Medaing v Ramu Nico (MCC) Ltd [2014] PGNC 323; N5525 (7 March 2014)

N5525

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS NO 924 OF 2013

LOUIS MEDAING, FOR HIMSELF AND ON BEHALF OF
MEDAING FAMILY AND SAWANG FAMILY OF BASAMUK
Plaintiff

V

RAMU NICO (MCC) LIMITED
First Defendant

HIGHLANDS PACIFIC LIMITED
Second Defendant

SECRETARY, DEPARTMENT OF LANDS & PHYSICAL PLANNING
Third Defendant

SECRETARY, DEPARTMENT OF MINING
Fourth Defendant

MANAGING DIRECTOR, MINERAL RESOURCES AUTHORITY
Fifth Defendant

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Sixth Defendant

Madang: Cannings J
2014: 21 February, 7 March

PRACTICE AND PROCEDURE – application for dismissal of proceedings – whether the proceedings relate to ownership of customary land – whether National Court has jurisdiction – whether the statement of claim discloses a reasonable cause of action – whether rules for commencement of proceedings in a representative capacity complied with

The plaintiff has a long running grievance over the circumstances in which an area of land, which he says was traditionally owned by his families, was acquired from them by the colonial Administration in 1942 and subsequently dealt with by the State, resulting in the land becoming the subject of a State Lease in favour of the first and second defendants, who now occupy the land and use it for mining and industrial purposes. He sought damages against those defendants and four others including the State, the apparent cause of action being trespass, predicated on the proposition that the 1942 acquisition of the land was unlawful. The first and second defendants filed a notice of motion before trial seeking dismissal of the entire proceedings on various grounds.

Held:

(1) The plaintiff is guilty of an abuse of process as he has commenced the proceedings in a representative capacity but has failed to comply with the procedures of the National Court Rules for commencement of such proceedings.

(2) The National Court has no jurisdiction. The land is now Government land and determination of the plaintiff's claims would require determinations as to (a) whether in fact the plaintiff and his families are the true customary owners of the land and (b) the lawfulness or fairness of the terms on which the land was acquired by the Colonial Administration, both sorts of issues being outside the jurisdiction of the National Court. Furthermore: (c) though the Special Land Titles Commission may have improperly declined to hear a dispute as to customary ownership of the land, this does not enliven the jurisdiction of the National Court.

(3) The statement of claim is prolix, emotive and confusing and consequently discloses no reasonable cause of action.

(4) For each of those reasons, it was in the interests of justice that the proceedings be dismissed.

Cases cited

The following cases are cited in the judgment:

Anton Lavu v Nick Thompson & NBPOL (2002) N2190
Golpak v Kali [1993] PNGLR 491
Louis Medaing v Minister for Lands & Physical Planning (2010) N3917
Madaha Resena v The State [1990] PNGLR 22
Madaha Resena v The State [1991] PNGLR 174
Ramu Nickel Limited v Temu & Ors (2007) N3116
Re Fisherman's Island [1979] PNGLR 202
Ronny Wabia v BP Exploration Co Ltd [1998] PNGLR 8
Safe Lavao v The State [1978] PNGLR 15
Siaman Riri v Simion Nusai (1995) N1375
Sioti Bauf and Lavoi Nodai v Poliamba Pty Ltd [1990] PNGLR 278
Soso Tomu v The State (2002) N2190
The Administration v Blasius Tirupia (Re Vunapaladig and Japalik Land) [1971-72] PNGLR 229
The State v Lohia Sisia [1987] PNGLR 102
Tigam Malewo v Keith Faulkner (2009) SC960

Counsel

L Medaing, the plaintiff, in person
I Shepherd, for the first and second defendants
B W Meten, for the fifth defendant

7th March, 2014

1. CANNINGS J: This is a ruling on an application by the first and second defendants, supported by the fifth defendant, to dismiss the entire proceedings commenced against them and three others by the plaintiff, Louis Medaing.

2. Mr Medaing, who claims to act in a representative capacity on behalf of the Medaing and Sawang families of Basamuk, Madang Province, is suing six parties. He is seeking several billion Kina in damages to compensate him and his families for the injustice and losses caused to them by the alleged unlawful conduct of the defendants. A series of unlawful actions by some or all the defendants, he claims, has resulted in the unlawful acquisition, transfer of interests and occupation and use of land at Basamuk in the Rai Coast District, which rightly belongs to him and his families. This land, an area of about 85 hectares, is the site of the refinery and port for the Ramu Nickel-Cobalt Project. It is formally described as Portions 109 and 110, Milinch of Pommern, Fourmil of Madang, Block 903.

3. The defendants are:

• 1st defendant: Ramu Nico (MCC) Ltd, the primary developer of the Project and the present occupier of the land and operator of the refinery and port, which is alleged to have been the beneficiary of the unlawful manner in which the land has been alienated from its customary owners;
  
• 2nd defendant: Highlands Pacific Ltd, a joint venture partner in the Project, also alleged to be a beneficiary of the unlawful manner in which the land has been alienated from its customary owners;
  
• 3rd defendant: the Secretary for Lands and Physical Planning, who is alleged to be responsible for the unlawful transfer of interests in the land;
  
• 4th defendant: the Secretary for Mining, who is alleged to be responsible for the unlawful granting in 2000 of mining leases pursuant to the Mining Act 1992 over the land;
  
• 5th defendant: the Managing Director of the Mineral Resources Authority, who is alleged to be also a party to unlawful granting of mining leases over the land;
  
• 6th defendant: the State, which is alleged to be generally responsible for the unlawful alienation of the land by the Colonial Administration in 1942 and its unlawful allocation (as the Colonial Administration never had proper title) in the form of the grant of an agricultural lease to the Evangelical Lutheran Church of Papua New Guinea and for the compulsory acquisition of the land from the Church in 2002 and its unlawful transfer of interests in the land, in 2004 (when an agricultural lease was granted to a landowner company) in particular to the first and second defendants. (Note that the modern history of the land is set out in detail in Lay J's judgment in Ramu Nickel Limited v Temu & Ors (2007) N3116.)
  

4. After careful consideration of the submissions of Mr Shepherd, for the first and second defendants, and Mr Meten, for the fifth defendant, and those of Mr Medaing, who appeared in person, I have decided to uphold the submissions of Mr Shepherd and Mr Meten. The application for dismissal of the entire proceedings will be granted, for three reasons.

1 NON-COMPLIANCE WITH RULES AS TO COMMENCEMENT OF REPRESENTATIVE PROCEEDINGS

5. The plaintiff is guilty of an abuse of process as he has commenced the proceedings in a representative capacity but has failed to comply with the necessary procedures for commencement of such proceedings, which were summarised by the Supreme Court in Tigam Malewo v Keith Faulkner (2009) SC960 as being:

• all intended plaintiffs must be named in the originating process;
  
• each and every intended plaintiff must give specific instructions (evidenced in writing) to their lawyers to act for them;
  
• any person in whose name proceedings are commenced and who claims to represent other intended plaintiffs must produce an authority to the court to show that he was authorised by them to file proceedings as a class representative.
  

6. None of those requirements has been met. And this is a sufficient reason to dismiss the proceedings.

2 THE NATIONAL COURT HAS NO JURISDICTION

7. The National Court has no jurisdiction to determine any of the plaintiff's claims. The land is Government land and has been since 1942. Determination of the plaintiff's claims would require determinations as to (a) whether in fact the plaintiff and his families are the true customary owners of the land and (b) the lawfulness or fairness of the terms on which the land was acquired by the Colonial Administration.

8. Neither issue is within the jurisdiction of this Court. The question of who are the true customary owners of any land in Papua New Guinea and whether customary land was properly acquired by the State or by a pre-Independence Administration can only be determined in the first instance by the Land Titles Commission under the Land Titles Commission Act 1962 or by the National Land Commission under the National Land Registration Act Chapter No 35. It is a well-settled principle that the National Court has no original jurisdiction to determine issues relating to ownership of customary land (The Administration v Blasius Tirupia (Re Vunapaladig and Japalik Land) [1971-72] PNGLR 229, The State v Lohia Sisia [1987] PNGLR 102, Sioti Bauf and Lavoi Nodai v Poliamba Pty Ltd [1990] PNGLR 278; Golpak v Kali [1993] 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, Anton Lavu v Nick Thompson & NBPOL (2002) N2190).

9. The plaintiff indicates that he is aware of the jurisdictional problems that he is facing but says that when he tried to assert his families' claims to customary ownership in the Special Land Titles Commission, which recently completed its inquiry into customary land ownership of land occupied by the Ramu Nickel-Cobalt Project, the Commission declined, by its decision dated 25 November 2011, to inquire into customary ownership of Portions 109 and 110, Milinch of Pommern, Fourmil of Madang, Block 903. It took the view that the issue was pending in the National Court.

10. I am not sure why or how the Commission formed that view. As far as I am aware there was nothing then pending in the National Court regarding this land; certainly there was nothing in the Madang Registry of the National Court. Mr Medaing did have a matter in the National Court concerning this land, which took several years to resolve. He eventually succeeded with an application for judicial review of the decision of the Minister for Lands and Physical Planning to grant a State Lease over the land to a landowner company. That case was completed on 19 February 2010 (Louis Medaing v Minister for Lands & Physical Planning (2010) N3917).

11. I sympathise with the plaintiff. He went to the right body to argue his case but was told that he should go to the National Court. So he is coming to the National Court, which is now telling him it has no power to hear his grievance. Where does he go?

12. Well, he can come back to the National Court, but he must do so in the correct manner and form. I would suggest that he needs to apply for leave to seek judicial review of the decision of the Special Land Titles Commission. The National Court would then deal with the application for leave on its merits. (Note that the granting of leave would not be a formality and nothing that is said here should be taken as an indication that leave would necessarily be granted.) However, that is a completely different proceeding to that which he has embarked on. Though the Special Land Titles Commission may have improperly declined to hear a dispute as to customary ownership of the land, this does not enliven the jurisdiction of the National Court.

13. It is also worth noting that a person aggrieved by a decision of the Commission can appeal to the National Court under Section 38 of the Land Titles Commission Act. For example, in Safe Lavao v The State [1978] PNGLR 15 the traditional owners of the Kerema town and airstrip land, which had been transferred to the Australian Administration in 1963, successfully appealed against a Commission decision that refused their claim to ownership.

14. In Re Fisherman's Island [1979] PNGLR 202, traditional owners of Fisherman's Island near Port Moresby successfully appealed against a Commission decision that the island was State land, not customary land; a rehearing was ordered, which resulted in a decision that the State had wrongfully occupied the land, and that enabled the traditional owners to sue for damages (Madaha Resena v The State [1990] PNGLR 22; Madaha Resena v The State [1991] PNGLR 174). The National Court can also, on application by any party to proceedings before the Commission, order that the matter be removed into the National Court under Section 31B. There is also provision in Section 32 for the Commission to temporarily refrain from making a decision and for a case stated to be put to the National Court.

3 NO REASONABLE CAUSE OF ACTION

15. The statement of claim is prolix, emotive and confusing and consequently discloses no reasonable cause of action. For that reason I exercise the discretion of the Court under Order 8, Rule 27(1)(a) of the National Court Rules, to dismiss the proceedings.

CONCLUSION

16. Each of the reasons advanced above is sufficient cause for dismissal of the proceedings. I exercise the discretion of the Court accordingly. The entire proceedings must be dismissed. Because of the unusual circumstances in which this case was commenced, I will allow the parties to bear their own costs.

ORDER

(1) The entire proceedings WS No 924 of 2013 are dismissed.

(2) The parties will bear their own costs.

Judgment accordingly.

_________________________________________________________________
Lawyer for the Plaintiff: The Plaintiff in person
Ashurst Lawyers: Lawyers for the First and Second Defendants
Meten Lawyers: Lawyers for the fifth Defendant