N8831

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS NO. 655 OF 2019

BETWEEN:
TOWALINGAN TOBOBERATAGUL ILG
Plaintiff

AND:
SUSIE McGRADE, CATHLEEN CATHCART, SAMUEL TOLIATA, WATURA HENRY, OKOLE PAGAL, OKOLE BATILOM, DANIEL BURUA, PHILIP SAMUEL, LAWRENCE BAKUT and ELIAS TAULE
Defendants

Kokopo:  Suelip AJ
2020: 14 October & 10 December

CIVIL – PRACTICE AND PROCEDURE – application to dismiss proceedings for disclosing no cause of action, for being frivolous and vexatious, and for being abuse of process – location of Rababa Hot Springs within plaintiff ILG land – existing competing clan dispute over tourist attraction site – previous order of District Court for referral to Local Land Court to determine land ownership – prior application for title of land where Hot Spring is located – jurisdiction

Cases Cited

Mahuru v Dekena [2013] N5305 
Philip Samuel & ors v Towalingan Toboberatangul & ors CV No. 11 of 2018 (Rabaul District Court decision by Magistrate G Kerker dated 19 March 2019)
Tender Wak v. John Wia & anor (2008) PN3356

References

Land Registration (Amendment) Act 2009

Counsel

Epita Paisat, for the Plaintiff  
Jeremiah Kihanges, for the Defendants

RULING

10th December, 2020

1.	SUELIP AJ: 	In the Notice of Motion filed 24 January 2020, the defendants seek orders pursuant to Order 12 rule 40(1)(a)(b) and (c) of the National Court Rules, for these proceedings to be dismissed in its entirety for disclosing no reasonable cause of action, for being frivolous and vexatious, and for being an abuse of process. The defendant also seeks an order for costs of and incidental to these proceedings. 

2.	I heard submissions on 14 October 2020 and reserved my ruling. This is my ruling.

Facts 

3.	Briefly the facts of this matter are as follows. The plaintiff is one of two clans disputing the ownership of a popular tourist attraction commonly known as “Rababa Hot Springs” (Hot Springs) which is situated next to Mt Tavurvur in the Rabaul District, East New Britain Province. 

4.	In its Originating Summons filed on 20 September 2020, the plaintiff seeks the following reliefs: 

1.	A declaration that the Plaintiff is the legal proprietor and has the exclusive rights over the land area that constitute the “Hot Springs” located in Rabaul, East New Britain Province. 

2.	A declaration that the Defendants and/or their agents or their invitees do not have the rights and/or authority into the land area in which the “Hot Springs” are situated without the express consent and authority of the Plaintiff. 

3.	Costs of this proceeding. 

4.	Any other orders the Court deems fit. 

5.	On 21 August 2020, this Court granted interim injunctions by consent against the defendants, their agents, servants, employees, or invitees from entering and conducting any tours in the Hot Springs area. These interim injunctions are to continue until this Court makes a ruling in this application.

Issues

6.	Whether this Court has jurisdiction to hear and determine land disputes, and if so, whether these proceedings should be dismissed for disclosing no reasonable cause of action, for being frivolous and vexatious, and for being an abuse of process?

The law

7.	The basis for the defendant’s application is Order 12 Rule 40 (1)(a)(b) and (c) of the National Court Rules which states: 

40.	Frivolity, etc.

(1)	Where in any proceedings it appears to the Court that in relation to the proceedings generally or in relation to any claim for relief in the proceedings –
			(a)	no reasonable cause of action is disclosed; or
			(b)	the proceedings are frivolous or vexatious; or
		(c)	the proceedings are an abuse of the process of the Court,
the Court may order that the proceedings be stayed or dismissed generally or in relation to any claim for relief in the proceedings.

Defendant’s arguments

8.	The defendants’ arguments are threefold. Firstly, the defendants say that this matter falls under the first category found in Mahuru v Dekena [2013] N5305 where there are existing competing claims as to its customary land ownership. The defendants refer to the affidavit of Watura Henry at annexure “C” which is a copy of the survey plan for the Rababa No. 1 and they point out the location of Rababa Hot Springs. The defendants say that area is described as Portion 1251C and the letter “C” next to it, is indication by the Lands Department that it is a customary land. 

9.	The defendants’ second argument is that the listed properties under the plaintiff’s Notice of Lodgment of an application for recognition as an incorporated land group and annexed as “B” to the first affidavit in support of Andrew Kolias August does not list “Rababa Hot Spring” as a clan property. 

10.	The last argument by the defendant is that on 19 March 2019, the District Court had made a ruling in CV No.11 of 2018 – Philip Samuel & ors v. Towalingan Toboberatagul & Tomogorono Clan over the same subject land and amongst other orders, it referred the ownership dispute to the Local Land Court. 

The plaintiff’s response

11.	In response to the defendants’ second argument, the plaintiff says that the name “Hot Springs” is a foreign name, but it comes under the land area “Rabavanakaia” which is listed under the plaintiff’s ILG in annexure “B” of the first affidavit of Andrew Kollias August.

12.	The plaintiff further submits that whilst the plaintiff was registering its ILG in 2015, there was no objection from the defendants nor any other interested parties and therefore, the defendants cannot now raise their objections and have a second bite at the same cherry. 

13.	The plaintiff also submits that the defendant’s application is incompetent. Firstly, it says there is a reasonable cause of action raised within the jurisdiction of this Court and there is no other evidence to the contrary. 

14.	Secondly, the plaintiff submits that this proceeding is not frivolous or vexatious as it is not so obviously untenable that it cannot possibly succeed. The plaintiff also submits that this claim is not an abuse of process and the Court has a duty to protect its process by ensuring that vexatious litigants do not abuse the Court’s process by instituting frivolous and vexatious suits.

Jurisdiction

15.	Before I determine the fate of the defendant’s application, let me first consider whether this Court has jurisdiction to hear this matter. 

16.	The real dispute is whether the Hot Springs is in the Rabavanakaia land which is one of the plaintiff’s ILG areas. The plaintiff say the Hot Springs is located within their ILG land whilst the defendants say it is still on customary land.

17.	Sections 17 and 18 of the Land Registration (Amendment) Act 2009 state as follows: 

   17. NEW SECTION 34M
The principal Act is amended by adding the following new section after Section 34 – 
	
	“34M.	EFFECT OF REGISTRATION 
	“(1)	An entry in the Register – 
		(a) 	is conclusive evidence of the facts; and 
(b) 	unless endorsed otherwise, shall be deemed to guarantee the area and the boundary of the land to which the entry relates; and
(c)	shall be subject to such rights and interests as are recorded in the register. 
	
	“(2)	Registration of ownership which is inconsistent with – 
(a)	a title previously registered under the provision of this Act; or
(b)	a reservation, easement or other such interest made by the State for public purposes under any law; or
(c)	an estate, right, title or interest granted by the State under any law, 
		shall be ineffective to the extent of the inconsistency.”

18. NEW SECTION 34N
	The Principal Act is amended by adding the following new section after Section 34 – 
	“34N.	CUSTOM.
			“(1) 	Land entered in the Register under this Part and the                                          right to ownership or possession of any such land or                                         any right, title, or interest in or in relation to any such                                         land shall cease to be subject to customary law. 
			“(2) 	Subsection (1) has no application to the transfer of a                                        member’s rights and customs shall apply.”

18.	My reading of the new section 34M of this amended Act is this. Once a customary group has been registered, it is guaranteed the areas it has recorded, subject to rights and interests recorded in the register. Further, if there is prior title, right or interest, then these rights, titles or interest takes precedence over the registration of ownership.

19.	Also, the new section 34N, in my view, says that any land entered into the register under the customary group ceases to be customary land.

20.	The plaintiff submits that it owns the Hot Springs by virtue of its ILG registration but how do we know that the Hot Springs is situated within the Rabavanakaia land? The plaintiff also submits that during the registration process of its ILG and the areas of land under its ILG, there were no objections raised by the defendants. 

21.	However, from the District Court ruling in CV No.11 of 2018, it was discussed that one of the defendants in this proceeding and the leader of Tomogorono clan, Samuel Toliata had applied for the title to Portion 1251C where the Hot Springs is located. His application was lodged on 11 September 1991, long before the plaintiff registered its ILG on 15 February 2015. If a title was issued to Mr Toliata, the new section 34M(2) will apply where a title takes precedence over the ILG certificate.

22.	It is a wonder how the plaintiff was able to register their ILG without any objections from anyone including Samuel Toliata’s application for title lodged in 1991. It is also a wonder how it is taking almost 3 decades for a title to be issued but those are not issues before this Court at the moment. 

23.	Further, there is evidence that on 4 November 2019, there was an application by the Tomogorono Land Group to the Land Titles Commission for registration under section 7 of the Land (Tenure Conversion) Act 1963 for conversion of Rababa No. 1. Section 7 allows a citizen to apply to the Commission in the prescribed form for registration in his or its name of any customary land or of an interest in customary land. This application was acknowledged by the Chief Commissioner, Kutt Paonga in his letter of 20 March 2020. 

24.	It is also not disputed that in CV No. 11 of 2018 filed at Rabaul District Court involving the same parties, it was ordered that the parties mediate and resolve the issues of land ownership at the land court.

25.	Whilst the plaintiff may claim that the Hot Springs is within their ILG area, the question remains as to whether the Hot Springs is indeed within the Rabavanakaia land. Further, one of the defendants and the leader of the Tomogorono clan had applied for the title to Portion 1251C where the Hot Springs is located long before the registration of the plaintiff’s ILG. Moreover, the letter “C” in Portion 1251C shows that this portion is customary land. Therefore, there is an existing dispute over a portion of land where the local land court has exclusive jurisdiction. See Tender Wak v. John Wia & anor (2008) PN3356.

26.	As it is, I find that this Court lacks jurisdiction to deal with this matter. There is no need to address other issues.

Orders 

27.	The Orders of the Court are: -

(i)	the entire proceeding is dismissed.

(ii)	cost of the proceeding is awarded to the defendants on a party/party basis to be taxed if not agreed. 

(iii)	time is abridged until date of settlement by the Assistant Registrar which shall take place forthwith.  
________________________________________________________________
Paisat Lawyers		:	Lawyers for the Plaintiff 
Warner Shand Lawyers	:	Lawyers for the Defendants