N9263
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
OS (HR) NO. 9 OF 2020

BETWEEN
LLOYD WEUTA FOR HIMSELF AND ON BEHALF OF THE GOMILA KAPOKPOUNA CLAN OF GANAIBEU, ALOTAU, MBP
Plaintiff

AND
OSWALD WELLINGTON –
COMMANDER, MOBILE IN ALOTAU, MBP
First Defendant

AND
DAVID MANNING AS COMMISSIONER OF POLICE
Second Defendant

AND
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Defendant

AND
BERNARD KUHEIYA
Fourth Defendant

AND
ASO LAND GROUP INC.
Fifth Defendant

AND
MPLC LIMITED
Sixth Defendant

AND
MECCA 44 LIMITED
Seventh Defendant

Alotau: Toliken J.
2020:  15th July, 18th September

CIVIL – Practice and Procedure – Dispute to customary land - Evictions - Human rights application – Proscribed acts – Arbitrary search and entry – Unjust deprivation of property – Constitution, ss 41, 44, 53.

PRACTICE AND PROCEDURE - Notice of Motion to dismiss – No reasonable cause of action – Frivolity – Abuse of process – Dispute over customary land – Human rights application – Cloak to advance claim to customary land – Abuse of process – Proceedings dismissed – Parties to pursue their interest in appropriate tribunal within 3 months – Interest of justice – Interim Restraining orders issued – National Court Rules, Order 12 Rule 40. 

Cases Cited

Augerea v Bank South Pacific Ltd (2007) SC869
Takori v Yagari (2008) SC905
Lerro v Stagg, The Sate & Ors (2006) N3050 

References Cited: 

S Injia and G Lay, Papua New Guinea Civil Procedure in the National Court (Colorcraft Ltd, Hongkong). 
 
Counsel:
A Baniyamai, for the Plaintiff
M Tukuliya, for the First, Second & Third Defendants
S Alberic, for the Fourth, Fifth, Sixth and Seventh Defendants 

RULING

18th September, 2020

1.	TOLIKEN J:	The Plaintiff Lloyd Weuta, acting on behalf of himself and the Gomila Kapokapouna Clan of Ganibeu, Alotau, Milne Bay Province, sought, by way of Originating Summons filed 19th March 2020, several declaratory orders against the Defendants. These are –

(1)	that the land described as HIHIYAOLA at Ganaibeu village, near Alotau, Milne Bay Province is not a State Lease or State land.
(2)	That the Defendants do not have title over the said land so as to entitle them to enter the said land and demolish home, carry out an eviction exercise and take steps to develop the said land and hence the said action amounts to a proscribed act under section 41 of the Papua New Guinea Constitution, null and void and of no effect.
(3)	That the eviction exercise, demolishing of homes and the steps employed by the Defendants since 12 February 2020, to develop the said and continuing to date is null and void and of no effect,
(4)	That the Defendants’ attempts to develop the said customary land without the Plaintiff’s consent amounts to unjust deprivation of property under section 53 of the Constitution and is null and void and of no effect.
(5)	That the actions of the First, Second and Third Defendants and their officers and employees in aiding and assisting the Fourth to Seventh Defendants in forcefully demolishing houses, evicting families and taking control and occupation of the said land since 12 February 2020, amounts to a breach of rights of the Plaintiff under the following sections 44 (Freedom from arbitrary search and entry) and Section 53 (Unjust deprivation of property).
(6)	An order that pending the trial of the proceedings or further orders of the Court the First, Second and Third Defendants and their officers and policemen be restrained from entering the said land and assisting and aiding the Fourth, Fifth. Sixth and Seventh Defendants to demolish houses and evict people from he said land or clear the said land and undertake any sort of development including the erection of fences and buildings and other structures on the said land. Furthermore, that the Defendants and their agents and employees be restrained from assaulting and threatening the Plaintiff and members of his family and that the Fourth, Fifth, Sixth and Seventh Defendants be restrained from carrying out any further eviction exercise and erecting or building and erecting or building fences and structures and undertaking any form of development of the subject land.

2.	Ex parte interim restraining orders were issued on 20th March 2020 awaiting inter partes hearing. 

3.	By Notice of Motion filed on 16th April 2020, the Fourth, the Fifth and the Sixth Defendants, among others, sought the following orders –

(1)	Pursuant to Order 12 Rule 40(1)(a)(b) and (c) of the National Rules the proceedings be dismissed in its entirety.
(2)	In the exercise of its inherent powers under Section 155 (4) of the Constitution, direct the Royal Paua New Guinea Constabulary, through the office of the Provincial Police Commander (Milne Bay Province) to investigate and charge the Plaintiff for fraud. 

4.	The motion is supported by the affidavits of Yokie Nikole Kiwiwi filed on 7th May 2020, the affidavit of Seido Kekei filed 7 May 2020 and that of Bernard Kuheiya also filed on 7th May 2020.

5.	The Plaintiff opposed the motion.

6.	Order 12 Rule 40 upon which the defendants rely to support their motion to dismiss provides –

40.    Frivolity, etc. (13/5)
(1)     Where in any proceedings it appears to the Court that in relation to the proceedings generally or in relation to any claim for relief in the proceedings—
(a)  no reasonable cause of action is disclosed; or
(b) the proceedings are frivolous or vexatious; or
(c)  the proceedings are an abuse of the process of the Court,
the Court may order that the proceedings be stayed or dismissed generally or in relation to any claim for relief in the proceedings.
(2)	The Court may receive evidence on the hearing of an application for an order under Sub-rule (1).

7.	The Fourth, Fifth and Sixth Defendants rely on all three grounds under Rule 40 viz., no reasonable cause of action, frivolity or vexatiousness and abuse of process. Hence the issues to determine are –

(1)	Do the proceedings disclose a reasonable cause of action?
(2)	Are the proceedings frivolous or vexatious?
(3)	Are the proceedings an abuse of process? 

8.	The court’s power to dismiss a cause of action under this rule is well settled – the principal reason being the protection of its process from abuse. The power is, however, discretionary and must be exercised according to law with the aim of doing justice so that a litigant should not be driven from the seat of judgment in a summary or perfunctory manner. 
 
9.	In Lerro v Stagg & The State & Ors (2006) N3050 Kandakasi J (as he then was) reviewed the existing authorities and summarized the prevailing principles pertaining to the court’s powers under Order 12 Rule 40. This were later approved by the Supreme Court in Augerea v Bank South Pacific Ltd (2007) SC869 (Salika J (as he then was), Jalina and Kandakasi JJ) and Takori v Yagari (2008) SC905 (Gavara-Nanu, Kirriwom and Kandakasi JJ).  The principles are succinctly summarized by the learned authors of Papua New Guinea Civil Procedure in the National Court in the following manner –

(1)	The Constitutional right to be heard cannot be lightly set aside. No litigant should be summarily driven from the judgment seat without being accorded the right to be heard.
(2)	The relevant rule exists to protect or safeguard against abuse of the process of the court.
(3)	The object of the Rules is to filter or stop frivolous or vexatious or unsustainable cases.
(4)	A claim may be frivolous if it is so obviously untenable that it cannot possibly succeed or that the claim or defence is bound to fail if it proceeds to trial.
(5)	A claim or defence may be vexatious if the case amounts to a sham or one which cannot succeed and is one that amounts to harassment of the opposing party who is unnecessarily put to the trouble and expenses of defending or proving the claim.
(6)	To disclose a “cause of action” the plaintiff must plead all the facts that will be necessary for him to support his right to judgment.
(7)	A statement of claim or defence (as the case may be) must therefore clearly plead all legal elements and facts (not evidence) giving rise to the form of action. Where the pleading is ambiguous or lacking in particulars such that it does not facilitate orderly and rational pleading which would enable the issues to be identified, but leaves that to guesswork, it should be struck out.
(8)	The Court’s power to strike out must be used sparingly and only in cases which are plain and obvious, so that even if all of the pleading was proven it would not entitle the party to what it seeks.
(9)	Where a deficiency in the pleadings can be cured by an order for particulars, that does not entitle a party to ask for particulars.

10.	Mr. Alberic submitted on behalf of the Defendants that the proceedings are an abuse of process. The Plaintiff filed these proceedings in the guise of a human rights application because he has exhausted the process in the Land Courts which are the appropriate courts to deal with his claim to ownership of the land in question.  That, counsel said can be clearly seen from the fact that he had, after filing these proceedings, written to a Mrs. Hina Mark (Land mediator I presume) of Huhu Local Government requesting for a mediation of the matter. (Annexure “P” to the Plaintiff’s affidavit sworn and filed on 19 March 2020 instead of obtaining restraining orders in the Land Courts.

11.	Counsel also argued that the Plaintiff has not shown that he was directly affected by the eviction exercise by the police and that he has not shown that he suffered loss of property such as houses. And that is because he resides elsewhere and not on the subject land. 

12.	Mr. Alberic submitted that the Fourth Defendant Bernard Kuheiya had issued Notices to the people settling on the land on 29th August 2018. (See Annexures W1 -W12 of the Plaintff’s affidavit sworn 30th April 2020 and filed on 07th May 2020) The actual eviction happened a year later in September 2019.

13.	In respect of the particular eviction of February 2020, which counsel said attracted wide media attention, the Defendant Bernard Kuheiya assisted the Alotau District Administration to repatriate the affected settlers and that as he (Bernard Kuheiya) was clearing the area the Plaintiff simply stood idly by.

14.	And while the Plaintiff says that there is no finality of the matter and speaks of a mediation in 2019 there is no proof of such. However, nine clans of Ganaibeu did meet with Magistrate Avarosi who advised them that the matter had been settled by the Land Courts in favour of Nikole Kiwiwi. (See Annexures “D” and “e” to the Plaintiff’s main affidavit).

15.	  The Plaintiff ought therefore to have applied to the Local Land Court for the review of those orders or alternatively invoke the National Court’s review jurisdiction.
 
16.	Counsel submitted that this matter has gone through the courts below numerous times as shown by the affidavit evidence. For instance, Annexure N to Bernard Kuheiya’s affidavit clearly shows that the Mediators [Hina Mark and Teloti Togilibu] had confirmed that the matter had been resolved in the Local and Provincial Land Courts and cannot be remediated when the matter was referred to them for mediation.
 
17.	A further reason why the Plaintiff’s claim is an abuse of process is borne out by the fact that he was a co-signatory with Nikole Kiwiwi and others as representatives of Gomila Siona Clan, to a Clan Land Usage Agreement which allowed Anna Gutab (Bernard Kuheiya’s wife) to build a house on the subject land. 

18.	There have been restraining orders issued, one of which was issued by Magistrate Ndranou wherein His Worship ordered the parties to file documents to support their competing claims and when the Plaintiff failed to file his supporting documents the matter was dismissed. (See Annexure K and M of Bernard Kuheiya’s affidavit)
 
19.	In respect of the Plaintiff’s claim that his late uncle, from whom he has succeeded in authority, has equal share to the subject land by force of an order of the Local Land Court which approved an agreement between Sam Gamaedi and Nikole Kiwiwi, the Defendants claim that this was a fraud as mediators who purportedly mediated the agreement have all signed affidavits denying such an agreement or their involvement therein. (See Annex P Q R and S to Bernard Kuheiya’s affidavit)

20.	Counsel submitted that the Plaintiff is presenting false information before this Court which had been rejected in the çourts below and therefore this claim has no basis. It is an abuse of process because the Plaintiff was never evicted from the land, his houses were never demolished nor destroyed, and he does not reside on the subject land.

21.	And in any event the fundamental issue in this matter is a dispute over the subject customary land.

22.	Mr. Tukuliya for the First, Second and Third defendants sought to raise from the bar table the issue of Section 5 Notice under the Claims By and Against State Act 1996 without having filed a proper application. This was an incompetent and misconceived attempt and was quickly stifled by the Court.

23.	Mr. Baniyamai, on the other hand, argued for the Plaintiff that the 4th Defendant raised a lot of factual issues. The Plaintiff, however, relies on the evidence in his affidavits of 19th March 2020 and 14th July 2020 wherein he asserts his rights through his late uncle Sam Gamaedi who had disputed Nikole Kiwiwi over the subject land. That dispute was resolved through a Mediation Agreement which was later endorsed by the Local Land Court wherein the parties agreed to have equal rights to the land. Sam Gamaedi passed his rights on to the Plaintiff (See Annexure C and H of his affidavit of 20 March 2020)
24.	 In respect of the eviction exercise Mr. Baniyamai submitted that there was no court order to evict people and demolish their houses, let alone a Notice to Quit from authorized officers of the State. The exercise affected multitudes of people. The Plaintiff attempted to confront the policemen but was shouted down with vulgar insults and threats.

25.	Mr. Baniyamai submitted that the Plaintiff had been trying his best to have his interest in the land recognized in the Land Courts but to no avail. Counsel further submitted that the fact that there is a dispute, does not stop the National Court from dealing with the matter because no title has been issued in respect of the subject land. And even though the 4th Defendant has incorporated his Land Group, that does not automatically confer a title to the Land Group to those portions of land they may have named in their application for incorporation.  Registration of customary title is a different process.

26.	Mr. Baniyamai submitted that the court should not be quick to drive the Plaintiff from the judgment seat because it is a court of justice. It should therefore allow the proceedings. 

27.	The cause of action, Counsel submitted is not improperly pleaded nor is it not founded in law as contended by the defendants. The essence of these proceedings is founded on the illegal evictions by the police. The proceedings are grounded on human right abuses which are sanctioned by the Constitution, Section 41 (Proscribed Acts), Section 44 (Freedom from arbitrary search and entry) and Section 53 (unjust deprivation of property). These are rights which are enforceable in this Court at the insistence of a party pursuant to Order 23 of the National Court Rules or on the Court’s own volition.

28.	Essentially, all that the Plaintiff wants is for the evictions to cease. Counsel submitted that no consequential orders are immediately needed for a permanent injunction but if needed the originating Summons may be appropriately amended.

29.	So, are these proceedings an abuse of process, show no reasonable cause of action or frivolous? 

30.	The subject land has a long and sordid history which started way back in 1991. The Local land Court, in a dispute between the Modewa Clan represented by Himaleia Deilala and Waneleko Ituwabe and	the Gomila Clan represented by Nikole Kiwiwi, award ownership of the subject land to the Gomila Clan on 11/02/92. The said order was subsequently confirmed on appeal by the Provincial Land Court on the 06th July 1994. 

31.	Since the making of those orders, numerous proceedings were taken in the District and Land Courts. Some of these were for breach of the orders and some appeared to have been attempts to relitigate the matter. Various mediations were attempted culminating in agreements purportedly reached and subsequently endorsed by the Local Land Court.
 
32.	The first of these was a mediated agreement which granted equal shares to the subject land to Sam Gamaedi and Nikole Kiwiwi dated 21 May 1998 by Mediators C Naikonedi, P Koleni, O. Belito , B. Kemoa and T. Kakei. The agreement was certified by the mediators on 6/5/99.  An application for Approval was lodged in the Local Land Court on 21st May 1999. It was approved by Magistrate Mekeo Gauli on 09/08/99. 

33.	The effect of this is that it became a binding order of the court. The mediators named in the agreement subsequently denied their involvement in mediating the said agreement.

34.	A further agreement was signed before Principal Magistrate Iova Geita (as he then was) on 24th June 2009. Nikole Kiwiwi represented the Gomila Siona Clan and the Aso Land Group Inc. over a portion of the Ganaibeu land described as Goilawaligeha, which, I believe is separate from the subject land. That agreement settled the ownership of that portion of land to Mr. Parukeikei Pikoli while acknowledging that the Gomila Siona clan is the primary landowner of all lands at Ganaibeu.

35.	It is apparent to me that despite the orders of the Land Courts awarding the ownership of the subject land to the Gomila Siona Clan which was represented in those proceedings by Nikole Kiwiwi, there has been festering intra-clan disputes between Nikole Kiwiwi and Sam Gamaedi and their successors.

36.	If the Plaintiff in this matter sought an order to have himself and his clan or sub-clan declared as owners of the subject land, then this court would not be seized of jurisdiction. The matter would fall within the exclusive jurisdiction of the Land Courts. The National Court would only be vested with jurisdiction if the proceedings were a judicial review under Section 155 (4) of the Constitution.

37.	Conversely, if the declarations sought are to enforce human right breaches, then the Court would definitely be vested with jurisdiction pursuant to section 57 of the Constitution which provision is given effect to by Order 23 of the National Court Rules. 

38.	It is therefore appropriate to closely scrutinize the declarations sought by the Plaintiff. 

39.	The first declaration sought is that the subject land is not a State Lease or State land.  There is no dispute that the subject land is not State land or a State Lease. The land is held under customary tenure and has always been. 
 
40.	I do not see the utility or relevance of this relief. But for argument’s sake, the counter argument implicit in such a declaration would be that it is customary land. This would immediately bring the matter out of the jurisdiction of the National Court because disputes as to whether land is or is not customary land properly lie in the exclusive domain of the Land Titles Commission pursuant to Section 15 (1) of the Land Titles Commission Act. 

41.	The second Declaration sought is that the Defendants have no title over the subject land to entitle them to enter the land and demolish homes and carry out an eviction exercise and take steps to develop the land which actions the plaintiff alleged to be proscribed acts under Section 41 of the Constitution.

42.	A close scrutiny of this relief appears to me to be clearly propagating a competing claim to the ownership of the subject land, which, of course is supported by the evidence before me, having regard to the long history of litigation in the Land Courts and District Court since the Land Courts awarded ownership of the subject land to the Gomila Clan. That the second leg of the relief seeks to nullify the eviction exercise that had taken place on the subject land on the basis that it is a breach of Section 41 of the Constitution, does not, however, detract from the substance and essence of the Plaintiff’s real contention – his claim to a superior, if not, exclusive right to the land.
 
43.	The third and Fourth declarations sought are very similar to the Second and again these grounded on the Plaintiff’s purported superior claim to the subject land. 

44.	 The fifth relief seeks a declaration that the First, Second and Third Defendant’s actions in entering the subject land and assisting the Sixth and Seventh Defendants to forcefully demolish houses and evict families and taking control of and occupying the subject land amounts to an arbitrary search and entry and unjust deprivation of property contrary to Sections 44 and 53 of the Constitution.

45.	There is no question that without a valid court order in pursuance of a legally recognized right that the land is vested in the Plaintiff or a Notice to Quit issued under the Land Act 1996, the First, Second and Third Defendants and their employees and agents would indeed be in breach of those constitutional provisions.
 
46.	I note, however, that apart from his claim to the subject land, the Plaintiff has not shown that he had suffered personally from the evictions or that his house(s) have or had been demolished. 

47.	Constitutional rights are rights in personam. None of the persons who were evicted or whose houses were demolished has joined the Plaintiff in this action. And if he represents them, he has not shown his authority from them to represent them in these proceedings.

48.	 A claim to protection from arbitrary search and entry would appear proper at a cursory glance, but when considered against the Plaintiff’s real contention, this claim falters. He is obviously disputing the land and he cannot prevail, given the competing claims and orders pertaining to the subject land. But then again, if the alleged breaches and trespass and been occasioned personally against the Plaintiff things would be a lot different.

49.	The sixth relief seeks interim orders to restrain the First, Second and Third Defendants and their employees and agents from assisting the Fourth, Fifth, Sixth and Seventh Defendants from demolishing  and evicting people from the said land and clearing and undertaking any sort of development including erection of fences  and building and other structures thereon, and that the defendants and their agents and employees be restrained from issuing threats  and assaulting the Plaintiff and members of his family. And finally, the Plaintiff seeks orders to restrain the Fourth, Fifth, Sixth and Seventh Defendants from undertaking any development on the land. This relief appears to be well founded because the State and its agencies were obviously not acting under any lawful authority, be it a court order or a Notice to quit issued under the Land Act.

50.	Having said all these, I find that the proceedings are an abuse of process. Whilst they ostensibly seek to protect human rights breaches under the Constitution, this is but a cloak for the real issue vexing the Plaintiff – his competing claim to a superior, if not, exclusive rights to the subject customary land.

51.	 The Plaintiff had recourse to the Land Courts to pursue his claim. The principal orders that resolved the ownership of the subject land was made in 1992. Section 44 of the Land Disputes Settlement Act allows orders of the Local Land Court to be reviewed after 12 years, if the circumstances of the parties to the dispute had changed. 

52.	Nothing in the material before me shows that this option was taken by the Plaintiff or the 4th Defendant for that matter. That may be understandable given their differences. However, the procedure is there available to them. Instead, what has happened is a string or litany of enforcement proceedings in the District Court, in the course of which, magistrates had made observations, most of which appear to recognize the existing orders.

53.	 The Plaintiff also had recourse to the inherent review jurisdiction of the National Court. There is no evidence that he had taken that option belated as it might be. Whether or not he can succeed in invoking the jurisdiction of the Court is best left for another time when the occasion arises, but the point is that he had those options available to him.

54.	 The Plaintiffs proceedings are therefore dismissed for abuse of process. 

55.	But having so ruled, I must say that this Court is a court of justice, and I cannot turn a blind eye to the situation at hand, which may turn for the worst.  I am satisfied that the First Defendant and his men had carried out an eviction exercise which appear to have not been legally authorized. The First, Second and Third Defendants should therefore be restrained from further entering the subject land and assisting the Fourth, Fifth, Sixth and Seventh Defendants in pursuance of their activities on the said land without a valid court order. They should also be restrained from harassing and issuing threats or assaulting the Plaintiffs and members of his family.

56.	And since the controversy will not go away by itself and that it cannot be expected that the Plaintiff and the Fourth Defendant will quickly resolve their differences, justice demands and in the interest of maintaining peace between them, orders ought to be issued for these parties to cease all activities on the land and keep the peace to maintain the status quo until they take appropriate action before the appropriate tribunals. 

57.	Any such orders should, however, not be made permanent but fixed for a certain period, within which time the parties must take appropriate action. A three-month period should be sufficient for the parties to do that. After that, the orders should automatically cease.

58.	Finally, the Defendants had sought orders in their motion to direct the police to charge the Plaintiff for fraud. I will not accede to such a request because to do so would be contrary to the Constitution, Section 197(2) which provides that in the performance of their function to lay and prosecute charges, members of the Police Force are not subject to any direction or control of any person outside the Force. And this includes the courts.
  
59.	My orders are therefore these:

1.	Subject to the succeeding orders, the Plaintiff’s proceedings are dismissed in their entirety for being an abuse of process.

2.	In the interest of justice, the First Defendant, Second and Third Defendants and their agents and employees are restrained from further entering the subject land and from assisting the Fourth, Fifth, Sixth and Seventh Defendants in pursuance of their activities on the said land without a valid court order, and they are further restrained from harassing and issuing threats or assaulting the Plaintiffs and members of his family.

3.	In the interest of justice and in the interest of pursuing peace between the parties and maintaining the status quo, the Plaintiff and the Fourth Defendant and their relatives, assigns and agents are ordered to keep the peace between each other and they are further ordered to, within, three months from today take appropriate action before the appropriate tribunal(s) to resolve their long-standing dispute over the subject land.

4.	Orders No. 3 (above) shall remain in force for a period of three months.

5.	The Plaintiff shall pay the Defendant’s costs which will be taxed if not agreed upon.

Ordered accordingly.

Baniyamai Lawyers: Lawyers for the Plaintiff	
Solicitor General: Lawyers for the First, Second & Third Defendants
Alberic Lawyers: Lawyer for the Fourth, Fifth, Sixth & Seventh Defendants