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Black v Batata [2017] PGNC 85; N6712 (5 May 2017)

N6712

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

OS NO. 774 OF 2014

BETWEEN

JOHN BLACK
ON BEHALF OF GUYEBI NOGOI YOWO OMOWO CLAN
Plaintiff

AND
BENEDICT BATATA, CHIEF COMMISSIONER
First Defendant

AND
LAND TITLES COMMISSION
Second Defendant

Madang: Cannings J

2015: 2^nd December

2016: 1^st March

2017: 5^th May

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.

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 declarations that the Commission had not actually determined the question of customary ownership of the subject land, that its determination of land rights was null and void, that his clan was the true customary land owner and an order that a new Land Titles Commission be established to formally determine the question of ownership. The plaintiff argued that the Special Land Titles Commission had failed to take into account undertakings and determinations made by its predecessor, that the Commission focussed unduly on user rights rather than the question of ownership, that the Commission paid too much regard to artificial boundaries drawn for purposes of mining tenements and that the Commission failed to consider independent reports before it, which declared that the plaintiff’s clan owned the disputed land.

Held:

(1) All relief sought in the originating summons was refused, as the proceedings were an abuse of process, in that (a) the plaintiff was re-agitating arguments that had already been determined by a final judgment in previous proceedings, which had not been the subject of appeal or review; (b) 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; (c) the plaintiff, though claiming to represent his clan, failed to comply with procedural requirements for commencement of representative proceedings.

(2) Furthermore the plaintiff failed to identify or give evidence of the decision he was challenging and failed to provide evidence to support the propositions he was advancing.

(3) The proceedings were dismissed, with costs.

Cases cited:

The following cases are cited in the judgment:

Eddie Itarai v Sevuru Nokoma (2016) N6176
Gador Salub v Makurai Luedi (2016) N6519
John Black v Joseph Gabut (2014) N5680
Kiee Toap v The State (2004) N2766
Madang Cocoa Growers Export Co Ltd v Tautea & Cocoa Board (2013) N5426
Mathew Denguo Tigavu v Gamo Koito (2016) N6170
National Executive Council & Luke Lucas v Public Employees Association [1993] PNGLR 264
Ok Tedi Mining Ltd v Niugini Insurance Corporation [1988-89] PNGLR 425
Pruaitch v Manek (2010) N4149
Simon Mali v The State (2002) SC690
Stabie Gason v Mangu Clan of Astrolabe Bay (2016) N6163
Telikom (PNG) Ltd v ICCC & Digicel (PNG) Ltd (2008) SC906
Tigam Malewo v Keith Faulkner (2009) SC960

ORIGINATING SUMMONS

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

Counsel:

B W Meten & J Black, for the Plaintiff
S Maliaki, for the Defendants

5^th May, 2017

1. CANNINGS J: The plaintiff, John Black, on behalf of Guyebi Nogoi Yowo Omowo Clan, is aggrieved by the final decision of the Special Land Titles Commission made in 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. He claims that the Commission failed to determine that the eight blocks of land at the mine site were owned by his clan. He challenges that decision by seeking various relief in an originating summons.
   

RELIEF SOUGHT

2. The plaintiff seeks declarations that:
   
   • the Commission did not actually determine the question of customary ownership of the subject land;
     
   • the Commission’s determination of land rights was null and void; and
     
   • his clan was the true customary land owner.
     

The plaintiff also seeks an order that a new Land Titles Commission be established to formally determine the question of ownership.

PLAINTIFF’S ARGUMENTS

3. The plaintiff argues that the Commission:
   
   • failed to take into account undertakings and determinations made by its predecessor, the late Mr Patrick Nasa, who died while conducting proceedings that were later undertaken by the three-member Special Land Titles Commission which made the decision that the plaintiff challenges;
     
     • focussed unduly on user rights rather than the question of ownership;
       
   • paid too much regard to artificial boundaries drawn for purposes of mining tenements;
     
   • failed to consider independent reports before it, which showed that the plaintiff’s clan had ownership rights over the disputed land.
     

DEFENDANTS’ POSITION

4. The defendants oppose all relief sought in the originating summons. Their counsel, Ms Maliaki, argued that the proceedings were an abuse of process as all of the arguments the plaintiff is raising in the present proceedings were adjudicated on and rejected by the National Court in judicial review proceedings, OS No 570 of 2013, John Black v Joseph Gabut (2014) N5680.
   

DETERMINATION

5. This is a clear-cut case. I uphold the submission of Ms Maliaki that these proceedings are an abuse of process and must be dismissed, for the following reasons:
   

(a) The plaintiff is re-agitating arguments already determined by a final judgment in the previous proceedings, N5680, which have not been the subject of appeal or review. He is having a second bite at the cherry (Kiee Toap v The State (2004) N2766). A plaintiff who commences a second set of proceedings to seek a remedy that could have been sought in earlier proceedings, which have been determined, will be adjudged to have engaged in a multiplicity of proceedings or conducted litigation in a piecemeal manner, and abused the processes of the Court (Ok Tedi Mining Ltd v Niugini Insurance Corporation [1988-89] PNGLR 425, National Executive Council & Luke Lucas v Public Employees Association [1993] PNGLR 264, Telikom (PNG) Ltd v ICCC & Digicel (PNG) Ltd (2008) SC906, Pruaitch v Manek (2010) N4149, Madang Cocoa Growers Export Co Ltd v Tautea & Cocoa Board (2013) N5426). A very good explanation needs to be provided for commencing separate proceedings. No such explanation has been given here.

(b) The mode of commencement is irregular as the proceedings are not an application for judicial review or an appeal. No explanation has been provided as to why the plaintiff did not appeal against the decision of the Special Land Titles Commission, under Section 38 of the Land Titles Commission Act, which allows a “person aggrieved by a decision of the Commission” to appeal to the National Court within 90 days after the decision. This is the procedure that has been adopted by other persons and clans aggrieved by decisions of the Ramu Nickel-Cobalt Special Land Titles Commission (eg, Stabie Gason v Mangu Clan of Astrolabe Bay (2016) N6163, Mathew Denguo Tigavu v Gamo Koito (2016) N6170, Eddie Itarai v Sevuru Nokoma (2016) N6176, Gador Salub v Makurai Luedi (2016) N6519). It is a proper procedure and a plaintiff who wishes to not utilise a right of appeal against a decision with which he is aggrieved, must present good reasons for doing something different.

(c) 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 a plaintiff 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 lawyers or as in this case their personal representative 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 have been met.

For each of those reasons, (a), (b) and (c), the proceedings are an abuse of process. The only proper exercise of discretion is to dismiss the entire proceedings.

6. Furthermore the plaintiff has failed to identify or give evidence of the decision he was challenging and failed to provide evidence to support the propositions he was advancing.
   

CONCLUSION

7. The proceedings are dismissed. There is no reason costs should not follow the event.

ORDER

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

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

Ordered accordingly,
________________________________________________________________
Meten Lawyers: Lawyers for the Plaintiff
Solicitor-General: Lawyer for the Defendant