Hegele v Kila [2012] PGSC 15; SC1180 (20 May 2012)

SC1180

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCA NO 50 0F 2010

TALIBE HEGELE FOR HIMSELF AND ON BEHALF OF
MEMBERS OF THE YUMBI CLAN
Appellant

V

TONY KILA FOR HIMSELF AND ON BEHALF OF
MEMBERS OF THE NANO WEBO CLAN
First Respondent

ANDREW ELABE
Second Respondent

Waigani: Cannings J, Sawong J, Logan J
2012: 30 April, 2 May

PRACTICE AND PROCEDURE – dismissal of proceedings by National Court on ground of lack of jurisdiction – characterisation of cause of action – whether cause of action concerned ownership of customary land.

The appellants commenced proceedings by writ of summons in the National Court seeking a declaration that a deed of release concerning ownership of customary land and entitlement to royalties arising from a petroleum development licence executed by the respondents is null and void and that a consent order entered into in separate proceedings between the respondents on a similar subject matter be set aside on the ground that both the deed of release and the consent order were procured by fraud. In the course of setting the proceedings down for trial the listings Judge determined that the proceedings raised a dispute as to ownership of customary land and dismissed the proceedings due to lack of jurisdiction. This is the appeal against dismissal of the proceedings.

Held:

(1) 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 is to be determined by characterisation of the cause of action. If the cause of action requires the Court to determine ownership of customary land, the Court will lack jurisdiction. If some other cause of action is being prosecuted, the proceedings will fall within the jurisdiction of the Court.

(2) Here the cause of action prosecuted by the appellants in the National Court was fraud. Though the proceedings related to customary land, the Court was not called upon to determine the question of ownership. The Court did not lack jurisdiction and an error of law was made in dismissing the proceedings.

(3) The appeal was accordingly upheld and the matter remitted to the National Court for trial.

Cases cited

The following cases are cited in the judgment:

Golpak v Kali [1993] PNGLR 491
Hegele v Kila & Elabe (2011) SC1124
Hegele v Kila & Elabe (2011) SC1142
Hegele v Kila & Elabe (2011) SC1143
Ronny Wabia v BP Exploration Co Ltd [1998] PNGLR 8
Siaman Riri v Simion Nusai (1995) N1375
Sioti Bauf and Lavoi Nodai v Poliamba Pty Ltd [1990] PNGLR 278
Soso Tomu v The State (2002) N2190
The State v Lohia Sisia [1987] PNGLR 102

APPEAL

This was an appeal against dismissal of proceedings by the National Court.

Counsel

M Nasil, for the appellant
S Soi, for the first respondent

2 May, 2012

1. BY THE COURT: This is an appeal against the dismissal of proceedings, WS No 459 of 2008, by the National Court. In those proceedings, which emanate from a dispute over land and entitlement to royalties arising from a petroleum development licence regarding the Moran Oil Project, the appellant, Talibe Hegele, on behalf of the Yumbi Clan, sought a declaration that a deed of release executed by the respondents, Tony Kila on behalf of the Nano Webo Clan and Andrew Elabe, purporting to act for the Yumbi Clan, is null and void and that consent orders in related proceedings, OS No 687 of 2007, be set aside.

2. On 12 May 2010 Justice Kandakasi dismissed the proceedings in WS No 459 of 2008 for lack of jurisdiction, his Honour being of the view that the proceedings involved issues of ownership of customary land that had not been resolved. The appellant argues that his Honour erred in law in forming that view and in dismissing the proceedings.

ORIGIN OF THE APPEAL

3. The point at issue in this appeal is a narrow one, readily resolved by reference to the nature of the claims made by the appellant, on behalf of the Yumbi Clan, as disclosed in the statement of claim indorsed on the writ by which proceedings in the National Court were commenced. That said, it is necessary to put in context how that issue arises by referring to the ultimate origins of the appeal and some of the many court proceedings which have subsequently transpired (eg Hegele v Kila & Elabe (2011) SC1124; Hegele v Kila & Elabe (2011) SC1142; Hegele v Kila & Elabe (2011) SC1143).

4. The ultimate origin of this appeal lies in a dispute over land at Mount Palana Range Southern Highlands Province and a related entitlement to royalties arising from a petroleum development licence associated with the Moran Oil Project. The land ownership aspect of the dispute was resolved by a decision of the Provincial Land Court at Mendi on 8 March 2006. That court, in allowing an appeal from a Local Land Court, held that the Yumbi Clan was the traditional owner of the land in question at Mount Palana Range.

5. The Local Land Court decision, which had awarded the disputed land to the Nano Webo Clan, was given on 2 May 2002. On 1 October 2002, what purported to be a deed of release between the first respondent, Tony Kila representing the Nano Webo Clan, and the second respondent, Andrew Elabe representing the Yumbi Clan, was executed. Under the terms of that deed the parties purported to resolve their dispute with respect to the land at Mount Palana Range. The deed further provided, materially, that the Yumbi Clan agreed that "all court cases filed at Mendi will be withdrawn immediately." At that stage, the appeal by the Yumbi Clan against the Local Land Court's decision was pending in the Provincial Land Court.

6. In these circumstances, it is somewhat curious that the existence of the deed of release does not appear to have been drawn to the attention of the Provincial Land Court. Instead, the parties to that appeal each appear to have conducted themselves on the basis that the appeal was competent and one for determination on the merits, not for dismissal on the basis of consensual resolution on terms that it be withdrawn pursuant to the deed of release.

7. In any event, whether Andrew Elabe had authority on behalf of the Yumbi Clan to sign the deed of release is controversial. At a meeting of the Yumbi Clan held on 19 October 2002, after, it seems, the existence of the deed of release came to the attention of clan members, resolutions were passed rejecting that deed of release on the basis that it was executed without clan authority, removing Mr Elabe as Yumbi Clan chairman for the purposes of litigation concerning the land dispute and appointing Mr Talibe Hegele as chairman in his place.

8. The Nano Webo Clan later challenged the Provincial Land Court decision by way of judicial review proceedings instituted in the National Court (OS 185 of 2006). In those proceedings Mr Hegele in his capacity as representative of the Yumbi Clan was named as respondent. On 23 May 2006 the National Court dismissed all of the Nano Webo Clan's grounds of review save one. It gave leave to the Nano Webo Clan to proceed with the judicial review application solely on the ground of whether the grounds of appeal to the Provincial Land Court complied with s 54 of the Land Disputes Settlement Act. The Nano Webo Clan appealed to the Supreme Court against that order, again naming Mr Hegele as representative of the Yumbi Clan as respondent (SCM 8 of 2006). The Supreme Court dismissed that appeal on 9 October 2007. Once again, there does not appear to have been any reference to the deed of release either in the National Court proceedings or in the subsequent appeal to the Supreme Court.

9. On 30 November 2007, after its challenge in the Supreme Court had proved unsuccessful, the Nano Webo Clan instituted a further proceeding in the National Court (OS 687 of 2007). In that proceeding it sought to enforce the deed of release. Mr Elabe, rather than Mr Hegele, was named as the representative of the Yumbi Clan. Mr Elabe then gave instructions to the lawyer representing him in those proceedings to consent to an order by which, among other things, it was declared by the National Court that the deed of release prevented further proceeding with the land ownership dispute after the Local Land Court decision of 2 May 2002. That consent was placed before Hartshorn J who made declarations and related orders in terms of the consent on 27 December 2007. Thereafter, the Nano Webo Clan withdrew its judicial review challenge in the National Court.

WS 459 OF 2008

10. On 28 April 2008 the Yumbi Clan by its representative, Mr Hegele, instituted proceedings in the National Court (WS 459 of 2008). In those proceedings they sought orders setting aside the consent order made by Hartshorn J in OS 687 of 2007 on 27 December 2007 and declaring that the deed of release was null and void. They pleaded that Mr Elabe had no authority to represent the Yumbi Clan in those or any other proceedings, the National Court proceedings were conducted secretly by him and Mr Kila, the order of 27 December 2007 was the product of fraud and a conspiracy between the respondents and has had the effect of undermining a decision of the Provincial Land Court of 8 March 2006, which awarded ownership of the land that generates the royalties and other benefits to the Yumbi Clan, not the Nano Webo Clan.

11. The Yumbi Clan (by Mr Hegele) sought a stay of the order of 27 December 2007, and an order restraining the payment to the Nano Webo clan of royalty funds held in trust. That stay application was heard by Salika DCJ. Though his Honour granted a stay, it is clear from his Honour's order of 13 October 2009 and related reasons for judgment that he was under the impression that there were outstanding land dispute issues. The parties do not appear to have drawn to his Honour's attention the decision of the Provincial Land Court in 2006.

12. In any event, proceedings in WS 459 of 2008 continued to be prosecuted in the National Court. Those proceedings were at one stage set down for trial before Kariko J but it did not prove possible for the trial to proceed on the date fixed because of other court matters which his Honour had on that day. Instead, the proceedings were adjourned for the fixing of fresh trial dates.

13. The proceedings then came on before Kandakasi J for the fixing of fresh trial dates. Instead, influenced, it seems, by the references to a land ownership dispute in the orders made and reasons for judgment given by Salika DCJ, his Honour formed the view that there were outstanding land ownership issues. Instead of fixing a fresh trial date, his Honour referred the proceedings to mediation. The proceedings were not resolved by mediation. When they came back before Kandakasi J on 12 May 2010 his Honour, still being under the impression that they raised a dispute as to ownership of customary land, dismissed them with costs for lack of jurisdiction.

DID THE NATIONAL COURT HAVE JURISDICTION?

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.

18. Those representing the Yumbi Clan on 12 May 2010 endeavoured to persuade Kandakasi J that no land ownership issue was raised. It is most unfortunate that those representing the Nano Webo Clan that day did not do likewise, instead seemingly being content to leave his Honour under a mistaken impression formed by reference to the order and reasons for judgment of Salika DCJ that such an issue was raised. Be this as it may, the result is that his Honour was led into error. The order of dismissal was based on an incorrect characterisation of the nature of the claim made in WS 459 of 2008.

PREVIOUS SUPREME COURT PROCEEDINGS

19. The Nano Webo Clan submitted that the fate of this appeal was determined by an earlier, unsuccessful Supreme Court challenge by the Yumbi Clan in an application for review under s 155(2)(b) of the Constitution of the order made by Salika DCJ. That is not so. In that proceeding the Supreme Court was not called upon to characterise the nature of the claim made by the Yumbi Clan in their statement of claim. Instead, the fate of the application was governed by the Supreme Court's conclusion that it was futile given the subsequent order of dismissal of the National Court proceedings by Kandakasi J on 12 May 2010.

EVIDENTIARY OBJECTION

20. For completeness, we should mention that, on the hearing of the appeal, the Nano Webo Clan took a belated evidentiary objection to the affidavit by which material concerning the course of proceedings in various courts since the initial land ownership dispute was placed before us on behalf of the Yumbi Clan.

21. This objection was made after those representing the Nano Webo clan had certified the correctness of the appeal book. Further, the documents exhibited to the affidavit consisted materially of court orders, related reasons for judgment, transcripts of interlocutory proceedings before Kandakasi J including his Honour's reasons as recorded on transcript for ordering dismissal and a copy of the writ and indorsed statement of claim. There was no dispute as to the authenticity of these documents. In these circumstances, however unorthodox was the method adopted by the Yumbi Clan to introduce this material, the objection was not just belated but misconceived. It served only to distract attention from the substantive issue in the appeal which, as ought to have been obvious to those representing the Nano Webo Clan, admitted of only one answer and an answer adverse to the Nano Webo Clan.

22. This makes it all the more unfortunate that this appeal had to progress to a contested hearing, as opposed to long ago being conceded by the Nano Webo Clan on the basis that the learned primary judge had ordered dismissal on the basis of a mistaken understanding of the nature of the Yumbi Clan's claim.

CONCLUSION

23. The appeal must be allowed and the order of dismissal set aside with the result that the proceedings instituted by the writ are to be heard and determined in the National Court. Costs should follow the event of the appeal.

ORDER

(1) The appeal is allowed.

(2) The order of the National Court of 12 May 2010 in WS No 459 of 2008 is quashed.

(3) The proceedings WS No 459 of 2008 shall be set down for trial in the National Court.

(4) Costs of the appeal shall be paid by the first respondent to the appellant on a party-party basis, which shall, if not agreed, be taxed.

Judgment accordingly.

_______________________________________________________
Nasil Lawyers: Lawyers for the Appellants
Soi & Associates Lawyers: Lawyers for the First Respondent