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National Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
OS NO. 405 OF 2020
BETWEEN
KULA PALM OIL LIMITED
Plaintiff
AND
BRIAN TIEBA, TANIA TIEBA AND AMOS TIEBA
First Defendants
AND
POPONDETTA INSTITUTE OF HIGHER EDUCATION AUTHORITY
Second Defendant
Popondetta: Makail, J
2024: 3rd & 24th May & 14th October
LAW OF TORTS – Trespass to property – Possession of property – State Lease – Agriculture Lease – Title to property – Indefeasible title – Exceptions to indefeasibility of title – Illegal occupation – Illegal squatters – Order for possession granted – Land Registration Act – Section 33(1)
Cases Cited:
Papua New Guinean Cases
Bob v. Setting Bay Lumber Company Limited & Ors (2008) N3440
Kula Palm Oil Limited v. Brian Tieba & Ors (2021) N9559
Koang No 47 Limited v. Mondo Merchants Limited (2001) SC675
Pundi v. Rupen (2015) SC1430
Ere v. National Housing Corporation (2016) N6515
Agutoi Trading Pty Ltd v. National Capital District Commission [1990] PNGLR 12
Yama Group of Companies Limited v. PNG Power Limited (2005) N2831
Overseas Cases
Addie v. Dumbreck [1929] UKHL 3; [1929] A.C. 358
Counsel:
Mr N Asimba, for Plaintiff
Mr E Yavisa, for Defendants
JUDGMENT
14th October 2024
1. MAKAIL, J: This is an action for trespass to land or what is commonly referred to as eviction proceedings. It is based on the plaintiff’s claim as the registered leaseholder and owner of the land known as Portion 928, Milinch of Saraga, Fourmil of Buna in the Oro Province of Papua New Guinea and registered in the Register of State Leases Volume 23, Folio 5570 hereafter referred to as Mitsero Estate (“Mitsero Estate”).
2. The plaintiff seeks the following relief:
5. Time shall be abridged.
Proof of Trespass to Land
3. Mr Asimba conveniently sets out at [50] and [51] of his written submissions, the matters of proof in a common law action of the tort of trespass to property which I respectfully adopt. As Lord Dunedin in Addie v. Dumbreck [1929] UKHL 3; [1929] A.C. 358 stated:
“a trespasser was someone who goes on the land without invitation of any sort and whose presence is either unknown to the proprietor, or if known, is practically objected to.”
4. In this jurisdiction, the judgment by Cannings J in Bob v. Stettin Bay Lumber Company Limited & Ors (2008) N3440 outlined these matters as follows:
“To succeed in an action for trespass to land, a plaintiff must prove five things:
(a) that the defendant entered the land, either directly (in person) or indirectly (eg. by propelling an object or a third party onto the land); and
(b) that the defendant did so by some intentional act;
(c) that the defendant had no lawful authority;
(d) that the plaintiff was in lawful possession of the land; and
(e) that the plaintiff’s enjoyment of the land was interfered with.”
Plaintiff’s Evidence
5. The plaintiff tendered the following:
(a) Affidavit in Support of Simi Sakalia sworn and filed on 22nd March 2021 (Exhibit “P1”),
(b) Further Affidavit in Support of Simi Sakalia sworn and filed on 16th May 2022 (Exhibit “P2”), and
(c) Further Affidavit in Support of Justo Raepa sworn on 29th June 2022 and filed on 4th July 2022 (Exhibit “P3”).
6. The defendants tendered one affidavit of the first defendant sworn and filed on 23rd April 2014 as exhibit “D1”.
Submissions
7. After close of evidence, and in consultation with counsel for the parties, parties were directed to file and serve written submissions. In the case of the plaintiff by 31st May 2024 and for the defendants, by 7th June 2024 with the plaintiff at liberty to file its reply- submissions and judgment to be delivered on a date for parties to be advised. The plaintiff filed its written submissions on 3rd June 2024 while the defendants did not.
Findings of Fact
8. Having read the parties’ affidavits and plaintiff’s written submissions, I note that the dispute is in relation to whether the defendants occupy land which falls inside the Mitsero Estate and that it is not customary land. I prefer the evidence of the plaintiff because the description and boundaries of the Mitsero Estate are verified by expert evidence from a private surveyor who not only explained the description and boundaries based on the map and title deed but verified them by a physical inspection of the boundaries on the ground as opposed to the defendants’ personal-opinion based on google map.
9. Accordingly, the Court makes the following findings of fact:
Whether the land known as, Mitsero Estate is a State Lease, and if so, whether the plaintiff is the leaseholder of Mitsero Estate.
10. One of the questions posed by Mr Asimba of counsel for the plaintiff for the Court’s determination is whether the land known as, Mitsero Estate is a State Lease, and if so, whether the plaintiff is the leaseholder of Mitsero Estate.
11. For this question, Mr Asimba advances two propositions inviting the Court to answer in favour of the plaintiff:
12. Based on the Court’s findings above, I accept the first proposition advanced by Mr Asimba. I am satisfied that as a matter of fact, the land which the defendants occupy is within the Mitsero Estate. I am further satisfied that the plaintiff is the leaseholder and owner of Mitsero Estate.
13. As a matter of law, none of the exceptions under Section 33(1) of the Land Registration Act, exists and I find that the plaintiff holds an indefeasible title over Mitsero Estate pursuant to the State Lease in the form of a 99-year Agricultural Lease granted pursuant to Section 56 of the Land Ordinance, 1962 (now Section 87 of the Land Act, 1996) commencing on, 27th March 1970 and expiring on, 27th March 2060.
14. These findings of fact and law should resolve the issue posed by Mr Asimba.
15. However, there is a second proposition. It is in response to the defendants’ presupposition that they occupy a customary land and is not located in Mitsero Estate.
16. I accept Mr Asimba’s contention that the land which the defendants occupy as “Ufi Firita” is not customary land because there is no evidence from relevant government authorities such as the Land Titles Commission to verify that it is customary land.
17. Further, I accept Mr Asimba’s contention that the defendants’ reliance on an Agreement for Sale and Transfer of Customary Land dated 21st February 2020 is immaterial because it is evidence for the presupposition that the land is customary land and can be bought and sold between indigenous Papua New Guineans. However, as I have found the land is part of Mitesro Estate and is a State Lease. Thus, it is not available for sale.
18. In any event, I accept Mr Asimba’s further submission that the Sale and Purchase Agreement is not effective or does not confer any right or interest to the defendants because under Section 17(1) of the Land Registration Act, an instrument is not effective to pass or create an estate or interest until the instrument is registered in accordance with the Land Registration Act.
19. In Koang No. 47 Limited v. Mondo Merchants Limited (2001) SC675 the Supreme Court reinforced Section 17(1) of the Land Registration Act in these words:
“The clear import of the provisions of s. of the Land Registration Act is that, an instrument purporting to create or pass an estate or interest in land does not do so until registered. Until registered, the instrument only creates a right to register the interest. Herein is the requirement to register one’s interest on a land if created by an instrument. The only exception to that are leases not exceeding 3 years.”
20. In this case, the defendants did not tender evidence of any registered instrument to effectively pass any estate or interest in Ufi Firita or Mitsero Estate from the customary landowners to themselves.
21. Furthermore, I accept Mr Asimba’s submission on presupposition that the land is customary land, there is no evidence of a conversion order to verify that the land has been converted to an estate in fee simple and registered under Section 7 and Section 11 of the Land Tenure (Conversion) Act.
22. Finally, I accept Mr Asimba’s submission that Section 34D(1) of the Land Registration (Amendment) Act 2009 provides an avenue by which the defendants may use to register their customary land and obtain an instrument recognised by law in Papua New Guinea. In this case, the defendants did not tender evidence of complying with this statutory requirement under Section 34D(1) of the Land Registration (Amendment) Act 2009.
23. For these reasons, I uphold the second proposition and find that the presupposition that the defendants occupy customary land and is not part of Mitsero Estate is baseless and rejected.
Whether the defendants are trespassers on the land known as, Mitsero Estate and should be ordered to vacate Mistero Estate.
24. The next question Mr Asimba posed is whether the defendants are trespassers on the land known as, Mitsero Estate and should be ordered to vacate Mistero Estate. Based on the Court’s findings above, I accept Mr Asimba’s submission that one of the conditions of the State Lease for the plaintiff to comply with is that “The Lease shall be used bona fide for Agricultural purposes only.” (Underlining added).
25. I also accept Mr Asimba’s submission that within Mitsero Estate, are portions of undeveloped and reserved land by the plaintiff as buffer zones. Significantly, buffer zones play a vital role in the plaintiff’s conversation efforts and preservation of native flora and fauna.
26. In addition, the plaintiff is a member of Roundtable on Sustainable Palm Oil (“RSPO”). As a member of RSPO, it is obliged to create and maintain buffer zones on Mitsero Estate as part of its ongoing commitment on conservation and greenhouse gas emissions.
27. For these reasons, I am satisfied that the defendants’ entry and occupation is on one of the pockets of land within Mitsero Estate reserved to act as buffer zones. I am further satisfied that the defendants’ actions in setting up their establishments on the land for residential and commercial purposes, have destroyed the environment including the flora and fauna. Their actions have not only compromised the plaintiff’s obligation to upholding the condition of its State Lease that it will use bona fide the lease for “Agricultural purposes only”, but also its ongoing commitment on conservation and greenhouse gas emissions under the RSPO.
28. The plaintiff’s commitment and effort in meeting its lease obligation for “Agricultural purposes only” and international commitment on conservation and greenhouse gas emissions under the RSPO was recognised and affirmed when on 16th August 2021, the National Court presided by the Deputy Chief Justice granted interim restraining orders in Kula Palm Oil Limited v. Brian Tieba & Ors (supra) to restrain the defendants from causing further destruction to its buffer zones on Mitsero Estate and carrying on commercial activities to encourage influx of people squatting and trespassing on Mitsero Estate.
29. It is important to reinforce the observations by the Deputy Chief Justice in his ruling here because despite the interim injunction, from the plaintiff’s ongoing regular inspection on Mitsero Estate following the grant of the interim restraining order, it was discovered that the defendants did not cease from conducting their activities. As the Court found, the plaintiff produced inspection reports which showed that the defendants continued to live on Mitsero Estate, cultivating the land, constructing houses and in the process, continues to destroy the plaintiff’s buffer zones.
30. As this case represents the relationship between Palm Oil project and its impact on the environment and biodiversity, it is important to remind the defendants of what the Deputy Chief Justice said in that ruling. At [16], his Honour referred to online articles and commentaries on Palm Oil and Biodiversity and observed:
“To appreciate the value and importance of the buffer zone and the need for it to be maintained it is necessary to go into an understanding of the nature of large commercial oil palm plantations. It is well known, and I take judicial notice that, oil palm as an industry requires deforestation of vast areas of rainforest and other land areas. This has led and leads to the gradual loss of flora and fauna. With that also goes the biodiversity which each rainforests possesses. In some countries like Indonesia and Malaysia, animal wildlife has been most affected. Some animals have to roam around the surrounding villages in search for food. Others have not been able to adapt and relocate elsewhere and have died. This has led to their populations decreasing significantly causing in turn adverse effects on the symbiotic relationships flora and fauna have with their habitat. Also, deforestation for oil palm or other large scale commercial farming and logging adversely affects biodiversity resulting in low level of species compared to undisturbed forests. Further, large commercial oil palm plantations also affect the quality of soil in the ground. The removal of any existing flora to make way for new plants causes soil surrounding it to erode away. As with other large commercial farming, oil palm trees results in the use of large amounts of fertilisers and pesticides for rapid growth and health of each tree. Younger palm oil trees absorb more valuable nutrients from the soil which degrades the quality of the soil. As the nutrients are absorbed by the young trees, there is a depletion in nutrients and consequently, there is a lower level of remaining nutrients for other trees. Oil palm plantations that are geographically located close to rivers in tropical countries like Indonesia and Malaysia have exacerbated impacts on surrounding local communities. This is due to the increased use of fertilisers and pesticides which has led to higher amounts of issue because rivers are central to the daily lives of local villagers. They use water from the river for personal consumption and also use the river as a source of food, which makes them vulnerable to the residue from fertilisers and pesticides. The untreated water that the local villagers are exposed to can potentially cause detrimental health effects, including diseases such as cholera, E. coli and lead poisoning.”
31. At [17] of the ruling, his Honour concluded:
“Given the above kinds of risks, the buffer zones kept by KOPL (the plaintiff) including the one at its Mitsero Estate, the subject of this proceeding, are necessary at the minimum, a must to have and is therefore a priceless asset not only for KOPL but the environment and all other people, plants, and animals that are dependent on it.”
32. Based on the Court’s finding that the plaintiff did not approve or invite the defendants to occupy and set up their establishments, I am satisfied that the defendants have interfered with the plaintiff’s quiet enjoyment of the land.
33. Adopting the five factors listed in Bob v. Stettin Bay Lumber Company (supra). I am satisfied that the defendants have trespassed on the plaintiff’s land because:
(a) they entered the land; and
(b) they did so by some intentional act by cutting down trees and clearing vegetations and setting up their establishments; and
(c) that they had no lawful authority because neither did they have the approval or consent of the plaintiff to enter and occupy the land nor established a legal title to enter and occupy the land; and
(d) that the plaintiff was in possession of the land and operating its palm oil plantation; and
(e) that the plaintiff’s enjoyment of the land was interfered with when the defendants destroyed one of its buffer zones located on the land where the defendants set up their establishments.
Whether the relief sought in the amended statement of claim should be granted
34. The last question posed by Mr Asimba for the Court’s determination is whether the relief sought in the amended statement of claim should be granted. It is noted that the types of orders sought by the plaintiff comprised of a declaratory order, mandatory injunction and permanent injunction.
Declaratory Order
35. Mr Asimba submits that the plaintiff seeks a declaratory order to preserve its property being Mitsero Estate and to be declared the owner to the exclusion of others which includes the defendants. I uphold this submission. The Court is conferred power to grant the declaratory order pursuant to Order 4, rule 2(3)(a) and Order 14, rule 10(1) of the National Court Rules (“NCR”).
36. The grant of a declaratory order is discretionary. The discretion is exercised based on the following principles summarised in the Supreme Couirt judgment of Pundi v. Rupen (2015) SC1430:
“A declaration is a discretionary remedy that should only be granted where there exists a real controversy between the parties to the proceedings, a legal right is at issue, the party seeking it has a proper or tangible interest in obtaining it, the controversy is with the court’s jurisdiction, the defendant has a proper or tangible interest in opposing the plaintiff’s claim and that issues involved are real, and not merely of academic interest or hypothetical.”
37. In Ere v. National Housing Corporation (2016) N6515 Hartshorn J ably set out the factors as follows:
“(a) there must exist a controversy between the parties;
(b) the proceedings must involve a right;
(c) there must be an existing right;
(d) the proceedings must be brought by a person who has a proper or tangible interest in obtaining the order;
(e) the controversy must be subject to the court’s jurisdiction; and
(f) the defendant must be a person having a proper or tangible interest in opposing the plaintiff’s claim; and
(g) there must be a real one. It must not be merely of academic interest, hypothetical or one whose resolution would be of no practical utility.”
38. Adopting these factors in the present case and based on the Court’s findings above, I am satisfied that the controversial issue between the parties is the ownership of the land on which the defendants are occupying, that the defendants are refusing to vacate the land because they held a strong view that they owned the land, that this dispute involves a right and in this case, a legal right that, the plaintiff is the registered leaseholder of Mitsero Estate, that this Court has jurisdiction to determine this dispute pursuant to Order 4, rule 2(3)(a) and Order 14, rule 10(1) of the NCR, that the defendants have a tangible interest in opposing this claim and have done so in these proceedings hence the dispute is certainly not a mere academic exercise.
39. For these reasons, I am satisfied that a grant of a declaratory order will be in order.
Mandatory Injunction
40. Mr Asimba refers to the 1990 case of Agutoi Trading Pty Ltd v. National Capital District Interim Commission [1990] PNGLR 12 where Jalina AJ (as he then was) summarised the principles of mandatory injunction and I respectfully adopt hereunder:
“A mandatory injunction, the purpose of which is to compel the restoration of things to their former condition, is an entirely discretionary remedy, taking into account all the circumstances of the case, and as to which the following consideration are relevant:
(a) whether the plaintiff has shown a very strong probability upon the facts of grave damages occurring to him in the future;
(b) that damages will not be a sufficient or adequate remedy if damage does occur in the future;
(c) the question of the costs to the defendant of complying with a mandatory order in relation to which a distinction is to be drawn between cases where the defendant has acted wantonly and unreasonably towards the plaintiff and cases where the defendant has acted reasonably, though in the event, wrongly.”
41. The next case which Mr Asimba refers to in his submissions on the principles of mandatory injunction is the 2005 case of Yama Group of Companies Limited v. PNG Power Limited (2005) N2831. Lay J outlined the following factors:
“Considerations for the grant of a mandatory injunction include:
(a) it should only be granted where a strong case that serious damage will occur to the applicant is made out;
(b) the general principles for negative injunction apply, that there is serious question to be tried, damages are not an adequate remedy and the other factors affecting the balance of convenience favour the applicant, the case should normally be one which gives an unusually strong and clear view that the applicant will be successfully at trial;
(c) the more likely it appeared that the plaintiff would succeed at the trial the less reluctant the court would be to interfere at the interlocutory stage;
(d) the cost to the defendant in performing the mandatory acts should be weighed against the likely damage to the applicant;
(e) if the relief sought is such would normally be granted after a trial it should be refused on an interim application unless the prejudice or hardship to the applicant is disproportionate to the prejudice and hardship to be caused the defendant in performing the order;
(f) if the mandatory injunction is simply to restore some activity which has been previously performed by the defendant, rather than to embark in some new activity, it will be more readily granted;
(g) ultimately in deciding whether or not to grant a mandatory injunction the overriding consideration is an exercise in deciding which course will do the least damage, or to put it another way, the lower the risk of injustice, if it turns out that the court has made the ‘wrong’ decision;
(h) if an injunction is granted the order should specify exactly what it is the defendant has to do, leaving the defendant in no doubt as to what is required to comply with the order.”
42. Based on the Court’s findings above, the plaintiff continued to carry out regular inspection on Mitsero Estate following the grant of the interim restraining order. Two of the inspections were on 20th April and 22nd May 2022 where it was confirmed that the defendants continue to use Mitsero Estate and continue to destroy the plaintiff’s conserved buffer zones for gardening and obtaining timber to construct residential houses, pit toilets etc..
43. I accept Mr Asimba’s submissions that the defendants’ activities are a complete, wanton and deliberate disregard for the Court’s authority and continuous disregard and respect of the plaintiff’s rights as the leaseholder and owner of Mitsero Estate. In addition, the defendants’ actions have not only compromised the plaintiff's obligation to upholding the condition of its State Lease that it will use bona fide the lease for “Agricultural purpose only”, but also its ongoing commitment on conservation and greenhouse gas emission under the RSPO.
44. In other words, when I weigh up the interests of the plaintiff and the defendants, based on the Court’s findings above, the plaintiff has shown that there is a strong probability of grave damages occurring to it in the future and that an award of damages will not be sufficient or adequate remedy if damage does occur in the future and in fact occurring at present.
45. For these reasons, I am satisfied that the plaintiff has made out a case for grant of a mandatory injunction to compel the defendants, their servant and agents to vacate the land. As to the time to vacate the land, the plaintiff seeks 21 days but I will allow within three months of the order. To ensure that the defendants are in no doubt or confusion as to what is required to comply with the order, they are at liberty to pull down any buildings, structures and moveable property from the land with three months of the order. Upon the expiry of three months, the plaintiff is at liberty to enforce the order, and if any, with the assistance of the members of the police.
Permanent Injunction
46. The plaintiff is the beneficiary of an interim injunction granted by the Deputy Chief Justice on 16th August 2021. At the substantive hearing or trial, the parties have the opportunity to ask the Court to review the interim injunction and determine whether it should be made permanent or not.
47. Mr Asimba submits, and I accept that the interim injunction should be made permanent because neither did the defendants tender evidence objecting to the continuation or perfection of the interim injunction nor did they give any undertaking that they had abided by the interim injunction and will do likewise in the future should the Court make further orders. For these reasons, I am not satisfied that the defendants will not re-offend in the future.
48. A further reason is that, based on the Court’s findings above the Mitsero Estate is a State Lease and there are no pockets of customary land inside it and where the defendants may relocate to in the event that the Court rules in favour of the plaintiff.
49. Thus, I agree with Mr Asimba that it is imminent that the defendants will be forced to continue to squat on Mitsero Estate following the conclusion of these proceedings and continue to violate the Court order (interim injunction) and equally important, the more the defendants squat on Mitsero Estate, the more damages will be caused to the plaintiff’s buffer zones and flora and fauna within these buffer zones. I accept Mr Asimba’s submission that damages to the flora and the fauna are irreparable and it is something money cannot adequately compensate.
50. For the foregoing reasons, I am satisfied that the interim injunction should be made permanent.
Village Court Preventative Order
51. Before closing, there is one final matter to resolve. Mr Asimba brought up the existence and application of a village court preventative order of 18th November 2022. Mr Asimba refers to a copy of the said order and submits that while it is directed to the plaintiff, it was obtained without the plaintiff’s notice and appearance, and it is irregular.
52. However, there is another reason. It is that the said order is void ab initio because the Mitsero Estate is a State Lease, and the village court lacked jurisdiction to make this order. It follows that while these proceedings are not an appeal from the village court order, the said order is void and has no application to the plaintiff. Accordingly, pursuant to the Court’s inherent power under Section 155(4) of the Constitution to do justice in the circumstances, the said order is quashed as being void ab initio.
Conclusion
53. The plaintiff has made out its claim. The Court finds that the defendants are trespassers and illegally squatting on Mitsero Estate. They must vacate the land within three months of the order. The orders sought are granted with modification as to time to vacate and with costs to be paid by the defendants to be taxed, if not agreed.
Order
54. The final terms of the order of the Court are:
9. Time shall be abridged.
________________________________________________________________
Oceania Lawyers: Lawyers for Plaintiff
Public Solicitor: Lawyers for Defendants
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