N5875
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS 208 of 2013

BETWEEN:

KARULAKA MAURE: Chief of the MELARIPI CLAN of MEII VILLAGE
First Plaintiff

AND:

JOHN EKA MIVA for and on behalf of the EIU'IPI, MELARIPI, UASELA, KAIRIPI, LAVAVO SAVORAIP 1, MEAHIP NUPIPI & OPIPI Incorporated Land Groups of MEII Village
Second Plaintiff

AND:

MEII RESOURCES DEVELOPMENT
Third Plaintiff

AND:

NATIONAL FORESTS AUTHORITY
First Defendant

AND:

GULF PROVINCIAL GOVERNMENT
Second Defendant

AND:

CHINA LONG KONG (PNG) INDUSTRY LTD
Third Defendant

AND:

NIUGINI INTERNATIONAL CORPORATION LTD
Fourth Defendant

AND:

RIMBUNAN HIJAU (PNG) LTD
Fifth Defendant

AND:

KI RESOURCES LIMITED
Sixth Defendant

AND:

HAVEMEAVO FOREST LIMITED
Seventh Defendant

AND:

KOLH FOREST RESOUCES LIMITED
Eighth Defendant

Waigani: Hartshorn, J
2014: July 7th,
: December 2nd

Application to Dismiss Proceeding 

Cases cited:
Papua New Guinea cases

Golpak v. Alongkrea Kali & Ors [1993] PNGLR 491
Ronny Wabia v. BP Exploration Operating Co Ltd [1998] PNGLR 8
Kiee Toap v. The State (2004) N2731, N2766
Lerro v. Stagg (2006) N3050 
Tender Wak v. John Wia (2008) N3356 
Rex Paki v. MVIL (2010) SC1015
Louis Lucian Siu v. Wasime Land Group Incorporated (2011) SC1107
Ambi v. Exxon Mobil Ltd (2012) N4844 
Vanimo Forest Products Ltd v. Joseph Kelange and Ors (2014) SCA 66/12 and SCM 7/12 delivered 25/2/14, Waigani 

Overseas Cases

Tampion v. Anderson [1973] VR 321

Counsel:

Ms. A. Koisen, for the Plaintiffs
Mr. S. Mitige, for the First Defendant
Mr. W. Frizzell, for the Fourth and Fifth Defendants
Mr. R. Mann-Rai, for the Sixth, Seventh and Eighth Defendants

2nd December, 2014

1. HARTSHORN J: This is an application to dismiss the proceeding pursuant to Order 12 Rules 1 and 40 National Court Rules. It is made by the sixth, seventh and eighth defendants and is supported by the first, fourth and fifth defendants. The application is opposed by the plaintiffs.

Background

2. The plaintiffs seek substantively declaratory relief in regard to amongst others, the land known as Vailala Block 1 and royalty and levy payments in respect of logging operations that have been and continue to be conducted on that land. Injunctive relief is sought in respect of royalty and levy payments and orders are sought requiring information, the transfer of District Court proceedings, and the payment of certain trust funds into the plaintiffs' lawyers trust account.

3. The proceeding is sought to be dismissed on a number of grounds. The first ground that I shall consider is whether the substantive claim of the plaintiffs raises a dispute as to the ownership of customary land and if so whether this court has jurisdiction to determine such a dispute.

4. If this court does not have jurisdiction, then the proceeding would be bound to fail if prosecuted. Such a claim would be frivolous, vexatious and an abuse of the process of the court: Ronny Wabia v. BP Exploration Operating Co Ltd [1998] PNGLR 8, Kiee Toap v. The State (2004) N2731, N2766, Lerro v. Stagg (2006) N3050, Tampion v. Anderson [1973] VR 321, Louis Lucian Siu v. Wasime Land Group Incorporated (2011) SC1107, Ambi v. Exxon Mobil Ltd (2012) N4844.

5. On this ground the proponents of the motion to dismiss submit that the first two declarations that are sought by the plaintiffs are the primary relief sought and the remainder are consequential. The first two declarations sought are:

"1.	 A DECLARATION that the First Plaintiffs are principal landowners of the land known as Vailala Block 1 Meii Village, Gulf Province. 

2.	A DECLARATION that the Second Plaintiff's declared landowners of the land known as Vailala Block 1 Meii Village, Gulf Province (Vailala Block 1)."

6. It is submitted that these declarations sought concern whether the first and second plaintiff's are landowners of customary land. It is settled law it is submitted, that this court does not have the jurisdiction to inquire into or deal with issues relating to disputes over ownership or interests in customary land. Reliance is placed upon the cases of Golpak v. Alongkrea Kali & Ors [1993] PNGLR 491, Ronny Wabia v. BP Petroleum (supra), Siu v. Wasime Land Group (supra), Tender Wak v. John Wia (2008) N3356 and the very recent unreported Supreme Court case of Vanimo Forest Products Ltd v. Joseph Kelange and Ors (2014) SCA 66/12 and SCM 7/12 delivered 25/2/14, Waigani. Consequently, it is submitted, this proceeding should be dismissed as it is frivolous, vexatious and an abuse of the process of the court.

7. Counsel for the plaintiffs submitted that the plaintiffs have made many attempts to have a rehearing of proceedings commenced in the Kerema Local Land Court concerning compensation levels but to no avail, and that there remains a dispute as to the ownership of the subject land and the percentages. Further, it was submitted that this court is being requested to give a direction to transfer court proceedings to Port Moresby. It was also submitted that this court should consider the conduct of the defendants in not assisting the plaintiffs with the claims and grievances and should only consider dismissing the case where it is "incontestably unarguable". In this regard reliance is placed upon the cases of PNG Forest Products v. The State [1992] PNGLR 85 and Agiru v. The Electoral Commission (2002) SC687. 

8. Counsel for the plaintiffs however did not specifically address whether this court has jurisdiction to determine customary land disputes and none of the submissions made were relevant to this issue.

9. From a consideration of the first two declarations sought and a perusal of the affidavits relied upon by the plaintiffs, it is clear that there is a dispute as to the legitimate owners of the customary land. The plaintiffs in seeking the first two declarations are in essence claiming that they are the true customary landowners of the subject land and not the persons from Keuru, Opao and Aihia. So a dispute as to the ownership of customary land arises. I concur with the submissions of the proponents of the motion that this court does not have the requisite jurisdiction to determine the first two declarations sought.

10. The remainder of the substantive relief sought is consequential. This includes the orders sought for the proceeding at the Kerema District Court to be transferred to either the Waigani National Court or the Port Moresby District Court. Presumably the proceeding concerns the same dispute over customary land that is the subject of this proceeding and so my comments concerning this court's lack of jurisdiction apply here.

11. Given my above finding, it is not necessary to consider the other submissions of counsel. The proceeding is bound to fail and should be dismissed as being frivolous, vexatious and an abuse of process.

12. As to costs, the proponents of the motion seek costs on an indemnity or solicitor client basis. In support of this, they rely upon a letter dated 5th August 2013, copy of which is in evidence, that invites the lawyers for the plaintiffs to withdraw or discontinue the proceeding as amongst others, this court does not have jurisdiction in respect of customary land disputes. The letter also puts the lawyers for the plaintiffs on notice that costs on a solicitor client or full indemnity basis would be sought upon a successful application to dismiss. There is also further evidence that no response was received to that letter.

13. In Rex Paki v. MVIL (2010) SC1015, the Supreme Court, of which I was a member, held that:

"The award of costs on an indemnity basis is discretionary. An order for costs on an indemnity basis may be made where the conduct of a lawyer or a party to the proceedings is so improper, unreasonable or blameworthy that he should be so punished by such an order. The question is whether the conduct of the appellant in this matter is such that it caused the respondent to incur unnecessary costs."

14. The reason that this proceeding is being dismissed is straightforward - the court does not have the requisite jurisdiction. There have been numerous reported cases on this point. It is not as though this point has not been considered by the court before. Further, the lawyers for the plaintiffs were informed of the particular point, invited to withdraw or discontinue and were put on notice that solicitor client or full indemnity costs would be sought. If the lawyers for the plaintiffs had taken heed of this information and further, given sufficient consideration to the point either before commencing proceedings or after they had been put on notice, this proceeding or application would not have been necessary. Consequently, I am satisfied that the conduct of the plaintiffs by their lawyers caused the proponents of the motion to incur unnecessary costs.

Orders

15. The formal Orders of the Court are:

a)	This proceeding is dismissed.

b)	The plaintiffs shall pay the costs of the sixth, seventh and eighth defendants of and incidental to the proceeding on a solicitor and client basis.

c)	The plaintiffs shall pay the costs of the first, fourth and fifth defendants of and incidental to the proceeding on a party party basis. 

d)	Time is abridged.
_____________________________________________________________
Koisen Lawyers: Lawyers for the Plaintiffs
National Forest Authority: Lawyers for the First Defendant 
Warner Shand Lawyers: Lawyers for the Fourth and Fifth Defendants
Mannrai Lawyers: Lawyers for the Sixth, Seventh and Eighth Defendants