N6363
PAPUA NEW GUINEA 
IN THE NATIONAL COURT OF JUSTICE 
	
  OS (COMM) 128 of 2016

BETWEEN 
MOLA TALUARI, REX HIBUYA, THOMAS NGOUYA, 
KIWAI LAPA, AGIRU HINI KARI – For themselves and 
on behalf of the affected Resource Owners/Landowners of 
RORUA, RAGANA & HOMOYE CLANS 
Plaintiffs

AND
LAGAYU HEWA PEOPLE’S ASSOCIATION 
INCORPORATED
First Defendant

AND
HARMONY GOLD (PNG) EXPLORATION 
LIMITED
Second Defendant

AND
THE MINERAL RESOURCES AUTHORITY
 (MRA)
Third Defendant
	
AND
THE DEPARTMENT OF MINING
Fourth Defendant

AND
THE INDEPENDENT STATE OF 
PAPUA NEW GUINEA
Fifth Defendant

Waigani: Hartshorn J. 
       2016: 7th, 10th June                

Application to dismiss proceeding

PNG Cases cited: 

Avia Aihi v. The State (1981) PNGLR 81
Dr. Onne Rageau v. Kina Finance Ltd (2015) N6175
Golpak v. Alongkarea Kali & Ors [1993] PNGLR 8
Independent State of Papua New Guinea v. Central Provincial Government (2009) SC977 
Kerry Lerro v. Stagg & Ors (2006) N3050
Karulaka Maure v. National Forests Authority (2014) N5875
Louis Lucian Siu v. Wasime Land Group Incorporated (2011) SC1107 
Mt Hagen Urban Local Level Government v. Sek No. 15 (2009) SC1007 
National Fisheries Authority v. New Britain Resources Development Ltd (2009) N4068 
Ok Tedi Mining Ltd v. Niugini Insurance Corporation and Others (No 2) [1988-89] PNGLR 425 
Peter Makeng & Ors v. Timbers (PNG) Ltd & Ors (2008) N3317
Placer Dome (PNG) Ltd v. Yako (2011) N4691 
Puri Ruing v. Allan Marat (2012) N4672
Ronny Wabia v. BP Petroleum Explorations Operating Co. Limited & 2 Ors [1998] PNGLR 8 
The Russian Commercial and Industrial Bank v. British Bank for Foreign Trade Ltd [1921] 2 AC 438 
Tender Wak v. John Wia (2008) N3356 
Takori v.Yagari & Ors (2008) SC905 
Thomas Taiya Ambi v. Exxon Mobil Ltd (2012) N4844

Overseas case
The Russian Commercial and Industrial Bank v. British Bank for Foreign Trade Ltd [1921]
Counsel:

Mr. L. Agilo, for the Plaintiffs 
Mr. J. Bokomi, for the First Defendant
Mr. I. R. Shepherd, for the Second Defendant

10th June 2016

1.	 HARTSHORN J:  This is a decision on an application to dismiss this proceeding. The application is made by the second defendant, supported by the first defendant and is opposed by the plaintiffs. The application is made pursuant to Order 12 Rule 40(1) (a), (b) or (c) National Court Rules, s.155 (4) Constitution and the inherent jurisdiction of this court.

Background

2.	  The five persons named as plaintiffs are described as representing themselves and affected Resource Owners/Landowners of three named clans in an area referred to as the Mt. Kili Teke Prospective Licence Area (Mt. Kili Teke).This area is described as being within an area covered by Exploration Licence 2310 (EL 2310) in Hela province. 

3. 	In their originating summons that commenced this proceeding, the first substantive relief that is sought is for a declaration that the first defendant, the Lagayu Hewa People’s Association Incorporated (LHPA), does not represent them. Various orders are then sought. The first of which is to the effect that certain agreements entered into by LHPA with the second defendant, Harmony Gold (PNG) Exploration Limited (Harmony), in respect of EL 2310 are defective and unlawful. The remaining orders seek to prevent the other defendants from entering into agreements with LHPA in respect of EL 2310 as to landowner or plaintiff interests, to “compel” LHPA to produce details of money received and for all of the defendants apart from LHPA to work with the plaintiffs.

This application

4.	 Harmony submits that this proceeding should be dismissed as amongst others:

a)	The orders sought for mandamus in paragraphs 4 and 5 of the originating summons can only be obtained in an application for judicial review. Order 16 Rule 1(1) National Court Rules makes it mandatory for applications for writs of mandamus to be made pursuant to Order 16. This proceeding is not a judicial review proceeding and no application for leave for judicial review has been made. Consequently this part of the originating summons is incompetent;

b)	This court does not have jurisdiction and no jurisdiction is cited in regard to the declaration sought. In any event what is sought by declaration is a question of fact;

c)	As to paragraphs 2 and 3 of the originating summons, by alleging that LHPA does not represent the Plaintiffs’ interests as to EL 2130, as the Plaintiffs’ are claiming that they are the principal landowners of Mt. Kili Teke, the plaintiffs’ are raising a dispute as to the ownership of customary land. This court does not have the jurisdiction to determine such disputes.

5. 	The Plaintiffs’ submit that this proceeding should not be dismissed as amongst others:

a)	This proceeding is concerned with amongst others, a dispute over the ownership of customary land and the entitlement to certain funds that are for the benefit of landowners;

b)	This court does have jurisdiction under s. 155(4) Constitutions and the ADR Rules to determine customary land disputes.

Law
6. 	As to s. 155(4) Constitutions, it is settled law that it is only to be relied upon to protect the primary rights of parties in the absence of other relevant law. In addition, s. 155(4) cannot be applied to do anything contrary or inconsistent with the provisions of the National Court Rules: Peter Makeng & Ors v. Timbers (PNG) Ltd & Ors (2008) N3317 per Injia DCJ (as he then was). Consequently, as the second defendant is able to have recourse to Order 12 Rule 40 National Court Rules, there is not an absence of other relevant law and so I will not consider s. 155(4) Constitution further in regard to this court’s jurisdiction to dismiss the proceeding.

Order 12 Rule 40 National Court Rules

7. 	There are numerous authorities in respect of the principles which apply to applications under Order 12 Rule 40 National Court Rules and I refer to the following cases in this regard: Kerry Lerro v. Stagg & Ors (2006) N3050, Takori v.Yagari & Ors (2008) SC905, Mt Hagen Urban Local Level Government v. Sek No. 15 (2009) SC1007 and Louis Lucian Siu v. Wasime Land Group Incorporated (2011) SC1107. The Court in Mount Hagen v. Sek (supra) in paragraphs 27 to 30 conveniently sets out the requirements of Order 12 Rule 40 (1) (a), (b) and (c) as follows: 

“27.	The terms “vexatious”, “frivolous”, “abuse of the process of the Court” and “reasonable cause of action” under O.12 r.40 of the National Court Rules have been judicially considered, defined and expounded in a number of decisions in both the National and Supreme Courts. These cases include Ronny Wabia v. BP Exploration Co. Limited & 2 others [1998] PNGLR 8 (N1697); PNG Forest Products Pty Ltd and Another v. The State and Genia [1992] PNGLR 85; Gabriel Apio Irafawe v. Yauwe Riyong (1996) N1915; Eliakim Laki and 167 Others v. Maurice Alulaku and Others (2002) N2001; Kiee Toap v. The Independent State of Papua New Guinea & Another (2004) N2766; Kerry Lerro trading as Hulu Hara Investments Limited v. Philip Stagg, Valentine Kambori & The State (2006) N3050; Philip Takori & Others v. Simon Yagari & 2 Others (2008) SC 905. These cases say the same thing. 

28.	The law with regard to an application for dismissal of proceedings based on O.12 r.40 is settled in our jurisdiction. We note that the principles are succinctly set out in Kerry Lerro’s case (supra) and which has more recently been approved and applied by the Supreme Court in Philip Takori’s case (supra). 

29.	The phrase ‘disclosing a reasonable cause of action’ consists of two parts; cause of action and form of action. A cause of action is defined as a legal right or form of action known to law whereby a plaintiff in a statement of claim must plead all necessary facts and legal elements or ingredients to establish or prove his claim.  The principles stated by these cases can be summarized as follows:

(i)	A plaintiff or claimant should not be driven from the judgment seat in a summary manner and that the Court should be cautious and slow in exercising its discretionary power.
 	
(ii)	The Court has an inherent jurisdiction to protect and safeguard its processes from abuse.

(iii)	The purpose of O.12 r.40 is to give the Court power to terminate actions or claims which are plainly frivolous or vexatious or untenable.

(iv)	A frivolous claim is one that is characterized as a claim that is plainly and obviously untenable, that cannot possibly succeed and bound to fail if it proceeds to trial.

(v)	A vexatious claim is one that is said to be a sham and cannot succeed where it seeks to merely harass the opposing party and put that party to unnecessary trouble and expense in defending or proving the claim.

30.	In an application under O.12 r.40 of the NCR, the Court may dismiss a proceeding or action where it is satisfied that the pleading in the statement of claim is seriously wanting where a necessary fact or legal element has not been pleaded.”

Declaratory relief

8. 	As the plaintiffs’ seek declaratory relief, it is necessary to consider the factors that are required to be established before a declaratory order can be made. These factors are set out in The Russian Commercial and Industrial Bank v. British Bank for Foreign Trade Ltd [1921] 2 AC 438. This case has been referred to in various cases including Ok Tedi Mining Ltd v. Niugini Insurance Corporation and Others (No 2) [1988-89] PNGLR 425; Placer Dome (PNG) Ltd v. Yako (2011) N4691; Independent State of Papua New Guinea v. Central Provincial Government (2009) SC977; Dr. Onne Rageau v. Kina Finance Ltd (2015) N6175 and National Fisheries Authority v. New Britain Resources Development L td (2009) N4068.

9. 	The factors are:

a)	There must exist a controversy between the parties;

b)	The proceedings must involve a right;

c)	The proceedings must be brought by a person who has a proper or 	tangible interest in obtaining the order;

d)	The controversy must be subject to the court’s jurisdiction;

e)	The defendant must be a person having a proper or tangible interest in 	opposing the plaintiff’s claim;

f)	The issue must be a real one. It must not be merely of academic 	interest, hypothetical or one whose resolution would be of no practical 	utility.

Disputes as to ownership of customary land

10. 	In Louis Lucian Siu v. Wasime Land Group Incorporated (2011) SC1107, the Supreme Court held amongst others that:
 
“(5)	The National Court has no jurisdiction to inquire into or deal with issues relating to disputes over customary ownership or interests in customary lands. Golpak - v - Alongkarea Kali & Ors [1993] PNGLR 8 and Ronny Wabia –v- BP Petroleum Explorations Operating Co. Limited & 2 Ors [1998] PNGLR 8 applied.

(6)	Any proceedings seeking declaratory reliefs (sic) and court recognition of various interests in customary land from which they stand to derive monetary benefits or any other benefits including financial and any other physical benefits amounts to an abuse of the court process because it does not in any way disclose a reasonable cause of action.”

11. 	The cases of Tender Wak v. John Wia (2008) N3356, Thomas Taiya Ambi v. Exxon Mobil Ltd (2012) N4844 and Karulaka Maure v. National Forests Authority (2014) N5875, are authorities on point and to the same effect.

Order 16 National Court Rules - Judicial Review

12. 	Order 16 Rule 1(1) is as follows:

“(1)	An application for an order in the nature of mandamus, prohibition, certiorari or quo warranto shall be made by way of an application for judicial review in accordance with this Order.”

Consideration

13. 	The plaintiffs seek the following declaration:

“A declaration that the First Defendant is a general umbrella association not formed by the principal landowners of Mt. Kili Teke Prospective Development License Area under Exploration Licence (EL 2310) hence it does not in any manner, shape or form represent the interests of issues of the Plaintiffs or the Mt. Kili Teke Prospect Development License Area Landowners.”

14.	 By seeking a declaration that LHPA was not formed by the principal landowners of Mt. Kili Teke and that it does not represent the plaintiffs or the landowners of Mt. Kili Teke, and by seeking an order that any agreements entered into between LHPA and Harmony are unlawful, the plaintiffs’ are disputing that LHPA, but more particularly, the persons that LHPA represents, are the true owners of Mt. Kili Teke. Further, the plaintiffs’ are disputing that Harmony has been dealing with the true owners of Mt. Kili Teke by dealing with LHPA. The plaintiffs’ by raising these disputes are raising disputes as to the ownership of customary land.

15. 	Counsel for the plaintiffs’ indeed submitted that this proceeding concerns amongst others, a dispute as to the ownership of customary land. Counsel for the plaintiffs’ further submitted that this court has jurisdiction to determine disputes as to the ownership of customary land by virtue of s.155 (4) Constitution and the ADR Rules, and that he is involved in mediations organised by this court that concern disputes as to the ownership of customary land.

16. 	No specific constitutional or legislative provisions apart from s. 155(4) Constitution and the ADR Rules and no other authorities were relied upon in support of this submission.

17. 	As to s. 155(4) Constitution, in the Supreme Court decision of Avia Aihi v. The State (1981) PNGLR 81 at 107 Kapi J (as he then was) said:

“In my view this section does not assist the applicant’s case either. This section cannot and does not give this Court the power to do anything contrary to what the law says. The orders referred to in this provision can be made only pursuant to a principle of law and cannot disregard a provision of the Constitution or a statute. The orders that can be given under s. 155(4) of the Constitution are based on two assumptions. Firstly (sic) that the person who seeks the order has the right (or standing) to apply for the order and secondly, the Supreme Court has the power or jurisdiction to make the orders sought. The provision itself does not give the right and the power.
In determining whether a person has the right and whether the Supreme Court has the power, this has to be determined in accordance with the law on the subject. In my opinion these matters cannot be determined under s. 155(4).”

18. 	The law on the subject as to whether the National Court has the requisite jurisdiction is considered in Siu v. Wasime (supra). At [27] the Supreme Court said:

“27.	Under section 26 of the Land Dispute Settlement Act 1975; only the Local Land Courts and Provincial Land Courts have jurisdiction over and in relation to a dispute as to ownership or an interests in customary land.  
…………
 
29.	In Golpak -v- Alongkarea Kali & Ors [1993] PNGLR 8, the National Court held that it had no jurisdiction to determine or inquire into issues relating to interests in a customary land or ownership of customary land. In Ronnie Wabia v BP Explorations Operating Co. Limited & 2 Ors [1998] PNGLR 8, Sevua J applied the decision in the Golpak case to hold that the National Court was deprived of and had no jurisdiction to inquire into traditional forms of accession into traditional lands and ownership and interest in such customary lands 

30.	In the Golpak case, Doherty J while holding that the National Court had no jurisdiction to deal with issues as to ownerships or interests in customary land made the following comments;

“It seems to me that the spirit and the intent of the legislature in writing the Land Dispute Settlement Act was to prevent the National Court from arbitrating on the forms of accession and hence ownership or control on interests in customary land and I think therefore that it would be against both the letter and the spirit of the legislation if I took upon me the powers to make declarations on what is an interests in land.  I therefore consider that this Court does not, at this time, have jurisdiction to arbitrate in this case and I must therefore refer it to the Local Land Court to determine who have the interests in the land” 

31.	We agree with the comments expressed above and we too are of the view that His Honour the learned Judge erred in law when he did not dismiss the entire proceedings for want of jurisdiction.  In our opinion there is no proper basis for the Judge to entertain this claim and we conclude that His Honour fell into error in that respect. There were sufficient evidentiary materials before the National Court which showed that this was really a dispute over monetary and other financial benefits and interests arising from the control use and ownership of customary lands.”

19. 	As the law is that the National Court does not have jurisdiction to determine or enquire into issues relating to interests in or ownership of customary land, s. 155(4) Constitution cannot be used to give that jurisdiction to the National Court.

20.	 In regard to the ADR Rules and whether they grant jurisdiction to this court to determine or enquire into issues relating to interests in or ownership of customary land, a perusal of those Rules satisfies me that they do not. As to Counsel for the plaintiffs’ being involved in a mediation in which disputes as to customary land were considered, no details of that particular case are before me. It can only be assumed that the parties in the mediation to which counsel refers considered these issues by consent. This however is mere speculation and does not detract from my view based on the authority and legislation to which I have referred which is to the effect that this court does not have the requisite jurisdiction to determine or enquire into issues relating to interests in or ownership of customary land.

21.	 Consequently, as the declaration sought by the plaintiffs concerns a controversy that is not subject to this court’s jurisdiction, namely a dispute over interests and ownership of customary land, the plaintiffs have failed to satisfy one of the factors required to be established before a declaratory order can be made: The Russian Commercial and Industrial Bank v. British Bank for Foreign Trade Ltd [1921] 2 AC 438; Ok Tedi Mining Ltd v. Niugini Insurance Corporation and Others (No 2) [1988-89] PNGLR 425; Placer Dome (PNG) Ltd v. Yako (2011) N4691; Independent State of Papua New Guinea v. Central Provincial Government (2009) SC977; Dr. Onne Rageau v. Kina Finance Ltd (2015) N6175 and National Fisheries Authority v. New Britain Resources Development Ltd (2009) N4068.

22. 	Also, as the declaration is in regard to an issue that is not subject to the court’s jurisdiction, it is bound to fail and so is frivolous, vexatious and an abuse of the process of the court. The remainder of the relief sought in the originating summons also fails for the same reasons as it is consequential upon the declaration that has been sought. In addition, the remainder of the relief is premised upon the basis that underlying the relief sought is a dispute as to the ownership of customary land. As this court does not have the requisite jurisdiction, this relief is bound to fail and so is frivolous and vexatious and is an abuse of process of this court.

23. 	Further, the relief sought in paragraphs 3, 4 and 5 of the Originating Summons seek orders “in the nature of prohibition”, and for mandamus. Such orders are only able to be applied for by way of an application for judicial review pursuant to Order 16 Rule 1 (1) National Court Rules: Puri Ruing v. Allan Marat (2012) N4672 at [14]. Clearly this proceeding has not been instituted as an application for judicial review and leave for judicial review has not been made. The relief sought therefore is bound to fail, it is frivolous and vexatious and is an abuse of the process of the court.

24. 	Given the above it is not necessary to consider the other submissions of counsel.

Orders

a)	This proceeding is dismissed;

b)	The plaintiffs’ shall pay the first and second defendants costs of and 	incidental to this proceeding including the costs of this application;

c)	Time is abridged.

___________________________________________________________
PNG Legal Services	: Lawyers for the Plaintiffs                                      
Bokomi Lawyers 		: Lawyers for the First Defendant                           
Ashurst Lawyers		: Lawyers for the Second Defendant