Edea v Natera [2024] PGNC 262; N10930 (6 June 2024)

N10930

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS NO. 103 OF 2023 [ICEMS]

BETWEEN:
SIBONA A GAUDI EDEA
First Plaintiff

AND
IDARO IDIBANA LAND GROUP INCORPORATED
Second Plaintiff

AND
CECIL NATERA JNR
First Defendant

AND
GOROBE KAE INCORPORATED LAND GROUP
Second Defendant

AND
KUTT PAONGA in his capacity as ACTING CHIEF COMMISSIONER OF LANDS TITLE COMMISSION
Third Defendant

AND
ALA ANE, REGISTRAR OF TITLES
Fourth Defendant

AND
DEPARTMENT OF LANDS & PHYSICAL PLANNING
Fifth Defendant

AND
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Sixth Defendant

Waigani: Bre AJ
2024: 22^nd February and 06^th June

CIVIL PRACTICE AND PROCEDURE – Application for summary dismissal – Order 12 rule 40 (1)(a),(b),(c) NCR – consideration of exclusion rule in Order 12 rule 37 NCR – issue of whether cause of action requires determining customary land ownership or fraud – cause of action considered – crux of plaintiff's claim about dispute of customary ownership of land – plaintiff's Local Land Court proceedings dismissed – no judicial review filed – Court no jurisdiction to hear customary land disputes – proceeding frivolous, vexatious and an abuse of process - proceeding summarily dismissed.

Cases Cited
Cragnolini v Constantinou [2023] SC2421
Hegele v Kila [2012] SC1180
Kimas v Oala [2015] SC1475
PNG Forest Products Pty Ltd v Independent State of Papua New Guinea [1992] PNGLR 85
The State v Lohia Sisia [1987] PNGLR 102
Wartoto v State [2015] SC1411

Legislation
Land Disputes Settlement Act 1975,
Land (Tenure Conversion) Act, 1963
Land Titles Commission Act 1962, s15.
National Court Rules Order 12 rr37 and 40(1)(a),(b)(c) NCR.

Counsel
Mr Jomel Waka, for the Applicants/First and Second Defendants
Mr Justin Yakasa, for the Respondents/ First and Second Plaintiffs
No appearance for the Third to the Sixth Defendants

RULING

06^th June 2024

1. BRE AJ: The first and second defendant seek to summarily dismiss this proceeding for being frivolous, vexatious or an abuse of process. The proceeding concerns land in Taurama NCD, known as Oyster Bay, Tanokaka Hill or Portions 6067C and 5139C.
   
2. On a preliminary issue, the plaintiffs' counsel sought an adjournment which I exercised my discretion to refuse the adjournment as the hearing of this application was adjourned from a previous special fixture hearing date of 01 December 2023 to 22 February 2024 and he had not filed any affidavit explaining the reasons for the adjournment.
   
3. The applicants rely on Order 12 rule 40 (1)(a), (b), (c) of the National Court Rules ('NCR') and on the evidence of the Cecil Natera Jnr filed 10 October 2023 and 25 October 2023.
   
4. The issue for my determination is whether the proceeding is frivolous, vexatious or an abuse of process?
   
5. Before addressing this issue, I apply my mind to Order 12 rule 37 NCR which dissuades summary dismissal applications under Order12 rule 40 NCR where the Statement of Claim alleges fraud. I will address this issue first. Neither counsel made submissions on this rule, but I consider that it is critical to the defendant's application.
   

6. The key issue is whether the plaintiff's cause of action requires me to decide the question of land ownership or whether the cause of action is based on fraud (actual or constructive).
This issue is also to my mind, one of the main issues in deciding whether the proceeding is frivolous or an abuse of process.

7. These questions were posed by the Supreme Court in Hegele v Kila [2012] SC1180 where it overruled a National Court decision concerning a challenge to a deed of release and a consent order regarding ownership of customary land from which petroleum royalties arose. The Supreme Court held that the dispute was not for the Court to determine the ownership of the customary land but rather to declare the deed and consent order a nullity on grounds of fraud. In reaching this decision, it formulated the above questions and ruled that the National Court had jurisdiction to deal with the proceedings as it was not a customary land ownership dispute.

8. The issues require me to peruse the Statement of Claim to determine what the cause of action is. The Statement of Claim as contained in the plaintiffs amended Writ of Summons filed 22 June 2023, pleads fraud on the part of the first and second defendants in:-

- relying on unregistered draft survey plans to obtain two conversion orders from the Land Titles Commission,
- the certificates of title over portions 6067C, Oyster Bay Estate 1 and Portion 5139C are irregular due to its issuance before the allocation of portion numbers by the Surveyor General,

- that the Land Titles Commission decision to grant the conversion order was irregular as it preceded the formal registration of the survey plans.

9. The plaintiffs seek in their prayer for relief declaratory orders and mandamus, the cancellation of the two land titles, a declaration that the Land Titles Commission decision to grant the conversion order was based on fraudulent misrepresentation, and that the matter be reverted back to the Local Land Court for determination of the customary land ownership in proceedings LLC 028 of 2019 between the plaintiffs and the first and second defendant to continue.

10. Prima facie, the cause of action appears to be one based on fraud. However, a closer examination of the allegations and prayer for relief demonstrates to me that the plaintiffs are challenging the decision of the Land Titles Commission in considering the evidence presented to them by the first and second defendants in granting the conversion orders. The proper method of challenging the Lands Titles Commission decision is by judicial review proceedings.

11. The other relief sought of a declaration for the continuation of the hearing of the customary land dispute in matter LLC 028 of 2019 before the Local Land Court appears to be frivolous and an abuse of process in light of clear evidence from the plaintiff that the proceedings LLC 028 of 2019 was dismissed by the Local Land Court on 20 October 2023, some two months after the amended Writ of Summons was filed. This relief appears to serve no purpose.

12. This leaves only the cause of action regarding the two certificates of titles by the Registrar of Titles as it concerns allegations of irregularity in the issuance of these two titles before the allocation of portion numbers by the Surveyor General. The Registrar of Titles relied on the conversion orders of the Land Titles Commission to issue the two title deeds. The issue of irregularity seems to go back to the evidence before the Land Titles Commission and its decision.

13. I consider that what is at the heart of the dispute is the determination of ownership of what the plaintiffs allege to be their customary land and its claims about the survey plans may relate to their alleged traditional boundaries of their customarily land. The plaintiffs aver their traditional rights to the land and that the Land Titles Commission decision to grant the conversion orders to the plaintiff was irregular.

14. The defendant's evidence is that it had an existing right to customary lands the subject of this dispute when it was recognised by the colonial Land Titles Commission on 30 September 1965. Mr Waka for the applicants submitted that this recognition provided sufficient interest to the second defendant to apply for conversion pursuant to the Land (Tenure Conversion) Act 1963 of the customary land rights to be converted to a State certificate of title to be granted to the Gorobae Kae Incorporated Land Group.

15. The certificates of title were issued a year before the plaintiffs filed their proceedings. The plaintiffs would have used that opportunity to challenge those titles by judicial review. No evidence has been adduced by the plaintiff to demonstrate whether the Land Titles Commission decision to convert the second defendant’s 1965 land determination or Local Land Court decision in LLC 028 of 2019 were appealed or subject to judicial review. There was adequate time between the decision of the Local Land Court on 20 October 2023 and January 2024 to file evidence of any such proceeding. The first plaintiff's evidence filed 20 June 2023 deposed to matters while the Local Land Court proceedings were still on foot. This demonstrates to me an abuse of process and adds further weight in support of the application for summary dismissal.

16. The law is clear on this Court's jurisdiction in dealing with customary land disputes, the National Court has no jurisdiction to hear and determine disputes related to customary interests in land. In Kimas v Oala [2015] SC1475, the Supreme Court at [6 to 9] clarified the legal position concerning the determination of customary land disputes, as:-

" It is settled law 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. Such disputes fall within the exclusive jurisdiction of the Land Titles Commission under Section 15 (determination of disputes) of the Land Titles Commission Act..."

17. As I stated earlier, I find that the crux of the issue for the plaintiffs is the determination of customary interests in the concerned lands.
The proper course to determine customary ownership in lands should have been through the Land Disputes Settlement Act 1975, if that option is still viable or through the Lands Titles Commission. The evidence is that the plaintiffs exhausted the Local Land Court process but did not seem to take it further through the land grievance process to the Provincial Land Court then to the National Court by judicial review. If it did, no evidence has been adduced.

18. Given all these considerations, I find that the cause of action may result in a determination by the Court of customary interests in the ownership of the subject lands which is clearly outside the jurisdiction of the National Court pursuant to Section 15 of the Land Titles Commission Act as affirmed in The State v Lohia Sisia [1987] PNGLR 102 and Kimas v Oala. In that regard it is my ruling that Order 12 r37 NCR does not apply to preclude this application.

19. I turn now to consider the summary dismissal application. The acting Chief Land Titles Commissioner deposes that the process followed by the Local Land Court is a stringent fully participative process progressed over time in the granting of the conversion orders to the second defendant. He deposes that the proper course of action for the plaintiff is to seek judicial review of its decision. The Land Titles Commission conversion orders decisions were made on 17 October 2022 for Portion 6067C and 6 December 2022 for Portion 5139C. There is no evidence of any judicial review against these decisions.

21. In PNG Forest Products Pty Ltd v Independent State of Papua New Guinea [1992] PNGLR 85, the Court held that the power to dismiss proceedings for disclosing no reasonable cause of action should be confined to cases where the cause of action is obviously and almost incontestably bad. That the plaintiff should not be driven from the judgment seat unless the case is unarguable.

22. In the following cases the Court expanded further on what a frivolous, vexatious or abuse of process proceeding entails. In Cragnolini v Constantinou [2023] SC2421 the Supreme Court defined frivolous and vexatious proceedings as follows:

“i. A proceeding may be regarded as frivolous when it has no prospect of success.

ii. A proceeding is vexatious when it is commenced with the view to harass a defendant and prejudice their interest or their ability to defend other proceedings.”

And in Wartoto v State [2015] SC1411 the Supreme Court defined abuse of process in the following terms:

“Firstly, what abuse of process means in our view is that there is a process which is being abused by someone. That usually entails someone’s using a process or procedure provided for by law contrary to its intended purpose, objective or proper and intended use. Hence, when there is a claim of an abuse of process, it is necessary to first establish what the process is and when and how it can be properly invoked, before determining if indeed there has been an abuse of what process.”

The Supreme Court in Wartoto v State further held that:

“Unless a person brings an application or proceeding in accordance with the processes and procedures at the relevant and appropriate stages, anything else would be an abuse of process of the Courts or any prescribed procedure.”

23. In considering these principles, I find that the plaintiffs’ pre-empted the land dispute resolution process it commenced in the Local Land Court, by filing this proceeding before the Local Land Court decided on its claim to the subject lands. The substantive relief the plaintiffs are seeking before this Court are orders that should have been rightly sought by judicial review or after the land dispute resolution process is exhausted. The fraud allegations raised in the Statement of claim plead irregularity in the evidence relied on by the Land Titles Commission in granting the Conversion Orders and go to the decision-making powers of the Commission. The Land Titles Commission is a quasi-judicial tribunal, and its decisions are subject to judicial review. That is the proper mode of proceeding for the plaintiffs. The plaintiff had adequate time from after the Lands Titles Commission decisions or the Local Land Court decision to file a judicial review but did not. All these actions point to the proceedings being an abuse of Court process or frivolous or the plaintiffs being vexatious and cause of action being one based primarily on determining customary interests in land is outside this Court’s jurisdiction and is incontestably bad.

24. Customary land disputes are the purview of the Land Titles Commission pursuant to Section 15 of the Land Titles Commission Act 1962 and the Local Land Court. The Land Titles Commission Act also allows the Local Land Court to hear disputes concerning customary land. This process was utilised by the plaintiffs but dismissed by the Court who recognised and upheld the interests of the second defendant as contained in the 30 September 1965 Land Title Commission determination and dismissed the plaintiffs' claim of customary rights to the land. The issues raised by the plaintiffs now appear settled by the plaintiffs' own actions or omissions with the titles to the lands now formerly issued to the second defendant.

25. The other contentions and evidence of the applicants about the standing of the first plaintiff and his admissions of the defendants' interest to the land adds support to the application and demonstrates that the proceeding is an abuse of court process, frivolous and vexatious.

26. Given all these considerations, I accept the first and second defendants application and summarily dismiss the proceeding for being frivolous, vexatious and an abuse of process with costs to be borne by the plaintiffs on a party/party basis.
ORDER

27. The formal Orders of the Court are:

1. The proceeding is dismissed in its entirety pursuant to Order 12 Rule 40 (1) (a), (b) and (c) of the National Court Rules.
   
2. Reasonable costs of the application are awarded to the first and second defendants, to be paid by the plaintiffs, to be taxed, if not agreed.
   
3. Time for entry of the orders is abridged to the date of settlement by the Registrar of the National Court which shall take place, forthwith.
   
4. The file is to be closed and archived.
   

Ruling accordingly,.
__________________________________________________________________
Yandeken Lawyers: Lawyers for the Plaintiffs
Namani Lawyers: Lawyers for the First and Second Defendants
Solicitor General: Lawyers for the Third, Fourth, Fifth and Sixth Defendants