N5848
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS NO 518 OF 2014

LOUIS MEDAING OF TUGYAG VILLAGE, RAI COAST DISTRICT, MADANG PROVINCE
Plaintiff

V

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
First Defendant

RAMU NICO (MCC) LIMITED
Second Defendant

HIGHLANDS PACIFIC LIMITED
Third Defendant

Madang: Cannings J
2014: 18, 19 November

PRACTICE AND PROCEDURE – application for dismissal of proceedings – whether the proceedings relate to ownership of customary land – whether National Court has jurisdiction – whether the statement of claim discloses a reasonable cause of action.

The plaintiff has a long running grievance over the circumstances in which an area of land, which he says was traditionally owned by his families, was acquired by the colonial Administration in 1942 and subsequently dealt with by the State, resulting in the land becoming the subject of a State Lease in favour of the second and third defendants, who now occupy the land and use it for mining and industrial purposes. He sought damages against those defendants, the apparent cause of action being trespass, predicated on the proposition that the 1942 acquisition of the land was unlawful. The second and third defendants filed a notice of motion before trial seeking dismissal of the entire proceedings on various grounds. The first defendant supported the motion.

Held:

(1)	The National Court has no jurisdiction. The land is now Government land and determination of the plaintiff's claims would require determinations as to (a) whether in fact the plaintiff and his families are the true customary owners of the land and (b) the lawfulness or fairness of the terms on which the land was acquired by the Colonial Administration, both sorts of issues being outside the jurisdiction of the National Court.

(2)	The statement of claim is prolix, emotive and confusing and consequently discloses no reasonable cause of action.

(3)	For each of those reasons, the proceedings were entirely dismissed.

Cases cited

The following cases are cited in the judgment:

Louis Medaing v Ramu Nico (MCC) Ltd (2014) N5525
Louis Medaing v Ramu Nico Management (MCC) Ltd (2011) N4340
Louis Medaing v Ramu Nico Management (MCC) Ltd (2011) SC1144

Counsel

L Medaing, the plaintiff, in person
S Phannaphen, for the first defendant
I R Shepherd, for the second and third defendants

19th November, 2014

1. CANNINGS J: This is a ruling on a motion filed on 23 September 2014 by the second and third defendants, Ramu Nico (MCC) Ltd and Highlands Pacific Ltd, by which they seek dismissal of the entire proceedings.The motion is supported by the first defendant, the State, and opposed by the plaintiff, Louis Medaing. The plaintiff filed a counter-motion on 28 October 2014 which I will also deal with in this ruling.

2. The subject matter of the substantive proceedings commenced by Mr Medaing is a claim for K7 billion damages for unlawful acquisition of land which he claims is his customary land in the Basamuk area, Rai Coast District, Madang Province. He claims that the land, Lot 903, Portions 109 and 110, was unlawfully and unfairly acquired by the pre-Independence colonial administration in 1942, and that since then the State has continued to deal with the land unfairly and unlawfully resulting in transfers of interests in the land to various persons including the second and third defendants.

I uphold the motion for dismissal of these proceedings for two reasons.

LACK OF JURISDICTION

3. First, the Court has no jurisdiction to determine the plaintiff's grievances. I explained why this was so in my ruling in WS No 924 of 2013, handed down on 7 March 2014 (Louis Medaing v Ramu Nico (MCC) Ltd (2014) N5525).

4. Those proceedings were almost identical to the present proceedings. The grievance was the same. The only significant difference is that in the present proceedings, Mr Medaing has not attempted to represent any other person. In the earlier proceedings I said as follows:

The National Court has no jurisdiction to determine any of the plaintiff's claims. The land is Government land and has been since 1942. Determination of the plaintiff's claims would require determinations as to (a) whether in fact the plaintiff and his families are the true customary owners of the land and (b) the lawfulness or fairness of the terms on which the land was acquired by the Colonial Administration.

Neither issue is within the jurisdiction of this Court. The question of who are the true customary owners of any land in Papua New Guinea and whether customary land was properly acquired by the State or by a pre-Independence Administration can only be determined in the first instance by the Land Titles Commission under the Land Titles Commission Act 1962 or by the National Land Commission under the National Land Registration Act Chapter No 35. It is a well-settled principle that the National Court has no original jurisdiction to determine issues relating to ownership of customary land.

What I said holds true in the present proceedings.

NO REASONABLE CAUSE OF ACTION

5. The second reason for dismissing this proceedings is that, as was the case with the previous proceedings, the statement of claim, which is in very similar terms to the statement of claim in WS No 924 of 2013, is prolix, emotive and confusing and consequently discloses no reasonable cause of action. I exercise the discretion of the Court under Order 8, Rule 27(1)(a) of the National Court Rules to dismiss the proceedings.

CONCLUSION

6. Those are sufficient reasons for dismissing this case, which in my view has no chance of success. It follows that it is unnecessary to determine the plaintiff's motion filed on 28 October 2014, which in any event would have been dismissed for being defective in form and lacking clarity.

COMMENTS

7. When I dismissed WS No 924 of 2013 I made some fairly straightforward suggestions as to how the plaintiff might be able to get his grievances properly determined. In fact my suggestions now that I look at them again were in the form of straightforward advice. The plaintiff has either ignored the advice or misunderstood it so I will now give him some further advice. He must get a lawyer if he wants to continue to find or search for a proper way of getting his genuine grievances prosecuted in the Court, as he did in the celebrated case of Louis Medaing v Ramu Nico Management (MCC) Ltd (2011) N4340. In that case, he had the benefit of competent counsel and he ended up taking his grievances to the Supreme Court (Louis Medaing v Ramu Nico Management (MCC) Ltd (2011) SC1144. That was a celebrated case because Mr Medaing had genuine grievances which were very seriously considered by the Court and he had the benefit of competent counsel. He needs to get a lawyer if he wants to have any chance of successfully prosecuting the grievances that he has brought into court in this case. There is something else the plaintiff must understand. There are risks involved in commencing these sorts of proceedings, making extravagant claims for huge amounts of damages, unprecedented in the history of Papua New Guinea. If you are unsuccessful, the chances are the Court will award costs against you. Last time I made no order for costs against the plaintiff. I allowed the parties to bear their own costs. I don't feel it would be proper to make such an order again, so in this case, costs will follow the event.

ORDER

(1)	The entire proceedings WS No 518 of 2014 are dismissed.

(2)	The plaintiff shall pay the second and third defendants' costs of the proceedings on a party-party basis, which shall, if not agreed, to be taxed.

(3)	Time for entry of the order is abridged to the date of settlement by the Registrar, which shall take place forthwith.

Ruling accordingly.
______________________________________________________________
Solicitor-General: Lawyer for the First Defendant
Ashurst Lawyers: Lawyers for the Second and Third Defendants