N5018
PAPUA NEW GUINEA
IN THE NATIONAL COURT OF JUSTICE

WS NO 780 OF 2005

ANTON LAVU,
AUTHORISED REPRESENTATIVE
OF LAULIMI AND HONDE CLAN LEADERS
AND MEMBERS OF MOROKEA-RUANGO VILLAGE,
TALASEA DISTRICT, WEST NEW BRITAIN PROVINCE
Plaintiff

V

NICHOLAS MARK THOMPSON,
MANAGING DIRECTOR, NEW BRITAIN PALM OIL LIMITED
First Defendant

NEW BRITAIN PALM OIL LIMITED
Second Defendant

Kimbe: Cannings J
2007: 20, 26 July

LAND – customary land – State Leases – whether National Court has jurisdiction to determine a claim that land the subject of a State Lease is, in fact and law, customary land – Land Titles Commission Act, Section 15.

The plaintiff, representing clans who are the traditional owners of land that is the subject of a State Lease, commenced proceedings against the occupiers of the land, seeking a declaration that the clans own the land and can take possession of it, and damages. The defendants argued that the pleadings raise questions of customary ownership of land, which are within the exclusive jurisdiction of the Land Titles Commission, therefore the National Court has no jurisdiction and the proceedings should be dismissed.

Held:

(1)	The plaintiff's cause of action is trespass and is premised on the proposition that the clans represented by the plaintiff are the customary owners of the land.

(2)	The clans' rights of ownership and possession of the land are disputed by the defendants, on the ground that the land is the property of the State and the subject of a State Lease in favour of the second defendant.

(3)	Such a dispute falls outside the jurisdiction of the National Court as it has by virtue of Section 15 of the Land Titles Commission Act no original jurisdiction to determine whether land is customary land.

(4)	The proceedings were therefore stayed and the plaintiff was given 21 days to notify the court and the parties of the steps he is taking to have the question of customary ownership resolved by the appropriate authorities; failing which the proceedings will be dismissed.

Cases cited

The following cases are cited in the judgment:

Golpak v Kali [1993] PNGLR 491
Joe Kala v NBPOL WS No 879 of 2005, 16.02.07
Madaha Resena v The State [1990] PNGLR 22
Madaha Resena v The State [1991] PNGLR 174
Re Fisherman's Island [1979] PNGLR 202
Ronny Wabia v BP Exploration Co Ltd [1998] PNGLR 8
Safe Lavao v The State [1978] PNGLR 15
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 Administration v Blasius Tirupia (Re Vunapaladig and Japalik Land) [1971-72] PNGLR 229
The State v Lohia Sisia [1987] PNGLR 102
Vitus Sukuramu v NBPOL WS No 1175 of 2003, 16.02.07

NOTICE OF MOTION

This was a motion for a dismissal or stay of proceedings.

Counsel

N B Kubak, for the plaintiff
I R Shepherd, for the defendants

26th July, 2007

1. CANNINGS J: The plaintiff, Anton Lavu, represents two clans who are the traditional owners of 2070 hectares of land near Kimbe on which the second defendant, New Britain Palm Oil Limited, has established a large oil palm operation. The land is called Kumbango. NBPOL is the registered proprietor of a 99-year State Lease over Kumbango, which commenced in 1972. In 2005 Mr Lavu filed a writ against NBPOL and its managing director, the first defendant, Nick Thompson. He seeks:

•	a declaration that the two clans, Honde and Laulimi, are the rightful owners according to custom and are entitled to immediate possession;

•	K500 million damages for trespass and unjust deprivation of property;

•	other damages for unpaid rentals by NBPOL to the two clans, loss of economic value of the land, environmental pollution and loss of income.

2. The pleadings for this case have closed. However, the case has not been set down for trial as the defendants have applied, by notice of motion, for dismissal or a stay of the proceedings on the ground that the National Court has no jurisdiction. This is a ruling on the defendants' motion.

ISSUES

3. Two issues arise:

1	Does the National Court have jurisdiction?

2	If no, what orders should be made?

1	DOES THE NATIONAL COURT HAVE JURISDICTION?

Foundation of plaintiff's case

4. The plaintiff's cause of action is trespass. It is premised on the proposition that the two clans represented by the plaintiff are, and always have been, in fact and law, the customary owners of the land. The statement of claim alleges that when the colonial Australian Administration purported to purchase the land for about AUD$20,000.00 in the 1960s, the clan members who put their X marks on the transfer instruments were illiterate and had no idea what they were signing; they were misled into thinking that they were signing a timber rights purchase agreement. They did not realise that the documents they signed transferred ownership of the land to the Administration.

The defendants' argument

5. Mr Shepherd, for the defendants, submitted that the National Court has no jurisdiction. The clans' rights of ownership and possession of the land are disputed by the defendants, on the ground that the land is the property of the State and the subject of a State Lease in favour of the second defendant. NBPOL is protected by the principle of indefeasibility of title under Section 33 of the Land Registration Act, Mr Shepherd submitted. Furthermore, if the plaintiff wants to dispute NBPOL's title to the land, he will have to mount a challenge to the legality of the original transfer of the land from the clans to the Administration, which occurred in 1966. To do that, the plaintiff will have to register a claim before the Land Titles Commission, a quasi-judicial body that deals with disputes over customary land, including disputes about whether land is customary land. Mr Shepherd bases his argument on Section 15 (determination of disputes) of the Land Titles Commission Act, which states:

(1)	The Commission has, subject to this Act, exclusive jurisdiction to hear and determine all disputes concerning and claims to the ownership by custom of, or the right by custom to use, any land, water or reef, including a dispute as to whether any land is or is not customary land and may make all such preliminary inquiries and investigations as it deems necessary for the purpose of hearing and determining the disputes and claims. [Emphasis added.]

(2)	After the period limited … for review of or appeal against a decision of the Commission has expired, and any proceedings on review have been completed and any appeals have been decided—

(a)	a determination of the Commission under this or any other Act is, subject to Section 16, for all purposes and as against all persons conclusive evidence of the ownership as at the date of the decision, of the land the subject of the decision and of rights, titles, estates and interests in the land as set out in the decision; and

(b)	the Commission shall forward a copy of its decision to the Registrar of Titles, who shall make such entries in Registers kept by him and issue such documents as are necessary, or as are directed by the Commission, to give effect to the decision of the Commission.

6. Mr Shepherd pointed to a long line of authority in decisions of the Supreme Court and the National Court that shows Section 15 has been given full effect by the courts. As soon as it becomes apparent that a case involves a dispute about whether land is or is not customary land, the courts have held that they have no jurisdiction. Such disputes fall within the domain of the Land Titles Commission.

Plaintiff's submission on jurisdictional issue

7. Mr Kubak, for the plaintiff, did not dispute the existence of the previous court decisions or the propositions of law they stood for, but asked me not to follow them. Most are National Court decisions, which I am not bound to follow, he argued. The Supreme Court cases Mr Shepherd referred to are not directly on point, so I need not follow them either. I should seize the opportunity to develop the underlying law as required by the Constitution and arrive at a decision that recognises the judicial authority of the National Court as a court of unlimited jurisdiction. It is the court that is best positioned to resolve this dispute, which involves fundamental issues of fairness and justice concerning customary land, so I should not refer it to some other authority or dismiss or stay the proceedings, Mr Kubak submitted.

Resolution of issue

8. Mr Kubak is right to point out that I am not, sitting as a Judge of the National Court, bound by previous National Court decisions (Constitution, Schedule 2.9; Underlying Law Act, Section 19). However, I am bound by previous Supreme Court decisions. In The State v Lohia Sisia [1987] PNGLR 102 the Supreme Court indicated clearly that because of Section 15 of the Land Titles Commission Act neither the National Court nor the Supreme Court has power to hear or determine disputes about whether land is customary land:

The Land Titles Commission is a specialist tribunal established by Parliament to hear these disputes. It has special powers to hear evidence and special expertise developed over [many] years of operation. It has the difficult task in many cases of weighing up oral evidence from interested parties of events which happened decades before against contemporary documents. Over the years there have been many cases and a considerable jurisprudence has developed in this area.

9. That view was consistent with the approach of the pre-Independence Full Court of the Supreme Court in The Administration v Blasius Tirupia (Re Vunapaladig and Japalik Land) [1971-72] PNGLR 229. As for National Court decisions, there is indeed a long line of authority that says the same thing: these sorts of disputes must be determined in the first instance by the Land Titles Commission. See 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; and Soso Tomu v The State (2002) N2190.

10. Mr Kubak's urging for me to assert the authority of the National Court as a court of unlimited jurisdiction, with an inherent power under Sections 155 and 166 of the Constitution to make such orders as are necessary to do justice in the circumstances of a particular case, has been considered previously; and the conclusion has always been reached that the National Court has no jurisdiction. Faced with such a strong line of authority, Mr Kubak needed to show me how those cases were wrongly decided, why I should interpret the law differently or how the changed circumstances of the country require a different approach. He failed to deliver on any of those points. I do not intend therefore to depart from the previous cases. By taking this approach the National Court is not shirking its responsibilities. It is simply recognising, as the Supreme Court did in Lohia Sisia's case, that disputes about whether land is or is not customary land, especially disputes about whether land was lawfully transferred to the Administration in colonial times, should, in the first instance, be addressed by the experts, the members of the Land Titles Commission. A person aggrieved by a decision of the Commission can appeal to the National Court under Section 38 of the Land Titles Commission Act. For example, in Safe Lavao v The State [1978] PNGLR 15 the traditional owners of the Kerema town and airstrip land, which had been transferred to the Australian Administration in 1963, successfully appealed against a Commission decision that refused their claim to ownership. In Re Fisherman's Island [1979] PNGLR 202, traditional owners of Fisherman's Island near Port Moresby successfully appealed against a Commission decision that the island was State land, not customary land; a rehearing was ordered, which resulted in a decision that the State had wrongfully occupied the land, and that enabled the traditional owners to sue for damages (Madaha Resena v The State [1990] PNGLR 22; Madaha Resena v The State [1991] PNGLR 174). The National Court can also, on application by any party to proceedings before the Commission, order that the matter be removed into the National Court under Section 31B. There is also provision in Section 32 for the Commission to temporarily refrain from making a decision and for a case stated to be put to the National Court. It is not as if the National Court has no role to play in resolution of these disputes.

11. As for Mr Kubak's imploration that I develop underlying law, well, I am not averse to doing that as demonstrated by two recent cases involving the second defendant, Vitus Sukuramu v NBPOL WS No 1175 of 2003, 16.02.07 and Joe Kala v NBPOL WS No 879 of 2005, 16.02.07. In those cases I developed the law concerning an employee's right to be heard before dismissal from employment. The underlying law (the unwritten law of the country, consisting of custom and adopted common law) was at the heart of those cases. But that is not the case here. The question of whether the National Court has jurisdiction to determine whether land is customary land is determined by statute. It is not a matter of developing the underlying law, it is a matter of interpreting and applying the written law. Mr Kubak has not convinced me to depart from the established law, and I accept Mr Shepherd's submission and conclude that the National Court has no original jurisdiction in this matter.

2	WHAT ORDERS SHOULD BE MADE?

12. The defendants' notice of motion seeks a 'case stated' order under Order 10, Rule 21 of the National Court Rules. This is a procedure by which the court orders that a particular question of fact or law be tried separately from the main trial. The jurisdictional issue raised by the defendants could have been made the subject of such an order. However, when the motion was argued, Mr Shepherd asked me to not only order that the jurisdictional issue be tried separately, but to hear and determine the issue. Mr Kubak did not object to that proposal – which takes the hearing beyond the terms of the notice of motion – so I have heard the arguments from both sides and resolved the issue, as set out above. The defendants seemed to be beating about the bush by relying on Order 10, Rule 21. They would have been better off and saved the court's time by applying for an order under Order 8, Rule 27 (pleadings may be struck out for not disclosing a reasonable cause of action) or Order 10, Rule 40 (proceedings may be dismissed or stayed if no reasonable cause of action disclosed etc). Order 10, Rule 40(1)(a) is the rule most applicable to the present case. I am going to invoke it because the proceedings generally, at this stage, do not disclose a reasonable cause of action. NBPOL is the registered proprietor of the land. It has indefeasible title to it. That title cannot be disturbed unless there is a decision under the Land Titles Commission Act that the land is, in fact and law, despite its present status as State-owned land, customary land.

13. The discretion I next have to exercise is whether to dismiss or stay the proceedings. I think a stay is a more appropriate order, given the history of this matter. Traditional landowners should be allowed their day in court. There is a danger that in dismissing their case outright the two clans might feel that they have been shut out, without being heard. On the other hand, an indefinite stay is in nobody's interests so I will put a time limit on the stay and direct the plaintiff to take steps to expedite reference of the clans' grievances to the appropriate authorities, in particular the Land Titles Commission.

COSTS

14. As a rule of thumb costs follow the event. The defendants have succeeded with their motion and might expect their costs to be paid by the plaintiff. But they took the court on a circuitous route. I also admonish them for not moving this motion until after the close of pleadings. It should have been moved earlier. I also take into account when exercising my discretion on costs the relative economic positions of the parties. Therefore the parties will bear their own costs.

ORDER

15. The order of the court will be:

(1)	the proceedings are stayed;

(2)	the plaintiff shall within 21 days notify the court and other parties of the steps he has taken to have the question of customary ownership of Kumbango resolved by the appropriate authorities;

(3)	the matter shall return to the National Court at Kimbe at 9.00 am on 17 August 2007 or at another time directed by the court, so the court may determine whether to continue the stay of proceedings or to dismiss the proceedings;

(4)	the parties bear their own costs.
______________________________________________________
Norbert Kubak & Co: Lawyers for the plaintiff
Blake Dawson Waldron: Lawyers for the defendants