Tokau v Luluka Land Group Inc (No. 209) [2023] PGNC 90; N10208 (24 March 2023)

N10208

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS(JR) NO. 69 OF 2020

BETWEEN:
THERESA TOKAU for and on behalf of RAKUBUL CLA, VUNAKUA CLAN, BITAVURVUR CLAN and VUNAGIGI CLAN as Customary Owners of Land overing the RANIOLO PLANATATION KOKOPO
Plaintiff

AND:
LULUKA LAND GROUP INC (NO. 209)
First Defendant

AND:
ALA ANE in his capacity as the REGISRAR OF LAND TITLES
Second Defendant

AND:
BENJAMIN SAMSON in his capacity as THE SECRETARY FOR DEPARTMENT OF LANDS AND PYSICAL PLANNING
Third Defendant

AND:
THE INDEPDENDENT STATE OF PAPUA NEW GUINEA
Fifth Defendant

Waigani: Dingake J
2023: 7^th March

MOTION – application by defendants to dismiss plaintiffs’ proceedings for failure to comply with court directions and for lack of standing – no evidence of failure by plaintiff to comply with court directions - there is no evidence that the Plaintiff has authority to represent the four (4) clans she purports to represent - standing is a competency ground contemplated by Order 16 Rule 13 (2)(a) (b)(i) of the National Court Rules - Court can rely on to summarily dismiss a matter - proceedings are summarily dismissed with costs for want of standing by Plaintiff to sue

Cases Cited:

Alex Timothy v Hon Francis Marus (2014) SC1403
Doriga Berasi v Konekaru Holding Ltd (2010) N4189
Sir Arnold Amet v Peter Charles Yama (2010) SC1064
Simon Mali v The State (2002) SC690

Counsel:

Mr. Gesi Chillion, for the Plaintiff
Mrs. Natasha Rainol, for the First Defendants

RULING

24^th March, 2023

1. DINGAKE J: This is my ruling with respect to the First Defendant’s Notice of Motion filed on the 29^th August 2022, in which it seeks, inter alia, pursuant to Order 16 Rule 13(2) (a) (b)(i) of the National Court Rules, that the Plaintiff’s proceedings be dismissed for failure to comply with Court directions ordered on the 8^th of April, 2021, for lack of standing and gross excessive delay and or gross undue delay in bringing action to challenge title in dispute.
   
2. The dispute in this matter concerns a piece of land in Kokopo in Raniolo Plantation and or called Raniolo Plantation.
   
3. The matter has a tortuous history. The Plaintiff commenced proceedings by way of originating summons, purportedly on behalf of four (4) clans, namely; Rakubul Clan, Vunakua Clan, Bitavurvur Clan and Vunagigi Clan to review certain decisions of the First, Second, and Third Defendants as contained in the Plaintiff’s originating summons.
   
4. The proceedings were commenced on or about the 30^th of November 2020.
   
5. More than two (2) years after the proceedings were commenced, the proceedings have not been finalized.
   
6. On the 8^th of April, 2021 this Court granted leave for Judicial Review and made a number of orders.
   
7. In this application, the First Defendant complains that Clause 5 and 7 of the Order issued by this Court on the 8^th of April, 2021 were not complied with.
   
8. Clause 5 and 7 of the Orders of the 8^th of April 2021, provided that:
   

“(5) The Plaintiffs shall also draft and forward to the Defendants, a Statement of the relevant Facts and Issues for Resolution (Statement) by 15^th April 2021, to which the Defendants shall respond by 30^th April 2021.

(7) The parties shall meet in settlement conference by or before 10^th May 2021, discuss statement and have it settled, following the Plaintiff shall file and serve the same on the rest of the parties by 11^th May 2021”.

9. This Court has not been furnished with evidence that the Plaintiff complied with Clause 5 of the Order of the 8^th of April 2021, and it is in my discretion whether on account of the above failure I can dismiss these proceedings as prayed by the First Defendant or not.
   
10. Clause 8 of the above Order tentatively, fixed the substantive matter for hearing on the 14^th of May 2021.
    
11. It is common cause that the matter was not heard on the 14^th of May 2021, and that on the 7^th of October 2021, it was summarily dismissed. It was later reinstated on the 23^rd of December 2021, and ordered to go for mediation on 3^rd May 2022.
    
12. Having regard to the developments that took place after the matter could not be heard on the 14^th of May 2021, in particular that it was reinstated and ordered to go for mediation on 3^rd May 2022, it would be in my mind be unfair to dismiss the proceedings for breach of Clause 5 of the Order of the 8^th April, 2021, that occurred before the matter was ordered to go for mediation. Consequently, the ground that this matter should be dismissed for failure to comply with Clause 5 of the Order of the 8^th of April 2021 is refused.
    
13. I also do not think the matter can be justifiably dismissed for failure to comply with Clause 7 of the Order of the 8^th April, 2021, because, the date was set “tentatively” by the Court.
    
14. Order 16 Rule 5 (4) of the National Court Rules provides that:
    

“4) Within 21 days after grant of leave the Notice of Motion shall be allocated a date of hearing by the Registrar after consultation with the parties.”

15. It seems plain to me from reading the above quoted provision that the obligation to allocate a date of hearing lies with the Registrar and the Plaintiff cannot be blamed if the matter is not allocated a date of hearing within twenty-one (21) days. This ground is also without merit, and it is dismissed.
    
16. The issue that has caused me some anxiety and reflection is the argument that the Plaintiff’s proceedings should be dismissed for lack of standing in that there is no evidence that the Plaintiff has authority to represent the four (4) clans she purports to represent.
    
17. The First Defendant has invoked the authority of the case of Simon Mali v The State (2002) SC 690, to argue for dismissal of the proceedings.
    
18. In response, the Plaintiff argues that the authority of Simon Mali is not applicable to this case as the Plaintiff has been authorized by other four (4) clans, through their chairpersons to bring these proceedings on behalf of the four (4) clans.
    
19. The Plaintiff also argues that the issue of standing and delay was dealt with by this Court when it granted leave to apply for Judicial Review on the 8^th of April 2021. The Plaintiff therefore argues that the issue of standing is Res judicata.
    
20. I do not accept the argument that the issue of standing is res judicata. In my considered opinion, the issue of standing is alive throughout, even after grant of leave. As it often happens, in judicial review matters, the issue of standing can arise differently after leave; and when it arises it would not be correct for the Court to turn a blind eye to it.
    
21. Furthermore, I am of the view that the issue of standing in so far as it is within the scope of the Rule invoked by the First Defendant can be entertained by this Court in the context of the said Rule.
    
22. I am fortified in holding the above view by the remarks of the Supreme Court in the case of Alex Timothy v Hon Francis Marus (2014) SC1403, at paragraphs 19 and 20. In those paragraphs the Court stated that:
    

“19. In the event, an interlocutory application to dismiss the Order 16 Originating Summons is filed and made before the leave for review is granted, then such an application is permissible but must be brought within the provisions allowing such applications, found only in Order 16 and not elsewhere in the National Court Rules. Likewise, an application to dismiss a substantive application for judicial review must be brought within the provisions allowing such applications, found in Order 16 and not elsewhere in the National Court Rules.

22. Additionally, Order 16 does contain its own previsions for summary disposal of an application for leave for review or the substantive application for judicial review for reasons of want of prosecution, want of competence or for any other reason. The Court may summarily dispose of a proceeding on application by a party, of the Court’s own motion or on referral by the Registrar: Order 16 Rule 13 (2). The application must be made by Notice of Motion: Order 16 Rule (1). Clearly, there is no room for a party to invoke Order 4 Rule 36 or any other similar provision found elsewhere in the National Court Rules.” (emphasis mine)

23. In this case, the Plaintiff purports to represent the four (4) clans mentioned earlier, by virtue of the authority letter signed by Chairpersons of the Rakubul, Vunakua, Bitavurvur and Vunagigi’s clans signed on the 31^st of August, 2020. There is no evidence of any meeting of the above clans were the majority gave the Plaintiff the authority to litigate on their behalf.
    
24. I have also considered the evidence of Norbert I Tokuvang sworn on the 24^th of January, 2022 in which he says he is a member of Bitavurvur Clan and denying that he and his clan members gave consent for this proceedings to be brought to Court. The evidence of Bernard Limlibur from Vunagigi Clan sworn on the 24^th of January 2022, and that of Theresia Valaun of Bitavurvur Clan sworn on the 24^th of January 2022, also denies giving any consent for this proceeding to be brought to Court.
    
25. My understanding of the authority of Simon Mali case, and other authorities of this Court is that authority is needed from at least the majority of the members of the clans cited to authorize that proceedings be brought in their name.
    
26. In this case, the Plaintiff has only obtained the consent or authority of four (4) individuals who simply purport to be Chairpersons of those clans. This is not sufficient authority required by law.
    
27. It seems to me that failure of the Plaintiff to obtain the consent of the majority of the members of the clan is fatal to these proceedings.
    
28. It was held in the case of Mali cited supra that:
    

“In representative actions, the legal representatives are required by law to have the names of the Plaintiffs included (to the Writs) or for their written consents to be filed and these consent to be by way of an Authority to Act Form. [Order 5 Rule 3 & 8 of the NCR]”.

29. The Court in the case of Mali (cited supra), also stated that:
    

“In the case of Mali v State (2002) SC 690; the SC held at; 4. In representative actions, the legal representatives are required by law to have the names of the Plaintiffs included (to the Writs) or for their written consents to be filed and these consent to be by way of an Authority to Act Form. [Order 5 Rule 3 & 8 of the NCR]”.

30. In the case of Doriga Berasi v Konekaru Holding Ltd (2010) N4189 Davani J, was more pointed when he held at para 26 that in a class action brought by a clan, all clan members must authorize the Plaintiff to bring a legal suit.
    
31. I agree with the remarks of the learned Judge, save that I would not insist on all members of the clan, but the majority would be sufficient.
    
32. In the result, I am not satisfied that the letter signed by four (4) individuals purporting to be Chairpersons of the clans named in this Court, constitute proper and sufficient authority as required by law.
    
33. Consequently, the Plaintiff in this matter has no standing to pursue this claim. Lack of standing is a competency ground contemplated by Order 16 Rule 13 (2)(a) (b)(i) of the National Court Rules, that the Court can rely on to summarily dismiss a matter.
    
34. In the premises the Court orders as follows:
    
    • (a) The proceedings are summarily dismissed with costs for want of standing by Plaintiff to sue – such costs to be taxed if not agreed.

_______________________________________________________________
Chillions Lawyers: Lawyer for the Plaintiff
Natphil & Associate Lawyers: Lawyer for the Firs Defendants