Uam v Tulah [2017] PGNC 182; N6852 (16 August 2017)

N6852

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS NO 426 OF 2014

SAM UAM & ADOLF MARTIN
ON BEHALF OF MEDO ANAGUM CLAN
Plaintiffs

V

MOSES MOGOLO TULAH
Defendant

Madang: Cannings J
2016, 18^th &23^rd March, 2017, 16^th August

LAND – whether customary land or government land – Special Agricultural and Business Lease – undertaking by National Government to pay compensation for compulsory acquisition – dispute as to proper recipients of compensation.

INJUNCTIONS – permanent injunction sought to restrain defendant from receiving further compensation

The plaintiffs claimed to be the customary owners of a portion of land earmarked by the National Government as a road easement for construction of a national highway. They were aggrieved by a government decision to pay substantial compensation to the defendant for compulsory acquisition of the land. The plaintiffs say that the defendant is not the owner of the land and that he has already wrongfully been paid approximately 25% of the amount promised to be paid by the National Government. They applied by originating summons for a permanent injunction to restrain the defendant from receiving further compensation and an order that any further compensation be paid to their clan. The defendant argued that the proceedings should be dismissed for disclosing no reasonable cause of action, being frivolous and vexatious and an abuse of process and that the National Court had no jurisdiction as the subject of the proceedings is customary land. If the proceedings are not summarily dismissed on one or more of those grounds the defendant argued that he was the owner of the land by virtue of being granted a Special Agricultural and Business Lease in 2006 over a portion of land of which the subject land is part. A trial was conducted on the originating summons.

Held:

(1) Disputes about whether any land is or is not customary land fall within the exclusive jurisdiction of the Land Titles Commission per force of Section 15 (determination of disputes) of the Land Titles Commission Act.

(2) Here, the National Court has no jurisdiction as integral to determination of the originating summons is a dispute about whether the subject land is customary land. For that reason, the proceedings must be dismissed.

(3) Obiter: It would appear that the subject land is customary land, which is a separate portion to the adjacent portion of government land that is subject to a Special Agricultural and Business Lease of which the defendant is registered proprietor. In the absence of any official document evidencing the defendant’s ownership of the subject land, it would appear wrong to regard him as the owner.

(4) The proceedings were dismissed, the interim injunctions were dissolved and the parties were ordered to bear their own costs.

Cases cited:

The following cases are cited in the judgment:

Anton Lavu v Nicholas Mark Thompson (2007) N5018
Golpak v Kali [1993] PNGLR 491
Kimas v Loa (2015) SC1475
Ronny Wabia v BP Exploration Co Ltd [1998] PNGLR 8
Sioti Bauf and Lavoi Nodai v Poliamba Pty Ltd [1990] PNGLR 278
The State v Lohia Sisia [1987] PNGLR 102

ORIGINATING SUMMONS

This was an application for a permanent injunction to restrain the defendant from receiving compensation from the National Government for compulsory acquisition of a portion of land.

Counsel:
W Akuani, for the Plaintiffs
W Hagahuno, for the Defendant

16^th August, 2017

1. CANNINGS J: The plaintiffs, Sam Uam and Adolf Martin on behalf of Medo Anagum Clan, claim that their clan is the customary owner of a portion of land earmarked by the National Government as a road easement for construction of a national highway. The easement, they say, is required for construction of the Four Mile to Mawan road. They are aggrieved by a government decision to pay K12 million compensation to the defendant, Moses Mogolo Tulah, for compulsory acquisition of the land, an area of 6.1 hectares described as Portion 1376C.
   
2. The plaintiffs say that the defendant is not the owner of the land and that he has already wrongfully been paid approximately 25% of the assessed value of compensation, K3,379,700.00. They apply by originating summons for a permanent injunction to restrain him from receiving further compensation and an order that any further compensation be paid to their clan.
   
3. The defendant argues that the proceedings should be dismissed for disclosing no reasonable cause of action, being frivolous and vexatious and an abuse of process and because the National Court has no jurisdiction as the subject of the proceedings is customary land. If the proceedings are not summarily dismissed on one or more of those grounds the defendant argues that he is the owner of the land by virtue of being granted a Special Agricultural and Business Lease in 2006 over a portion of land, Portion 1126C, of which the subject land is part. A trial was conducted on the originating summons. Two issues arise:
   

1. Should the proceedings be summarily dismissed?

2. If no, should a permanent injunction be granted?

1. SHOULD THE PROCEEDINGS BE SUMMARILY DISMISSED?
   
4. Do any of the preliminary arguments of the defendant have merit? I deal first with the question of jurisdiction. Disputes about whether any land is or is not customary land fall within the exclusive jurisdiction of the Land Titles Commission per force of 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. [Emphasis added.]

5. It was recently confirmed by the Supreme Court in Kimas v Loa (2015) SC1475 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.
   
6. 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 land is customary land, the National Court should divest itself of jurisdiction. Such disputes fall within the exclusive domain of the Land Titles Commission. The leading case of The State v Lohia Sisia [1987] PNGLR 102 has been followed by the National Court including Sioti Bauf and Lavoi Nodai v Poliamba Pty Ltd [1990] PNGLR 278, Golpak v Kali [1993] PNGLR 491, Ronny Wabia v BP Exploration Co Ltd [1998] PNGLR 8 and Anton Lavu v Nicholas Mark Thompson (2007) N5018, to name just a few.
   
7. Here, the National Court has no jurisdiction as integral to determination of the originating summons is a dispute about whether the subject land is customary land. For that reason, the proceedings must be dismissed.
   
2. SHOULD A PERMANENT INJUNCTION BE GRANTED?
   
8. No, an injunction cannot be granted as the Court has no jurisdiction. I reiterate: the plaintiffs will have to take their grievance to the Land Titles Commission. However I make the following observations by way of obiter dicta.
   
9. It would appear that the subject land is customary land, which is a separate portion to the adjacent portion of government land that is subject to a Special Agricultural and Business Lease of which the defendant is registered proprietor.
   
10. In the absence of any official document evidencing the defendant’s ownership of the subject land, it would appear wrong to regard him as the owner and he would appear to have no entitlement to compensation in respect of compulsory acquisition of the subject land.
    
11. The National Government and all governmental bodies should carefully consider the propriety of paying the defendant any further compensation, especially in view of the substantial amount of money involved.
    

CONCLUSION

12. The proceedings are dismissed. The parties will bear their own costs as the question of jurisdiction was not thoroughly and decisively brought to the attention of the court.
    

ORDER

(1) All relief sought in the originating summons is refused and the proceedings are dismissed.

(2) The interim injunction of 22 April 2015 and all other interim orders are dissolved.

(3) Subject to any specific costs orders made in the course of the proceedings, the parties shall bear their own costs.

Judgment accordingly.
________________________________________________________________
William Akuani Lawyers : Lawyers for the Plaintiffs
Williams Attorneys : Lawyers for the Defendant