process under the National Land Registration Act, by virtue of s 10 of the said Act. As I said above, they can make that election once a declaration has been made under s 9. The other pre-condition is that there is no dispute as to ownership. If there is, then the National Court is not the right forum to decide this issue.
  3. The question now is whether there was unjust deprivation of property? In my view this issue is straightforward. Section 53 of the Constitution at the relevant parts states:

53. Protection from unjust deprivation of property.


(1) Subject to Section 54 (special provision in relation to certain lands) and except as permitted by this section, possession may not be compulsorily taken of any property, and no interest in or right over property may be compulsorily acquired, except in accordance with an Organic Law or an Act of the Parliament, and unless—

(a) the property is required for—

(i) a public purpose; or

(ii) a reason that is reasonably justified in a democratic society that has a proper regard for the rights and dignity of mankind,

that is so declared and so described, for the purposes of this section, in an Organic Law or an Act of the Parliament; and

(b) the necessity for the taking of possession or acquisition for the attainment of that purpose or for that reason is such as to afford reasonable justification for the causing of any resultant hardship to any person affected.

(2) Subject to this section, just compensation must be made on just terms by the expropriating authority, giving full weight to the National Goals and Directive Principles and having due regard to the national interest and to the expression of that interest by the Parliament, as well as to the person affected.


  1. To make a claim for s 53 of the Constitution, the Plaintiffs must show they have a right or interest over a property that was taken without their consent (Reference by the Ombudsman Commission Pursuant to Constitution, Section 19(1), Re Public Money Management Regularisation Act 2017 (2020) SC1944).
  2. The property we are concerned with here is rights and interests to land. It is not disputed that these lands were customary land going by the 1932 decision. Portion 72 remain customary land to this day by virtue of that decision. The Plaintiffs had customary rights to these lands. These lands have been acquired compulsorily by the State pursuant to the National Land Registration Act. The evidence shows that there was no consultation, no social mapping, no demarcation of boundaries, and no prior notice (except for the Gazette) before these lands were formally acquired by the State. Paul Kamang discloses a letter he wrote to the Third Defendant regarding the declaration to which he received no response.
  3. Ordering the State to return these lands is not appropriate for the reasons Justice Philips himself said when applying s. 27e of the Lands Registration Ordinance and also for the reasons stated by the Supreme Court in Pipoi v Seravo at paragraph 80 of its decision which I have quoted above.
  4. The State has acknowledged over the years that it must compensate the Plaintiffs. Overtime, compensation awards have increased. There is also evidence that monies have been paid but are kept in trust accounts as I referred to earlier in the letter from James Irara, but the people have refused to accept it, saying these monies can only be accessed through a court order. The State has not disputed that it should pay the landowners. The evidence is that no compensation has been paid.
  5. Given this course, I find that there was unjust derivation of the Plaintiffs’ property, and the State is liable to the Plaintiffs for just compensation, to be paid under s 53 of the Constitution.
  6. Having made these findings, it is therefore not necessary to make the other declarations the Plaintiffs seek. As I said, all I need to order at this stage is find that the State is liable to pay just compensation to the Plaintiffs, and a trial should be conducted to determine an appropriate amount based on relevant evidence the Plaintiffs’ will be required to provide. Part of this exercise will involve confirming monies held in trust account and if they can be applied as part of any compensation award the court should make for the benefit of the Plaintiffs.

Liability

  1. It was in the exercise of official responsibilities under the National Land Registration Act that the Third Defendant made his decision to make a declaration over the lands the subject of the proceedings. I therefore find the State, the Fourth Defendant liable for the Third Defendant’s actions.

Conclusion

  1. I conclude that the Plaintiffs’ have established their right under s 53 of the Constitution have been infringed and they should be entitled to just compensation for having their property compulsorily acquired. All other relief sought are therefore refused.

Orders


  1. The final orders I make on account of my findings are therefore as follows:
    1. The Plaintiffs have established their rights to s 53 of the Constitution have been infringed by the servants and agents of the Fourth Defendant, particularly the Third Defendant in respect of the land the subject of the declaration made by the Third Defendant on 14 January 1988 in National Gazette No. G2.
    2. The Fourth Defendant is liable to pay just compensation to the Plaintiffs for breach of their rights under s 53 of the Constitution.
    3. All other claims against the Defendants are dismissed.
    4. Trial on assessment of just compensation shall ensue.
    5. Costs will be costs in the cause.
    6. Time is abridged.

Judgments and orders accordingly.
________________________________________________________________
Bradley and Co Lawyers: Lawyers for the Plaintiffs
Solicitor-General: Lawyers for the Defendants

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