N6001

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS NO 279 OF 2014

BETWEEN

NORMAN. G.OMA, CHAIRMAN OF PARAMA LAND GROUP ASSOCIATION INC. for and on behalf of MEMBERS OF PARAMA LAND GROUP ASSOCIATION INC.
First Plaintiff

AND

SANEA MAKIBA, CHAIRMAN OF AREBETTE LAND GROUP INC. for and on behalf of MEMBERS OF AREBETTE LAND GROUP INC.
Second Plaintiff

AND

GURAHI LAND GROUP INCORPORATED
First Defendant
 
AND

HENRY WASA, REGISTRAR OF TITLES
Second Defendant

AND

THE INDEPENDANT STATE OF PAPUA NEW GUINEA
Third Defendant

Waigani: Ipang, J
2015: March 20 & April 14

CIVIL – Motions by the First Defendants plaintiffs court case for abuse of Court process over ownership and land boundary disputes- registration of customary land and issuance of State Lease Title to the First Defendant – Plaintiffs substantive claim seeks revocation of the Title described as State Lease Portion 38 C Milinch of Sicadadu, Fourmil Daru- whether National Court has the jurisdiction to deal with the matter. 

Cases Cited:

State v Lohia Sisia [1987] PNGLR 102
AH v Dawon [2013] PGNC 27; N5091
Wabia v BP Exploration Operating Co. [1998] PGNC 177; [1981] PNGLR 8
Victor Golpak v Patrick Alongrea Kali & Ors [1993] PNGLR 491

Counsel

Mr. Buri Ovia, for First Plaintiffs
Mr. Jonathan Holingu, for First Defendants 

14th March, 2015

1.	IPANG, J: Before me were two (2) motions. One motion was filed by the First Plaintiff on the 12th of March, 2015 and the second motion is filed by the First Defendant on the 1st of August, 2014. I will deal with the First Defendant's motion first. The motion filed by the First Defendant seeks the following orders:

•	The plaintiffs entire action be dismissed for being an abuse of Court process pursuant to Order 8 Rule 27 (1) (a) and (c) of the National Court Rules. 

•	The plaintiffs entire actions be summarily dismissed pursuant to Rule 15 Rule 1 (a) and (2) (d) of the Listings Rule 2005,

•	Alternatively, the plaintiffs pay security for costs pursuant to Order 14 Rules 25 (1) (b) and Rules 29 (1) (a) of the National Court Rules. 

•	Plaintiffs pay the first defendant's cost of this application and proceedings on an indemnity basis.

•	Any other orders the Court sees fit. 

2.	The motion is supported by the Affidavit of Dabu Pagei sworn on the 30th July, 2014. Also the Affidavit of Jonathan Holingu sworn on the 21st of January, 2015.

3.	Dabu Pagei sworn his affidavit that on the 3rd April, 2013, plaintiffs filed a similar proceedings (WS No. 275 of 2013) involving same parties to the current proceedings. This is correct and confirmed by the Mr. Buri Ovia of Counsel for the plaintiffs. However, the reason for withdrawal of the WS. No. 275 of 2013 by the First Plaintiffs was not due to First Defendants Lawyers letter dated 10th October, 2013 but due to plaintiff's non compliance for giving notice of their intention to sue the State (Section 5 of the Claims By And Against The State Act 1996). 

4.	The second leg of First Defendant's argument is that the First Plaintiffs is disputing customary land boundaries and customary ownership. See Annexure 'C' and 'E' for the land boundaries referred to the Affidavit of Norman. G. Oma sworn on the 19th September, 2014. Therefore, the First Defendant submitted that the right forum to have their grievances brought to is Local Land Court or Lands Title Commission and not the National Court. They say that the National Court does not have jurisdiction to deal with Customary Land issues. 

5.	 Mr Jonathan Holingu of counsel for the First Defendant referred to State v Lohia Sisia [1987] PNGLR 102 and in AH v Dawon [2013] PGNC 27; N5091. In AH v Dawon (Supra), the Supreme Court ruled that the National Court has no original jurisdiction to hear or determine competing claims to ownership of customary land.

6.	Also quoted was the case of Wabia v BP Exploration Operating Co. Ltd [1998] PGNC 177; [1981] PNGLR 8 (26 March 1998), the Court stated:
 
"In the case of Victor Golpak v Patrick Alongrea Kali and Ors [1993] PNGLR 491, Doherty, J dealt with a similar issue and held that the Jurisdiction to determine issues of ownership and Title to customary land was vested in the Local Land Court under the Land Dispute Settlement Act, Chapter 45, despite the existence of ss.155 and 166 of the Constitution i agree with that decision and wish to reiterate that the National Court has no jurisdiction to entertain issues relating to ownership and title to customary land. As a matter of law, that jurisdiction is vested solely in the Local Land Court."

7.	The above cases cited State v Lohia Sisia (Supra); AH v Dawon (Supra) and also Victor Golpak v Patrick Alongrea Kali (Supra) clearly stressed that issues dealing with interest in customary land be in it the ownership or land boundaries are issue which are out of the jurisdiction of the National Court. However, the National Court has the review jurisdiction to review the decision of Provincial Land Court or the Land Titles Commission. 

Issue
8.	So, does the National Court have the jurisdiction to deal with the substantive issue before it which is revocation of the Title described as State Lease Portion 38C Milinch of Sicadadu, Fourmil Daru?

9.	Both the Lawyer for the first plaintiffs and the lawyer for the first defendant agreed that both parties need to talk or go for land mediation to sort out their difference and this point was sternly emphasised by Mr. Jonathan Holingu of Counsel for the first defendants. But the crux of the matter is that the customary land described by first defendant as "Gurahi Land" has changed its statues from being a customary land to a State Lease Land Portion 38C sicadadu, Daru a grant under special Agricultural and Business Lease to Gurahi Land Group Inc. for 99 years under the Land Act.

10.	Now that the subject land "Gurahi" is now a State Lease Land the Local Land Court will not have the jurisdiction to deal with any issues as per the Land Disputes Settlement Act, Chapter 45, because of the operation of s.33 of the Land Registration Act. 

11.	The substantive relief the first plaintiffs are seeking is to revoke the Title described as State Lease Portion 38C, Milinch of Sicadadu, Fourmil Daru and not to dwell in to issues of customary land ownership or boundaries at this instant. 

12.	I am of the view that the motion by the First Defendant is misconceived and would therefore dismiss it with costs. 

___________________________________________________________
Koisen Lawyers: Lawyers for First Plaintiff 
Holingu & Holingu Lawyers: Lawyers for the First Defendant