Pano v Samson [2023] PGNC 373; N10538 (20 October 2023)

N10538

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS NO.182 OF 2022

LUCAS GIRU PANO, Clan Leader of the Keveloho Mauli Clan.
Plaintiff

AND
BENJAMIN SAMSON, Secretary Department of Lands & Physical Planning.
First Defendant

AND
DEPARTMENT OF LANDS & PHYSICAL PLANNING
Second Defendant

AND
KIMBE CATHOLIC DIOCESE
Third Defendant

AND
WEST NEW BRITAIN PROVINCIAL GOVERNMENT
Fourth Defendant

AND
LANDS TITLES COMMISSION
Fifth Defendant

AND
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Sixth Defendant

AND
MOSA GAONGO KEVELOHO INCORPORATED LAND GROUP
Seventh Defendant.

Kimbe: Geita J.
2023: 13^th, 20^th October

CIVIL - National Court – notice of motion – seeking originating summons to be dismissed – Whether filing of originating summons is an abuse of process – National Court Rules Order 12, Rule 40 (a)(b)(c).

PRACTICE AND PROCEDURE – National Court – notice of motion –– Whether originating summons is time barred - Section 16 Frauds and Limitations Act 1988.

PRACTICE AND PROCEDURE – National Court – Whether originating summons has violated judicial review procedure – Order 16, Rule 3, 4 & 5.

Cases Cited:
Kekedo v Burns Philip (PNG) Ltd and Others [1988-89] PNGLR 122

Legislation Cited:
Frauds and Limitations Act 1988

Counsel:
Mr. Felex Kua, for the Applicant/ Seventh Defendant
Mr. Abraham Kumbari, for the Respondent/Plaintiff

20^th October 2023

1. GEITA J: By way of introduction the 7^th Defendant was granted leave to be joined as a party to these proceedings in OS filed on 28 July 2022 by Kimbe National Court. Besides other orders, the Court directed that said originating summons be amended to reflect this joinder order. At the time of hearing this motion to dismiss the proceedings in its entirety, the originating summons still remains unaltered. Nevertheless the 7^th Defendant’s motion filed 30^th August 2023 (Doc # 18) is properly before this Court.

2. Counsel of Applicant/Respondent moved that the whole of the proceedings be dismissed in its entirety pursuant to Order 12, Rule 40(a)(b)(c) National Court Rules and Section 16 Frauds and Limitations Act 1988. The Plaintiff relied on two (2) Affidavits.

3. In order to appreciate the proceedings in its full context I have included all the relevant evidence from both parties in this manner. The Applicant/7^th Defendant relied on the following affidavits from Martin Bauta, sworn 7 June 2023, filed 13 June 2023; Martin Bauta, sworn 30 August 2023, filed 30 August 2023. The Plaintiff relied on the affidavit of Lucas Giru Pano sworn on 30 August 2023, filed 30 August 2023.

4. The 7^th Defendant submitted that he was and is still the duly elected chairman of the Mosa Gaongo Incorporated Land Group (ILG) No 1131. On the 20th July 2022 the Plaintiffs filed the current proceeding by way of an Originating Summons seeking certain declaratory orders disputing the acquisition of the Poinini land as irregular, improper and illegal giving rise to the transaction void ab initio.

5. The 7^th Defendant submitted that both lands described as Nahavio No 2 NLD 597 and Poinini No 1 NLD 4465 included in Lucas Giru Pano's affidavit filed on 20th July 2022 shows that the portions of and have been purchased by the State with certificate of alienability provided and therefore no longer customary land. Therefore, by law and process the Plaintiffs current proceeding is obviously time barred and it was not filed at the right forum. Therefore, it is an abuse of the courts process.

6. Furthermore, the Local Land Court order of 21st February 2008 relied on by the Plaintiffs was issued 42 years after the purchase of Nahavio No 2. NLD 597 and 20 years after the purchase of Poinini No 1. Land. (NLD 4465). The land was purchased from the major Keveloho clan who were the rightful customary landowners of these portions of land according to the Native Land Dealing purchase documents provided in Luca Giru Pano's affidavit. Besides, all Keveloho clan members of both Gaongo and Mosa villages are members that make up the Mosa Gaongo Keveloho Incorporated Land Group the Seventh Defendant in the current proceeding.
7. The sales and transfer of the Poinini land was affected by Keveloho clan leader late Mota Mage with the Kablingo and Malumi clan leaders now resulted in the one and only major Mosa Gaongo Keveloho Incorporated Land Group (ILG) lawfully registered and recognised to take control of these customary land on behalf of all the customary clan members of the Gango and Mosa villages as clearly provided in the affidavit evidence of Lucas Pano Giru’.

8. The Poinini land now the subject of the Plaintiffs proceeding is covered by the one and only major Incorporated Land Group (ILG) the Mosa Gaongo Incorporated Land Group (ILG) as the custodian of all the customary land in and around Gaongo and Mosa villages on behalf of all customary clan members of Gaongo and Mosa villages.

Plaintiff’s Reply

9. The plaintiff clan are customary land owners of the land described as Portion 2126c Poinini No. 1, Milinch Megigi, in Talasea District, Kimbe, West New Britain Province, comprising some 96 hectares also known and described the subject land on which the 3rd defendant had occupied and established the Poinini Catholic Agro Technical school including cultivation of agricultural commercial cash crops in reliance of two (2) NLD No. 597 Poinini No. 2 dated 17th February 1966 and pre independence NLD No. 4465 Poinini No. I dated 3 March 1988 ("NLD 4465") and post-independence executed by the servants and agents of the 1st, 2nd, 4th and 6th defendants for the purported acquisition of Poinini land.

10. The plaintiffs maintain that both NLD 4465 purchases was incomplete and without proper purchase documents. The Plaintiff allege non-compliance of s. 9 & 10 of the Land Act 1996 thus rendering the conduct and actions of the 2nd, 4th & 6th defendants’ servants, and agents highly suspicious for acting unfairly and not in good faith. The execution of the said NLD 4465 between the plaintiff's clan albeit, invalidating the said NLD 4465 and therefore void and of no effect ab initio.

11. Hence a declaration that both NLD No. 597 Poinini No. 2 dated 17th February 1966- pre independence and NLD No. 4465 Poinini No. I dated March. 1988 ("NLD 4465")- post independence executed by the servants and agents of the 1st, 2nd, 4th, and 6th defendants for the purported acquisition of Poinini land are deemed irregular, improper, and illegal.

12. Hence in law and equity the plaintiffs are seeking " Specific Performance " of the purported contract of sale of their customary land the details of which are set out above at paragraph I & 3 and since land is proving to be scarce to the plaintiffs, the indigenous population, proper acquisition by the State subsequently would allow the 3rd defendant obtain good title to the partial (sic) of land it requires to improve on its development plans, the technical college and or alternatively return to the plaintiff unused or unwanted land.

13. The land ownership of the subject land was settled in favour of the plaintiff’s clan in the Local Land Court decision of 21^st February 2000; the LLC proceeding styled LLC 8 of 2008 and remain undisturbed to date.

14. This was clearly pronounced and supported in the case of Loa v Kimas 120141 PGNC 209. Your client failed to adduce critical evidence to support the application that purchase by the state was proper and the Catholic Church, consequently the 3rs defendant enjoying the lease and therefore should not be disturbed.

15. Section 44 of the Land Titles Commission's Act combined with S.27 (4) of the Land Dispute Settlement Act are similar having same powers and the case is not suitable for LTC deliberations. The 2008 LLC order in favour of our client for his subject land remain unchallenged and valid for all purposes, thus conclusion evidence he owns the Poinini land, That your client failed to produce to this court how the ILG is affected or rather a party in this court order.

16. Consequently, and for these reasons the subject partial of land description continues to record 2126c meaning the land continues to remain customary regardless to all the joinder applicants' contemporary arguments triggered by self-propelled interest groups for monetary gains.

Case Law Referred by Counsel.

17. The industry of Counsel of Plaintiff produced a wealth of legal authority and I have considered at some length the majority of the cases submitted. I did not cite the case of Arua Loa & 2 Ors vs State, OS No, 903 of 2021 (JR) N5849, (relied on strongly by Mr Kumbari) as I felt that the first hurdle of whether his clients Originating Summons and Notice of Motion filed on 20 July 2022 was proper before the court.

Law.
18. Section 16 Frauds and Limitations Act 1988 reads as follows:

“(1) Subject to Sections 17 and 18, an action–

(a) that is founded on simple contract or on tort; or
(b) to enforce a recognisance; or
(c) to enforce an award, where the submission is not by an instrument under seal; or
(d) to recover any sum recoverable by virtue of any enactment, other than a penalty or forfeiture or sum by way of penalty or forfeiture,

shall not be brought after the expiration of six years commencing on the date on which the cause of action accrued.

(2) An action for an account shall not be brought in respect of any matter which arose more than six years before the commencement of the action.

(3) Subject to Subsection (4), an action upon a specialty shall not be brought after the expiration of 12 years commencing on the date when the cause of action accrued. (emphasis mine)

(4)[1] [2]Nothing contained in Subsection (3) shall be construed as affecting any action for which a period of limitation is specified by any other Act, and that subsection shall be read and construed accordingly.

(5) An action shall not be brought upon any judgment after the expiration of 12 years commencing on the date when the judgement became enforceable. (emphasis mine).

National Court Rules.

19. Order 12, Rule 40. Frivolity, etc. (13/5)

(1) Where in any proceedings it appears to the Order 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.

(2) The Court may receive evidence on the hearing of an application for an order under Sub-rule (1).

Constituent Issues

20. I now turn to the question I posed earlier in this judgment regarding the Plaintiff’s originating summons and can this origination summons survive the time limitation period?

(1) Is the Plaintiff’s Originating Summons proper before the Court?

21. Before this Court attempts to resolve the issues and or grievances of both parties, it is pertinent that the above question posed above must be answered. I say this in light of the fact that the tenor and intent of the Plaintiff’s Originating Summons and its Notice of Motion, amongst other things is challenging the legality of certain administrative and or semi-judicial decisions of the 1^st , 2^nd, 4^th 5^th and 6^th Defendants. Such actions individually or collectively are administrative entities of the 6^th Defendant which made those administrative decisions 34 years and 56 years ago respectively. (NLD No. 4465, Poinini No.1- 3 March 1988 and NLD No. 597, Poinini No, 2 – 7 February 1966.)

22. My perusal of all the evidence relied on by the parties in these proceedings including those contained in the file and your respective submissions I have not seen any court documents relating to whether leave was obtained by the Plaintiff to files this originating summons. In the absence of this critical process giving rise to the Courts’s jurisdiction and that of the Plaintiff, I can safely conclude that no leave was granted to the Plaintiff to review those administrative, decisions now complained off. It follows , I am afraid that this proceeding is flawed and an abuse of court process ab initio. I am fortified by the leading authority regarding the principles for judicial review discussed in the case of Kekedo v Burns Philip (PNG) Ltd and Others [1988-89] PNGLR 122 at 124.

(2) Can the Plaintiff’s Originating Summons survive the time limitation?.

23. (1) The Plaintiff contends that s.16 of the Fraud & Limitations Act is void & inapplicable because section 16 (I) is subject to ss. 17 & 18 of the same Act.

(2) As to Order 12 Rule 40 (a), (b) & (c) National Court Rules, The Plaintiff asserts that this provision is applicable only in proceedings considered very serious and cannot succeed both in law & facts.

(3). The Plaintiff alleges that its case involves serious errors and omissions on the part of the State with a highly fundamental contract for sale & purchase agreement of customary land purportedly acquired under contract (NLD), incomplete, and the legitimate customary landowners of the subject land described as Portion 2126c Ponini No 1 in Talasea District of West New Britain Province, comprising of 96 hectares of land.

(4) The Plaintiff being aggrieved seeks ‘specific performance” on the part of the State and its agents.

(5). The Plaintiff submit that despite the land purchase there was no evidence of the State Lease/Title issued to the Defendants.

(6) The Plaintiff further submits that a Local Land Court findings in its order of 21 February 2008 found that Ponini Land comprising of 95 hectares of land now described as Portion 2126c, Ponini No 1, Megigi in Talasea District was owned by the Plaintiff Clan.(Keveloho Mauli clan.)

Analysis.

24. As I understand from the black and white letter of the law, an action, not brought after the expiration of 12 years commencing on the date when the cause of action accrued is time barred by operation of Section 16(3(4))(5) FALA. Similarly, an action not brought upon a judgment after the expiration of 12 years on the date when the judgment became enforceable is time barred. Therefore, the Plaintiff’s reliance on Section 17 and 18 of the FALA is unfounded. It is common knowledge that specific performance is a type of remedy used by courts when no other remedy, including equitable relief, will adequately compensate the other party, usually in contract related cases. (my underlining). The Plaintiff’s claims for seeking redress under equity for “specific performance” is misguided and erroneous, in my view. As I understand from evidence presented, the Plaintiff were not a party to the sale off and or purchase off the land in question. To this end I see not utility in analysing other points raised in items 3,4.5 and 6.

25. As to whether the Plaintiffs Origination Summons filed 28 July 2022 is tantamount to frivolity, I am satisfied that the whole of Order 12, Rule 40(a)(b)(c) and Order 16, Rule 3,4,& 5. was violated.

26. Might I add here that the original case involves the claimants who are from a local land owing clan in Talasea District in West New Britian Province who are seeking title to land they say was once owned by their clan. If the Court allows this Plaintiff to prosecute this action based on its unsupported claim to “ownership,” it would open the flood gates and invite similar suits against the State. Individuals and clans will see that they can bypass the established mechanisms for the return of public lands, or land acquired during the Colonial Administration or get a second bite at the apple, simply by filing an action to quiet title based solely on some unsupported claim of “ownership.” The amount of resources the State would have to expend to defend these unsupported claims of “ownership” including the burden on the courts in allowing these litigations, would be unfathomable.

Conclusion.

27. For the reasons above, the court orders that the Plaintiff’s proceedings is dismissed in its entirety.

28. The Plaintiff will pay the Applicant/ 7^th Defendant cost of the application on a party and party basis, such costs to be taxed if not agreed.

29. The time for entry of these orders to be abridged to the time of settlement by the Registrar which shall take forthwith.

Orders accordingly.

________________________________________________________________
Mr. Felex Kua Lawyers: Lawyers for the Applicant/ Seventh Defendant
Kumbari Lawyers: Lawyers for the Respondent/Plaintiff