N6164
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS NO 743 OF 2014

PAUL KAMANG, CUSTOMARY HEAD OF MATULON TRIBE
Plaintiff
V

DAVID CHAN, MANAGER,
TUNAMB AGENTS & DISTRIBUTERS LIMITED
First Defendant

TUNAMB AGENTS & DISTRIBUTERS LIMITED
Second Defendant

Madang: Cannings J
2015: 22 April, 2 June
2016, 15 January

LAND – dispute as to whether land is customary land – whether National Court has jurisdiction – State Leases – indefeasibility of title – allegation of fraud in granting of State Lease.

The plaintiff was aggrieved about a State Lease being granted to the second defendant over land which he claimed was his tribe's customary land. He sought a declaration that the land was not Government land, but customary land owned by his tribe, and an injunction to restrain the defendants from occupying and developing it. 

Held:

(1)	The National Court has no jurisdiction to determine the question of whether land is customary land. Such questions fall within the exclusive jurisdiction of the Land Titles Commission.

(2)	Land covered by a State Lease is presumed to be Government land and the registered proprietor holds indefeasible title, subject only to the limited exceptions prescribed by Section 33(1) of the Land Registration Act, including in the case of fraud.

(3)	Here, the Court had no jurisdiction to grant the declaration sought by the plaintiff and the plaintiff failed to prove that the granting of the State Lease involved fraud. All relief sought was refused and the proceedings were dismissed. 

Cases cited

The following cases are cited in the judgment:

Anton Lavu v Nicholas Mark Thompson (2007) N5018
Custodian of Expropriated Property v Commissioner of Native Affairs (Re Jomba Plain) [1971-72] PNGLR 501
Emas Estate Development Pty Ltd v John Mea & Ors [1993] PNGLR 215
Golpak v Kali [1993] PNGLR 491 
Hi-Lift Company Pty Ltd v Miri Setae [2000] PNGLR 80
Kimas v Loa (2015) SC1475
Mark Ekepa v William Gaupe (2004) N2694
Mudge v Secretary for Lands [1985] PNGLR 387
Nakun Pipoi v Viviso Seravo (2008) SC909
Paul Kamang v Namba Tumu & Tunamb Agents & Distributors Ltd (2011) N4313
Ronny Wabia v BP Exploration Co Ltd [1998] PNGLR 8
Sioti Bauf and Lavoi Nodai v Poliamba Pty Ltd [1990] PNGLR 278 
The State v Lohia Sisia [1987] PNGLR 102

ORIGINATING SUMMONS 

This was a trial in which the plaintiff sought a declaration that an allotment of land is customary land and a permanent injunction restraining the defendants from occupying and developing the land.

Counsel

P Kamang, the plaintiff, in person
T M Ilaisa, for the defendants 

15 January, 2016
 
1. CANNINGS J: A trial has been conducted of an originating summons in which the plaintiff, Paul Kamang, customary head of the Matulon Tribe, seeks a declaration and an order concerning an allotment of land.

2. The land is on Modilon Road in the Newtown area of Madang town. It is described as Section 64, Allotment 33. The land is covered by a State Lease. The second defendant, Tunamb Agents and Distributors Ltd, is the lessee and registered proprietor. The first defendant, David Chan, owns and controls the company. 

3. Mr Kamang is aggrieved by the second defendant being granted a State Lease over the land, in 2008, and recent developments that have taken place on the land. He maintains that it is customary land, forming part of the Bidamen land area, and that Matulon Tribe is its customary owner. He argues that his tribe's right of customary ownership was confirmed by a decision of the Central Court of the Territory of New Guinea, constituted by Justice Phillips, on 25 May 1932, which has been reported as Custodian of Expropriated Property v Commissioner of Native Affairs (Re Jomba Plain) [1971-72] PNGLR 501. He argues that the 1932 decision has never been appealed against or set aside. The land has remained customary land ever since. 

4. Mr Kamang submits that it does not fall within the area of Madang town land that was declared by the Minister for Lands in 1988 under the National Land Registration Act to be National Land, which became the subject of the Supreme Court case of Nakun Pipoi v Viviso Seravo (2008) SC909. To the extent that it might appear to have fallen within that area of land, there was a corrigendum published in National Gazette No G142 of 30 October 2003, which, Mr Kamang argues, clarifies that it is not Government Land.

RELIEF SOUGHT 

5. Under the originating summons, Mr Kamang seeks two remedies:

1.	A declaration that the whole of the land comprising the portion of Bidamen land is Matulon customary land as per National Gazette No G142 of 30 October 2003, as per the Central Court judgment and orders made on 25 May 1932 in respect of the said land.

2.	An order that the first and second defendants and their agents or associates claiming the ownership of Section 64, Allotment 33 in Bidamen land area be restrained from entering, occupying and developing Matulon customary land without authority and permission obtained from the plaintiff and members of Matulon Tribe/Clan, to vacate the said land, taking with them any structures that they have illegally put up thereon. 

In short, Mr Kamang is seeking (1) a declaration that the land is customary land and that Matulon Tribe is its owner and (2) a permanent injunction restraining the defendants from occupying and developing the land.

DEFENDANTS' POSITION

6. The defendants argue that the originating summons is an abuse of process as it has been decided in a previous case involving the same parties that Section 64, Allotment 33 is not customary land. Mr Ilaisa, for the defendants, submits that the matter is res judicata (the dispute has already been decided) so the proceedings should be summarily dismissed. If the case is not dismissed for that reason, the relief sought by Mr Kamang should still be refused as the National Court has no jurisdiction and the second defendant has indefeasible title to the land.

ISSUES

7. Three issues arise:

1.	Should the proceedings be summarily dismissed as an abuse of process?

2.	Should the Court declare that the land is customary land?

3.	Should the Court grant the injunction sought?

1 SHOULD THE PROCEEDINGS BE SUMMARILY DISMISSED AS AN ABUSE OF PROCESS?

8. Mr Ilaisa referred to my decision in Paul Kamang v Namba Tumu & Tunamb Agents & Distributors Ltd (2011) N4313, in which Mr Kamang appealed against the decision of the Madang District Court to permanently restrain him from interfering in the respondents' quiet enjoyment of Section 64, Allotment 33. I dismissed the appeal and in the course of doing so remarked that because the land was the subject of a State Lease, it was no longer customary land. It was Government land. The defendants' argument is that the issue of whether Section 64, Allotment 33 is customary land has already been determined by the Court. The plaintiff is having a 'second bite at the cherry' and therefore abusing the processes of the court.

9. This is a fair argument but I reject it as the remarks I made in the earlier case were not the result of a thorough examination of the issue of whether the land was customary land. I made the remarks in the course of dismissing an argument that the District Court erred in failing to have regard to the 1932 decision of Justice Phillips. I held that the District Court had not erred because it only had to be satisfied that the land was the subject of a State Lease. Clearly it was, and this meant that it was no longer customary land. It was Government land. 

10. Although I expressed a firm opinion that the land was Government land, that opinion was not the product of a hearing in which the status of the land was the central issue. There is no commonality in the cause of action at the centre of the earlier case and the cause of action at the centre of the present case. As the commonality of causes of action is one of the prerequisites to an action being labelled res judicata, and it is not present here, the present proceedings are not res judicata and therefore not an abuse of process (Mark Ekepa v William Gaupe (2004) N2694). 

2 SHOULD THE COURT DECLARE THAT THE LAND IS CUSTOMARY LAND? 

11. This is a straightforward issue. The answer is no. It was recently confirmed by the Supreme Court in Kimas v Loa (2015) SC1475 that the National Court has no jurisdiction to hear and determine disputes concerning ownership by custom of any land, including a dispute as to whether any land is or is not customary land. Such disputes fall within the exclusive jurisdiction of the Land Titles Commission under Section 15 (determination of disputes) of the Land Titles Commission Act, which states:

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.]

12. Section 15 has been given full effect by the courts over many years. As soon as it becomes apparent that a case involves a dispute about whether land is customary land, the National Court should divest itself of jurisdiction. Such disputes fall within the exclusive domain of the Land Titles Commission. The leading case of The State v Lohia Sisia [1987] PNGLR 102 has been followed by the National Court including Sioti Bauf and Lavoi Nodai v Poliamba Pty Ltd [1990] PNGLR 278, Golpak v Kali [1993] PNGLR 491, Ronny Wabia v BP Exploration Co Ltd [1998] PNGLR 8 and Anton Lavu v Nicholas Mark Thompson (2007) N5018, to name just a few.

13. Mr Kamang raises an interesting point about the corrigendum in the National Gazette in 2003. Maybe there is an argument to say that some of the land in Madang town that was originally declared as National Land has been excluded from the declaration. However, I cannot entertain that argument. I have no jurisdiction. Mr Kamang must take his argument to the Land Titles Commission. The relief sought in paragraph 1 of the originating summons is refused.

3 SHOULD THE COURT GRANT THE INJUNCTION SOUGHT? 

14. This issue must also be answered no, for the reasons advanced by Mr Ilaisa. The second defendant is the registered proprietor of Section 64, Allotment 33. It has indefeasible title to the land subject only to the exceptions in Section 33(1) of the Land Registration Act (Mudge v Secretary for Lands [1985] PNGLR 387).

15. Section 33(1) (protection of registered proprietor) of the Land Registration Act, relevantly states:

The registered proprietor of an estate or interest holds it absolutely free from all encumbrances except ... (a) in the case of fraud. 

16. This principle is a fundamental part of Papua New Guinea's land law, a point which I strived to make in Paul Kamang v Namba Tumu & Tunamb Agents & Distributors Ltd (2011) N4313. Mr Kamang appears to have understood the point, as he has mounted an argument that there was fraud involved in the registration of the State Lease in favour of the second defendant. He claims that the first defendant is a Chinese national who is trying to develop a supermarket on the land, which is contrary to the conditions of the Lease which require that the land be developed as a high-covenant residential property. 

17. These arguments, which are not supported by the evidence, fall short of persuading me that the granting of the State Lease to the second defendant was a case of fraud, such that the Lease should be declared null and void. This is so irrespective of whether proof of actual fraud or constructive fraud is required (Emas Estate Development Pty Ltd v John Mea & Ors [1993] PNGLR 215, Hi-Lift Company Pty Ltd v Miri Setae [2000] PNGLR 80). 

18. Only if the State Lease (which was in evidence) were declared null and void, would I be in a position to seriously consider granting an injunction of the type sought by the plaintiff. No good reasons to declare the Lease null and void have been provided. I refuse the relief sought in paragraph 2 of the originating summons.
 
CONCLUSION

19. All relief sought in the originating summons will be refused and the proceedings dismissed. Costs will follow the event. 

ORDER

(1)	All relief sought in the originating summons is refused and the proceedings are wholly dismissed. 

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

(3)	The file is closed.

_____________________________________________________________
Thomas More Ilaisa Lawyers & Attorneys: Lawyers for the Respondents