Pyawa v Pyapunwale [2021] PGDC 33; DC5098 (14 March 2021)

DC5098

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE]

FC NO 16 OF 2019

BETWEEN
Keyalisa Pyawa
Complainant
V
Pupusa Pyapunwale
Defendant

Mt Hagen : Magistrate L. Mesmin
2021: 14^th March

CIVIL CLAIM – Compensation Proceedings – Claim Under The District Courts Act – evidence relates to ownership of customary land – right to claim.

PRACTICE AND PROCEDURE- Land Dispute Settlement Act – ownership of customary land - District Court lacks jurisdiction – failure to disclose reasonable cause of action - abuse of court process.

CASES CITED
Shem Emmanuel v Elizabeth Iga [2003] PNGLR 20
PNG Forest Products v The State [1992] PNGLR 85
Ronny Wabia –v- BP Exploration Co. Ltd, Department of Mining & Petroleum and The State, N1697
Kerry Lerro trading as Hulu Hara Investments Ltd v. Philip Stagg, Valentine Kambori and The Independent State of Papua New Guinea (2006) N3950
Takori v Yagari (2007) SC905

LEGISLATION
District Court Act, Chapter 40
Land Dispute Settlement Act

COUNSEL
Complainant in Person
Defendant in Person

DECISION

L. MESMIN DCM:
INTRODUCTION

1. This is for hearing of a complaint, by the Complainant, Keyalisa Pyawa, of Kanimareta village, Baiyer District, Western Highlands Province against the Defendant Pupusa Pyapunwale pursuant to s.22 of the District Court . The wording of the complaint reads:
   

“Pupusa Pyaunwale, the Defendant is liable to pay the Complainant the sum of K4000 with costs and interests for breaching an understanding and/or breaching a duty to properly disburse land compensation payments, full particulars of which are set out in the statement of claim....”

2. Parties have filed all their affidavits in response and reply to each other and the hearing proceeded by way of affidavit evidence.
   

ISSUES

3. The issues presented before this court that arose out of pleadings and the evidence produced are these:
   1. Does this court have the jurisdiction to hear this complaint?
   2. Do the pleadings disclose a reasonable cause of action against the defendant?
   3. Do the proceedings amount to an abuse of the court’s process by reason of evidence in support of this civil claim relating to claims over ownership of customary land under the Land Dispute Settlement Act 1975?
      
4. I am asked to look closely at the submissions parties have raised relating to the Court’s jurisdiction.
5. I will address the first issue and then the remaining two issues can be dealt with together because the same kind of considerations applies to them. I will therefore deal with them in that way.
   

LAW

6. The District Court is a court of Summary Jurisdiction and with limited jurisdiction. Section 22 of the District Court Act is in the following terms:
   

22. GENERAL ANCILLARY JURISDICTION.

Subject to this Act, a Court as regards a cause of action for the time being

within its jurisdiction, shall, in proceedings before it–

(a) grant such relief, redress or remedy, or combination of remedies, whether absolute or conditional; and

(b) give the same effect to every ground of defence or counterclaim, whether equitable or legal,

as ought to be granted or given in a similar case by the National Court and in as full and ample a manner.

7. S. 22 of the District Courts Act is clear, there must be a reasonable cause of action on foot first, raised in the complaint.
   
8. District Courts are created by statue and their powers are conferred by law and can only act within the boundaries of those laws that govern them.
   
9. This position in law was expressed by Justice Kirriwom in Shem Emmanuel v Elizabeth Iga [2003] PNGLR 20 at page 2117:
   

“The power of the District Court is limited to what the enabling Act expressly provides. Generally all courts of summary jurisdiction exercise their powers within the limitation imposed upon the court as creatures of Statute. They are not court of records. Their first source of power is the law under which the District Court is given the jurisdiction to deal with a matter, for example in this case the Adultery and Enticement Act. If a remedy sought under that Act is unavailable the next reference point is the District Court Act, which is the overall law that creates the Court and gives it power. If that Act is silent or makes no provision for the type of relief that a party seeks, there is no other source. That is why the District Court and all other subordinate courts are courts of limited jurisdiction to the matters specifically granted to them by statute”.

COMPLAINANTS EVIDENCE

10. From the every outset, the evidence as it stands indicates that this is not a claim seeking compensation in the civil jurisdiction per se but rather a matter relating to a dispute arising out of 2 parties disagreeing as to who the rightful owner is over customary land entitling either one or both of them to claim monetary benefits from the other or each other.
    
11. In support of the Complainants case, he relies on Keyalisa Pyawa’s affidavit received on 12^th December 2020 and the Statement of Claim dated 15^th March 2019 which is his only evidence.
    
12. The Complainant, Keyalisa Pyawa, from the Kulima tribe of Baiyer District, Western Highlands Province states that he is the customary landowner of a portion of land known as Kanimareta located in his village.
    
13. He submits that on 1^st December 2013 the subject land in question, Kanimareta, was handed over to Baiyer District Administration and the Western Highlands Provincial Health Authority to be used to build a Community Health Post facility that would be operated by the Baptist church.
    
14. A list of beneficiaries was supplied by the Complainant and other land owners to the Baiyer District Administration and the Western Highlands Provincial Health Authority (WHPHA) for purposes of calculating compensation payments.
    
15. On or around the 12^th March 2015, the WHPHA paid the sum of K99,500.00 as landowner benefits for the Kanimareta land into the Defendants bank account to be disbursed to all the relevant landowners named as beneficiaries.
    
16. The Complainant is claiming that the Defendant in disbursing the money did not consider and pay any of that money to him, as he was named as a beneficiary on that list that was submitted.
    
17. He now claims for the money that was not paid to him, that it should now be paid by the Defendant to him on the basis that he also owns that land as of birth right.
    
18. He stringently asserts that he is indeed a customary land owner and therefore has a right to claim for benefits that arise out of payments made for the acquisition and use of that customary land and on that basis is entitled to claim compensation.
    
19. He argues that his father, Pyawa Kulima, the third born of three children, was given the land, Kanimareta, by their adoptive father named Kulima where the Aid Post is currently situated.
    
20. He seeks to be compensated K4000 by the Defendant, on the premise that he is a customary owner to the land, named Kanimareta, upon which the WHPHA has now built an aid post.
    
21. The Complainant presumes that this District Court is empowered with the jurisdiction to hear this matter from the very outset.
    
22. Section 9 of the District Court Act creates a presumption of jurisdiction but I am reminded that it is only a presumption and does to remove the duty of a magistrate to inquire and make sure that he or she is indeed acting with the jurisdiction of the District Court. This section provides:
    

9. Presumption of jurisdiction.

An act done or purporting to have been done by or before a Magistrate shall be taken to have been done within his jurisdiction in the absence of proof to the contrary.

DEFENCE EVIDENCE

23. The relevant evidence in Defence is set out in the affidavits of:
    • Pupusa Pyapule dated 8^th April 2019;
    • Lamoa Minako, a pastor of Kanimareta Baptist church dated 3^rd July 2019;
    • Isaac Kaim of Kalau tribe dated 3^rd July 2019;
    • Kiap Pamboa, a magistrate of Kanimareta village dated 3^rd July 2019; and
    • Wanbi Raiya a neighbouring tribesman dated 3^rd July 2019.
      
24. The Defendant, Pupusa Pyapule, is from the Roepa tribe, Sip Constituency, Baiyer river and comes from Kanimareta village.
    
25. He argues that the land in question is land upon which his father Pyapuale Ranguale and grandfather Ranguale lived.
    
26. The land was transferred on 20^th January 1969 to the Baptist Mission by his father Pyapuale Ranguale and his Roepa tribesmen of Roepa Mulkai tribe and not Kandasu tribe which, he claims, the complainant belongs to.
    
27. In his defence he states that the complainant, Keyalisa Pyawa is not included either in the land owner transfer agreement dated 20^th January 1969 nor in the recent 2012 -2015 agreement beneficiary list with the WHPHA.
    
28. The Defendant states that the Complainant is from the Kandasu tribe in the Lyapram ward of Mapao constituency, Baiyer District.
    
29. He therefore has no right to claim for any benefits that arise out of any payments made for the acquisition and use of that customary land. It is on that basis that the Complainant should not claim that he is a customary landowner, and therefore was not paid out any monies and he is further not entitled to claim for anything from the courts by way of compensation.
    
30. It appears that even though this claim is based on compensation, the substantive issue that arises from the parties’ evidence predominantly relates to identifying who the rightful customary owners are to the subject land in question.
    

ISSUE 1 - DOES THIS COURT HAVE THE JURISDICTION TO HEAR THIS COMPLAINT?

31. The answer to that question is NO.
    
32. The power of the District Court is limited to what the enabling Act expressly provides.
    
33. In this case the District is silent and makes no provision on issues relating as to whether or not under its civil jurisdiction it has the power to hear disputes relating to ownership of customary land.
    
34. If the District Courts Act is silent or makes no provision for the type of relief that a party seeks, then the Court must necessarily look at another source of law that does.
35. I note also that the District Court is not a court of records and can only exercise its powers under the summary jurisdiction within the limitation imposed upon the court as creatures of Statute.
    
36. In this case the evidence indicates that even though this is a claim for compensation the only way whereby this court can identify whether the Defendant is liable to pay the amount sought is by hearing evidence on the issue of whether he has a right to claim.
    
37. That right to claim can only be made by a legitimate land owner of customary land.
    
38. In his evidence he must necessarily prove that he is indeed a legitimate owner of customary land of the subject land in question in order for him to make any claim before the District Court.
    
39. Having said that, it seems apparently clear to me that the main issue to be addressed at this juncture is the question as to whether he is or is not an owner of customary land.
    
40. The District Court under its civil jurisdiction as set out in the District Courts Act does not have the power to make a declaration as to who the rightful customary land owner is, as it falls squarely within the Jurisdiction of the Local Land Court under the Land Dispute Settlement Act 1975 (LDSA).
    
41. Obviously the remedy being sought for under the District Courts Act by way of s.22 is unavailable, therefore the next reference point is the Land Dispute Settlement Act, which is the overall law that establishes the Local Land Court and gives it power.
    
42. The Local Land Court and the Provincial land Court are courts of limited jurisdiction to the matters specifically granted to them by statute.
43. I refer to section 3 of the LDSA.
    

3. APPLICATION.

(1) Subject to Subsection (2) and to Section 4, this Act applies to disputes as to interests in customary land, or as to the position of boundaries of any customary land.
(2) Nothing in this Act applies to a dispute–

(a) as to whether land is or is not customary land; or
(b) to which Part IV. of the Land Groups Incorporation Act 1974 applies.

44. This matter in terms of the arguments or the claim raised must necessarily be dealt with as a dispute as to ownership of an interest in customary land, under the Land Dispute Settlement Act 1975.
    
45. This law’s application only extends to disputes as to ownership interests in customary land, or as to the position of boundaries of any customary land. In customary land disputes the relevant law is Custom and the Act.
    
46. Until the dispute relating to ownership over Kanimareta has been determined, any other proceedings including this complaint in the District Court will have no basis.
    
47. I therefore find that I do not have the power sitting as a District Court Magistrate under its civil jurisdiction to hear such a claim.
    
48. The next two issues can be dealt with together because considerations in relation to the second issue will lead to a consequential finding for the third issue. I will therefore deal with them together in that way.

ISSUE 2 & 3 - DO THE PLEADINGS DISCLOSE A REASONABLE CAUSE OF ACTION AGAINST THE DEFENDANT? AND DO THE PROCEEDINGS AMOUNT TO AN ABUSE OF THE COURT’S PROCESS?

49. The answer is NO and YES respectively.
    
50. During the presentation of the Defendants case, the inference I got from the Defendants as they presented their case in pidgin language was that they were requesting for the Complainant to withdraw the proceedings on the basis that he had no cause of action and it was wasting the courts time.
    
51. He said, that this was a matter, in substance, seeking to ascertain who the right customary land owner was and if that was sorted out first, it would clarify who had a higher claim to the monies paid out in compensation.
    
52. I was inclined to agree with the Defendants submissions inlight of all the evidence produced before the court that this claim should not have been made in the first place in the District Court sitting in its civil jurisdiction.
    
53. The procedure for dismissal for disclosing no reasonable cause of action should be confined to cases where the cause of action is obviously and almost incontestably bad.
    
54. The plaintiff /complainant should not be driven from the judgment seat unless the case is unarguable.
    
55. There are a number of cases that highlight this rule but the case that discussed the extent to which it could or could not be used is PNG Forest Products v The State [1992] PNGLR 85 his Honour Justice Sheehan in his judgement said:
    

“1. A party has a right to have his case heard, as guaranteed by the Constitution and the laws of this country. Such a right cannot be lightly set aside. Hence the National Court Rules are designed to enhance those rights and to ensure the prompt and fair disposal of matters coming before the Court. For the same reason and in the interest of justice, the rule include prohibitions against abuse of the court process.

2. Quite apart from the powers given to the court by the National Court Rules Order 12 Rule 40 to strike out or stay any proceedings which -

(a) do not disclose a reasonable case of action; or

(b) are frivolous or vexatious; or

(c) are an abuse of the court process,

the court also has an inherent jurisdiction to protect itself from abuse of its process. If the Court is satisfied that the conditions of Order 12 Rule 40 are or have been established, it may strike out that offending action. Hence, it can in appropriate cases prevent a party from presenting its case in court or from defending one brought against it. But the refusal to try a party’s claim or the striking out of its defence is not lightly done, and there has been a long history of case law determining what is a “reasonable” cause of action or defence and what is “frivolous or vexatious”. See Republic of Peru v Peruvian Guano Company [1887] UKLawRpCh 186; (1887) 36 Ch D 489 per Chitty J, Hubbuck and Sons Ltd v Wilkinson, Heywood & Clerk Ltd [1898] UKLawRpKQB 176; (1899) 1 QB 86 per Lord Lindly MR;

3. An action should only be struck out in cases where “the cause of action is obviously and almost incontestably bad”.
   
56. Another local authority on the subject is the case of Ronny Wabia –v- BP Exploration Co. Ltd, Department of Mining & Petroleum and The State, N1697, per Sevua J, where His Honour confirmed the position in law that the powers vested in the court by O.12 r. 40 of the National Court Rules should only be exercised where it is clear that that cause of action known to law is disclosed or is one that “is obviously and almost incontestably bad”.
    
57. The leading case authority on Order 12 Rule 40 of the National Court Rules is the case of Kerry Lerro trading as Hulu Hara Investments Ltd v. Philip Stagg, Valentine Kambori and The Independent State of Papua New Guinea (2006) N3950 which the Supreme Court cited with approval in the case of Takori v Yagari (2007) SC905.
    
58. The Court said:

"1. Our judicial system should never permit a plaintiff or a defendant to be ''driven from the judgment seat'' in a summary way, ''without a Court having considered his right to be heard.'' [7] A party has a right to have his case heard, as guaranteed by the Constitution and the laws of the land. The Rules are designed to enhance those rights and to ensure the prompt and fair disposal of matters coming before the Court. That right cannot be lightly set aside.[8]

2. At the same time however, the law, such as the Rules under consideration, provide for andthe Court has an inherent jurisdiction to protect and safeguard against any possible abuse of the processes of the Court.
3. The object of these rules are therefore ''to stop cases which ought not to be launched — cases which are obviously frivolous or vexatious or obviously unsustainable.''[9] In other words ''the object of the rule was to get rid of frivolous actions.''[10]
4. A claim may be frivolous if it can be characterized as so obviously untenable that, it cannot possibly succeed or that, the claim or defence is bound to fail, if it proceeds to trial.
5. A claim or defence may be vexatious, if the case amounts to a sham or one which, cannot succeed and is one that amounts to harassment of the opposing party who is unnecessarily put to the trouble and expenses of defending or proving the claim.[11]
6. With regard to the issue of disclosing a reasonable cause of action or defence, the Court must be clear that, there are two parts to the phrase ''cause of action''. First, it entails a right given by law, such as an entitlement to reasonable damages for breach of human rights under s. 58 of the Constitution, commonly referred to as, the ''form of action''. Secondly, it entails the pleadings disclosing all the necessary facts which give rise to the form of action.[12]
7. The phrase 'cause of action'' could thus be defined in terms of a legal right or form of action known to law with:

''every fact which it would be necessary for the plaintiff to prove, if traversed, in order to support his right to the judgment of the court. It does not comprise of every piece of evidence which is necessary to prove each fact, but every fact is necessary to be proved.''[13]

59. Therefore the power to stay or dismiss an action for failure to disclose a cause of action must be exercised only in the clearest of cases as was made abundantly clear in those case authorities above.
    
60. This means that the powers vested in this court should only be exercised where it is clear that the cause of action known to law is disclosed or is one that “is obviously and almost incontestably bad”.
    
61. Whether the complaint discloses a reasonable cause of action is subject to him answering the question whether there is a “right” in law capable of being enforced by the court.
    
62. I am of the view that as long as there appears to be an arguable case before this Court, the Complainant will be given an opportunity to be heard and this Court will not deny him the option of exercising his Constitutional right to be heard by driving him away from the judgment seat.
    

ASSESSMENT

63. In the present case, Keyalisa Pyawa is claiming for the sum of K4000 from the Defendant with costs and interest for breaching a duty to properly disburse land compensation payments.
    
64. He claims that he is a customary land owner to the land known as Kanimareta and is therefore entitled to receive monies paid out in compensation.
    
65. In support of his claim he produces evidence that predominantly supports his assertion that he is the rightful customary landowner and the benefits should flow to him also.
    
    66. The Complainant knows that the him receiving any form of monies paid as compensation is based on the clarification and identification of who the rightful customary landowners are and that fundamental issue is stringently contested by the Defendant who disputes that assertion out rightly.
        
    67. The Defendant argues that the complainant would have received some payment if indeed he was recognised as a rightful customary landowner. He says that the Complainant has no right to be complaining about something that never belonged to him in the first place.
        
    68. It has become apparently clear that the cause of action to claim for compensation is dependant upon certainty being given to the Complainants position that he is indeed a customary landowner and if proven, and confirmed it would clarify that he does have a right to claim for compensation.
        
    69. At this point of time, that position is still uncertain and therefore I find that:
        
        1. the proceedings are prematurely before this court and the process to remedy that is by having the matter referred to the Local Land Court on the issue of ownership preceded by the customary mediation process;
        2. the Complainant has not shown that he has a right enforceable in law under the District Courts Act capable of being enforced by the court sitting in its civil jurisdiction; and
        3. this is a matter that should have been first mediated at the customary level and then referred to the Local Land Court jurisdiction under that Land Dispute Settlement Act and not pleaded in the District Court in its civil jurisdiction.
           
70. Given the above findings no sensible court in these circumstances could allow such a claim to succeed.
    
71. Clearly therefore, the Complainant has no reasonable cause of action either on the pleadings or in any of the evidence now before me.
    
72. Since this is a case where the complainant’s complaint is premised on ownership of customary land, I have formed the opinion that it does not disclose a reasonable cause of action.
    
73. I find that Mr. Keyalisa Pyawa has shown no reasonable cause of action against the Defendant in the civil jurisdiction.
    

ORDERS

74. I therefore order a dismissal of the proceedings for want of jurisdiction and having no reasonable cause of action amounting to an abuse of court process.
    

Complainant in Person
Defendant in Person