N10646

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS NO. 416 OF 2023

BETWEEN
MALA STEPHEN AHI
Plaintiff

AND
JOHN BANGKOK
First Defendant

AND:
EAST WEST (1) LIMITED
Second Defendant

AND:
JV PNG INVESTMENT CONSTRUCTIONS LIMITED
Third Defendant

Lae: Dowa J
2023:    8th & 13th December
2024:   16th January

PRACTICE AND PROCEDURE- application for dismissal of proceedings for disclosing on reasonable cause of action and for lack of jurisdiction-abuse of process - Order 12 Rule 40 of the National Court Rules-lack of jurisdiction in dealing with customary landownership disputes - clear case for summary dismissal-application granted, proceedings dismissed. 

Cases Cited:
Mt Hagen Urban LLG v Sek No.15 Ltd [2009] SC1007
Philip Takori v Simon Vagari (2008) SC905
Telikom PNG v ICCC & Digicel (PNG) Ltd (2008) SC906 
Kerry Lerro v Philip Stagg (2006) N3050
PNG Forest Products vs. State [1992] PNGLR 85
Ronny Wabia vs. BP Exploration Co. Ltd [1998] PNGLR 8
Wabia vs. BP Petroleum (2019)) N4337 
National Provident Fund vs. Maladina & Others (2003) N2486
 Wambunawa Holdings Ltd. vs. ANZ Bank (2020) N8310
Titi Christian v Rabbie Namaliu (1995), Unreported, Un-numbered Supreme Court Judgment in OS No. 2 of 1995
National Airline Commission v Lysenko [1990] PNGLR 266
AGC (Pacific) Ltd v Sir Albert Kipalan (2000) N1944
Kundu Consultants Ltd v The State (2001) N2128
Kimas v Oala (2015) SC1475
Katumani & Ors v Elijah Yawing & Ors (2020) N8481
Waril Incorporated Land Group Inc v Morobe Provincial Government [2023] PGNC 21; N10108
Hegele v Kila (2012) SC1180

 Counsel:
K Keindip, for the Plaintiff
G Topa, for the Defendants

DECISION

16th January 2024 

1.	DOWA J:	This is a ruling on the Defendant’s application seeking dismissal of the proceedings. 

2.      The parties filed competing applications which were set for hearing on 8th December 2023. It was determined that the Defendants Notice of Motion for dismissal be heard first because if the application is upheld, that will end the proceedings. I heard the application on 8th and 13th December 2023 and reserved my ruling which I now deliver.

	Motion For Dismissal

3.	By Notice of Motion, the Defendant applies for the dismissal of the proceedings for the following reasons:

i.	under Order 12 Rule 40 (1) of the National Court Rules for disclosing no reasonable cause of action and for abuse of process. 
ii.	under Order 12 Rule 1 of the National Court Rules for lack of locus standi and want of jurisdiction
iii.	under sections 4 and 16 of the Frauds and Limitation Act for being statute barred.

	Brief Facts

6.    The Plaintiff comes from Butibam, Lae, Morobe Province. He is a member of the Wapicgubu clan. He alleges, he is the owner of customary land known as Akohu 2 on land described as Portion 684c of Malahang, Fourmil Huon, Butibam Lae. It is alleged that the Defendants have unlawfully and without the consent of the Plaintiff entered the said land and have and continue to carry on business as quarry operators, gravel stockpiling, road and building constructions. It is alleged that the Defendants have been occupying his land without paying any rent to him. Aggrieved, the Plaintiff seeks damages for trespass and for the unlawful use and deprivation of his property.

7.       The Defendants deny the claim. The defendants averred in the Defence that they have they bought the land from the Bogan family, the customary landowners in 2011. They have the consent of the Bogan family to enter and occupy the land and conduct business. The Defendants deny the Plaintiff has any legal or customary right to make a claim for the use of the land.

Preliminary Issue

8.      The Plaintiff submits as a preliminary point in law that the Defendants’ Notice of Motion is incompetent for failing to cite the concise reference to the Court’s jurisdiction for the reliefs they are seeking.

Issues

9.	The issues for consideration are:

i.	Whether the Defendants’ Notice of Motion is incompetent 
ii.	Whether the proceedings be dismissed for the reasons set out in the Notice of Motion. 

      Whether the Defendants’ Notice of Motion is incompetent 

10.	 The Plaintiff submits that the Notice of Motion filed by the Defendants is incompetent for failing to plead the concise reference to the Court’s jurisdiction, as required by Order 4 Rule 49 (8) of the National Court Rules, and therefore, be struck out and the Motion be dismissed. 

11.	 In the Notice of Motion, the Defendant seeks dismissal of the proceedings for three reasons. I will deal with each of them. Firstly, the Plaintiff seeks dismissal under Order 12 Rule 40 (1) of the National Court Rules for disclosing no reasonable cause of action and for abuse of the process. In my view this ground is sufficiently pleaded as provided by the Rules. The second ground for dismissal is for lack of standing and for want of jurisdiction under Order 12 Rule 1 of the National Court Rules. Rule 1 is of general application. The Motion did not state the correct and concise reference to the Court’s jurisdiction. However, I will, in the exercise of my discretion dispense with the requirement under Order 4 Rule 49 (20) of the NCR and allow the motion as the grounds raised are sufficiently covered under Order 12 Rule 40 (1) of the NCRs which has correctly invoked the jurisdiction of the Court. The final ground for dismissal is that the claim is statute barred under sections 4 and 16 of the Frauds and Limitation Act. I note the Court’s jurisdiction is properly invoked and shall be allowed. The result is the Plaintiffs objection to the competency of the Defendants’ Notice of Motion is overruled in the exercise of the Court’s discretion.

The law under Order 12 Rule 40 of the NCR.

12.	The application for dismissal is made under Order 12 Rule 40(1) of the National Court Rules. It reads:  
” 40.	Frivolity, etc. (13/5)
(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.”

13.   The law on applications under Order 12 Rule 40(1) of the National Court Rules is settled in this jurisdiction in cases such as Mt Hagen Urban LLG v Sek No.15, Philip Takori v Simon Vagari (2008) SC 905, Telikom PNG v ICCC & Digicel (PNG) Ltd (2008) SC 906 and Kerry Lerro v Philip Stagg (2006) N 3050. 

14.     Order 12 Rule 40 (1) of the NCRs is constructed and defined by the Supreme Court (per Takori v Vagari) in following terms: 

a)	A claim may be disclosing no reasonable cause of action if the facts pleaded does not clearly show all necessary facts and legal elements to establish a claim known to law.
b)	A claim maybe frivolous if it can be shown that it is obviously untenable that it cannot possibly succeed or is bound to fail it if proceeds to trial.
c)	Proceedings are vexatious where the case is a sham, amounting to harassment of the opposing party, or where the opposing party is put to unnecessary trouble and expense of defending the case. 

15.	The Court cannot readily dismiss a case on poor pleading or for lack of disclosing a reasonable cause of action or for abuse of process unless it is shown that the case is clearly frivolous or vexatious or an abuse of the process and that it is unlikely to succeed even it proceeds to trial.  Refer:  PNG Forest Products vs. State (1992) PNGLR 84–85, Ronny Wabia vs. BP Exploration Co. Ltd (1998) PNGLR 8, Wabia vs. BP Petroleum (2019)) N4337, Mt. Hagen Urban LLG vs. Sek No. 15 (2009) SC1007, National Provident Fund vs. Maladina & Others (2003) N2486; and Wambunawa Holdings Ltd. vs. ANZ Bank (2020) N8310.

16.	 I will now proceed to consider the grounds raised by the Defendants. For convenience I will deal with the grounds together. In my view the most important questions to be determined are whether the claim is statute barred and whether the Court has jurisdiction to hear the matter.
      Whether the proceedings are statute barred.

17.	 The Plaintiff’s claim is for damages for trespass and for unlawful deprivation of property. It is principally a claim based on tort. Section 16 of the Frauds and Limitation Act provides that a claim or action in tort must be commenced within six (6) years from the date of cause of action. It is undisputed that the Defendants moved into the subject land between 2011 and 2013. That is a period exceeding six years. In my view, since the alleged occupation is continuous, the date for the cause of action for trespass shall not be necessarily fixed to a date in 2011 or 2013. The Plaintiff is at liberty to make a claim within the six-year period. This ground fails.

Whether the Court has jurisdiction to hear the case.

18.	 I now turn to the second issue; that is, whether the Court has jurisdiction to hear the matter. The Defendants submit that the Court does not have jurisdiction to hear the case because it involves consideration and determination of customary land ownership.
 
19.	The Plaintiff submits that the Court has the jurisdiction to hear the case because:
 
i.	The Plaintiff’s case does not involve determination of customary land ownership.
ii.	 The land remains customary land belonging to the Plaintiff and any interest purportedly acquired by the Defendants is void and of no effect pursuant to section 132 of the Land Act which prohibits any customary landowner to dispose of customary land to persons other than citizens.

20.	 It is trite law that the National Court does not have jurisdiction to deal with disputes over customary land. Such disputes can be dealt with in the first instance by following the procedures and processes set out   in the Land Dispute Settlement Act. Refer: Kimas v Oala (2015) SC1475, Katumani & Ors v Elijah Yawing & Ors (2020) N8481 and  Waril Incorporated Land Group Inc v Morobe Provincial Government [2023] PGNC 21; N10108.

21.	I am mindful of the Plaintiffs submission that the question of jurisdiction is to be determined by the characterization of the cause of action and that the cause of action in the present proceedings is not one for the determination of customary ownership and that the Court has jurisdiction to deal with the matter.  The Plaintiff relies on the decision of the Supreme Court in Hegele v Kila (2012) SC1180.

22.	The relevant part of the judgment in Hegele v Kila reads:

14. We agree that the question of jurisdiction was properly raised in view of the subject matter of the proceedings and the terms of the order of Salika DCJ of 13 October 2009. However, if in proceedings in the National Court a question arises whether the Court has jurisdiction due to the subject matter of the proceedings relating to ownership of customary land, the question of jurisdiction should be determined by characterisation of the cause of action.

15. If the cause of action requires the Court to determine ownership of customary land the Court will lack jurisdiction as it is a well settled principle that the National Court (and also the Supreme Court) has no jurisdiction to hear or determine disputes about ownership of customary land (The State v Lohia Sisia [1987] PNGLR 102; Sioti Bauf and Lavoi Nodai v Poliamba Pty Ltd [1990] PNGLR 278; Golpak v Kali [1993] PNGLR 491; Siaman Riri v Simion Nusai (1995) N1375; Ronny Wabia v BP Exploration Co Ltd [1998] PNGLR 8; Soso Tomu v The State (2002) N2190).

16. If some other cause of action is being prosecuted the proceedings will fall within jurisdiction as the National Court is generally by virtue of Section 166(1) of the Constitution a court of unlimited jurisdiction.

17. Regard to the statement of claim in WS 459 of 2008 discloses that no issue concerning land ownership is raised by the Yumbi Clan. Rather, what is alleged is that both the deed of release and the consent order were procured by fraud. The proceedings therefore fell within the jurisdiction of the National Court.

23.	I agree with the statement of law, which is binding on this Court, that the question of jurisdiction is to be determined by the characterization of the cause of action. It will depend on the examination and consideration of the facts and evidence before the Court. The facts and issues in the Hegele case are distinguishable from the present case.
 
24.	In the present case, the Plaintiff’s claim is premised on the basis that he is the owner of Akohu 2 and that there is no dispute as to his proprietary rights. That is, however, not the case. The Plaintiff’s customary ownership over land, Akohu 2, is vigorously disputed.  

25.	There is no dispute that the land described as Akohu 2 the subject of this proceedings is customary land. The defendants pleaded and supported by evidence that they purchased the land from the Bogan Ahi family in parcels commencing 2011 to operate a quarry and related businesses. There is evidence that Akohu 2 was sold by the Bogan family to the second Defendant in August 2013. The Bogan brothers, Willard Bogan and Christian Bogan filed evidence supporting the Defendants. The Bogan brothers dispute that the Plaintiff is the customary owner of Akohu 2 and maintain that the land is owned by the Bogan family, although one of the Mogan brothers, Charlie Bagan, supports the Plaintiff, deposing that the Plaintiff is rightful owner of Akohu 2.

26.	Clearly, the Plaintiff’s claim to the land, Akohu 2 is challenged. This will require a prior determination of customary ownership of the subject land before proceeding with the merits of the claim. To that extent, the National Court does not have jurisdiction to determine customary landownership. 

27.	The Court notes the Plaintiff’s argument that the purported sale of the customary land by the Bogan family is done contrary to section 132 of the Land Act and thus is a nullity and of no effect. While it is a valid argument, the sale was done by the Bogan family who claims ownership to the land. The Bogan family are happy to part with the land. The Bogan family has no objection to the Defendants acquisition and current occupation. The Plaintiff’s assertions are seen as an interference by an outsider who has no standing even to institute the current proceedings.

28.	The evidence shows there has been ongoing dispute over the subject land. The Plaintiff has resisted the Bogan family and the Defendants from obtaining title to the land. In the last Land Titles Commission hearings, the Commissioner noting the dispute over the subject land referred the matter to the Local Land Court to hear and determine customary ownership. There is no evidence before this Court whether any progress has been made in the Local Land Court in respect of the referral by the Land Title Commissioner. Given the uncertainty, the Court is not inclined to accept that the Plaintiff is the owner of the subject land in the face of stiff opposition.

29.	It is instructive for the Plaintiff to follow the procedure under the Land Disputes Settlement Act as per the direction of the LTC to establish ownership as a priority. Once the ownership issue is determined in his favor, he can then consider issuing recovery proceedings in the nature he has instituted, including reliefs challenging the sale under section 132 of the Land Act.

30.	That said, in the end, I find the Court does not have jurisdiction to hear the case because the proceedings will require determination of customary land ownership as an integral part of the hearing before considering other issues raised in the proceedings. While it is not desirable to terminate the Plaintiff’s proceedings early, this is a clear case, where the Plaintiff is unlikely to succeed even if the matter proceeds to trial.

31.	The Court will therefore uphold the Defendants’ application and dismiss the proceedings for lack of jurisdiction.

Costs

32.	 The Defendants seek cost of the application. It is a discretionary matter. The parities have incurred time and expense. The Court will award cost in favour of the Defendants. 

Orders

33.	    The Court orders that:

1.	The Defendant’s application is granted.
2.	The Plaintiff’s proceeding is dismissed. 
3.	The Plaintiff shall pay the Defendants costs to be taxed, if not agreed. 
4.	Time be abridged.

_______________________________________________________________
Sawong & Associates:	Lawyers for the Plaintiff
Miles Legal Services:	Lawyers for the Defendants