Stettin Bay Lumber Co Ltd v Pacific Development Contractors [2022]
Dispute over land rights
Logging companies mentioned in this document:
N10537
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
OS NO. 123 OF 2022
STETTIN BAY LUMBER COMPANY LIMITED
Plaintiff
AND
PACIFIC DEVELOPMENT CONTRACTORS LIMITED
First Defendant
AND
NIVANI LIMITED
Second Defendant
Kimbe: Geita J.
2023: 7th, 20th October
LAND LAW – Doctrine of Accretion – Accretion follows the owner of the root
title – Accretion – New land added to dry land or foreshore above high water
mark- Belongs to the owner of the dry land.
LAND LAW – Doctrine of Accretion – Accretion – New land added to dry land
or foreshore above low water mark- Belongs to the owner of the foreshore.
LAND LAW – All land in the country other than customary land is the
property of the State – Section 4 Land Act 1996.
LAND LAW - Accretion - Ownership – Customary landowners – State.
PROPERTY LAW – Right to quite enjoyment without disturbance.
PRACTICE AND PROCEDURE – Whether a party has standing to seek
declaratory orders over foreshore reserve land – whether a party has standing
to seek declaratory orders to permanently restrain a party not named in the
originating summons.
Cases Cited:
Amos Ere v NHC and another (2016) N6515
Gesring Gabing Bob v Stettin Bay Lumber Company Ltd (2008) N3440
Pius Pundi v Chris Rupen (2015) SC1430
Zachary Gelu v Francis Damem (2004) N2762
Legislation Cited:
Land Act 1996.
Evidence Act 1975.
References:
Halsbury’s Laws of England 2nd Edition Vol. 33 pp.522 523.
Hunter’s Introduction to Roman law 7th Ed. 53:
Counsel:
Mr. Felex Kua, for the Plaintiff
Mr. George Akia for the First Defendant
20th October 2023
1. GEITA J: By way of introduction both parties consented to conducting
this trial by way of affidavit evidence pursuant to s.35 Evidence Act 1975.
2. Counsel of Plaintiff relied on the following three (3) Affidavits.
No Type Deponent Sworn Filed
03 A f f i d a v i t i n Yui Sing Chai 19th May 2022 2nd June 2022
support
17 A f f i d a v i t i n Yui Sing Chai 14th November 15th November
support 2022 2022
55 A f f i d a v i t i n Yui Sing Chai 11th August 2023 21st August 2023
support
3. Counsel of Defendant relied on the following (5) Affidavits.
No Type Deponent Sworn Filed
03 Affidavit David Holmes 31 October 2022 4th October 2022
13 Affidavit David Holmes 25th October 2022 4th October 2022
24 Affidavit David Holmes 2 3 r d N o v e m b e r 6th December 2023
2022
48 A ff i d a v i t i n Stanis More 25th July 2023 27th July 2023
support
52 A ff i d a v i t i n Bernard Mabubu 25th July 2023 4th August 2023
support
4. The Plaintiff claims for:
1. A declaration that the plaintiffs are the legal title
holder of portions 183, 184 and 186,1667 and 1668
including the foreshore reserve, a stretch of land along the
shoreline at Buluma beach for all purposes.
2. A declaration that the use of the foreshore reserve land
along the shoreline at Buluma beach by the defendants with
their shipping activities are actions of encroachment to the
plaintiffs' underwater lease of portion 1041, Milinch of
Megigi, Fourmil Talasea, unlawful and illegal for all
purposes.
3. A consequential declaration that the Plaintiffs
underwater lease of Portion 1041, Milinch of Megigi,
Fourmil Talasea covered the foreshores reserve shoreline at
Buluma beach and the defendant’s occupation is unlawful
for all purposes.
4. An order that the Defendants be permanently
restrained from conducting any shipping activities on the
foreshore reserve shoreline.
. 5. Pursuant to Order 14, Rule 10 of the National Court
Rules, an Order that the Defendants, their agents, and
servants whosoever be restrained in the interim from
conducting any shipping activities, including related
activities on the foreshore reserve shoreline covered under
the Plaintiffs underwater lease of portion 1041, Milinch of
Megigi, Fourmil Talasea until further orders from this court.
History.
5. The Plaintiff Company holds State Lease/Title to portions 183, 184,186
and portion 1041, an adjacent land containing an area of 0.197 hectares
including all that piece of land below the high-water mark of Stettin Bay in
Megigi, Talasea in West New Britain. A sum total of approximately 3.35
hectares. Of those stretch of land, 3.0422 hectares lie horizontal to the foreshore
reserve and the shoreline of Buluma beach, which is adjacent to the Stettin Bay
Lumber Company property, particularly portions 183,184 and 186.
The Plaintiff’s considerations
6. The Plaintiffs' submission is predicated on their original Originating
Summons and their amended Originating Summons filed on 29th May 2023
seeking declaratory orders.
7. The Plaintiff alleged that the Defendant is using the foreshore area for
their shipping activities including carrying out repairs and maintenance on its
boats, which he claims is reserve land. He claims there is constant hammering,
banging, and welding activities including the constant movement of heavy
vehicles to and from the fore shoreline. Its barges and tugboats are also using
the foreshore reserve shoreline. He claims these activities to be illegal and
further causing nuisance and disturbing the peaceful settlements of residents on
Portions 183,184 and 186 at Milinch of Megigi at Talasea which is about 50
meters away and adjacent to the foreshore reserve shoreland.
8. That there is a foreshore reserve, a stretch of land along the shoreline at
Buluma beach which is about 50 meters away and adjacent to the Plaintiffs
state lease/title particularly portion 183, 184 and 186 at the Buluma beach.
9. The Plaintiff also alleged that Beli Land Group customary landowners
have claimed the foreshore land to be unrestricted land for marine operations
and have entered into a land rental agreement with the 1st Defendant on 17th
September 2017.
10. The Plaintiff Company claims to have an underwater lease described as
Portion 1041 which is directly adjacent to the foreshore reserve and has legal
rights to that lease for activities as intended as Gazetted on 20th March 1984 by
the then Minister of Lands, Mr. B. Korowa. Portion 1041 is situated in the
Milinch of Megigi, Talasea. The land is designated for a special wharf and
ancillary purposes. It includes viz: ....
“All that piece of land below the High Water Mark of
Stettin Bay containing an area of 0.197 hectares or
thereabouts, being part Of Portion 1041 Situated in the
Milinch of Megigi Fourmil of Talasea West New Britain
Province commencing at a point on the said High Water
Mark of Stettin Bay bearing 279 degrees 14 minutes for 34
meters from the most eastern corner of Portion 1041
thence...30 meters to the point of commencement be the
said several dimensions all a little more or less m and all
bearings Fourmil Standard as delineated on plan
catalogued M/15/166 in the Department of Lands and
Surveys Port Moresby.”
11. That the Defendants activities are directly causing interferences and
disturbance to the Plaintiffs peaceful settlement at their residence on Portion
183, 184 and 186 Milinch of Megigi, Fourmil Talasea just about 50 meters
away and adjacent to the mentioned foreshore reserve shoreline as stated in
paragraph I of the submission.
12. That the affidavit of David Holmes filed 04th November 2022 clearly
confirmed that the foreshore reserve land at the Buluma beach is State land
and not a customary land for the customary landowners to claim ownership
over it.
13. That the Rental Agreement by the purported Beli Land Group customary
landowners with the First Defendants on the 15th September 2017 claiming
the foreshore reserve land as an unrestricted land for marine operation at the
Buluma beach and waterfront areas is inconsistent with the principals of
foreshore reserve land.
14. The Plaintiff has an underwater lease describes as Portion 1041 that is
directly adjacent to the foreshore reserve and we submit that it has legal right
to that lease for activities as intended and gazetted. The Plaintiff submitted that
although the foreshore reserve had never been paid for and claimed as a
customary land the customary owners have never made any claim or objection
to the property and therefore the property remains public and may be used for
public purposes.
15. The Plaintiff never intended to claim ownership of the foreshore reserve
as it is understood that the foreshore reserve is designated for public beach or
for public recreational purposes and not for industrial activities and especially
when it is directly adjacent to the Plaintiffs' residential areas/leases as in
Portions 183, 184 and 186.
16. The Plaintiff is the title holder of Portion 1668 and it is a state lease and
Stanis More including Bernard Mabubu are not the lease owners or title
holders of Portion 185, 187. It is illegal for Stanis More and Bernard Mabubu
to be using the foreshore reserve for their current industrial business activities
with the First Defendant.
The Defendant’s considerations.
17. The First Defendant’s arguments are summarised as follows: -
a) That the accreted land, which is outside of the foreshore reserve land,
remains customary land and ownership was vested on the customary
landowners of Buluma Beach.
b) On 15 September 2017, the customary landowners of Buluma Beach,
through Beli Land Group, entered into a lease agreement with the 1st
Defendant for the use of the accreted land to conduct its business
operations, in consideration of K2,500 monthly rental.
c) The 1st Defendant is not carrying out any business on the foreshore
reserve land, even if they did the Plaintiff has no right to enforce its right
over the foreshore reserve land, save the State. The 1st Defendant is not
carrying out any business operations on any of the Plaintiff’s properties.
d) That the Plaintiff lacked standing to file and maintain these proceedings
against the 1st Defendant and has no right in law or equity to seek relief
against the 1st Defendant in respect of the Foreshore Reserve Land.
First Defendants Witnesses. (Bernard Mabubu)
18. He is a local from Buluma village, Hoskins LLG in the Nakanai
District of West New Britain Province. He restates the history of this dispute
between the Plaintiff and the 1st Defendant dating back to 2017. That the use of
the foreshore land by the 1st and 2nd Defendants were solely authorised by
locals of Nile Community at Buluma and claims that the foreshore area remains
customary land since time immemorial and were not included in any of the
State Leases. The reliefs sought by the Plaintiff must be dismissed.
First Defendants Witnesses. (Stanis More)
19. He is a local from Buluma village, Hoskins LLG in the Nakanai District
of West New Britain Province. That the underwater lease was not covered in the
land lease arrangements. State Lease Portions 185, 187 and 188 were trading
and logging leases. Portions 187 and 188 were returned to the Buluma
Landowners of which title is yet to be secured. That the foreshore/reserve land
at Buluma is not owned by Stettin Bay Lumber Company and they have no right
to lay claim. That the use of the foreshore land by the 1st and 2nd Defendants
were solely authorised by locals of Nile Community at Buluma and claims that
the foreshore area remains customary land since time immemorial and were not
included any of the State Leases. The reliefs sought by the Plaintiff must be
dismissed.
20. That in proceedings seeking declaratory orders, the Supreme Court in
Pius Pundi v Chris Rupen (2015) SC 1430 held that:
"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 within the court's jurisdiction, the
defendant has a proper or tangible interest in opposing the
plaintiff's claim and the issues involved are real, and not
merely of academic interest or hypothetical. "
21. Further in Zachary Gelu v Francis Damem (2004) N2762 the Court held
as follows:
"A declaration also known as declaratory judgment is a
discretionary order made by a high court declaring what
the law is. It merely defines and declares the rights of
parties and their legal relationship and is not accompanied
by any sanction or means of enforcement, The declaration
will be granted only if the claim relates to some legal right
or interest recognised by law.”
22. In order to obtain a Declaration, the factors which are required to be
established are well-settled and summarized in numerous cases including Amos
Ere v NHC and another (2016) N 6515. The Plaintiff must show:
(a) there must exist a controversy between the parties
(b) the proceedings must involve a right
(c) the proceedings must be brought by a person who
has a proper or tangible interest in obtaining the order
(d) the controversy must be subject to the court’s
jurisdiction
(e) the Defendant must be a person having a proper or
tangible interest in opposing the Plaintiffs claim
(f) the issue must be a real one, not merely of academic
interest, hypothetical or one whose resolution would be of
no practical utility.
23. Based on the above case laws, the Court needs to be satisfied that the
considerations or factors in the case of Amos Ere v NHC exist before it can grant
the declarations sought. The first three (3) factors are of importance in this case.
24. Furthermore, in annexure B to the Affidavit of David Holmes filed 4
October 2022 [Court Document # 12] is a letter dated 25 September 2012 from
the Acting Lands Advisor Kasen Dumi from the Office of the Provincial
Administrator, West New Britain Province to the Plaintiff advising them that
they do not have any right at all to occupy the Foreshore Reserved Land.
Therefore, it can be safely concluded that the Foreshore Reserve Land the
subject of this proceedings is a government land and belongs to the State and
not the Plaintiff.
25. The 1st Defendant submitted that the evidence from all parties is quite
overwhelming in regard to how the process of accretion has taken place due to
the buildup of sedimentation by the Ko Creek. Annexure B to the Affidavit of
David Holmes filed 4 November 2022 which is the letter dated 25 September
2017 from the Acting Lands Advisor confirmed that position. Also, the
Boundary Survey Report by Mr McKibben annexed as Annexure B to the
Affidavit of David Holmes filed 4 November 2022 Court Doc # 13 also
confirms the accretion.
26. Therefore, the Plaintiff is not entitled to or does not have any right to the
Accreted Land either to occupy or purchase the Accreted Land for the
following reasons as the Plaintiff has not met first three tests set out in Amos
Ere v NHC a Anr (2016) N6515. The Plaintiff’s failure to meet the first three
requirements set out in Amos Ere v NHC & Ars (2016) N6515 is fatal to the
Plaintiff's case and warrants dismissal of the entire proceeding pursuant to
Order 12 Rule 40 & (c) of the National Court Rules.
27. In the case of Gesring Gabing Bob v Stettin Bay Lumber Company Ltd
(2008) N3440, the Court decided that for the tort of trespass to land to survive,
the following five elements must be successfully made out. They include:
a) the defendant entered land, either directly or indirectly;
b) the defendant did so by some intentional act;
c) the defendant had no lawful authority;
d) the plaintiff had a right to lawful possession of the land; and
e) the plaintiff's enjoyment of the land was interfered with.
28. Therefore, going by the above case principle the Plaintiff does not have any right to lawful possession of neither the Foreshore Reserve Land nor the Accreted Land. Furthermore, the Plaintiff has failed to prove that its enjoyment of the foreshore and accreted land was interfered with by the First Defendant. Analysis of evidence. Was there an accretion or not? 29. The cardinal point in question, vix., was there an accretion or not. This is a question of fact to be determined from the evidence in the first instance. 30. The Plaintiff claims that the accreted land was back then deposited to the shoreline thereby increasing the extension of boundaries as claimed by the First Defendant but it is the same land declared as the foreshore reserve land owned by the state the subject of the current proceeding. 31. The 1st Defendant rebuts that the boundary survey of the Foreshore Reserve Land was done in 1968 however overtime, large area of land has accreted (built up) and it resulted in extension of the shoreline. The Accreted Land has not been acquired by the State through the set acquisition processes under the Land Act 1996 hence the boundaries of the Foreshore Reserve Land were not extended over the Accreted Land. Who is the owner of the accreted land?. 32. The Plaintiff claims that the foreshore reserve land is part of the land adjacent to the sea which is alternatively covered and left dry by the ordinary flow of the tides and makes up the foreshore prima facie is vested in the State and not the self-claimed Beli Land Group customary landowners. 33. The First Defendant rebuts that the Accreted Land, which is outside of the Foreshore Reserve Land, remains customary land. The Accreted Land has not been compulsory acquired by the State hence it is vested in the customary landowners of the Buluma Beach who now have an incorporated land group called Beli Land Group. The ownership of the Accreted Land is vested on the customary landowners of Buluma Beach. On 15 September 2017, the customary landowners of Buluma Beach through Beli Land Group signed a Land Rental Agreement with the First Defendant for the latter to use the Accreted Land for its business operations in consideration of K2, 500.00 monthly rental. Analysis.
34. From the evidence there is an assumption by the 1st Defendant’s Registered Surveyor Mr W.D. McKilbben in 2022, that there was a large area of land that has accreted since the boundary survey was carried out in 1968. In his opinion he stated that the built-up land was an extension to the original Forest Reserve and is State Land and not customary land. Since this piece of evidence was from an expert witness, its introduction into court as part of evidence and its authenticity was queried by court. This expert evidence was not introduced into court properly as a testimony, save as an annexure by the 1st Defendant. Upon exchange between court and counsel of 1st Defendant this evidence was abandoned. 35 Other than that, there were no oral evidence from Buluma village community who live along the Buluma Foreshore of any known changes in their landscape over time to show that Ko-creek by alluvion or dereliction added to the dry land or foreshore, so that it became situated over the high-water mark. The evidence of Bernard Mabubu and Stanis More of Buluma village makes no mention of any significant change to the Buluma Foreshore during their lifetime or the lifetime of the Nile Community and from other witness or forefathers save to claim that they own the accreted land as customary land from time immemorial. 36. I cannot admit that from the evidence from the Plaintiff or the Defendant that the land in dispute was caused by accretion save for some photographs in their attempts to show that there indeed was land build-up of some sort beyond the foreshore, which is adjacent to the Plaintiff’s properties at Portions 183, 184 or 186. Similarly, some photographs in evidence show signs of shipping activities and some ships moored at the waterfront, some 50 meters away from the Plaintiff’s three properties. There is also a public road, measuring 20 meters wide along the waterfront separating the Plaintiff’s properties. 37. In the absence of crucial evidence of what happened a long time ago to the Buluma Foreshore land, no records of survey made at the appropriate time including the evidence of the expert witness which was conflicting. NB. This evidence however has been abandoned. In the result I think the question of avulsion or accretion becomes one of fact unassisted to any material extent by presumption of law or considerations of onus. 38. To this end the status of the existing supposed accretion invites consideration of the original title of Portion 183, issued to the Plaintiff on 26 June 1970; Portion 186 for the Plaintiff issued on dated 26 June 1970 and Portion 184 on 2 September 1971. Under Section 61 of The Land Ordinance 1962 the three portions of land were deemed to be owned by the Plaintiff and had the force and effect of a State Lease – It follows that “the ultimate root of title to the land is the State of Papua New Guinea.” From all the evidence canvassed thus far the Plaintiff’s three portions of land, 183,184 and 186 do not lend support to any accretion either within or near its lease boundaries.
39. The term accretion has been pleaded and raised in submissions and so this
word should be defined so that its significance shall be appreciated in this
decision.
Accretion.
“Where tidal water recedes gradually and imperceptibly from the land or land
by alluvion or dereliction is added to the dry land or foreshore so that it
becomes situate above the high-water mark of ordinary tides or above the low
water mark it belongs if above the high-water mark to the owner of the dry land
to which it is add and if above the low water mark to the owner of the
foreshore.” Halsbury’s Laws of England 2nd Edition Vol. 33 pp.522 523.
40. Turning to the facts presented by the Plaintiff: -
The Plaintiff’s plan for Portion 1041 show (inter alia)
“ All that piece of land below the High Water Mark of Stettin Bay containing an
area of 0.197 hectares or thereabouts being part of Portion 1041 situated in the
Milinch of Megigi Fourmil of Talasea, West New Britain Province commencing
at a point on the said High Water Mark of Stettin Bay bearing 279 degrees, 14
minutes for 34 metres from the most eastern corner of Portion 1041 thence
bounded on the south-east by the said High Water Mark south-westerly for
approximately 88 metres to a point on the north-eastern boundary of Portion
2058 in the Milinch of Megigi thence bounded on the south-west north-west and
north-east by straight lines bearing 330 degrees 24 minutes for 40 metres 4
degrees 48 minutes 50 seconds for 57.48 metres and 99 degrees 14 minutes 30
metres to the point of commencement be the said several dimensions all a little
more or less and all bearings Fourmil Standard as delineated on plan
catalogued M/15/166 in the Department of Lands and Surveys Port Moresby.
Dated this 20th day of March, 1984. B. KOROWA Minister for Lands.
41. From the plan it is evident that the Lease extends from the dry land,
cutting through the foreshore reserve and into the high-water mark. It follows
that if hypothetically, there was accretion within Portion 1041, the new land
would follow the title according to the doctrine of accretion, however there is
no evidence to that effect. The doctrine of accretion appears to come from the
Roman law where it was classified as accessio. According to Hunters’
Introduction to Roman law 7th Ed. 53: “The slow increase of land near the
mouth of a river so gradual as to be at each moment imperceptible was called
alluvio and the increase belongs to the owner of the land enriched by the
accretion.”
42. In this case the lease was granted under special purpose for a wharf and
other ancillary purposes. However, since it is situated further away from the
area of contention it is of no relevance to this dispute and serves no utility in
these proceedings. This change of heart , possibly an afterthought was reflected
in the omission of Portion 1041 in the Plaintiff’s Amended Originating
Summon filed on 29 May 2023. .
43. As regards all land ownership by and within a Sovern State, the common
of England is stated thus in Halsbury’s Laws of England (2nd Ed.) Fol. 33 at pp
520 at seq:
“The soil of the sea between the low-water mark and so for
out to sea as is deemed by international law to be within the
territorial sovereignty of the Crown is claimed as the
property of the Crown although outside the realm. The soil
of the bed of all channels, creeks and navigable rivers,
bays, and estuaries, as far up the same as the tide flows, is
prima facie the property of the Crown. The Crown also
claims to be entitled to the mines and minerals under the
soil of the sea within these limits. The Crown can grant and
in manycases has granted the soil below the ordinary low
water mark to subjects but such a grant is subject to the
public rights of navigation and fishing and rights ancillary
thereto existing over the locus of the grant.”
44. The common law position as it were and is still current is mirrored in
Section 4 of Land Act 1996. It reads:
(1) All land in the country other than customary land is the
property of the State, subject to any estates, rights, titles, or
interests in force under any law.
(2) All estate, right, title and interest other than customary
rights in land at any time held by a person are held under
the State.
45. Therefore, being fortified by the doctrine of accretion, I find that all new
land beyond the high-water mark and all new land above the foreshore belongs
to the Independent State of Papua New Guinea. I am unable to make a finding
whether there was accretion due to insufficient facts put before me.
Whether the Plaintiff’s rights were breached, and does he have standing to
sue?
46. The Plaintiff claims that the 1st Defendants shipping activities including
the movement of heavy vehicle along the foreshore area they were causing a
nuisance and disturbing the peaceful enjoyment of residents on his three nearby
properties, (Portions, 183,184 and 186). Such activities were illegal. NB: The
Plaintiff’s properties are situated some 50 meters away from the foreshore
reserve land.
47. The 1st Defendant argued that he was not carrying out any business
operations on the Foreshore Reserve Land. Furthermore, The First Defendant
was not carrying out any business operations on any of the Plaintiff's properties.
The Plaintiff does not have a right or proper and tangible interest to seek any
such declaratory remedy in respect of the Foreshore Reserve Land along the
shoreline at Buluma Beach?
48. That the Plaintiff has no standing to pursue a claim for trespass and
intrusion regarding the Foreshore Reserve Land, because the Plaintiff is not
the owner of the Foreshore Reserve Land, it does not have any standing to
pursue this claim. And secondly the Plaintiff is pursuing a claim for intrusion
and trespass. In summary, Plaintiff is claiming the tort of trespass. (Gesring
Gabing Bob v Stettin Bay Lumber Company Ltd (2008) N344)
Analysis.
49. Clearly there is insufficient evidence from the Plaintiff for court to
preserve and protect his rights. I quite agree with Counsel of 1st Defendant’s
submissions that the Plaintiff is claiming the tort of trespass, if indeed one
existed at all in these proceedings. I doubt this to be the case.
50. For the 1st Defendant, I turn now to examine the cases cited or referred
to me in these proceedings to try and answer the question I posed above.
1. In the Supreme Court of Pius Pundi v Chris Rupen (2015) SC 1430 the
held that:
"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 within the court's
jurisdiction, the defendant has a proper or tangible interest in opposing
the plaintiff's claim and the issues involved are real, and not merely of
academic interest or hypothetical. "
2. In the case of Zachary Gelu v Francis Damem (2004) N2762 the Court
held that:
"A declaration also known as declaratory judgment is a discretionary
order made by a high court declaring what the law is. It merely defines
and declares the rights of parties and their legal relationship and is not
accompanied by any sanction or means of enforcement, The declaration
will be granted only if the claim relates to some legal right or interest
recognised by law.”
51. Again, I agree with the view expressed by Counsel of 1st Defendants
that in order for a declaration to be obtained the well settled factors reflected in
the above mentioned two cases including the factors in Amos Ere v NHC and
another (2016) N5615 must be shown. That (a) there must exist a controversy
between the parties, (b) the proceedings must involve a right, (c) the
proceedings must be brought by a person who has a proper or tangle interest in
obtaining the order. (Emphasis mine).
52. My examination of the law has fortified my conclusion in this manner:
That the Plaintiff suit seeking declaratory orders does not conform with known
case law on this subject including those well settled principles pronounced in
the cases cited above. There is no evidence of controversy, and the Plaintiff
does not have a proper of tangle interest in obtaining the order, save the
Independent State of Papua New Guinea. To my mind it is superfluous to apply
for declaratory orders to restrain either the 1st Defendant or its dealings with
Beli Land Group, local landowners of Buluma village Hoskins who were not a
party to these proceedings, for that matter.
Use and enjoyment of private property.
53. Upon the evaluation of evidence and placing them against the law
produced one conclusion, that the Plaintiff does not have legal standing in law
or equity to lay claim or seek declaratory relief. His three leases are all
confined within the parameters of the grant and does not extend beyond the
reserved foreshore land or land alleged to be added beyond the foreshore or
high-water mark. The Plaintiff does not have any right over the foreshore
reserve in law or equity and his claim is frivolous and not proper before this
court.
54. My conclusion is further fortified by looking closely at the Plaintiffs
Origination Summons of 2 June 2022 and the Amended Originating Summons
filed on 29th May 2023 seeking declaratory orders: All his Leases/Titles are
exclusive of all reserve foreshore land along Buluma beach; The Plaintiff does
not have any rights either in law or equity to be overly concerned with what’s
happening in his neighbour’s land. In any event there is a buffer zone created
by the dividing main road and the foreshore areas said to be a distance of some
50 meter away; The making of an assessment of what’s happening of one’s
neighbour’s land to be unlawful and illegal is not the Plaintiff’s concern; The
Plaintiff’s actions of what’s happening to land adjacent to the Plaintiffs land
described as actions of intrusion and trespass are baseless and not founded in
law or equity. (Gesring Gabing Bob v Stettin Bay Lumber Company Ltd (2008)
N3440). The Plaintiff does not have standing in law to make those assertions.
Put differently in my view the Plaintiff is a busybody:
Findings:
55. I find therefore that:
1. Both parties have not shown to me convincing evidence that the land in
contention was accretion in nature;
2. The totality of known case law and authorities, ancient and modern, are
unform to the effect that new land formed by accretion becomes the
exclusive property of the owner free from all rights whatsoever in the
State and not by customary landowners..
3. The Plaintiff does not have legal standing to file suit against the
Defendant
4. The Plaintiff’s Titles does not extend beyond the foreshore reserve and
along Buluma beach. The only exception being Portion 1041, however that is
not in contention as it is outside the areas in dispute.
Orders
56. The Court orders that:
1.The entire proceedings is dismissed.
2.The interim restraining Order of 18 July 2022 is set aside
and discharged forthwith.
3. The Plaintiff shall pay the First Defendant's cost of this
proceeding to be taxed if not agreed.
________________________________________________________________
Mr. Felex Kua: Lawyer for the Plaintiff
Mr. George Akia: Lawyer for the First Defendant
