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Surute v Dau [2022] PGNC 480; N10007 (2 November 2022)

N10007

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CIA 1 OF 2022

KEVIN SURUTE

V

FREDDLY DAU AND 17 OTHERS

Popondetta: Wawun-Kuvi, AJ
2022: 2^nd November

CIVIL- PRACTICE AND PROCEDURE- DISTRICT COURT APPEAL- Appeal against decision refusing eviction on customary land- Whether proceedings an abuse of process? Whether Court may dismiss proceedings on own initiative?

Cases Cited

Golpak -v- Alongkarea Kali & Ors [1993] PNGLR 8
Ronnie Wabia v BP Explorations Operating Co. Limited & 2 Ors [1998] PNGLR 8
Siu v Wasime Land Group Incorporated [2011] PGSC 4; SC1107

Reference

Summary Ejectment Act
National Court Rules

Counsel

Appellant in Person
Respondent in Person

RULING

2^nd November, 2022

1. WAWUN-KUVI, AJ: This is a dispute over customary land located at Kakandetta. The appellant filed summary ejectment proceedings against the Respondent in the District Court. The proceedings were commenced pursuant to section 6 of the Summary Ejectment Act.
   
2. On 9 December 2021, the Senior Provincial Magistrate dismissed the proceedings ruling that the Summary Ejectment Act did not apply to customary land and that the appellant should have filed proceedings under the Lands Dispute Settlement Act.
   
3. On 19 January 2022 the Appellant filed his Notice of Appeal and Recognizance.
   
4. The Appellant and the Respondent are self-represented.
   
5. It is obvious from the Notice of Appeal and the decision of the learned Magistrate that the appeal is futile.
   
6. Firstly, section 2 of the Summary Ejectment Act states that the Act does not apply to customary land. District Court are creatures of statue and the learned Magistrate acted correctly when he dismissed the complaint.
   
7. Secondly, the National Court does not have jurisdiction to determine proceedings relating to ownership or any interests in customary land.
   
8. The Appellant now seeks orders declaring him the rightful owner of the land and eviction of the respondent.
   
9. In Siu v Wasime Land Group Incorporated [2011] PGSC 4; SC1107, the Supreme Court held that the National Court has no jurisdiction to determine or inquire into any traditional forms of accession over customary lands and ownership and interest in such customary lands. It endorsed the decisions in Golpak -v- Alongkarea Kali & Ors [1993] PNGLR 8 and Ronnie Wabia v BP Explorations Operating Co. Limited & 2 Ors [1998] PNGLR 8.
   
10. Having identified, that the success of the appeal is not attainable, I must decide whether I am permitted to dispose of this appeal on my own initiative.
    
11. Order 10 rule 9A(1)(b) empowers the National Court to summarily determine a matter on its own initiative.
    
12. A situation that permits the Court to summarily dispose of a matter is where the Court is satisfied that there are grounds established under Order 12 rule 40: see Order 10 rule 9A(2)(d).
    
13. Order 12 rule 40 deals with Frivolity.
    
14. In Toap v Independent State of Papua New Guinea [2004] PGNC 18; N2766, Cannings J held that a proceeding will be frivolous in nature if the claim is so obviously untenable it cannot possibly succeed and that it is vexatious when the defendant is put to the trouble and expense of defending proceedings which cannot possibly succeed.
    
15. In Ronnie Wabia v BP Explorations Operating Co. Limited & 2 Ors [1998]^[1], Sevua J held that the National Court pursuant to Order 12 and Rule 40 and its own inherent powers, has powers to dismiss proceedings on its own initiative where it is satisfied that the proceedings are frivolous, vexatious and an abuse of the Court’s process.
    
16. The Magistrate had clearly explained that the proceedings should have been filed under the Land Dispute Settlement Act. The District Court proceedings were an abuse of process, and this appeal is an abuse of process. It is also frivolous and vexatious because the claim is so obviously untenable it cannot succeed, and it unnecessarily puts the Respondent to the trouble and expense of defending it.
    
17. I am satisfied that there are grounds under Order 12 Rule 40 of the Rules.
    
18. The Appeal is dismissed.
    

Orders

19. I make the following orders:
    
    1. The Appeal is dismissed.
    2. Each party to bear their own costs.

________________________________________________________________
Appellant in Person
Respondent in Person

^[1] supra