Unreported National Court Decisions
N1375
PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]
OS 42(L) OF 1993
SIAMAN RIRI AND DEI RIRI - APPLICANTS
V
SIMION NUSAI, WASAF MUSAS, NUSAI MAMAS, FIU GAUS FOR AND ON BEHALF OF THE NINTZIP CLAN - RESPONDENTS
Lae
Sakora J
16 June 1995
21 June 1995
9 October 1995
CUSTOMARY DISPUTES - Interest in customary land - Settlement -Jurisdiction - Local and Provincial Land Courts - Land Disputes Settlement Act 1975, ss. 23, 26, 39, 40, 41, 45, 53, 54, 55, 58, 59, 60 and 67.
PRACTICE AND PROCEDURE - Originating process - No reasonable cause of action - Frivolous or Vexatious - Abuse of process - Application for judicial review - National Court Rules, Order 4, r. 35; Order 12, r. 40., Order 16, r. 4.
PRACTICE AND PROCEDURE - Pleadings - Litigation - Purpose of - Too much litigation - Hopes and unreasonable expectations - Grievance against the legal system.
CONSTITUTIONAL LAW - Jurisdiction - National Court - “Inherent” jurisdiction - Land Disputes Settlement Act, s. 60 - Constitution, ss. 37 (15) and (16), 57, 155 and 166.
WORDS AND PHRASES - “Appeal” - “Review” - No distinction - Constitution, s. 37 (15) and (16) - “Liberty to apply.”
Cases Cited
Wenam Elkum v PNG [1988-89] PNGLR 662
Aisip Duwa v Ronald Moyo Senge (Unreported, 28 Sept. 1995)
Victor Golpak v Patrick Kali & Ors. [1993] PNGLR 491
Malipu Balakau v Paul Torato [1983] PNGLR 242
Avia Aihi v The State [1981] PNGLR 81
The State v District Land Court, Ex Parte Caspar Nuli [1981] PNGLR 192
The State v Giddings, Ex Parte Tiangan Koan [1981] PNGLR 423
Augustine Olei v Provincial Land Court [1984] PNGLR 295
The Application of NANGO PINZI [1988-89] PNGLR 464
Counsel
G Langtry for the Applicants
P Ousi for the Respondents
9 October 1995
SAKORA J:  It is not without relevance or significance to note at the outset that litigation between these parties over the same subject-matter has had a somewhat chequered history.  Three other judges have already been involved in this continuing litigation between members of two clans, the Nintzip and the Zumang.
Whatever customary disputes the parties may have had between them eventually came to the formal attention of the official legal system by the exercising of jurisdiction over and determination by the Local Land Court at Lae under the provisions of the Land Disputes Settlement Act 1975 (Ch.45).  Pursuant to s. 26 of the Act the determination concerned dispute over the ownership of customary land known as Ragitamut.  The decision of the learned Local Land Court magistrate given on 29 October 1990 determined ownership in favour of the Nintzip Clan.  The dispute had been between the Nintzip and Zumang clans.  To assist him in the hearing and determination, the Local Land Court magistrate sat with two mediators pursuant to s. 23 (1) of the Act.
A person by the name of Tita Puran appealed against the decision of the Local Land Court to the Provincial Land Court pursuant to s. 53 of the Act.  Section 45 establishes that appellate court under the scheme of this Act.  The respondent there was the present first applicant in these proceedings.  The appellant is, from affidavits filed in these and previous proceedings, a clan leader and member of the Zumang Clan, the losing clan in the Local Land Court proceedings.  He was the applicant in an earlier National Court proceedings (OS 6 (L) of 1993) which I shall advert to in due course here.
The Provincial Land Court heard the appeal and made its determination on 10 September 1991.  The appeal was dismissed pursuant to s. 59 (1) (a) of the Act.  Following this decision the appellant Tita Puran applied to the National Court in 1992 (OS 91 of 1992) seeking judicial review of that decision.  Relying upon the background information gleaned from the judgment of my brother Hinchliffe J in a similar but subsequent application (OS 6 (L) of 1993) (unreported and unnumbered, 17 May 1993, Annexure ‘C’ to the affidavit of Godfrey Langtry sworn 25 July 1994 in re: OS 42 (L) of 1993),  the first application was dismissed by the National Court on 10 March 1993 “for want of prosecution” (p. 2 judgment).  This happened through no fault of the applicant, as His Honour Hinchliffe J concluded:
“It seems to me that the lawyers for the defendant had no right to refuse to set the matter down for hearing because fees had not been paid.  After all it knew what the consequences of such act would be likely to entail but it never warned its client...  The applicant, to my mind, is not fully to blame for the dismissal on the 10th March, 1993.  I am of the view that if his lawyers had given him full information then the matter may never have been dismissed and the case may by now have been finally determined.”
His Honour then granted leave for applicant Tita Puran to apply for judicial review.  In the same application Simion Nusai (the first respondent here) also applied for leave to apply for judicial review “for and on behalf of the Nintzip clan.”  He had not been a party in the OS No 91 of 1992 proceedings, and was then out of time with his application by 14 1/2 months, thus offending against Order 16, r 4 (2) National Court Rules (NCRs)  which imposes a time limit of four months.  In any case, His Honour found the applicant had not furnished any reasons or explanation for the non-compliance, nor made any application to the Court seeking leave to apply out of time (p. 3 judgment).  He was, therefore, refused leave.  It should be noted that the 10th March 1993 dismissal of the OS 91 of 1992 proceedings “for want of prosecution” was by my brother Andrew J.  Leave to apply for judicial review had been granted for that application, but the dismissal was because of the circumstances cited from the judgment of Hinchliffe J (supra).
This present proceedings were commenced by the respondents filing Originating Summons and Notice of Motion together with other necessary documentation on 4 October 1993.  The originating summons sought both declaratory and  injunctive orders.  And, it would seem now, Tita Puran has not, so far, availed himself of the leave granted him by Hinchliffe J on 17 May 1993 to apply for judicial review of the decision of the learned Provincial Land Court magistrate given on 10 September 1991.  Except for two orders sought (under paras. (4) and (5)) beneficial to him and his Zumang Clan by the respondents, Tita Puran does not feature here as a party.  Now, the respondents’ (plaintiffs’) originating process elicited from the defendants (applicants) a Notice of Motion filed 11 October 1993, seeking dismissal of the proceedings.  The matter came before my brother Sevua J on 13 December 1993.  His Honour’s written judgment dated 24 June 1994 is the last judicial involvement before the matter came before me during the June sittings in Lae this year.
It would seem, and it was indeed convenient, that the two motions were heard together.  Mr Langtry of counsel for the present applicants (defendants then) argued that those proceedings should be dismissed because, he submitted: (1) they disclosed no reasonable cause of action; and (2) they were frivolous, vexatious and an abuse of process pursuant to Order 12, r. 40 (1) (a), (b) and (c) NCRs.  His Honour, whilst finding that the respondents’ originating process amounted to an abuse of process because the relief (s) sought involved questions of interest in customary land, the proper province of the Local and Provincial Land Courts by virtue of the Land Disputes Settlement Act, refused to dismiss the proceedings, in the exercise of his discretion.  Instead the matter was “referred to the Local Court.”  See: the 24 June 1994 written judgment (unreported and unnumbered p. 8).  Finally his Honour invited the parties to be “at liberty to apply”(ibid).
Following that decision, and presumably availing themselves of the “liberty to apply” invitation, the present applicants filed a fresh Notice of Motion on 27 July 1994 seeking dismissal of the plaintiff’s (sic) originating summons.  And this is the proceedings, the second OS 42 (L) of 1993 proceedings, that I am concerned with.  Mr Langtry of counsel for the applicants returns to his submissions before Sevua J.  on the two grounds of the first application (supra) here, in the process questioning his Honour’s conclusions.  That is to say, Mr Langtry argues that his Honour should not have rejected the first ground on the basis that the applicants did not avail themselves of the remedy under Order 4, r. 35 (1).  I would think that what both his Honour and Mr Langtry are meaning to refer to here is Order 4, r. 35 (2) rather than sub-rule (1).  And Mr Langtry’s second contention is that after finding that the second ground (pursuant to Order 12, r. 40) had been made out, his Honour should have proceeded to dismiss those proceedings.
The submissions on behalf of the respondents here are basically that, firstly, the applicants are seeking the same relief(s), orders, as sought in their “first” application, and, which his Honour Sevua J had dealt with, and, secondly, that the proper procedure for questioning that determination should be by appeal.  Therefore, it is submitted, the present application should be dismissed with costs.
Now, pausing here, to notionally take my breath after meandering through the foregoing incredibly protracted and, as I described at the outset, chequered history, I have to note that there has been too much “lawyering”, much too much litigation here.  This, in my opinion, is the type of legal manoeuvring that Brunton AJ. (as he then was) characterized in the case of Wenam Elkum v PNG [1988-89] PNGLR 662, at 665 as: “A tactic of litigation by attrition...”  See also, in this respect, my comments and other references in my recent judgment in the case of Aisip L Duwa v Ronald Moyo Senge, WS 196 of 1994 (unreported and unnumbered, 28 September 1995).
I am concerned about the less-than-meritorious applications in this matter, at least in the last two years.  And lawyers for both parties must share the blame for this, starting with one of them (lawyers) being responsible for the application in OS 91 of 1992 being dismissed “for want of prosecution” (that Hinchliffe J adverted to in his judgment on OS 6 (L) of 1993).  Since, it would seem to me that the lawyers have been stirring up litigation.  It is never the intention, nor the spirit, of pleadings, or indeed any legal process, to voraciously consume time and money.  As I noted in Aisip L Duwa v Ronald Moyo Senge (supra), the guiding principles for rules of procedure should be designed to achieve: (i) the minimising of delay; (ii) the minimising of expense; and (iii) the maximising of effectiveness (citing with approval: Sir Jack IH Jacob, The Reform of Civil Procedural Law, p. 245).
Exactly five years (to this month) since the decision of the Local Land Court, there is still no finality to the “customary disputes”.  And that is precisely because each party, in turn, has been running an obstacle course of motions.  As I have noted earlier here, these have been unmeritorious and, consequently, both frivolous and vexatious and an abuse of the process of the Court as envisaged by Order 12, r. 40 (1) (a), (b) and (c) NCRs.  It would seem to me that these motions have not been intended to gain a legitimate remedy but as a weapon in a war of attrition;  intended, in my opinion, to tie each other up in the National Court, and wear each other down, on what can quite properly be described as the perpetual motions treadmill.
A complementary aspect of the professional duties of a legal adviser/representative in the assertion and protection of people’s legal rights and freedoms ought to be the discouragement of false or ill-grounded litigation that are propped up by pleadings that are not well-grounded in fact and law.  It should be no part of a lawyer’s functions to raise high hopes in their clients with “legal action” in the courts.,  create unreasonable expectations in them.  Otherwise, they naturally begin harbouring unreasonably high expectations about their legal rights and remedies, etc.  And when eventually the actual legal position is unravelled by the courts, there is an understandable feeling of loss, let-down, and a sense of grievance against the legal system.  And as we all ought to know all too well, disputes over land in our village communities invariably generate and heighten emotions that are capable of creating very volatile situations.  Hence, litigation should not encourage the sowing of further friction and distrust between peoples; should not worsen animosities between them; and, by or through the certainty and finality of judicial decisions, should provide remedies according to law, thereby, hopefully, restoring fractured relationships.
Thus, litigation should be directed towards the attainment of justice by disposing of human conflict on the merits.  And, aided by the proper and legitimate use of the procedural rules, people should be protected, as well as from the many wrongs done  to them in the outside world, from the wrongs or harm that can be done in the court room itself: false accusations and false resistance to legal claims.
Whilst I am not obliged to deal with the proceedings that came before my three brother judges, before OS 42 (L) of 1993 made its “second trip” to the court before me, I wish to make, brief, but I feel, pertinent comments on certain aspects of those proceedings, if only because they individually and collectively contributed to this present proceedings.  In this, I am of course ever mindful that I am not in any way exercising, or could properly constitutionally and legally exercise, any appellate jurisdiction here.
When the lawyers for the applicant in the first National Court proceedings, OS 91 of 1992, obtained instructions and began to draft those affidavits, it should have become apparent to them that the issues raised were those envisaged for determination under the provisions of the Land Disputes Settlement Act.  Thus, when my brother Hinchliffe J. rectified the situation in the OS 6 (L) of 1993 proceedings by granting leave to apply for judicial review of the Provincial Land Court decision of 10 September 1991, the lawyers should then have proceeded under Order 16 NCRs instead of instigating the “first” OS 42 (L) of 1993 proceedings.  That proceedings was misconceived.  The issues raised in the originating summons there were to do directly with interests in customary land.  The National Court, therefore, at that juncture, had no jurisdiction to entertain the declaratory and injunctive reliefs sought: Victor Golpak v Patrick Alongrea Kali & Ors.  [1993] PNGLR 491 (per Doherty J).  I am in complete respectful agreement with her Honour’s conclusion that: Despite ss. 155 and 166 of the Constitution, jurisdiction to determine issues of ownership and title of customary land is in the Local Land Court under the Land Disputes Settlement Act.  Until that is determined, the National Court cannot arbitrate.
Her Honour went on to elaborate (at p. 493) in the following way:
“It seems to me that the spirit and intent of the legislature in writing the Land Disputes Settlement Act  was to prevent the National Court from arbitrating on the forms of succession and, hence, ownership or control of interests in customary land.  I think, therefore, that it would be going against both the letter and spirit of the legislature (sic) if I assume the powers to make declarations on what is an  interest in land.”
It must be stated, however, that the National Court is not completely precluded from exercising jurisdiction in this respect, despite s. 60 of the Land Disputes Settlement Act which purports to prohibit the review power of the National Court by providing that:
“A decision of a Provincial Land Court on an appeal under this Part is final and is not subject to appeal.”
This provision is obviously in conflict with s. 155 (3) (a) Constitution and is, therefore, invalid: See, the Supreme Court decision in Malipu Balakau v Paul Torato [1983] PNGLR 242, and the cases discussed there.  Section 60 talks about “appeal” and s. 155 (3) (a) Constitution talks about an inherent power of “review”, but as the Supreme Court declared in Avia Aihi v The State [1981] PNGLR 81 (per Kidu CJ and Kapi J, with whom Kearney DCJ agreed), there is no distinction between those terms as they appear in s. 37 (15) and (16) Constitution.  I respectfully agree with Bredmeyer J that s. 60 (s. 61 then) precludes appeal from a decision of the Provincial Land Court but has no effect on the review powers of the National Court in applications for orders in the nature of prerogative writs: The State v District Land Court, Ex Parte Caspar Nuli [1981] PNGLR 192 at p. 193.  And appeal and review are two different things (ibid).  But only in non-criminal cases where provisions such as s. 37 (15) and (16) Constitution do not apply: see, Kidu CJ and Kapi J (as he then was) in Malipu Balakau (supra).
Section 155 (3) Constitution reads as follows:
“(3)    The National Court:
(a)      has an inherent power to review any exercise of judicial authority; and
(b)      has such other jurisdiction and  powers as are conferred on it by this Constitution or any law,
except where:
(c)      jurisdiction is conferred upon the Supreme Court to the exclusion of the National Court; or
(d)      the Supreme Court assumes jurisdiction under Subsection (4); or
(e)      the power of review is removed by a Constitutional Law or an Act of the Parliament.”
And the jurisdiction of the National Court under s. 155 (3) (a) is subject to removal or restriction under s. 155 (3) (c), (d) and (e).  Because of those Supreme Court decisions (supra), s. 60 Land Disputes Settlement Act is not what s. 155 (3) (e) Constitution envisages.  In any case the purported statutory exclusion would offend also against s. 155 (4) Constitution which reads:
“(4)    Both the Supreme Court and the National Court have an inherentpower to make, in such circumstances as seem to them proper, orders in the nature of prerogative writs and such other orders as are necessary to do justice in the circumstances of a particular case.”
Needless to say, s. 155 (4) Constitution would only be resorted to where there were no specific provisions of the Constitution for the enforcement of guaranteed rights (e.g., s.57): See, per Kidu CJ in Avia Aihi v The State (p. 86 supra).  In the same case, his Honour Kearney DCJ considered this provision as giving an “unfettered discretionary power both to this Court and the National Court so as to tailor their remedial process to the circumstances of the individual case as to ensure that the primary rights of the parties before them are protected”.  His Honour went on to provide the rider that s. 155 (4) cannot affect the primary rights of the parties:  they are determined by law (p. 87 supra).  I respectfully agree with these opinions.  The helpful comments of the learned authors of The Annotated Constitution of Papua New Guinea (pp. 345-346) are referred to here in this respect.
So, whilst I am in agreement with my sister Doherty J as to the original jurisdiction of the Local Land Court over disputes in relation to interests in customary land, the National Court has review jurisdiction by virtue of s. 155 (3) (a) Constitution through the use of Order 16 NCRs procedures.  And, of course, only after all the avenues under the Land Disputes Settlement Act have been availed of and exhausted.  Now, getting back to this immediate case, that is exactly what was being done, or intended and sought, with the OS 91 of 1992 proceedings.  So once leave was granted to Tita Puran to apply for judicial review (in the OS 6 (L) proceedings of 1993), that is what the lawyers ought to have done.  Instead they initiated the originating summons in OS 42 (L) of 1993.
It would appear to me, through the perusal of the somewhat scanty “transcripts” from both the Local Land Court and Provincial Land Court proceedings, that the first court’s decision merited appeal to the second court under the provisions of the Act, and, that the decision on appeal of the second land court was ripe for review by the National Court.
Section 39 of the Land Disputes Settlement Act sets out, in a very exhaustive fashion through subsections (2) to (6) the orders the Local Land Court has to make, applying the relevant custom in respect of a host of interests in or to the subject land, and taking due account of certain specified factors and considerations. The learned magistrate (assisted by two mediators) misapprehended his functions, and powers, and thereby completely ignored s. 39 in his decision-making process.  He never took into account relevant factors and made no orders that the law required him to make.  For a dispute that involved initially several individuals from two clans, and with the usual potential to attract other individuals and clans, it did not involve much of a hearing (if the scanty “transcripts” or depositions on the file are any indication).  In the end it only attracted this from the magistrate:
“The rights and interests over the land Regitamut (sic) is vested on Nintzip Clan.  The ownership is vested on Nintzip Clan.”
This is just not good enough, and thus not in the spirit and intent of the Act, not to mention the specific expectations contained therein (under s. 39).  The court also did not advert to the powers under s.40 - order relating to return of former interest.  It is not as if there has not been any judicial precedents on the purpose and operation of this legislation.  As a direct result of the exercise of jurisdiction under the Act by both the Local Land Courts and the Provincial Land Courts a few cases have found their way to the National Court for review.
The first of these reported cases was The State v District Land Court, Ex Parte Caspar Nuli [1981] PNGLR 192.  This was a decision of his Honour Bredmeyer J on an application for certiorari to quash a decision of the District Land Court (now the Provincial Land Court) on appeal from the Local Land Court.  His Honour found there was an error of law demonstrated on the face of the record, so ruled that certiorari lay.  The error was that the learned District Land Court magistrate purported to “affirm the order with slight variations”  when he had no power to do so under the then s. 60 (now s. 59 which sets out the powers of the appellate court).  The provision reads as follows:
“(1)    In determining an appeal under this Division, a Provincial Land Court may:
(a)      affirm the order; or
(b)      quash the order and:
(i)       make such other order as, in the opinion of the Court, will dispose of the appeal and the dispute; or
(ii)      where, in the opinion of the Court, justice demands that the matter or part of the matter of the appeal be remitted to the Local Land Court, remit the matter, or that part of the matter to the Local land Court.
(2)      In remitting a matter to a Local Land Court under Subsection (1) (b) (ii), a Provincial Land Court may give such instructions, directions or guidelines to the Court as to the manner in which the matter remitted is to be dealt with as it thinks proper.”
In the case of The State v Giddings, Ex Parte Tiangan Koan 1981 PNGLR 423, an application was made to quash the decision of the then District Land Court by certiorari.  His Honour Kearney DCJ granted the application and issued an order nisi to show cause why certiorari should not be issued.  It should be noted that the application in this and the last case were made pursuant to the old rules for prerogatives writs before the incorporation of Order 16 into the present NCRs.  The District Land Court had dismissed the appeal against the decision of the Local Land Court, which decision his Honour found to have been arrived at from deficient proceedings.  His Honour  found that the mandatory requirements of s. 39 had not been complied with (as in the present case, supra).  The proceedings had not been conducted with a view to doing justice between the parties, and that the procedure adopted by the learned magistrate did not serve the purpose of the Act, as set out in s. 1, which reads:
“The purpose of the Act is to provide a just, efficient and effective machinery for the settlement of disputes in relation to interests in customary land by:
(a)      encouraging self-reliance through the involvement of the people in the settlement  of their own disputes; and
(b)      the use of the principles underlying traditional dispute settlement processes.”
And this underlying purpose is adverted to again in the Act itself, s. 35 (1) (d), enjoining the Local Land Court to endeavour to do substantial justice between all persons interested, in accordance with this Act and any relevant custom (subject to s. 40, supra).
After the incorporation of the Order 16 applications for judicial review in the 1983 NCRs., the case of Augustine Olei v Provincial Land Court [1984] PNGLR 295, came before his Honour McDermott J. seeking order certiorari.  On the issue of locus standi his Honour held that (from the Headnotes):
“(1)    A person may have sufficient interest within s. 16 (sic) of National Court Rules to maintain proceedings for judicial review in the nature of certiorari and prohibition, notwithstanding that he was not a party to the decision under review, provided he is a person aggrieved by the decision.
In re Portion 56 Morobe [1971]-1972] PNGLR 442 at 450, applied.
(2)      Accordingly, that a person had sufficient interest to maintain proceedings for judicial review where the effect of a decision of the Provincial Land Court (formerly District Land Court) made without jurisdication, was to deprive the person of the right to claim ownership or possession of the land the subject of the decision.”
In relation to the purpose of the Act, his Honour said this (at p. 296):
“On 5 June 1975, new legislation, the Land Disputes Settlement Act (Ch No 45) became operative. This provided that disputes concerning customary land be settled or determined in accordance with new machinery provisions and courts established under the Act.  It provided a system of mediation and agreement through land mediators, the hearing of disputes as to interests in land by local land courts and an appeal jurisdiction in a Provincial Land Court.”
In 1989 his Honour Barnett J gave his decision in another application for judicial review of a decision of the Provincial Land Court quashing a decision of the Local Land Court:  The Application of Nango Pinzi [1988-1989] PNGLR 464.  The judgment re-emphasises the purpose of the Act and sets out in detail what the Provincial Land Court must do, under the Act, on an appeal from the Local Land Court (see: ss. 39,50,58 and 67).
Now, getting back to the present case, s. 41 of the Act requires the Local Land Court magistrate to explain his reasons  for the decision and state clearly the terms of his order(s), “in the presence of the parties to the dispute” (subsection (1)).  Nowhere in the “transcripts” or depositions of the hearing can I find any evidence that this requirement was complied with.  Nor can I find evidence of due compliance with the requirements of subsection (2) which reads:
“(2)    On making an order under this Part, other than a temporary order under Section 30, the Court shall give notice of the terms of the order in such form as it thinks fit, in accordance with Section 71.”
One of the parties, Tita Puran, was, therefore, understandably “aggrieved” enough to avail himself of the appeal procedures under ss. 54 and 55 of the Act.  But unfortunately for him, the Provincial Land Court misapprehended its jurisdiction, its powers, and did not detect any errors on the part of the Local Land Court (as I have demonstrated above).  The appeal was, therefore, dismissed with the briefest of reasons:
“Grounds of appeal not established.  All what (sic) witnesses Appellant Puran called did very little to establish that the Local Land Court did conduct its hearings in a manner contrary to natural justice.”
Section 58 of the Act sets out clearly the four main grounds for appeal that appellants can utilise to challenge the decision of a Local Land Court.  It is my opinion that what I have outlined as default on the part of the initial “hearing” would fit in comfortably with any of those grounds.  Section 59 sets out the powers of the Provincial Land Court on appeal.  It is my opinion also that the learned appellate magistrate ought to have, in the light of what the learned Local Land Court magistrate did and did not do (as I have demonstrated here), remitted the dispute to the first court under s. 59 (1) (b) (ii), accompanied by instructions, directions or guidelines as envisaged by subsection (2).  He did not do those things, and, therefore, his defective, faulty, decision-making was ripe for judicial review.
The proceedings OS 42 (L) of 1993 should never have been brought.  This proceedings were misconceived and mischievous from the outset.  As my brother Sevua J, after citing the relevant authorities and the procedural rules, properly concluded: “these proceedings amounted to an abuse of the process of the Court” because the applicant was seeking relief(s) in customary land, matters which the National Court had no jurisdiction to entertain  at that juncture (p. 5  judgment).  This conclusion is repeated in his Honour’s judgment on the very next page.  But then his Honour went on to say this (on p. 8):
“Although I have found that the proceedings amounted to an abuse of the process of the Court, in the exercise of my discretion, I consider that the defendant/applicant’s application should be refused and the matter be referred to the Local Land Court.  After that, the parties can take the appropriate courses of action open to them.”
With respect, it is this concluding part of his Honour’s judgment that has contributed to my being involved in this matter.  This “second” OS 42 (L) of 1993 proceedings should never have been brought.  And if I had been involved in this “second” proceedings from the outset, I would have, in the exercise of my “inherent” jurisdiction to control the procedures and proceedings of the court, upon my own initiative, if the other party failed to file the necessary application(s) to object (under Order 12, r. 40 NCRs), dismissed it.  Just as the “first” OS 42 (L) proceedings qualified for dismissal pursuant to Order 12, r. 40 NCRs, so did this for the very same reasons.
Since the subject-matter of the “first” OS 42 (L) of 1993 proceedings took the matter out of the jurisdiction of the National Court, there really was nothing left to “stay”, “remit” or “refer” to any other tribunal.  The jurisdictional question having been answered, there was, therefore, strictly speaking, no dispute inter partes in the National Court.  And the originating summons with the pertinent supporting documents that constituted OS 42 (L) could not be referred to the Local Land Court because that tribunal has no jurisdiction to entertain National Court processes.
And so when the lawyers for these applicants saw “and the parties are at liberty to apply” coming at the end of his Honour’s judgment, they must have gleefully taken this as an invitation to have “ a second bite at the cherry”, to regurgitate the same issues as in the “first” proceedings.  Liberty is the power of doing what is allowed by law.  If the law says the Local Land Court has original jurisdiction to entertain and determine disputes over interests in customary land under the Land Disputes Settlement Act, then what is there for the parties to have “liberty to apply” for?  The “second” proceedings had reached the stage where the purported pleadings had concluded and the written submissions of the parties had been filed when I came on the scene, as it were, to read and rule on the application.
If there is anything that the lawyers for the present respondents can be said to have done properly in this whole National Court litigation that now can conveniently be described as the Ragitamut Land Dispute, it is their submission that this application should be dismissed with costs against the applicants.
And I so order the dismissal of the application in the “second” OS 42 (L) of 1993 proceedings with the ancillary order for costs as sought.
As for what happens now, for the parties, in view of the continuing lack of certainty and finality in the determination of their disputes, because of the quite unnecessary journeys through the labyrinth of National Court applications and motions, returning to the judicial review option offered by Hinchliffe J back in May 1993 with the grant of leave to Tita Puran (which offer/option was not taken up) would seem to me to be the only course of action available now.  And, in the light of what I have said about the Local Land Court and Provincial Land Court proceedings, I would think that any member of the Nintzip and Zumang Clans, as well as any other individuals associated in some customary way with the subject piece of land, would be “aggrieved” and “interested” enough under the Act and Order 16 NCRs to be entitled to seek judicial review: See per McDermott J in Augustine Olei v Provincial Land Court (supra).
Lawyers for the Applicants: Godfrey Langtry Lawyer
Lawyers for the Respondents: Warner Shand Lawyers