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Geamsa v Paita [2021] PGNC 105; N8855 (4 February 2021)

N8855


PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]


OS NO. 222 OF 2020


BETWEEN:
NORM GEAMSA, FOR HIMSELF AND ON BEHALF OF GEBUMLABU CLAN OF FINSCHHAFEN, MOROBE PROVINCE AND THE 195 PERSONS LISTED IN THE SCHEDULE OF THE ORIGINATING SUMMONS
Plaintiff


AND:
HON. RAINBO PAITA, IN HIS CAPACITY AS THE CHAIRMAN OF FINSCHHAFEN DISTRICT DEVELOPMENT AUTHORITY AND MINISTER FOR FINANCE AND RURAL DEVELOPMENT
First Defendant


AND:
GLEN KISO, IN HIS CAPACITY AS THE CHIEF EXECUTIVE OFFICER OF FINSCHHAFEN DISTRICT DEVELOPMENT AUTHORITY
Second Defendant


AND:
NAWALI NAMOA, IN HIS CAPACITY AS A MEMBER OF SAGULAP CLAN OF FINSCHHAFEN, MOROBE PROVINCE
Third Defendant


AND:
TAIKIKA TIMON, IN HIS CAPACITY AS A MEMBER OF SAGULAP CLAN, FINSCHHAFEN, MOROBE PROVINCE
Fourth Defendant


AND:
LAINA KASUP, IN HIS CAPACITY AS A MEMBER OF WALUWALU CLAN OF FINSCHHAFEN, MOROBE PROVINCE
Fifth Defendant


AND:
YAPI BIAM, IN HIS CAPACITY AS A CLAN MEMBER OF WALUWALU CLAN IN FINSCHHAFEN, MOROBE PROVINCE
Sixth Defendant


AND:
JOHN EDWARD KASU, THE MANAGING DIRECTOR, NATIONAL FISHERIES SUTHORITY
Seventh Defendant


AND:
CAVEMAN CONSTRUCTION LIMITED
Eighth Defendant


AND:
HATA-BEM CONSTRUCTION LIMITED
Ninth Defendant


AND:
EPHRAIM WASEM, THE MANAGING DIRECTOR, NATIONAL AIRPORTS CORPORATION
Tenth Defendant


AND:
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Eleventh Defendant


Lae: Dowa AJ
2020: 09th October
2021:04th February


PRACTICE AND PROCEDURE – application by plaintiffs and sixth defendant – plaintiffs seek injunctive orders pending determination of substantive proceedings – sixth defendants seek orders to dismiss proceedings on the basis that the national court lacks jurisdiction to determine the issue of interests in customary land - Whether or not the proceedings are frivolous, vexatious and abuse of the process and does not disclose a reasonable cause of action – issues of interest in customary land shall be brought before the local land court under the Land Disputes Settlement Act – issue of whether or not a land is customary land or state lease should be brought before the lands Titles Commission under the Lands Titles Commission Act – the issue before this court is about ownership issues on customary land – National Court does not have jurisdiction to determine the issue – Proceedings dismissed for been frivolous and vexatious and for not disclosing a reasonable cause of action- Order 12 Rule 40 (1) of the National Court Rules.


Cases Cited:


Katumani & Ors v Elijah Yawing & Ors (2020) N8481
Kimas v Oala (2015) SC1475
Louis Lucian Siu v Wasime Land Group Incorporated (2011) SC1107
Mt Hagen Urban Local level Government v Sek No.15 (2009) SC1007
Toap v PNG Products (2004) PNGLR 57


Counsels:


L Vava & E.T Paisat, for the Plaintiffs
T. Dawidi, for the First, Second, Third, Fourth, Fifth, & Eight Defendant
K. Aisi, for the Sixth Defendant
S Maliaki, for the Eleventh Defendant


RULING


04th February, 2021


  1. DOWA AJ: This is a ruling on two applications by the Plaintiff and the Sixth Defendant respectively.

APPLICATIONS


  1. By Notice of Motion the Plaintiff seeks interim injunctive orders pending determination of the substantive proceedings. The Sixth Defendant, by Notice of Motions seeks the dismissal of the entire proceedings on the basis of the National Court having no jurisdiction to deal with the substantive matter.
  2. I will deal with the Sixth Defendant’s Motion first. If the application is successful, that will determine the matter and shall be the end of the proceedings.

FACTS


  1. The Plaintiffs are a customary landowner group from Gembumlabu clan of Finschhafen, Morobe Province.
  2. The Plaintiffs allege they are the customary landowners of land or having rights over land covering Bugaim Village, Dreggerhafen, Gagidu, Timbulim, and Gingala land in which the Buki wharf and the old aerodrome are located.
  3. The Defendants namely the National Member for Finschhafen, the Finschhafen District Development Authority, in collaboration with the National Fisheries Authority and National Airports Corporation have commenced work on the Buki wharf and the aerodrome in the execution of governments developmental plan for the District.
  4. The Plaintiffs allege they were not consulted and have not given their consent and approval as customary landowners for the Defendants to carry out work on their land.

THE PROCEEDINGS


  1. By Originating Summons, the first relief sought by the Plaintiffs is in the following terms:

“1. A declaration that the land upon which the Buki Wharf and the old aerodrome/airport at Finschhafen are located is customary land.”


  1. The rest of the reliefs sought are consequential declaratory orders and interim restraining orders.
  2. The Defendants have denied or opposed the proceedings. The Sixth Defendant is asserting that the National Court does not have jurisdiction to determine and grant the relief sought by the Plaintiff.

THE SIXTH DEFENDANTS APPLICATION

  1. By Notice of Motion filed 30th June, the Sixth Defendant seeks orders that the proceedings be dismissed for being an abuse of process and for being frivolous and vexatious pursuant to Order 12 Rule 40 (1) of the National Court Rules.

ISSUE


  1. Whether or not the proceedings are frivolous, vexatious and abuse of the process and does not disclose a reasonable cause of action.

LAW


  1. The relevant rule for this application is Order 12 Rule 40 (1) of the National Court Rules. It reads:

40. Frivolity, etc (13/5)


(1) Where in any proceedings it appears to the Court that in relation to the proceedings generally or in relation to any claim for relief in the proceedings-

The Court may order that the proceedings be stayed or dismissed generally or in relation to any claim for relief in the proceedings.”


  1. The law on Order 12 Rule 40 of the National Court Rules is well settled in the Supreme Court in Mt Hagen Urban Local level Government v Sek No.15 (2009) SC1007 in paragraphs 27-30.

“27. The terms “vexatious”, “frivolous”, “abuse of the process of the court” and “reasonable cause of action” under O.12 r.40 of the National Court Rules have been judicially considered, defined and expounded in a number of decisions in both the National and Supreme Courts. These cases include Ronny Wabia v. BP Exploration Co. Limited & 2 Others [1998] PNGLR 8 (N1697); PNG Forest Products Pty Ltd and Another v. The State and Genia [1992] PNGLR 85; Gabriel Apio Irafawe v. Yauwe Riyong (1996) N1915; Eliakim Laki and 167 Otheres v. Maurice Alulaku and Others (2002) N2001; Kiee Toap v. The Independent State of Papua New Guinea & Another (2004) N2766; Kerry Lerro trading as Hulu Hara Investments Limited v. Phillip Stagg, Valentine Kambori & The State (2006) N3050; Phillip Takori & Others v. Simon Yagari & 2 Others (2008) SC 905. These cases say the same thing.


  1. The law with regard to an application for dismissal of proceedings based on O.12 R.40 is settled in our jurisdiction. We note that the principles are succinctly set out in Kerry Lerro’s case (supra) and which has more recently been approved and applied by the Supreme Court in Phillip Takori’s case (supra).
  2. The phrase ‘disclosing a reasonable cause of action’ consists of two parts: cause of action and form of action. A cause of action is defined as a legal right or form of action known to law whereby a plaintiff in a statement of claim must plead all necessary facts and legal elements or ingredients to establish or prove his claim. The principles stated by these cases can be summarized as follows:
  3. In an application under O.12 R.40 of the NCR, the Court may dismiss a proceeding or action where it is satisfied that the pleading in the statement of claim is seriously wanting where a necessary fact or legal element has not been pleaded.”

SUBMISSIONS BY DEFENCE COUNSEL

  1. Mr. Aisi, counsel for the Sixth Defendant submits, the relief sought by the Plaintiff in the Originating Summons involve issues of customary land ownership. Mr. Aisi submits, the National Court does not have jurisdiction. Only the local land Court has jurisdiction under Section 26 of the Land Dispute Settlement Act.
  2. Mr. Aisi, referring to the evidence in support of the application by the Plaintiffs, submits that the Gebumlabu land where the Buki wharf and aerodrone are located is no longer customary land as it has been alienated by the state. Mr Aisi submits that the Plaintiffs application necessitates the National Court to determine the issue of customary land ownership which the National Court lacks jurisdiction and therefore the proceedings are an abuse of the process, and to that extent, discloses no reasonable cause of action.
  3. Mr. Aisi relies on the case in Louis Lucian Siu v Wasime Land Group Incorporated (2011) SC 1107 in support of the application. Counsel for the rest of the Defendants support the application for dismissal.
  4. Mr. Vava, counsel for the Plaintiff submits that the National Court has power to determine the issue of whether the subject land is or is not customary land under section 3(2)(a) of the Land Dispute Settlement Act.

REASONS FOR DECISION


  1. I have studied the pleadings, the evidence and submissions by counsel. The Plaintiff alleges the Buki wharf is situated on Gingala customary land area. There was a dispute over the land between the Plaintiffs Gebumlabu clan and the fourth, fifth and sixth Defendants’ clan. In a mediation proceeding, the Mediators awarded the land to the Plaintiffs in 1998. However, I note there is no approval of the mediator’s decision by the Local Land Court under section 19 of the Land Dispute Settlement Act.
  2. The Plaintiff alleges further that in 2016 another mediation was conducted in respect of a dispute over the land where the Dregerhafen Lautung reef light house is located and the decision on the mediation is still pending. However, there is some evidence that the 2016 mediation is over land that is separate and not related to the land where the Buki wharf and the aerodrome are currently located.
  3. Whilst the Plaintiff asserts customary ownership, there is evidence that show that there is a State Lease over the land on which the Buki wharf is located. Despite the existence of the State Lease and the unresolved outcomes of the mediations, the Plaintiffs are seeking declarations of customary land ownership. To this end, I agree that the National Court does not have jurisdiction to hear a case involving a dispute over land or interest over customary land.
  4. Where a dispute as to interest in land that remains a customary land, only the Local Land Court has jurisdiction under section 26 of the Land Dispute Settlement Act, in the first instance.
  5. The Supreme Court in Louis Lucian Siu v Wasime Land Group Incorporated (2011) SC1107 in affirming this position said at paragraphs 26 to 31 of the Judgment:

“ISSUE NO: 2 JURISDICTION

  1. The next question that arises is whether or not the National Court has jurisdiction to inquire into or deal with issues relating to disputes over customary ownership or interests in customary lands.
  2. Under section 26 of the Land Dispute Settlement Act 1975; only the Local Land Courts and Provincial Land Courts have jurisdiction over and in relation to a dispute as to ownership or an interests in customary land. Section 26 of the Land Dispute Settlement Act 975 is stated in the following terms:

"Subject to Section 3 and 4 and to this part, a Local Land Court has jurisdiction over and in relation to:-

(a) a dispute as to an interests in land, where the land in dispute is situated wholly or partly within the province for which the court is established; and

(b) the approval of agreement under Section 19; and

(c) a dispute to which Section 29 applies; and

(d) any other action or decision that it may be required to take under this Act";

  1. Section 53 is stated in the following terms:

s. 53 – Jurisdiction

Subject to this part, a Provincial Land Court has no jurisdiction to hear and determine appeals from a decision of a Local Land Court where the land in dispute is situated wholly or partly within the area of the Provincial Land Court.

  1. In Golpak -v- Alongkarea Kali & Ors [1993] PNGLR 8, the National Court held that it had no jurisdiction to determine or inquire into issues relating to interests in a customary land or ownership of customary land. In Ronnie Wabia v BP Explorations Operating Co. Limited & 2 Ors [1998] PNGLR 8, Sevua J applied the decision in the Golpak case to hold that the National Court was deprived of and had no jurisdiction to inquire into traditional forms of accession into traditional lands and ownership and interest in such customary lands
  2. In the Golpak case, Doherty J while holding that the National Court had no jurisdiction to deal with issues as to ownerships or interests in customary land made the following comments;

"It seems to me that the spirit and the intent of the legislature in writing the Land Dispute Settlement Act was to prevent the National Court from arbitrating on the forms of accession and hence ownership or control on interests in customary land and I think therefore that it would be against both the letter and the spirit of the legislation if I took upon me the powers to make declarations on what is an interests in land. I therefore consider that this Court does not, at this time, have jurisdiction to arbitrate in this case and I must therefore refer it to the Local Land Court to determine who have the interests in the land"

  1. We agree with the comments expressed above and we too are of the view that His Honour the learned Judge erred in law when he did not dismiss the entire proceedings for want of jurisdiction. In our opinion there is no proper basis for the Judge to entertain this claim and we conclude that His Honour fell into error in that respect. There were sufficient evidentiary materials before the National Court which showed that this was really a dispute over monetary and other financial benefits and interests arising from the control, use and ownership of customary lands.”

24. Where customary land is alienated, the process of determining customary ownership is now vested with the Land Titles Commission. In Kimas v Oala (2015) SC1475, the Supreme Court settled the law. At paragraphs 6 and 7 of its Judgment the Court said and I quote:


“6. It is settled law that the National Court has no jurisdiction to hear 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 Titles Commission under section 15 (determination of Disputes) of the Land Titles Commission Act, which states:

The Commission has, subject to this Act, exclusive jurisdiction to hear and determine all disputes concerning and claims to the ownership by custom of, or the right by custom to use, any land, water or reef, including a dispute as to whether any land is or is not customary land and may make all such preliminary inquiries and investigations as it deems necessary for the purpose of hearing and determining the disputes and claims.


  1. Section 15 has been given full effect by the courts over many years. As soon as it becomes apparent that a case involves a dispute about whether a land is or is not a customary land, the court should divest itself of jurisdiction. Such disputes fall within the exclusive domain of the Land Titles Commission.”

25. Applying the reasonings in Kimas v Oala, I have expressed a similar view in a recent case in Katumani & Ors v Elijah Yawing & Ors (2020) N8481. In paragraph 28 of my judgment, I said:

“28. Since the Defendants have raised substantial dispute over ownership, I will address them as well so the parties have proper and informed understanding of the process involved in furthering their interests. It is trite law that both the district and National Courts have no jurisdiction to deal with disputes over customary land. Such disputes can be dealt with in the first instance by following the procedures and processes in the Land Dispute Settlement Act. Where a title is issued over customary land as in the present, case a disputing party can mount a case with the Land Titles Commission pursuant to Land Titles Commission Act”.


26. The pleadings and evidence in the present case is clear. The Plaintiffs are claiming land and interest on Gebumlabu land which they say remains a customary land. The Defendants are denying the allegations and even disputing the Plaintiffs’ alleged rights. This will necessitate the Court to inquire into and determine ownership issues over customary land. Again, I reiterate that, this Court does not have jurisdiction to determine the dispute and grant the relief the Plaintiffs are seeking.


  1. Lack of jurisdiction by the National Court renders the current proceedings frivolous. In Toap v PNG Products (2004) PNGLR 57, the Court held that a Plaintiffs claim is frivolous if it is so obviously untenable that it cannot possibly succeed or is bound to fail on trial.
  2. For these reasons, I am inclined to grant the orders sought by the Sixth Defendant, at this stage in order for parties to avoid the expense of continuous and unnecessary litigation.

FUTURE (RECOURSE)

  1. The Plaintiffs can seek redress by initiating proceedings under the Land Dispute Settlement Act, or lodge a claim with the National Land Titles Commission pursuant to section 15 of the Land Titles Commission Act or seek review of the decisions which granted the State Lease so as to protect their interest.

ORDERS


  1. The Plaintiffs entire proceeding is dismissed for frivolity.
  2. The Plaintiffs pay the Defendant’s cost.
  1. Time be abridged.

______________________________________________________________________

Vava Lawyers / Paisat Lawyers : Lawyers for the Plaintiff
Dawidi Lawyers: Lawyers for the First, Second, Third, Fourth, Fifth & Eight Defendants

Kelly Naru Lawyers: Lawyers for the Sixth Defendant

Solicitor General Lawyers: Lawyers for the Eleventh Defendant

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