N7714

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS NO. 951 OF 2015(CC1)

BETWEEN:
JIMMY CHALIE for himself and on behalf of EHEHAKO INCORPORATED LAND GROUP (ILG Reg. No. 02 of 2014) as Interim Chairman and authorized Clan Representative
First Plaintiff

AND:
EHEHAKO INCORPORATED LAND GROUP (ILG Reg. No. 02 File No. 17900)
Second Plaintiff

AND:
ANDREW MALD
Third Plaintiff

AND:
MR AND MRS EVAN (IVAN) PAKI
First Defendants

AND:
PACIFIC MEDICAL CENTRE INC.
Second Defendant

AND:
DI TENE VATA LAND GROUP INC.
Third Defendant

AND:
MR CHARLES MANDA,
ACTING SURVEYOR GENERAL OF PAPUA NEW GUINEA
Fourth Defendant

AND:
ROMILY KILA PAT in his capacity as Secretary for Lands and a Delegate of the Minister for Lands & Physical Planning
Fifth Defendant

AND:
BENJAMIN SAMSON, in his capacity as the Acting Registrar of Titles, Department of Lands & Physical Planning
Sixth Defendant

AND:
HON. BENNY ALLAN, MP – Minister for Department of Lands & Physical Planning
Seventh Defendant

AND:
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Second Defendant

Waigani:  Dingake J
2018:  4, 21 & 27 Sept

Cases Cited:

Anton Lavu v Nicholas Mark Thompson (2007) PGNC 261; N5018;
Nimanar Rural ILG v Thomas Tanasu Ltd (2009) N3758;
Pepi Kimas v Arua Loa (2015) PGSC 69; SC1475;
Talibe Hegele v Tony Kila (2012) PGSC 15; SC1180;
21 ILGs Gobe Project Area Incorporated Land Groups v The State (2006) N3096

Counsel:

Ms. A Koisen, for the Plaintiff (OS. 442/2016)
Mr. Jason Kolo, for the Plaintiff (WS. 952/2015)
Mr. B Kome, for the Plaintiff (WS. 991/2016)
Mr. William, for the Plaintiff (OS. 816/2014)
Mr. James Aku, for (all 4 matters) Defendants
Mr. Sioni, for First, Second, & Third Defendants (WS. 816/2014)

19th December, 2018
1. 	DINGAKE J:	By way of this notice of motion, Evan Paki and Pacific Medical Centre Inc., the applicants herein, who are also the defendants in the consolidated proceedings sought the following orders from this Court:
1.1	The consolidated proceedings (WS No. 951 of 2015), WS No. 991 of 2016, OS No. 816 of 2014) and these proceedings be dismissed for being incompetent and abuse of process pursuant to Order 12 Rule 40 of the National Court Rules and Section 155 (4) of the Constitution; or
1.2	Alternatively, the Order consolidating the four (4) proceedings be set aside and/or varied pursuant to Order 12 Rule 1 and Rule 8(4) (5) of the National Court Rules and Section 155 (4) of the Constitution; or
1.3	Alternatively, the proceedings entitled WS No. 991 of 2016 be dismissed for being abuse of process pursuant to Order 12 Rule 40(c) of the National Court Rules and Section 155 (4) of the Constitution.
1.4	Alternatively, the interim injunction granted on 28th June 2016, be discharged pursuant to Order 12 Rule1 and Rule 8 (4) (5) of the National Court Rules and Section 155 (4) of the Constitution.
2. 	As is plain from the above, the principal relief is to dismiss the consolidated proceedings WS No. 951 of 2015, WS No. 991 of 2016, and OS No. 816 of 2014, in terms of Order 12 Rule 40 of the National Court Rules.
3. 	All the consolidated proceedings were instituted by different plaintiffs with overlapping and or conflicting claims to Portions 2734 (Dogura) and Portion 2910 (Giboea).
4. 	The basis of the dismissal application is that the plaintiffs do not have locus standi to bring and or sustain those proceedings and that even if they did, this matter involves a dispute over customary land title and ownership pertaining to the pieces of land, the subject matter of this litigation, namely, Portion 2734 (Dogura) and Portion 2910 (Giboea) in the National Capital District, which this Court has no jurisdiction to determine or deal with.
5. 	The material and dispositive facts that underpin the dispute between the parties may be stated crisply and briefly.
6. 	The plaintiffs and the defendants in the consolidated proceedings are wrangling over ownership of Portions 2734 (Dogura) and Portion 2910 (Giboea).
7. 	It would seem, on the evidence, that the State, on the 25th of October, 2013, bought the two pieces of land from identified customary landowners – Di Tene Land Group Inc.
8. 	After the acquisition aforesaid, the State converted the two portions of land into Urban Development Leases (UDL) and granted UDLs to Pacific Medical Centre, which is currently the registered proprietor over the UDLs over the pieces of land referred to earlier.
9. 	The plaintiffs in the consolidated proceedings claim that the State fraudulently acquired the land without their consent and subsequently converted the land to State Lease and granted them to Pacific Medical Centre.
10. 	The plaintiffs do not provide any sufficient particulars of the fraud as to who defrauded who, when and in what way.
11. 	The plaintiffs claim that they are the customary landowners of land described as Central Claims 80 and 88, recognised by the Native Land Titles under which Portions 2734 (Dogura) and 2910 (Giboea) are supposedly subsumed.
12. 	The aforesaid pieces of land, according to the applicants, are earmarked for a 300 bed world - class leading hospital to serve as PNG’s first “National Referral Hospital”.
13. 	The second defendant avers that it has spent “tens of millions of dollars since 2007” towards advancing the development of the project.
14. 	The development referred to above cannot be executed any further because of the restraining order granted by this Court on the 27th of July, 2016, restraining the defendants, their agents or assignees from carrying any further work in Portion 2734 C and Portion 2910 C, until further order of the Court.
15. 	The applicants submit that the issue before the Court to extent that it raises a dispute as to the ownership of the subject customary land, the National Court does not have jurisdiction over such disputes.
16. 	I have read all the affidavit material of the parties and applied my mind to the relief sought. There is on the face of the papers filed of record a clear tension in the two versions of the plaintiffs and defendants. The plaintiffs claim to be customary landowners of the subject land, but the defendants claim state leases over the same land. This raises the question whether the land in question is or is not customary land, at the material time, being as at the time these proceedings were filed.
17. 	In the case of Kimas v Loa (2015) PGSC 69; SC 1475, the Supreme Court (at paragraph 6) stated that:
	“It is settled law that the National Court has no jurisdiction to bear and determine disputes concerning ownership by custom of any land, including a dispute as to whether any land is or is not customary land. Such disputes fall within the exclusive jurisdiction of the Land Title Commission under Section 15 (determination of disputes) of the Land Titles Commission Act.”
18. 	In the case of Lavu v Thompson (2007) PGNC 261; N5018, the Court (per Cannings) held (at paragraph 11) that:
	“The question of whether the National Court has jurisdiction to determine whether land is customary land is determined by statute. It is not a matter of developing the underlying law, it is a matter of interpreting and applying the written law.
19. 	In the case of Hegele v Kila (2012) PGSC 15; SC1180, the Supreme Court held (at paragraph 15) that:
	“15.	If the cause of action requires the Court to determine ownership of customary land the Court will lack jurisdiction as it is a well steeled principle that the National Court ( also the Supreme Court) has no jurisdiction to hear or determine disputes about ownership of customary land (The State v Lohia Sisia (1987) PNGLR 102; Sioti Bauf and Lavoi Nodai v Poliamba Pty Ltd (1990) PNGLR 278; Golpak v Kali (1093 PNGLR 491; Siaman Riri v Simion Nusai (1995) N1375; Ronny Wabia v BP Exploration Co Ltd (1998) PNGLR 8; Soso Tomu v The State (2002) N2190”.
20. 	It seems to me that some aspects (certainly not all) of the relief sought by some plaintiffs may well suggest that there is a dispute as to who are the true owners of the pieces of land referred to earlier and whether such pieces of land are customary land or not. This is particularly so if regard is heard to the often conflicting claims of the plaintiffs, and the current status of the land.
21. 	I therefore hold that this Court has no jurisdiction to determine this matter.
22. 	In the event I am wrong to hold that this Court has no jurisdiction to entertain this matter, the consolidated proceedings are still liable to be dismissed on the basis that the plaintiffs lack locus standi to bring the proceedings.
23. 	In this matter, I have not found any sufficient evidence that the plaintiffs indeed own the pieces of land referred to earlier, namely, Portions 2734 (Dogora) and Portion 2910 (Giboea).
24. 	In the absence of such evidence, the plaintiffs in all the consolidated proceedings lack the necessary standing. The absence of standing means the proceedings are frivolous and vexations (21 ILGs Gobe Project Area Incorporated Land Groups v The State (2006) N3096); Nimanar Rural ILG v Thomas Tanasu Ltd (2009) N3758.
25. 	The absence of evidence to establish locus standi also means, of necessity, that the plaintiffs cannot conceivably establish a reasonable cause of action, as contemplated by Order 12 Rule 40.
26. 	The plaintiffs having failed to provide the Court with adequate evidence that they are the owners of Customary Land or have title over the land upon which the second defendant seeks to build a hospital, means that the proceedings are frivolous and vexatious.
27. 	Having regard to my conclusions above, the plaintiff’s proceedings are liable to be dismissed.
ORDERS
28. 	The Orders of the Court are that:
(a)	These consolidated proceedings are dismissed as prayed in the notice of motion.
(b)	The plaintiffs are to pay the defendant’s costs of the proceedings.
(c)	Time is abridged.

_______ ____________________________________________________
Ms. A Koisen:  Lawyer for the Plaintiff (OS. 442/2016)
Kolo Lawyers:  Lawyer for the Plaintiff (WS. 952/2015)
Mr. B Kome: Lawyer for the Plaintiff (WS. 991/2016)
Mr. William: Lawyer for the Plaintiff (OS. 816/2014)
Mr. James Aku: Lawyer for (all 4 matters) Defendants
Mr. Sioni: Lawyer for First, Second, & Third Defendants (WS. 816/2014)