N7913
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

O.S No. 252 & 354 of 2019

HUGO PRABON for himself and on behalf of the members of HWENA CLAN/ILGof Lido village, Vanimo
Plaintiff

And
GREG MAMBO, CHRIS MAMBO & EDDIE GOBLE
Defendants

Vanimo: Gora AJ
2019: 11th, 21st June

REAL PROPERTY – Customary Land – Application to dismiss entire proceedings – Matter relating to customary land dispute – Proceedings by Originating Summons – Seeking declaratory orders to recognize interests, use and control of customary land tantamount to declaration of ownership – National Court lacks jurisdiction under Land Dispute Settlement Act.

REAL PROPERTY – Customary Land – Dispute over ownership – Proceedings seeking declaratory orders intended to strengthen one party’s position. Proceedings commenced irregularly hence vexatious and abuse of process.

Cases Cited

John Kembu v Fred Tangole Vuho and Joe Ben Goru [2011] PGNC 217: N3988
Victor Golpak v Patrick Alongrea Kali; Alois Malori; Simon Kali; Felix Siname; Mumore Pty Ltd and Niugini Lumber Merchants Pty Ltd [1993] PNGLR491

Counsel:

Mr. I Mambei, for the Plaintiffs
Mr. B Lai, for the First to Third Defendant

JUDGMENT ON DEFENDANTS MOTION

21st June, 2019

1.	GORA AJ: INTRODUCTION: It is important to point out at the outset that there are two separate proceedings commenced by the plaintiff. First under O.S No. 252 of 2019 and second under O.S No. 354 of 2019. The parties are the same and the areas of customary land the subject of dispute are also the same in both proceedings. In these proceedings there are one each Notices of Motion on foot. In O.S No. 252 of 2019 is the defendants Notice of Motion dated 29th April 2019, seeking orders to set aside the courts ex parte orders of 17th April 2019 and to dismiss the two proceedings in their entirety. In O.S No. 354 the plaintiffs Notice of Motion dated 24th May 2019 seek orders to allow his clan and a third party, a contractor/developer to continue carrying on development works in the customary land areas, the subject of dispute and to recognize their interests, use and control over the disputed areas of land.

2.	I will hear defendants Notice of Motion first because its outcome will have bearing on the plaintiffs Notice of Motion.

3.	Defendants Notice of Motion seek orders as follows:

a)	That the ex-parte orders of this court dated 17th April 2019 be set aside forthwith;

b)	That the entire proceedings be dismissed and the plaintiff to pay the defendants costs of and incidental to both this application and the entire proceedings to be taxed, if not agreed.

c)	In the alternative, the company described as GREEN TIMBER (PNG) LIMITED be restrained forthwith from conducting any operations within the area of land the subject of the dispute between the parties in the Vanimo Local Land Court such land being described as ‘’PLANG-OH LAND” and the parcels of land known as ‘’’MOH LO’’ and ‘’ILOLO Hills’’ and such restriction to remain in force and effect until all the matters in dispute are resolved either between the parties themselves or by the court under the expressed provisions of the Land Dispute Settlement Act.

d)	That costs be in the cause.

e)	That the time for entry of these orders be abridged to the time of settlement by the Registrar which shall take place forthwith.

BACKGROUND FACTS

4.	On the 01st of April 2019 the plaintiff and his Hwena clan through its Incorporated Land Group (ILG) entered into a lease agreement with GREEN TIMBER (PNG) LIMITED to develop ‘’ILOLO HILL’’ portion of customary land for the purpose of constructing a log pond and a jetty which include waterways and an access road inland to Siossi Timber Rights Purchase (TRP) area.

5.	Consequent to the Lease Agreement GREEN TIMBER (PNG) LIMTED went ahead and brought its machineries and started clearing and developing the ‘’ILOLO HILL’’ portion of the customary land.

6.	On the 9th of April 2019 the Vanimo Local Land Court (LLC) issued Temporary Ex-parte Orders restraining any trespass or development of customary lands known as “PLANG- OH LAND” and parcels of land known as “MOH LOH” and ‘’ILOLO HILLS.’’ Application for such orders by the Local Land Court was purportedly made by the third defendant EDDY GOBLE on behalf himself and the other defendants.

7.	Documents in the court file show that the plaintiff made an attempt to file an application before the Local Land Court for variation of the Temporary Ex- parte Restraining Orders but the Local Land Court Magistrate refused to hear the application and instead wrote a small hand written note to the plaintiff dated 16th April 2019, advising him to take his complaint to the Vanimo District Administrator.

8.	Aggrieved by the informal response from the Local Land Court Magistrate in refusing to hear his application for variation of the Temporary Ex-parte Restraining Orders, the plaintiff commenced two proceedings in the National Court under O.S No. 252 and 354 of 2019 respectively involving the same parties and the same areas or parcels of disputed Land.

9.	In proceedings O.S No. 252, the plaintiff filed an Ex-parte Notice of Motion seeking orders to set aside the Local Land Court’s Temporary Ex- parte Restraining Orders of 9th April 2019. On the 17th of April 2019 this court (National Court) granted the plaintiff’s application with the following ex-parte orders:

a)	The Temporary Court Order of the Vanimo Local Land Court made ex-parte on 9th April 2019 restraining the plaintiff/applicant Hugo Prabon from trespassing or developing the land known as PLANG-HO LAND and the parcels of land known as MOH LO and ILOLO Hills be set aside.

b)	The respondents GREG MAMBO, CHRIS MAMBO and EDDIE GOBLE shall serve all necessary documents relative to their application for Temporary Restraining Orders upon the plaintiff HUGO PRABEN and other interested parties relative to the land in question for an inter parte hearing before an order for a ‘’Temporary Order’’ is made in view of a third party, a contractor/developer already engaged to develop the land and costs have already been incurred.

c)	Pending determination of customary ownership of the land by mediation under the provisions of the Land Dispute Settlement Act, parties must make every effort to assist the process of finding a lasting peace that is mutually beneficial to all of them instead of relying on the adjudicatory powers of the court to resolve their dispute.

d)	Costs in favor of the plaintiff.

10.	Then on the 29th of April 2019 the defendants filed this Notice of Motion seeking orders as re-stated in paragraph 3 of this judgment. Hence this decision.

ISSUES
11.	Should the ex-parte orders of this court dated 17th April 2019 be set aside?

12.	Should Green Timber (PNG) Limited be restrained from carrying on further works in areas of customary land subject of the dispute?

13.	Should proceedings under O.S No.252 of 2019 and O.S No. 354 of 2019 be dismissed in their entirety?

ARGUMENTS
14.	Essence of defendant’s argument is that the Court Orders of 17th April 2019 in O.S No. 252 of 2019 were made ex-parte and they were not aware of the proceedings nor were they served with the Originating process, Notice of Motion and any Supporting Affidavits. They say that the issue between the plaintiff and themselves is the subject of Local Land Court proceedings concerning the dispute of customary ownership of the land described as “PLANG OH LAND” and the parcels of the land known as “MOH LO” and “ILOLO HILLS.”

15.	They further argue that this court had no jurisdiction to decide on a matter which is properly before the Local Land Court and also that the plaintiff had commenced the two proceedings (O.S Nos. 252 & 354 of 2019) irregularly. They say the two proceedings are vexatious and abuse of process and therefore should be dismissed in their entirety.

16.	The plaintiff on the other hand argues firstly, that it agrees that the jurisdiction issues pertaining to ownership of customary land vests with the Local Land Court and not the National Court. However the defendant’s application for Temporary Orders in the Local Land Court was not served on him and his clan but the court (LLC) went ahead and made Temporary Orders restraining him and his clan and a third party, a contractor/developer from trespassing and or carrying on development works on the customary land described as “PLANG HO LAND” and the parcels of land known as “MOH LO” and “ILOLO HILLS.” He says this prompted him to file proceedings before this court under O.S No. 252 of 2019 basically seeking orders to set aside the Local Land Court’s Temporary Restraining Orders because there was no fair and proper hearing by the Local Land Court. And further for proper service of defendant’s application to be effected on him and the matter to be properly heard inter-parte in the Local Land Court. Consequently this court, presided by my brother, His honour Justice Kirriwom granted the plaintiffs application to set aside the Local Land Court’s Temporary Orders and made orders for the parties to return back to the said Local Land Court and pursue the matter properly and fairly.

17.	Second part of plaintiff’s argument is that, the defendants in their motion seek an alternative order that the company (contractor/developer) described as Green Timber (PNG) Limited be restrained from conducting any operations within the area of land the subject of dispute between the parties, such land being described as “PLANG-OH LAND” and the parcels of land known as “OH LO” and “ILOLO HILLS.” And further that such restriction to remain in force and effect until all the matters in dispute are resolved either between the parties themselves or by the court under the express provisions of the Land Dispute Settlement Act. Plaintiff also submits that such relief being sought must be accompanied by an UNDERTAKING TO PAY DAMAGES which has not been filed by the defendants. It is therefore erroneous to seek restraining orders against the company which is at present carrying out development works on the subject areas of land in dispute when an Undertaking to Pay Damages has not been filed. The question is who will pay for the costs when undertaking to pay damages has not been filed.

ANALYSIS OF ARGUMENTS
18.	The legal framework by which interests over customary land in Papua New Guinea are dealt with is under the Land Dispute Settlement Act. The preamble of this Act is specific. It reads:

‘’The purpose of this Act is to provide for the settlement of disputes in relation to interests in customary land by-
a)	encouraging self-reliance through the involvement of the people in the settlement of their own disputes; and

b)	the use of the principles underlying traditional dispute settlement processes.

19.	This statement is the fundamental basis upon which the Land Dispute Settlement Act is structured, thus allowing Papua New Guinean’s to settle disputes pertaining to their interests over customary land using their own traditional dispute settlement processes. One such process is the mediation process. The other processes are through the Local Land Court and the Provincial Land Court which are more of adjudicatory processes. Section 26 of the Land Dispute Settlement Act gives general jurisdiction to the Local Land Court to hear disputes over interests in customary land and also to approve Agreements arising from mediations. And Section 53 of the said Land Dispute Settlement Act gives appellate jurisdiction to the Provincial Land Court to hear appeals from the Local Land Court. The Provincial Land Court is the final court of appeal.

20.	It follows therefore that the National Court has no jurisdiction to deal with interests over customary land except by way of Judicial Review of decisions of the Provincial Land Court.

21.	The question is- why are these two proceedings O.S No. 252 of 2019 and O.S No. 354 of 2019 before this court.

Proceedings under O.S No. 252 of 2019
22.	This proceeding was commenced by the plaintiff by way of an Originating Summons dated 17th April 2019 seeking certain declaratory orders one of which is for a declaration that the Temporary Court Order of the Vanimo Local Land Court dated 9th of April 2019 be set aside or be struck out as it was not made in accordance with the provisions of Section 30 of the Land Dispute Settlement Act 1995.

23.	Plaintiff further filed an Ex parte Notice of Motion with a Supporting Affidavit on the same day 17th April 2019, seeking the same orders to set aside the Temporary Restraining Orders of the Vanimo Local Land Court dated 9th April 2019. And further that the defendants effect proper service of their application on him for a Temporary Order and that the application be heard inter parte in the Local Land Court.

24.	This Ex parte Notice of Motion came before my brother his honour Justice Kirriwom on the same day 17th April 2019. The court in relying on the affidavit evidence of the plaintiff found that the hearing of the application by the Local Land Court for Temporary Restraining Orders was done in the absence of the plaintiff, who was not given the opportunity to be heard by being served with relevant documents pertaining to the application. At paragraph 3 in page 2 of his written judgement his honour stated:

“After perusing the Originating Summons, the Notice of Motion and the Affidavit in support of the application, I reached the conclusion that the Temporary Order be set aside and the respondents (defendants in this case) pursue their application de novo after properly serving the court papers on the plaintiff and the application be pursued inter parte with both parties having interest in the customary land being present and accorded the right to be heard. As the parties have been in dispute over the traditional land in question over time of which they are all aware of their own circumstances, and now that one party, namely the plaintiff, Hugo Prabon, had entered into a contract with a third party and work has started, it was unfair on the part of the of the respondents to have quietly approached the LLC pursuant to Section 30 of the Land Dispute Settlement Act and secured the Temporary Orders without putting the plaintiff on notice and giving him the opportunity to be heard.”

25.      I cannot see anything irregular about his honour having heard the plaintiff’s application and arriving at that decision. The court did not, in my view, assume the role of the Local Land Court but instead exercised its inherent jurisdiction in the interest of justice by ensuring that the plaintiff was given the opportunity to be heard at the Local Land Court before Temporary Orders were made. The court in my view, correctly ordered for setting aside of the Local Land Court’s Temporary Orders of 9th April 2019 and directed for the respondents to serve on the plaintiff the relevant court papers for hearing of their application inter parte in the Local Land Court. Until these orders are complied with, I cannot disturb the Court Orders of the 17th of April 2019. These orders are, in my view meant to preserve the jurisdiction of the LLC and not to erode it. I therefore refuse the defendants first part of the motion to set aside the courts ex-parte orders of 17th April 2019.

26.      In respect of the third part of the defendant’s motion seeking orders to restrain Green Timber (PNG) Limited from continuing development works in the areas of land in dispute, I note that defendants have not filed any Undertaking to Pay Damages. This is an essential legal and procedural requirement and defendants have failed to comply with such requirement, particularly in view of the fact that the company has commenced work and has incurred substantial costs. I agree with plaintiff’s counsel that you cannot seek restraining orders without first filing an undertaking to pay damages. I am therefore unable to restrain Green Timber (PNG) Limited from carrying on with their work. In any case it is not a party to this proceedings so why should this court impose Restraining Orders on it when it is not a party and has not been given an opportunity to be heard in respect of this application. I therefore refuse the third part of the defendant’s motion. Consequently I further refuse to dismiss proceedings O. S No. 252 0f 2019 until the orders of this court dated 17th April 2019 are discharged by the defendants.

Proceedings under O.S No. 354 of 2019

27.      Defendants second part of the motion is to dismiss this proceeding. The proceeding was also commenced by the plaintiff by way of an Originating Summons dated 24th May 2019 seeking first, certain declaratory orders one of which is for a declaration that the Lease Agreement entered into between Green Timber (PNG) Limited and the Hwena Incorporated Land Group (ILG) on behalf of the plaintiff and his Hwena Clan of Lido village on the 01st of April 2019 is valid and legally binding on all concerned parties including the defendants. Second, a further declaratory order to recognize his Hwena Clan’s interests, use and control over the customary areas of land in dispute pending determination of any mediation.

28.      Plaintiff has also filed a Notice of Motion in this proceedings and is dated 24th May 2019. This motion has not been heard pending determination of defendants Notice of Motion in O.S No. 252 of 2015. The motion basically seek orders authorizing the plaintiff and his clan and their agents and associates to occupy and use the areas of land the subject of dispute whilst awaiting determination of their dispute over the subject areas of land.

29.     Declarations sought by the plaintiff are in my view unfair to the defendants and obviously not in the interest of justice. They are intended to strengthen the plaintiff’s own position in so far as the existing land dispute is concerned. This would be tantamount to giving ownership interests and rights to the plaintiff over the disputed areas of land for which this court has no jurisdiction to determine. This is an abuse of process and the entire proceeding appears to be vexatious. 

30.      I am reminded by the case of John Kembu v Fred Tangole Vuho and Joe Ben Goru [2011] PGNC 217: N3988 (8 April 2011). In this case the court held that Declaration sought to give effect to customary land ownership and recognizing and giving effect to a Local Land Court order on an agreement is tantamount to deciding ownership of customary land for which the National Court has no jurisdiction.

25.	Although the circumstances of that case are slightly different to the present case, the declarations sought by the plaintiff in O.S No. 354 of 2019 are intended to recognize the plaintiff’s interests over areas of land which are subject of the dispute. This is not right because this court cannot be dragged into jurisdictional crisis with the Local Land Court which has the ultimate responsibility to determine ownership interests under Land Dispute Settlement Act. 

26.	This position is well expressed in the case of Victor Golpak v Patrick Alongrea Kali; Alois Malori; Simon Kali; Felix Siname; Mumore PTY LTD and Niugini Lumber Merchants Pty Ltd [1993] PNGLR491: N1182 in which Doherty J stated:

“It seems to me that the spirit and intent of the legislature in passing the Land Dispute Settlement Act was to prevent the National Court from arbitrating on the forms of succession and hence, ownership or control of interests in customary land. I think therefore it would be going against both the letter and spirit of the legislation if I assume the powers to make declarations on what is an interest in land.”

27.      I adopt her Honours comments and stress again that in proceedings where declarations are sought purposely to strengthen one party’s position in a dispute over interests in customary land, such is deemed to be an abuse of process and is vexatious and should not be allowed at all.

ORDERS
28.     Thus on the basis of the forgoing I make the following orders:

i)	Application to set aside the Court Orders of 17th April 2019 in O.S No. 252 is refused and instead direct all parties to fully comply with those orders forthwith.

ii)	Application to restrain Green Timber (PNG) Limited from carrying out further works in the areas of land which are subject of the dispute is refused.

iii)	Courts Restraining Orders of 07th June 2019 are discharged.

iv)	Proceedings commenced by the plaintiff in O.S No. 252 of 2019 shall remain until the ex parte orders of this court dated 17th April 2019 are fully satisfied by the parties.

v)	Proceedings commenced by the Plaintiff in O.S No. 354 is dismissed in its entirety for abuse of process and being vexatious.

vi)	Parties to meet their own costs.			

Solwan Lawyers:		Lawyers for the Plaintiffs				
Brendan Lai Lawyers:	Lawyers for the First to Third Defendant