SC2783
PAPUA NEW GUINEA
[SUPREME COURT OF JUSTICE]

SCA NO. 82 OF 2022

BETWEEN:
ELIAP TOKANA
First Appellant

AND:
LUTHER SIPISON, in his capacity as the Secretary of DEPARTMENT OF LANDS & PHYSICAL PLANNING
Second Appellant

AND:
MICHAEL GIDEON in his capacity as the Director of NATIONAL MAPPING BUREAU
Third Appellant

AND:
NATIONAL AIRPORTS CORPORATION LIMITED
Respondent

WAIGANI: POLUME-KIELE J, MIVIRI J, CARMODY J
31 JULY, 8 OCTOBER 2025

PRACTICE AND PROCEDURE – Proceedings commenced by originating summons – filing of a defence or cross-claim without leave of the Court is impermissible – such amounts to an abuse of court process – affidavit evidence to identify triable issues. NCR O 8 rule 27 (1) (a), (b) and (c) and O 12 rule 40 (a), (b) and (c). Summary judgment - extraordinary remedy – should only be granted in the clearest of cases – NCR O 12 rules 38 (1) (a), and (b) – Judgment on admissions – NCR Order 9 rule 30. Improper assertions from the bar table re “fraudulent” affidavit made in the absence of evidence.

REPRESENTATIVE ACTIONS – requirements for establishing authority to act – evidence of authority to act for a class of persons.

Cases cited
William Duma v Eric Meir [2007] PGSC 34; SC898
Magini v Daimo [2021] PGNC 474; N9228 (27 August 2021)
Malu & Ors v Barton & Ors [2018] PngLIN
Bruce Tsang v Credit Corporation (PNG) Ltd [1993] PNGLR 112
Curtain Bros (Qld) Pty Ltd v Kinhill Dramer Pty Ltd & The State [1993] PNGLR 285

Counsel
J Napu for the appellant
B Poki for the respondents
 
1.	BY THE COURT: This is an appeal with respect to a National Court decision to strike out the first appellant’s (the then first defendant) defence and cross-claim and to enter summary judgment in the respondent’s (the then plaintiff) favour.

2.	The second and third appellants did not participate in the appeal.

BACKGROUND

3.	The proceedings were in relation to land described as Portion 2437 (subsequently Portion 2965), Port Moresby, National Capital District (“the land”) being the site of the Port Moresby Jackson Airport.

4.	In the National Court the National Airports Corporation Limited (“NAC”) contended the land was State land used by NAC as an aerodrome and that there had been two Ministerial Declarations published in two National Gazettes to that effect.

5.	Mr Tokana claimed that a substantial part of the land was still customary land owned by his clan and had not been acquired by the State. He accepted that part of the land had been acquired by the Crown in 1940 and in 1941 but that a much larger part remained customary land. He contended that the respondent had erroneously claimed title over the totality of the land being 650 ha. In reality, he claimed, the State had only acquired 72.48 ha. The balance of 557.52 ha. being customary land over which he laid claim.

6.	The dispute had arisen as a result of Mr Tokana commencing to sell portions of the land in 2007.

7.	In response on 1 February 2008 NAC filed proceedings OS 3 of 2008 - National Airports Corporation Limited -v- Eliap Tokana seeking a declaration that the land was State land used by NAC and an order restraining Mr Tokana, his servants, agents, affiliates, associates and clansmen from selling the land. (An amended originating summons was filed 26 October 2016 to include reference to Portion 2965). 

8.	On 4 February 2008 the National Court made the interim restraining orders. Those orders were subsequently varied to restrain any form of dealings with the land, including by purported purchasers of the land, pending the determination of the substantive issue. 

9.	On 27 June 2008 Mr Tokana filed an amended defence and cross-claim.. His cross-claim was for a declaration that the 577.52 ha. was customary land owned by him. He also sought an order that NAC pay him compensation personally for the loss of use and enjoyment of that land with the calculations to commence from 1940 and 1941 respectively in the sum of K3,000.00 per ha. per annum plus 8% interest.

10.	Alternatively, he sought an order that NAC pay him such just compensation as is determined by evidence at a trial. 

11.	Both Mr Tokana’s amended defence and the cross-claim, curiously, referred to the “Defendant/Cross Claimant” only and not to any other customary landowners. That was despite the fact that Mr Tokana described the purported owners of the land as “native/customary landowners”. This issue will be discussed later in this judgment.

12.	For reasons unknown to this Court fourteen years then passed during which various other applications were heard and orders made -– none of which are relevant for the purposes of this decision save for a restraint against NAC on 31 January 2022 protecting the purported purchasers of the land pending the outcome of the proceeding.

13.	Finally, on 17 February 2022, NAC filed a notice of motion seeking to strike out Mr Tokana’s defence and cross-claim; that summary judgment be entered; and that the interim orders made on 31 January 2022 be set aside. The notice of motion was heard on 8 March 2022.

14.	On 13 May 2022 the National Court handed down its decision. The Court determined that NAC’s originating summons was properly instituted against Mr Tokana in his personal capacity, not in any representative capacity, and proceeded on that basis. It then held that Mr Tokana’s amended defence and cross-claim should be struck out for being frivolous or vexatious and an abuse of process; that summary judgment should be entered in favour of NAC in terms of the declaratory relief and orders sought; and that the interim orders made on 31 January 2022 be set aside.

15.	It was from that decision that this appeal lies.

THE APPEAL

16.	The appellants filed the notice of appeal on 17 June 2022 appealing against the whole of the National Court decision. Set out below are the ten grounds of appeal.  

(i)	His Honour erred in law in hearing and determining the issue of ownership of Portion 2437, Port Moresby, National Capital District; when clearly under the law, His Honour had no jurisdiction to hear and determine the issue.
(ii)	His Honour erred in law in failing to dismiss the proceedings, upon making a finding in obiter that the Appellant, was not a proper party in Court.
(iii)	In arriving at a finding that, the Appellant is not a proper party, His Honour, erred in law, in continuing to hear and to determine the ownership issue of the land described as Portion 2437, Port Moresby, National Capital District.
(iv)	When His Honour arrived at a finding that filing of defence in OS proceedings, amount to abuse of process; and in making a further finding that OS proceeding should be defended by affidavit only; His Honour failed to disregard the defence filed and rely on the numerous affidavits of defences filed; when arriving at the finding subject of this appeal.
(v)	His Honour in granting the orders subject of the Appeal, erred in law and mixed fact and law in arriving at the finding that, in evidence before the Court; the Respondents case was clear, and, thus warrant, the granting of summary judgement.
(vi)	In arriving at the decision subject of the appeal, His Honour erred in law and fact in making a finding that the Appellant, (then Defendant) did not file any affidavit in respond.
(vii)	His Honour erred in law in admitting and relying on the Appellant’s questionable affidavit, Doc No.60, filed on the 30th of September 2014. 
(viii)	His Honour erred in law in relying on the affidavit and in making his finding based on the content of the said affidavit, by the Appellant, which gave away ownership of Portion 2437, Port Moresby, National Capital District to the Respondent, when, trite law, clearly state that, customary law is communally owned and not by individuals.
(ix)	His Honour erred in law in arriving at the decision subject of this appeal, without taking into account, the Respondents default, in complying with Her Honour Polume-Kiele J’s Court Order of 25th of July 2015.
(x)	His Honour erred in law in granting ownership of the land described as Portion 2437, Saiwara, National Capital District, to the Respondent, on the basis of 2 Aerodrome declarations in the National Gazette alone, when, in fact, the land was never acquired in full, or most of it, were not acquired at all, in the first instant.
CONSIDERATION OF THE GROUNDS OF APPEAL
17.	The grounds of appeal essentially fall into four categories:

(a)	Once the National Court had determined that Mr Tokana was not a proper party the proceeding should have been dismissed. The National Court should not have gone on to determine ownership of the land as the National Court has no jurisdiction with respect to customary land. 
(b)	The presiding Judge failed to take note of the “numerous affidavits of defences” filed on behalf of Mr Tokana.
(c)	The presiding Judge relied on a “questionable” affidavit.
(d)	There was no evidence before the National Court supporting the finding of the acquisition of the land by the State.
18.	Each of those grounds is misconceived. The reasons are set below in the order in which the issues were addressed in the National Court judgment.

Mr Tokana was not a “proper party” – the proceeding should have been dismissed
19.	This ground is misconceived. The issue of whether Mr Tokana was a “proper party” arose in the following circumstances.

20.	At the hearing of NAC’s notice of motion NAC argued that Mr Tokana could not make a cross-claim with respect to customary land in his personal capacity. His defence and cross-claim should have described him as the cross-claimant in a representative capacity and evidence of the requisite authority from each clan member should have been adduced. This was so because customary land was owned communally and not by an individual. 

21.	Mr Tokana’s counsel did not dispute that point. However, he argued that his client had simply responded to NAC’s claim and it was NAC that had nominated Mr Tokana as the sole defendant.

22.	It is evident that NAC nominated Mr Tokana as the sole defendant as he was selling parts of the land. NAC’s originating summons sought to prevent Mr Tokana personally from selling that land. There was no issue with respect to customary landowners.

23.	By way of contrast in Mr Tokana’s defence and cross-claim he claimed for compensation to be paid to him for the loss of use of customary land. As customary land was communal property each of the purported customary landowners should have been joined as cross-claimants and evidence should have been provided of each authorisation from each landowner authorising Mr Tokana to act as their representative – if such authority existed.

24.	His Honour relied on Malewo v Faulkner [2009] PGSC 3; SC960 (13 March 2009) in which the Court determined, inter alia, that all plaintiffs in a representative action (or as in this case cross-claimants) should be named in the originating process (in this case the cross-claim) and stated that each authority evidencing authorisation for a person to file proceedings as the class representative should be placed before the Court. 

25.	In the more recent decision of Malu & Ors v Barton & Ors [2018] PngLIN his Honour Justice Kariko also set out the requirements for establishing the relevant authorisation and found that the requirements having not been complied with that the proceeding was incompetent and dismissed it in its entirety. 

26.	The National Court Judge found that the proceeding was instituted against Mr Tokana by NAC personally and not in any representative capacity. He stated that Mr Tokana, in his cross-claim, “cannot purport to represent a party that is not before the Court, or a group of people that have not mandated him to do so.” 

27.	His Honour proceeded on the basis that NAC’s proceedings were quite rightly brought against Mr Tokana in his personal capacity and then turned to consider NAC’s application, being the relevant application before him, to strike out the defence and cross-claim and enter summary judgment.

Whether the proceedings should have been dismissed as Mr Tokana was not a “proper party”
28.	While his Honour could have decided to dismiss the defence and cross-claim at that point he chose, instead, to address the issue of Mr Tokana having improperly filed a defence in response to an originating summons as was also argued by NAC. We find no error in his Honour’s decision to proceed on that basis given it was NAC’s notice of motion before him.

29.	These grounds of appeal are dismissed.

The Decision to Strike out the Defence and Cross-Claim without considering the “numerous affidavits of defences” filed on behalf of Mr Tokana
30.	We turn now to the actual decision to strike out the defence and cross-claim.

31.	At the hearing NAC contended that Mr Tokana was not entitled to file a defence and cross-claim in response to the originating summons as that pleading was not provided for in the National Court Rules. 

32.	His Honour, in his reasons, accepted NAC’s submissions as the improper filing of a defence and counter-claim and stated that it “... offends against the rules of this Court to respond to the Originating Summons in a manner the First Defendant has done (See Order 4 Rule 31 and 35 and Order 4 Rule 34 of the National Court Rules); and Magini v Daimo (2021) PGNC 474;N9228 (27 August 2021). 

33.	His Honour also noted that the above position had been stated by the Supreme Court “in the clearest of terms in William Duma v Eric Meir (2007) PGSC 34; SC898.”. That case held “there was no requirement for a defence to be filed in proceedings commenced by Originating Summons unless directed or order by the Court.” 

34.	His Honour therefore concluded that Mr. Tokana’s defence and cross-claim were “invalid for offending the rules of this Court” and were an abuse of the Court process. It is for that reason that they were struck out.

35.	We find no error in his Honour’s decision.

Failure to consider “numerous affidavits of defences”
36.	As to the issue of his Honour’s failure to consider the “numerous affidavits of defences” filed on behalf of Mr Tokana the transcript of the hearing reveals Mr Tokana’s counsel, Mr Napu, provided no written submissions and relied on two affidavits only – neither of which assisted the Court. 
37.	The transcript reveals an exchange between counsel and his Honour during which his Honour repeatedly advised counsel that the annexure to that affidavit “does not identify the land”; “How do I know that it is exactly the same land we are dealing with”; and “This document ... does not assist me to connect it to the land that we are currently talking about,”.

38.	His Honour noted that the next annexure he was taken to by Mr Napu identified his client as the “former” traditional landowner. If anything that annexure supported NAC’s case that the land had been sold and that Mr Tokana had no claim to it.

39.	There were no other affidavits relied upon by Mr Napu at the hearing. It was for Mr Napu to take his Honour to the “numerous affidavits of defences” if such affidavits existed. His Honour’s observation, therefore, in his judgment that “The First Defendant has not filed any answering Affidavits in opposition to the relief sought by the Plaintiff” was correct.  

40.	We find no error in his Honour’s decision. These grounds of appeal are dismissed.

“Questionable” Affidavit
41.	Once his Honour had struck out the defence and cross-claim he turned to the issue of the summary judgment application.

42.	One of the factors his Honour considered was an affidavit by Mr Tokana. Mr Tokana’s counsel, Mr Napu, who appeared at both the notice of motion hearing and before this Court disputed the validity of the affidavit sworn by Mr Tokana acknowledging that NAC was the rightful owner of the land. In fact, Mr Napu told the National Court that the document was fraudulent and that he had been the lawyer for Mr Tokana throughout the entirety of the proceeding. He made the same submission to this Court.

43.	Other than Mr Napu asserting from the bar table that the affidavit was fraudulent there was no admissible evidence before either the National Court or this Court on that issue. 

44.	Not only was the supposedly fraudulent affidavit raised at the notice of motion hearing but it was also included in the Appeal Book. Its existence was therefore known to Mr Napu. We would have thought that the obvious step to be taken would be for Mr Tokana to provide a sworn affidavit deposing to the falseness of the affidavit. That was not done and for that reason alone we would not normally deign to consider the issue further – particularly given his Honour’s acceptance of and reliance on the affidavit in his reasons.

45.	However, we are of the view that all counsel should be very clear about their professional obligations with respect to any submissions, whether written or oral, made to a Court. Mr Napu insisted before us that the affidavit was a fraud as he was the only lawyer that had acted for Mr Tokana in these proceedings. That was demonstrably false as could be easily ascertained by a perusal of the Appeal Book – the existence of which we are entitled to presume Mr Napu had full knowledge.

46.	The Appeal Book reveals a period of some years during which other lawyers acted for Mr Tokana or Mr Tokana represented himself. The assertion of fraud made by Mr Napu to this Court does him no credit and reflects poorly on the legal profession.

No Evidence supporting the Claim of ownership of the land by the State
47.	His Honour carefully explored the leading authorities with respect to a summary judgment noting that it is an “extraordinary remedy that shuts the door in final fashion against the other party…and should only be granted in the clearest of cases.” He also noted the leading Supreme Court authorities which included Bruce Tsang v Credit Corporation (PNG) Ltd (1993) PNGLR 112 and Curtain Bros (Qld) Pty Ltd v Kinhill Dramer Pty Ltd & The State (1993) PNGLR 285 and their observations with respect to Order 12 Rule 38 that the Court must be satisfied that:

i)	There is evidence of the facts proving the essential elements of the claim; and
ii)	There is evidence from the Plaintiff or some other responsible person that in his belief there is no defence.

48.	His Honour applied those principles. We also note that his Honour conducted himself in accordance with the view expressed in William Duma v Eric Meir [supra] that if a party is faced with a summary judgment application that party can place evidence before the Court establishing serious triable issues which may defeat a summary judgment application. The issue then for this Court is - was there evidence of “serious triable issues?

49.	His Honour considered the affidavit of Mr Rex Kiponge, the Managing Director and CEO of NAC. Mr Kiponge set out the history of the acquisition of the land. He deposed to the land having been acquired by the Crown on 20 January 1913 by way of Transfer by Native to the Crown and that “The transaction involved the payment of fifty pounds by the Crown to the 49 Vendors, all receiving equal shares.” Further events took place over the next ninety or so years.

50.	Mr Kiponge’s affidavit included various annexures demonstrating that the land had first been declared Aerodrome Land on 2 June 1980 by way of a Ministerial Declaration published in National Gazette No. 51 of 1980. That Declaration was subsequently revoked and a new Declaration made on 10 April 2010 with respect to the Aerodrome Land. That Declaration included land which had not been the subject of the original Declaration. As a consequence, Portion 2437 was consolidated with Portion 1229 into Portion 2965. Those documents were before the Court.

51.	His Honour also noted the resurveyed map, annexure “E” to Mr Kiponge’s affidavit, being a copy of the resurveyed map showing the boundaries of Portion 2965 as it appears on the Survey Cat No. 49/3015. 

52.	During the course of the hearing of NAC’s notice of motion, his Honour was also taken to the Land Act 1996 s. 54 which states that with respect to a declaration of Land as Aerodromes “The Minister may, by notice, in the National Gazette, declare an area of land to be an aerodrome.” 

53.	He was also taken to s. 5 of the Land Act which states that “The Minister may, by notice in the National Gazette, declare that any land that appears to him not to be customary land shall, unless good cause is shown to the contrary, be conclusively deemed for all purposes, at the expiration of three months from the date of publication of the notice, to be State land.” The relevant Gazettes had been published in 1980 and 2010. The time had long expired for any challenge as to the ownership of the land.

54.	His Honour also considered the “questionable affidavit” in which Mr Tokana had sworn: 

The National Airports Corporation is owner of Portion 2347 now relinquished (surrender) and known as Portion 2965 in Survey map identified as Cat. No. 49/3015.
55.	This is the same survey map attached to the affidavit of Mr Kiponge. His Honour quite rightly found that the above statement represented “an admission” by Mr Tokana as to the ownership of the land which was “strong, clear and unambiguous and makes the Plaintiff’s case unanswerable, or its success in this matter a foregone conclusion.” 

56.	His Honour noted that Mr Napu had argued that it would not be proper to have regard to the affidavit. His Honour stated:on to grant summary Affe First Defendant, (Doc No.60) fil
In my considered view, Order 9 Rule 30 of National Court Rules, seems to authorize admissions similar to the one made by the First Defendant in his Affidavit sworn on the 30th September 2014 (Doc.No.60).
I am fortified in the view, I hold by the remarks of the Supreme Court in the case of Severinus Ampaoi v. James Tauriko & 1 or [2012] PG SC 3; SC 1166 (1March, 2012) at paragraph 68 when the Court stated that:
“68. According to Sub-rule 1 of Rule 30, there are two situations by which judgments by admissions may be entered against an opposite party. The first situation is where admissions are made in pleadings of a party, for example, a defendant makes an admission in its defence to owing a sum of money to the plaintiff. The second situation is where admissions are made in other circumstances by virtue of the expression “otherwise”. In our view, the expression “otherwise” would cover situations where admissions are made in a party’s witness’s affidavit, 

answers to interrogatories etc: see Alfred Alan Daniel’s case (supra), John Kul-v-The State (2010) N3898 and TNA Limited-v-Paul Kua & Konga Coffee Limited (2011) N4225.”
57.	Having considered the evidence before him, including the subject affidavit, and noting there was no evidence before him by Mr Tokana to challenge the documents provide by Mr Kiponge, his Honour concluded that “In my mind, this is one such clear case. On the evidence before me the plaintiff’s claim of ownership of the subject land is clear and unimpeachable and there is no opposition to same on record.” He reiterated that point by further stating “On the evidence before me I am satisfied that there is no triable issue of fact and no defence based on law at all (Kumul Builders Pty Ltd v Post Telecommunications Corporation (1991) PNGLR 2999.”

58.	For the reasons given by his Honour we find no error in his reliance on that affidavit and Mr Kiponge’s affidavit and annexures. There was ample evidence before his Honour supporting the claim that the land was State land. 

59.	The finding by his Honour that Mr Tokana did not file “any answering affidavits in opposition to the relief sought by the Plaintiff. The net effect of this failure by the First Defendant is that the averments of the Plaintiff stand uncontradicted and must be accepted as the truth, as I hereby do.” was correct. 

60.	These grounds of appeal are dismissed.

The Court should not have gone on to determine ownership of land as disputes with respect to customary land are not within the National Court’s jurisdiction
61.	The argument that the National Court should not have determined the ownership of the land as disputes with respect to customary land are not within the National Court’s jurisdiction is also misconceived.

62.	The declaration made by his Honour (being that sought in the amended Originating Summons) was not as a result of a determination as to ownership of customary land. It was a declaration as to the position at law given the National Gazette notices published pursuant to the Land Act 1996.

63.	This ground of appeal is dismissed.

CONCLUSION
64.	Having found no error with respect to his Honour’s reasons it is this Court’s decision that the appeal should be dismissed. 

ORDERS

1.	That the appeal be dismissed.

2.	That the decision of the National Court in OS No. 33 of 2008 delivered on 13 May 2022 be affirmed.

3.	That the first appellant is to pay the respondent’s costs of the appeal, to be taxed, if not agreed.
________________________________________________________________
Lawyers for the appellants: Napu Lawyers
Lawyers for the respondents: Warner Shand Lawyers