N6808
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS NO 395 OF 2015

BETWEEN
KANIVE PRITORI YAMA ON BEHALF OF 
MANGU CLAN OF UPPER RAMU, MADANG PROVINCE
Plaintiff

AND
JOSEPH GABUT, KUTT PAONGA & BENEDICT BATATA, CONSTITUTING THE RAMU SPECIAL LAND TITLES COMMISSION
First Defendant 

AND
THE INDEPENDENT STATE OF PAPUA NEW GUINEA 
Second Defendant

AND
MAURE CLAN
Third Defendant 

AND
NOKOMBOI CLAN
Fourth Defendant

AND
PAGAIZI CLAN
Fifth Defendant 

AND
IMURUBA CLAN
Sixth Defendant

Madang: Cannings J
2016,9,10 December And
2017, 21 July

LAND – customary land – challenge to decision of Special Land Titles Commission declaring customary ownership of disputed land – whether mode of commencement of proceedings appropriate – abuse of process – laches – unreasonable delay in seeking equitable relief.

The plaintiff, who claimed to represent his clan, was aggrieved by the decision of a Special Land Titles Commission that determined the question of customary ownership of an area of land in respect of which a mining tenement had been granted. He commenced proceedings by originating summons, seeking a declaration that the Commission had not actually resolved customary interests in the land and an order that a new commission be appointed. The plaintiff argued that the Commission erred by: failing to determine who the principal landowner was by focusing unduly on which clans should receive payments and damages due to use of the land as a mine; incorrectly concluding that four clans (the third to sixth defendants) were descendants of the customary owners; paying too much regard to artificial boundaries; ignoring historical evidence that the entire land was owned by the plaintiff’s clan; and failing to hear evidence of the plaintiff’s clans interest in the land. 

Held:

(1)	All relief sought in the originating summons was refused, as (a) the proceedings were an abuse of process and (b) the claim for relief offended against the laches principle.

(2)	The proceedings were an abuse of process in that (i) the mode of commencement was irregular as the proceedings were not an application for judicial review or an appeal and no explanation was provided as to why the plaintiff did not appeal against the decision of the Special Land Titles Commission; (ii) the plaintiff, though claiming to represent his clan, failed to comply with procedural requirements for commencement of representative proceedings. 

(3)	As to laches (unreasonable delay) the plaintiff waited one year and ten months before filing the originating summons. He took another eight months to serve the originating summons. These were unreasonable delays, warranting dismissal of the proceedings.    

(4)	The proceedings were entirely dismissed.  The parties were ordered to bear their own costs as none of the defendants attended the trial. 

Cases cited:

The following cases are cited in the judgment:

Batteng Putto v Andrew Sallel (2015) N5845
Eddie Itarai v Sevuru Nokoma (2016) N6176
Gador Salub v Makurai Luedi (2016) N6519
John Black v Benedict Batata (2017) N6712
Mathew Denguo Tigavu v Gamo Koito (2016) N6170
Robinson v National Airlines Commission [1983] PNGLR 476
Simon Mali v The State (2002) SC690
Stabie Gason v Mangu Clan of Astrolabe Bay (2016) N6163
The State v Lohia Sisia [1987] PNGLR 102
Tigam Malewo v Keith Faulkner (2009) SC960

ORIGINATING SUMMONS

This was an application for a declaration and order regarding the decision of a Special Land Titles Commission.

Counsel:

V Move, for the Plaintiff

21st July, 2017

1.	CANNINGS J: The plaintiff, Kanive Pritori Yama, on behalf of Mangu Clan of Upper Ramu, Madang Province, is aggrieved by the final decision of the Special Land Titles Commission made on 12 August 2013, which declared customary ownership of an area of land, the mine site for the Ramu Nickel-Cobalt Project, at Kurumbukari in the upper Bundi area of Madang Province. 

2.	He claims that the Commission unlawfully awarded land user rights and quarterly payments and environmental compensation to the Maure, Nokomboi, Pagaizi and Imuruba Clans (the third to sixth defendants) when it should have declared that Mangu Clan was the exclusive customary owner of the Kurumbukari land. 

RELIEF SOUGHT

3.	The plaintiff seeks a declaration that the Commission did not resolve customary interests in the land and an order that a new commission be appointed to determine customary ownership of the land in accordance with the Land Titles Commission Act 1962. 

PLAINTIFF’S ARGUMENTS 

4.	The plaintiff argues that the Commission erred by: 

•	failing to determine who the principal landowner was, by focusing unduly on which clans should receive payments and damages due to use of the land as a mine; 
•	incorrectly concluding that the Maure, Nokomboi, Pagaizi and Imuruba Clans were descendants of the customary owners; 
•	paying too much regard to artificial boundaries; 
•	ignoring historical evidence that the entire land was owned by his clan; and 
•	failing to hear evidence of his clan’s interest in the land. 

DETERMINATION 

5.	I decline to consider the merits of the plaintiff’s arguments as I have formed the view that all relief sought in the originating summons must be refused, for two reasons: (a) the proceedings are an abuse of process, and (b) the claim for relief offends against the laches principle.

(a)	Abuse of process

6.      These proceedings are an abuse of process in two respects. First, the mode of commencement – by originating summons – is irregular, as the proceedings are neither an application for judicial review nor an appeal. No explanation was provided as to why the plaintiff did not appeal against the decision of the Special Land Titles Commission under Section 38 (right of appeal) of the Land Titles Commission Act. This provision allows a “person aggrieved by a decision of the Commission” to appeal to the National Court within 90 days after the decision. 

7.      This procedure has been adopted by other persons and clans aggrieved by decisions of the Ramu Nickel-Cobalt Special Land Titles Commission (eg, Mathew Denguo Tigavu v Gamo Koito (2016) N6170, Eddie Itarai v Sevuru Nokoma (2016) N6176, Gador Salub v Makurai Luedi (2016) N6519). A person who elects to not utilise a right of appeal against a decision with which he is aggrieved, must present good reasons for doing something different (John Black v Benedict Batata (2017) N6712).

8.      Though the plaintiff was not a party to the Special Land Titles Commission, he could have still appealed, as  a “person aggrieved” by its decisions, provided that he was able present good reasons why he was not a party (Stabie Gason v Mangu Clan of Astrolabe Bay (2016) N6163). 
 
9.      The second respect in which the proceedings are an abuse or process is that the plaintiff, though claiming to represent his clan, failed to comply with procedural requirements for commencement of representative proceedings. The leading Supreme Court cases of Simon Mali v The State (2002) SC690 and Tigam Malewo v Keith Faulkner (2009) SC960 show that if a person puts himself forward as acting in a representative capacity for other persons:

•	 all intended plaintiffs (those who he claims to represent) must be named in the originating process;
•	each and every intended plaintiff must give specific instructions (evidenced in writing) to their lawyer to act for them;
•	any person in whose name proceedings are commenced and who claims to represent other intended plaintiffs must produce an authority to the court to show that he was authorised by them to file proceedings as a class representative.

None of those requirements has been met.

(b) Laches 

10.      The laches principle is a principle of equity. A person who seeks an equitable remedy, such as a declaration, should not unreasonably delay the claim for relief. All equitable remedies are discretionary. The court, in exercising its discretion whether to grant the remedy sought, will take into account the extent of any delay in commencing proceedings or prosecuting the claim. This is so even though the plaintiff might appear to have a good case.  No one is entitled as of right to an equitable remedy (Robinson v National Airlines Commission [1983] PNGLR 476, The State v Lohia Sisia [1987] PNGLR 102, Batteng Putto v Andrew Sallel (2015) N5845). 

11.     In this case the plaintiff waited one year and ten months (from the date of the Commission’s decision, 12 August 2013) before filing the originating summons (on 20 July 2015). He took another eight months to serve the originating summons (on 4 April 2016, according to the affidavit of service). These are extensive, unexplained and unreasonable delays, especially when considered in light of the 90-day appeal period that exists under the Land Titles Commission Act. Such delays are a sufficient reason to dismiss the proceedings.    

CONCLUSION

12.      The proceedings are dismissed. The parties will bear their own costs as none of the defendants attended the trial. 

ORDER
(1)	All relief sought in the originating summons is refused and the proceedings are entirely dismissed.
		
(2)	The parties shall bear their own costs. 

Ordered accordingly.
_________________________________________________________
Public Solicitor: Lawyer for the Plaintiff