Vanimo Jaya Limited v Emo Holdings (2017)
Unsuccessful claim for trespass and breach of contract in a dispute over land rights
Logging companies mentioned in this document:
Concessions mentioned in this document:
N10159
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
WS No. 991 OF 2017
BETWEEN:
VANIMO JAYA LIMITED
Plaintiff
AND:
EMO HOLDINGS LTD
First Defendant
AND:
MOILE RESOURCE OWNERS LTD
Second Defendant
Waigani: Linge AJ
2022: 22nd November
CUSTOMARY LAND -acquired under Special Agricultural & Business Lease
(SABL) – subsequently divided into two (2) separate customary titles under
Voluntary Customary Land Registration (VCLR) - for agro-forestry development.
Vanimo Jaya Limited the holder of a Special Agricultural & Business Lease
(SABL) as portion 248C filed this proceeding to basically enforce its rights it
claims is breached by the defendants. The first claim is against the first defendant
for trespass and encroachment upon the said SABL. The second claim is against
the second defendant for breach of Mediation Agreement as endorsed by Order of 5
October 2015 in OS No.411 of 2013 and enforcement of the judgment in OS No.
904 of 2016.
Held:
1. The plaintiff’s pleadings on trespass and breach of agreement are vague and
as a result the plaintiff has not established his cause of action and the claims are
hereby dismissed.
2. The registration of two customary titles under Voluntary Customary Land
Registration (VCLR) as portions 277C and 276C replaces and super cedes SABL
248C.
3. The entry by Emo Holdings Limited on to portion 277C was consented to
and at the invitation of Moile Resource Owners Limited, the customary and
registered owner of portion 277C under VCLR on a lease-lease arrangement.
4. Portion 277C on which Emo Holdings Limited operates is owned by Moile
Resource Owners Limited, the second defendant, comprising of members of the
One tribe and the claim by Vanimo Jaya Limited on it fails on the principle of jus
tertii.
Cases Cited:
Papua New Guinean Cases
Malawa v Pidi [2019] PGNC 11; N7675
Sam Samoua v Access Venture Ltd [2013] N5325
Mudge –v- The Secretary of Lands [1985] PNGLR 387
Rimbunan Hijau v Ina Inai (2017) SC1605
Re Era Taora Land (1971) FC 18
Kanga Kawira & Ors v Kepaya Bone & Ors (2017) N6802
Overseas Cases
League Against Cruel Sports v Scott [1985] 2 All ER 489
Doe d Carter v Barnard, [1849] 13 QB 945
Counsel:
Ms. Emily Dauma, for the Plaintiff
Mr. A Donigi, for the First and Second Defendants
JUDGMENT
13th March, 2023
1. LINGE AJ: This is my ruling on liability. The plaintiff was a holder of a
Special Agricultural and Business Lease (hereinafter “SABL”) in the Aitape area in West Sepik sued the first defendant for trespass and encroachment upon the said SABL. The plaintiff also alleges that the second defendant breached the Wewak Heads of Agreement (hereinafter the “Mediation Agreement”). 2. The contested trial was conducted on the 18 November 2022. Counsels of parties made oral submissions. Background 3. On 12 December 2005 Vanimo Jaya and One-Uni Development Corporation signed a Memorandum of Agreement (hereinafter “the MOA”) for the development of an Agro Forest project involving harvesting of all timber from the 40,000 hectares customary land and oil palm planting. 4. Thereafter on the 19 July 2006 the State entered into a lease agreement with customary owners purportedly represented by One-Uni. It was a form of Lease Lease back arrangement in which the landowners agreed with the State for them to lease their customary land to the State. 5. The National Gazette No. G143 of 20 July 2006 published a Notice of Direct Grant under Section 102 of the Lands Act, that shows Vanimo Jaya and One- Uni Development Corporation were granted a Special Agricultural and Business Lease (hereinafter “SABL”) containing an area of 47, 626 hectares of customary land described as Volume 13, Folio 177, Portion 248C, Milinch Tadji, Fourmil Aitape, West Sepik Province for 99 years from 20 July 2006 to 19 July 2105 as tenants in common. 6. On the 14 May 2007 Vanimo Jaya bought out One-Uni 50 % shares in the tenancy in common for consideration of K2, 000.00. The transferee in the transfer was one Ignas Aro of the Uni Tribe. Facts 7. The plaintiff claims that on or about 20 December 2016, the first defendant encroached on the SABL when it landed a ship full of logging equipment on site and allegedly conducted logging operations by clear felling of trees for export. 8. The first defendant maintains that its entry into the area was agreed to and at
the invitation of the second defendant, who are customary owners of major parcel
of the SABL.
9. On the 1 August 2013 Moile Resources Owners Ltd on behalf of 57
Incorporated Land Groups (ILG) and Julian Pewa, the Chairman filed OS No. 411
of 2013 challenging the validity of the plaintiff’s SABL. The case was resolved by
Court annexed Mediation concluded on the 10 September 2015 by the signing of
the Mediation Agreement. The customary landowners who signed the Mediation
Agreement included Julian Pewa of the One Tribe and Ignas Aro from the Uni
Tribe; the latter also signed for Vanimo Jaya Limited. On the 5 October 2015 the
Court in the said proceeding issued Orders endorsing the Mediation Agreement.
10. The plaintiff having been aggrieved by the implementation of the Court
Orders of 5 October 2015 in OS No.411 of 2013 especially by the second defendant
and Julian Pewa then filed OS No. 904 of 2016-Vanimo Jaya v Julian Pewa and
Moile Resources Owners Limited.
11. The decision of Court in OS No. 904 of 2016 was delivered on the 11 May
2017 which as claimed by the plaintiff, ruled for the plaintiff to be maintained as
the main developer by the second defendant in the subject SABL as per Terms 2
and 3 therein.
12. This proceeding filed by Vanimo Jaya Limited is basically to enforce its
rights it claims is breached by the defendants. These are trespass and encroachment
by the first defendant and beach of the Mediation Agreement as endorsed in OS No.
411 of 2013 and to enforce the judgment in OS No. 904 of 2016. The plaintiff
claims that by virtue of these orders, its investments in the Portion 248C SABL,
Vanimo Jaya must remain the only developer or investor for any agro-forestry
projects within the original boundaries of Portion 248C.
Evidence
13. The parties rely on affidavits filed as follows:
For the plaintiff
1. Affidavit of Ignas Aro filed on 24 September 2018.
2. Affidavit of Chew Pang Heng:
(i) filed on 24 September 2018;
(ii) filed on 13 December 2018;
(iii) filed on 14 June 2019.
3. Affidavit of Kevin Lakuna filed on 8 February 2019.
4. Affidavit of Camron Ninwale filed on 19 August 2022.
5. Affidavit of Philipus Wita filed on 6 October 2022.
6. Affidavit of Godfried Soropo filed on 6 October 2022.
7. Affidavit of Mathew Gawing filed on 7 October 2022.
For the defendants
1. Affidavit of Julian Pewa filed on the 1 April 2015 in OS 411 of 2013
between the same parties.
2. Affidavit of Julian Pewa filed on the 1 February 2020 between the
same parties.
3. Affidavit of Julian Pewa filed on the 16 November 2019 in OS 443 of
2019 between the same parties.
4. Affidavit of Julian Pewa filed on the 2 February 2022 in OS 293 of
2021 between the same parties.
5. Affidavit of Andrew Yuangi filed on the 23 December 2022 in OS 293
of 2021 between the same parties.
6. Affidavit of Anthony Donigi filed on the 18/5/2017 in OS 904 of 2016
between the same parties.
7. Affidavit of Anthony Donigi filed on the 4/7/2017 in OS 904 of 2016
between the same parties.
Submissions
For the plaintiff
14. Ms. Dauma of counsel for the plaintiff presents three (3) issues which she
based her submission. I refer to each in seriatim.
1 Whether the first defendant’s commercial logging operations in Tadji,
Aitape, West Sepik Province amounts to trespass upon the plaintiff’s SABL
area of Portion 248C?
15. In opening her submission, Counsel referred me to Malewa v Pidi [2019]
PGNC11; N7675 and Sam Samoua v Access Venture Ltd (2013) N5325, cases
which sets out the elements of the tort of trespass. I will scrutinize these elements
in my consideration shortly.
16. Ms. Dauma submits that there is evidence of transfer of the shares in the
entry in the journal or memorial in the Registrar of titles which reads, “from One-
Uni Development Corporation of its shares to Vanimo Jaya Ltd, the whole of the
land now held by Vanimo Jaya Ltd on the 11 May 2007 “from One-Uni
Development Corporation of its shares to Vanimo Jaya Ltd, the whole of the land
now held by Vanimo Jaya Ltd.”
17. She submits that the actions of the first defendant on the 20 December 2016,
when it encroached on the SABL by landing a ship full of logging equipment on
site and allegedly conducted logging operations by clear felling of trees for export
amount to trespass.
18. Counsel also referred me to Rimbunan Hijau v Ina Inai (2017) SC 1605 a
case in which the Supreme Court considered the term “actual possession” and held
that unlike the common law position where actual possession is required, it is not
necessary to prove possession or actual possession of land in Papua New Guinea as
a precondition to a claim in trespass.
2. Whether the Second Defendant’s commercial arrangements for logging
operations in Portions 277C, Tadji, Aitape, amounts to a breach of the
Mediation Orders of 05/10/2015 (OS No. 411 of 2013 and the Mediation
Agreement of 11/09/2015?
19. Counsel submits that the second defendant is a party to the Mediation
Agreement dated 10 September 2016 and is bound by the signatures of its directors
namely, Martin Wingkolo and Julian Pewa. The Mediation Agreement was then
formalized into a Court Order dated 5 October 2015, in OS No. 411 of 2013.
20. It follows that the Mediation Agreement and the Court Order of 5 October
2015, in OS No. 411 of 2013 are both binding on both the plaintiff and the second
defendant in this proceeding.
21. Further Counsel contends that the plaintiff has exclusive commercial agro-
forestry rights to be exercised in partnership with the landowners of Portions 276C
and 277C, guaranteed by the Court-annexed Mediation Orders of 5 October 2015,
in OS No. 411 of 2013. She submits that when the second defendant on the other
hand had entered into a commercial agreement with the first defendant, it breached
the said Mediation Orders of 5 October 2015.
3 Whether the National Court judgment of 11 May 2017 in OS No. 904 of
2016, is a finding of liability against the second defendant for breach of
agreement?
22. Ms Dauma contends that this proceeding is about enforcing Terms 2 and 3 of
the Orders of the Court in OS No. 904 of 2016 dated 11 May 2017 which the
defendants had breached. She submits that the said Terms 2 and 3 specifically
provides for the plaintiff to be retained as the main developer by the second
defendant in the subject SABL.
23. She contends that the particulars of the first defendant’s encroachment and
or trespass are clearly stated in the Amended Statement of Claim filed on the 11
April 2019, specifically referred to in paragraphs 7, 8, 9, 10 and 11. Further the
interference with landowners, procuring and poaching illegally are stated in
paragraphs 12, 13, and 14. At paragraph 15 the plaintiff specifically pleads breach
of agreement by the second defendant.
24. Ms. Dauma submits further that by virtue of an expressed term of that
Mediation Agreement, its investments in the Portion 248C SABL, Vanimo Jaya
must remain the only developer or investor for any agro-forestry projects within
the original boundaries of Portion 248C.
Submission for the first defendant
25. Mr. Donigi of counsel for the first defendant submits that the first defendant
entered onto the Ono customary land which is now titled as portion 277C upon
invitation of the customary owners, who also constitute Moile Resource Owners
Limited. As such he submits that there is no encroachment and trespass over the
One customary land or otherwise portion 277C by the first defendant.
26. In relation to the plaintiff’s pleading in the Amended Statement of Claim on
encroachment and trespass by the first defendant, Counsel submits that the
plaintiff’s reliance on the SABL portion 248C is invalid in law as the Court in
proceeding OS No. 411 of 2013 dated 5 October 2015 when endorsing the
Mediation Agreement ruled as per Term 1 that: “Vanimo Jaya Limited through
(Aitape West Oil Palm Limited) conditionally surrender the SABL Title over
Portion 248 C Volume 13 Folio 177 to the Registrar of Titles”. [my underlining]
27. Counsel submits that Term 1 is clearly an order to conditionally surrender
the SABL Title portion 248C which means that the said SABL is a legal nullity and
to be cancelled by the Registrar of Titles. The second defendant fully consented to
and endorsed the plaintiff’s conditional surrender of the SABL Title over Portion
248 C Volume 13 Folio 177 to the Registrar of Titles.
28. Also, on the pleading in the Amended Statement of Claim that “The first
defendant and its partner the Landowners Company Moile Resource Owners
Limited in interfering, procuring, poaching, and breaching of the plaintiffs right,
Counsel submits that such pleading is invalid in law and in fact in that the plaintiff
is not a customary landowner nor has the automatic or perpetual land ownership
rights to customary land.
29. Mr. Donigi submits that the issuance of a Voluntary Customary Land
Registration Title, portion 277C to One Tribe in compliance with Term 2 of the
Court Order of 10 October 2015 in OS No.411 of 2013 nullified SABL 248C.
Thus, it is within the legal right of the second defendant to choose the first
defendant as its development partner. The entry and involvement of Emo Holdings
Ltd, the first defendant on portion 277C is not trespass as the owners, One tribe the
second defendant had given permission and consent in the first place.
30. Counsel submits that the first defendant in collaboration with the second
defendant have all relevant approvals including Permit for defendant’s
development proposal issued by the Forestry Authority and the Environment and
Conservation Authority, as the successful developer engaged in logging project
within Portion 277C the customary land of the One people. To that extent on the
30 of November 2021 Moile Resource Owners Limited representing the entire
customary landowners of portion 277C, applied to the National Forest Board for an
issuance of a five (5) year development plan in a Joint Venture Development
Agreement with the second defendant for a period of 50 years.
For second defendant
31. Mr. Donigi who is also counsel for the second defendant submits that the
second defendant’s commercial arrangements for logging operations in Portions
277C, Tadji, Aitape, is not a breach of the Mediation Agreement of 10 September
2015 as endorsed by the Court on the 5 October 2015 in OS No. 411 of 2013. Mr.
Donigi submits that the second defendant has not breached and accepts in good
faith Terms 1, 2, 3 and 4 of the Court Order of 5 October 2015 in OS No.411 of
2013 which endorsed the Mediation Agreement and determined the substantive
matter.
32. Counsel draws my attention to Term 2 of the Order of 05 October 2015 in
OS No. 411 of 2013 and submits that this is a direct flow on from the surrender and
cancellation of the SABL 248C as ordered in Term 1. Thus, by agreement of the 57
ILG’s the two (2) customary land-owning groups divided their 47, 626 hectares of
customary land formerly SABL 248C into two (2) new titles granted pursuant to
Voluntary Customary Land Registration (hereinafter “the VCLR”) as Portion 277C
for the One tribe and the other VCLR title as Portion 276C for the Uni tribe.
33. Mr. Donigi submits that it is because of the plaintiff’s involvement and
investment in the Uni land now portion 276C that the plaintiff has claimed it has
investments in the Oil Palm Plantation. Counsel thus submits that Term 3 of the
Order of 10 October 2015 in OS No. 411 of 2013 is satisfied in that the
“Developers’ interest is recognized, and its business investments is protected.”.
34. On the other hand, there is absence of proper consent given to the plaintiff in
portion 277C. He submits that there is no legal basis for the plaintiff to forcefully
retain the legal control over Portion 277C and cannot seek to enforce what is not in
the mediation agreement in regard to taking away and to control the second
defendant’s perpetual land rights and commercial lease-lease back agreements it has with the first defendant. 35. He contends that any entry by the plaintiff on to One registered customary title land of portion 277C for purposes of harvesting timber by Vanimo Jaya Ltd is encroachment on its part for which it must be held liable and accountable. He submits Vanimo Jaya Limited had not assisted the second defendant to develop its portion 277C with costs totaling almost K2 million kina. 36. Further, in reference to the pleading in the Amended Statement of Claim at paragraph 15 inclusive of 16, 17 and 18, alleging breach of agreement by the second defendant by opting out of the Mediation Agreement and engaging with the first defendant, Counsel submits the Amended Defence had denied and traversed such a claim. There is no agreement to give the second defendants portion 277C land to the plaintiff, nor for the continuous existence and control of the surrendered plaintiff’s SABL portion 248C. 37. On the enforcement of the judgment in OS No. 904 of 2016 which the plaintiff alleges was breached by the second defendant, Mr. Donigi submits as pleaded in its Amended Defence, that OS No. 904 of 2016 is in direct contempt of the earlier Orders in OS No.411 of 2013. Consideration 38. Trespass to land is defined as the intentional and wrongful invasion of another’s real property. It involves the unjustifiable interference with the right of ownership or possession of land in the immediate and exclusive possession of another whether the invasion or interference is by a person or by something that person has set in motion. 39. It is actionable per se without the claimant necessarily proving that he suffered harm, League Against Cruel Sports v Scott [1985] 2 All ER 489. 40. In certain circumstances or instances trespass can be negated. These defences include licence, justification by law, necessity and jus tertii. License is where the possessor of the land had expressly or by implication given permission to the alleged trespasser to be on the land. Possession does not necessarily mean ownership of the land, but the right to eject or exclude others from it. Leaving aside justification by law and necessity which do not apply here the other jus tertii is a situation where the alleged trespasser proved in evidence that the land is not possessed by the claimant but by a third party: Doe d Carter v Barnard, [1849] 13
QB 945
41. The application of the common law principles of torts is applicable in Papua
New Guinea in accordance with the provision for adoption of common law and
equity under Schedule 2. 2 of the Constitution. Trespass in land has its own
considerations compared to trespass in goods and chattels. A registered title under
the Torrens System in Papua New Guinea usually gives the registered proprietor an
indefeasible title. However, in certain situations termed as exceptions in Section 33
(1) of the Land Registration Act a registered title can be cancelled: Mudge –v- The
Secretary of Lands [1985] PNGGLR 387
42. In Sam Samoua v Access Venture Ltd (2013) N5325 the Court identified a
number of criteria for consideration of the tortfeasor of trespass. These
preconditions were further considered in Malewa v Pidi [2019] PGNC11; N7675
and affirmed the discussion in the Sam Samoua’s case and settled the elements of
the tort of trespass to be:
(a) The defendant interfered with (e.g. by damaging or destroying);
(b) The plaintiff’s chattels (any property other than freehold land);
(c) The defendant acted intentionally;
(d) The defendant acted without lawful authority; and
(e) The plaintiff had actual possession of the chattels.
43. The Supreme Court in Rimbunan Hijau v Ina Enei (2017) SC1605 a case
involving customary land it considered the term “actual possession” and held that
unlike the common law position where actual possession is required, it is not
necessary to prove possession or actual possession of customary land in Papua
New Guinea.
44. The Supreme Court pronounce this as a peculiar situation to Papua New
Guinea dating back to the colonial times where it was recognized that no land is
waste and vacant in Papua New Guinea. There is a presumption that in PNG no
land is ownerless. This recognizes our inherent lifestyle of gatherer, hunter
fisherman, gardener so there are large portions of land reserves for such which is
owned by some clan. If the State wishes to acquire customary land it had to first
establish that the land is indeed “waste and vacant”. This principle was discussed
in the pre independence Supreme Court in Re Era Taora Land (1971) Full Court
18. Section 7 of the Lands Act 1996 reflects this in the mode of acquisition as a
public duty by the Minister, who may on behalf of the State acquire land-
(i) by agreement; or
(ii) by compulsory acquisition.
45. In Kanga Kawira & Ors v Kepaya Bone & Ors (2017) N6802, Kandakasi J
(then) held inter alia that “the State and any developer have an obligation to
properly identify and organize the customary land-owning group that owns any
land they might be interested in ...”
46. The Supreme Court in Rimbunan Hijau v Ina Inai (supra) in relation to
Special Agriculture Business Development Leases (SABLs) states, “developers
and the State alike are failing to either deliberately or by inadvertence to first
ascertain, then properly organize, empower and deal with the properly identified
and confirmed customary owners. Rather than taking this most important critical
first step the state and developers are entering customary land and are proceeding
with their activities and in so doing, choosing to and are indeed dealing with
persons who claim to be landowners when in fact they may not be the true and
correct landowners...”
47. The Supreme Court endorsed the trial judge ruling that Rimbunan Hijau‘s
conduct of entering the land without the express or tacit consent and approval of
Moga clan, thereby carrying on its operation was clearly illegal. It was
disrespectful and in total disregard of Moga’s ownership rights and interest in the
Land and in any case the ownership issue was in Court.
48. In the perspective of this case, the second defendant denies receiving any
benefits from the plaintiff’s investments and further says that Plaintiffs Title and
Logging and Marketing Agreement had been recommended for cancellation
because of the massive destruction of the forest by its subsidiary companies
logging within the East and West Aitape Lumi Electorate. The permit however has
been renewed by the plaintiff who is still holding onto a defective Title.
49. In this proceeding, Vanimo Jaya Limited (otherwise Aitape West Oil Palm
Limited) claims against the first defendant for encroachment and trespass and for
breach of agreement against the second defendant.
50. In relation to trespass and encroachment, the plaintiff seeks to enforce its
rights breached by the actions of the first defendant when on or about 20 December
2016 it landed a ship full of logging equipment on site and allegedly conducted
logging operations by clear felling of trees for export in Tadji, Aitape, West Sepik
Province upon the plaintiff’s SABL area of Portion 248C. The plaintiff’s claim of
trespass by the first defendant is continuing even to this date.
Findings
51. The legal basis and foundation of the plaintiff’s claim of trespass and
encroachment against the first defendant is premised on enforcement of its rights
under the SABL portion 248C containing an area of 47, 626 hectares of customary
land described as Volume 13, Folio 177, Portion 248C, Milinch Tadji, Fourmil
Aitape, West Sepik Province issued on the 31 July 2005 to Vanimo Jaya Limited
and One-Uni Development Corporation as tenants in common for 99 years from 20
July 2006 to 19 July 2105.
52. On the 14 May 2007 Vanimo Jaya bought out 50% of shares purportedly
held by or in the name of One-Uni in the tenancy in common for consideration of
K2, 000.00. The transferee in the transfer was one Ignas Aro of the Uni Tribe.
53. The evidence shows that at the time of the grant of the SABL, Vanimo Jaya
was only dealing with Ignas Aro who was and is the Elder and Chairman of the
Uni speaking customary owners. At that time in 2005 Ignas Aro would have to be
either legally appointed with the full authority of 57 ILGs or he purported to
represent all the customary owners of the massive 47, 626 hectares of customary
land. I find no evidence of any formal authority given by the 57 ILGs to Ignas Aro.
This raises doubts about the land dealing at the time culminating in the SABL but
it is not an issue for consideration here nor it is necessary for me to venture back
into time.
54. Regarding the second claim of breach of agreement against the second
defendant, the starting point here is the Court Order of 5 October 2015 in OS No.
411 of 2013 which was an endorsement of the Mediation Agreement signed by
parties to OS No.411 of 2013 on the 10 September 2015. Proceeding OS No.411 of
2013 was filed on the 1 August 2013 by Julian Pewa on behalf of 57 ILGs and
Moile Resources Owners Ltd v Ignas Aro seeking inter alia the surrender or
cancellation of the said SABL portion 248C.
55. The Court directed parties to mediate resulting in the execution of the
Wewak Heads of Agreement referred to as the Mediation Agreement. The essential
terms of the Court annexed Mediation Agreement had been formalized into the
Court Order dated the 5 October 2015. The text of that Court Order is:
“1. That the Defendant Vanimo Jaya Limited through (Aitape West Oil
Palm Limited) conditionally surrender the SABL Title over Portion
248 C Volume 13 Folio 177 to the Registrar of Titles.
2. That the Registrar of Titles through the Customary Land Registration
Division to register Portion 248 C Volume 13 Folio 177 in the
nominated ILG names of the One Tribe and the Uni Tribe respectively.
3. That the current Developers’ interest be recognized, and their business
investments be protected by both the One Tribe ILG’s and the Uni
Tribe ILG’s in the endeavor to develop Portion 248 C Volume 13 Folio
177.
4. That the perpetual rights and interest of the customary landowners be
recognized and protected by the current Developer by giving them the
maximum benefit in their participation in developing their held Titles
and leases over Portion 248 C Volume 13 Folio 177...” [my
underlining]
56. Term 1 of the above Court Order is clear. It requires Vanimo Jaya Limited
through Aitape West Oil Palm Limited to conditionally surrender the SABL Title
over Portion 248 C Volume 13 Folio 177 to the Registrar of Titles. What is clear
from the evidence is that the SABL has not been surrendered and instead the
plaintiff continues to rely on and pleads the SABL 248C notwithstanding the clear
intention of Term 1 of the Order of 5 October 2015.
57. In my view, the conditional surrender of the plaintiff’s SABL was to allow
for Term 2 of the Court Order to be fulfilled. The registration of two (2) VCLR
Leases as portion 277C and portion 276C complied fully with Term 2 and were
direct flow on from Term 1. The details of the VCLR are:
(a) the One tribal group with their land area of 29, 626 hectares out of a
total land area of 47, 626 hectares of customary land secured title under the
Voluntary Customary Land Registration (hereinafter “the VCLR”)
Registered Cat. Plan 2/170 as Portion 277C. The One tribe under Julian
Pewa’s chairmanship gave no consent for the plaintiff to take control nor to
occupy their land.
(b) the balance of about 18,000 hectares was registered by the Uni
speaking people and given title under the VCLR as Portion 276C. The Uni
tribe under Ignas Aro’s chairmanship had allowed Vanimo Jaya Limited into
their portion 276C pursuant to a joint venture agreement. There is now an oil
palms plantation on the said portion 276C.
58. The plaintiff also pleads and seeks to enforce the terms of the Mediation
Agreement of 10 September 2015 it claims is affirmed in the judgment of OS No.
904 of 2016. The Mediation Agreement had not been tendered as a standalone
document. There is no clear evidence led by the plaintiff to substantiate a particular
breach of the Mediation Agreement. It is only referred to as being breached on the
basis of its purported endorsement by the Order of 5 October 2015. Even then, the
plaintiff only pleads general reliance and not any specific Term of the Order of 5
October 2015 in OS 411 of 2013.
59. In my view, the closest term of the Order the plaintiff can relate would be
Term 3 which provide for the “current Developers’ interest to be recognized, and
their business investments be protected by both the One Tribe ILG’s and the Uni
Tribe ILG’s in the endeavor to develop Portion 248 C Volume 13 Folio 177.”
60. Using the plain meaning rule of interpretation, Term 3 relates to current
developers’ interest and their business interests to be recognized and protected, not
those that may arise in future. Thus, in as far as the evidence indicates the current
plaintiff’s (Developer’s) interest is in logging and oil palm development in the Uni
land under the chairmanship and control of Ignas Aro.
61. The plaintiff also pleads the application of Terms 2 and 3 of the Order in OS
No. 904 of 2016 dated the 11 May 2017 wherein Counsel submits these terms ruled
for the plaintiff to be maintained as the main developer by the second defendant in
the subject SABL. The pertinent part of Terms 2 & 3 of OS No. 904 of 2016 are:
Term 1 “the defendant’s actions in purporting to engage another
contractor to enter into the SABL is contrary to the binding Agreement and
is a breach of the said Agreement”.
Term 3 “...permanent order restraining the Defendants both jointly and
severally including their servants and or agents that they represent from
engaging in or entering or completing any agreement with another
Developer other than the plaintiff”.
62. I find that Terms 2 and 3 of OS No. 904 of 2016 bear no resemblance to the
Mediation Agreement and Court Order dated the 10 October 2015. On the face of it
the Orders are clearly contemptuous to Term 1 of Order of 10 October 2015. It
borders on defiance on the part of Vanimo Jaya Limited. It is a serious matter of
the plaintiff filing incompetent and multiplicity of proceedings.
63. The reliance on SABL 248C by Vanimo Jaya Limited which has been
ordered to be conditionally surrendered must be viewed as a nullity. However,
Vanimo Jaya Limited can still maintain its commercial relationship and protect its
investment in portion 276C where on evidence it has exclusive commercial Agro-
Forestry rights which it can exercise in partnership with the landowners of Portion
276C.
64. On the part of the first defendant, I am satisfied that its entry on to portion
277C was consented to and at the invitation of the second defendant, the customary
owners and registered owner of portion 277C under VCLR on a lease-lease
arrangement.
65 The land on which Emo Holdings Limited operates is owned by the Moile
Resource Owners Limited, the second defendant, comprising of members of the
One tribe and not owned by Vanimo Jaya Limited as per the principle of jus tertii,
Doe d Carter v Barnard, [supra].
66. Before closing, I take judicial notice of other proceedings instituted in
relation to the same land area of 47, 626 hectares of customary land with notation.
(i) WS No.1667 of 2017-Vanimo Jaya v Julian Pewa & Others. Status not
aware.
(ii) OS No.443 of 2019-Vanimo Jaya v PNGFA & EMO Holdings Ltd/
Moile Resource Owners Ltd. On the 25 August 2022 the Court
Ordered: “1. The entire proceeding(s) herein is dismissed for failing
to disclose a reasonable cause of action.”
(iii) OS No.885 of 2019- Moile Resource Owners Limited & Emo
Holdings Limited v Vanimo Jaya Limited & Aitape West Palm Oil
Limited & Ors- In an unnumbered Ruling in February 2023 the
Court inter alia ordered “Vanimo Jaya Limited & Aitape West Palm
Oil Limited shall comply with the Order of 5 October 2015 in OS 411
of 2013 within 30 days from the date of these Orders.”
67. This case demonstrates multiple issue which the Court can deal with,
however I will only rule on the issue of liability in this cause of action. Issues may
include whether there was full compliance with Sections 7, 11 and 102 of the
Lands Act for acquisition of customary land including it being properly have been
extinguished by the State in favour of a Forest Management Area lease to the
plaintiff or a separate consideration under the regime of the Forestry Act 1991.
These issues will remain unanswered.
68. In consideration of all the above, I conclude that the second defendant has a
clear title issued pursuant to Section 340 of the Customary Land Registration
(Amendment) Act 2009. The Customary Lease being Volume 1 Folio 124 is
described as Portion 277C, Milinch Tadgi Fourmil Aitape, West Sepik with a Land
area of 45, 383.4 ha was issued on the16 March 2018 to Moile Resource Owners
Limited for 99 years. Moile Resource Owners Limited then subleased to Emo
Holdings Limited for a term of 50 years from date of registration on the 4 April
2018.
69. In the end I find that apart from the finding of lack of capacity on the part of
the plaintiff which makes the pleadings on trespass and breach of agreement
incontestably bad it is also manifestly vague. It follows that the plaintiff has not
established a reasonable cause of action.
Order
70. The Order of the Court will be:
1. The plaintiff claim for trespass and encroachment is dismissed.
2. Breach of contract is not established against the second defendant and
is also dismissed.
3. Costs follow the cause and is ordered against the plaintiff.
4. Time is abridged to time of settlement which takes effect forthwith.
Ordered Accordingly
__________________________________________________________________
Nelson Lawyers: Lawyers for the Plaintiffs
Ama Wali: Lawyers for the First and Second Defendants
