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Mijare v Samkum [2021] PGNC 211; N9052 (17 August 2021)

N9052

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS NO.774 OF 2019

BETWEEN:
KEVIN MIJARE
Plaintiff

AND:
JOHN SAMKUM
First Defendant

AND:
DIGICEL PNG LIMITED
Second Defendant

Waigani: David, J
2021: 16^th &17^th August

PRACTICE AND PROCEDURE – jurisdiction of National Court in relation to dispute as to customary land ownership – Local Land Court decision in favour of plaintiff – appeal filed in Provincial Land Court – question of time bar for filing appeal raised by plaintiff – appeal pending determination – Court’s inherent jurisdiction - National Court Rules, Order 10 Rule 9A(15)(1)(a) and (2)(d) and (e).

Cases Cited:

Karl Paul v Aruai Kispe, The Regional Manager, PNG Forest Authority — Lae (2001) N2085
Anderson Agiru v The Electoral Commission & The State (2002) SC687
Kerry Lerro v Philip Stagg (2006) N3050
Philip Takori v Simon Yagari (2008) SC905
PNG Ports Corporation Limited v Canopus No 71 Ltd (2010) N4288
Louis Lucian Siu v Wasime Land Group Incorporated (2011) SC1107
Talibe Hegele v Tony Kila (2012) SC1180
Doriga Mahuru v Hon Lucas Dekena (2013) N5305
Manub Edom v Wanor Agun (2015) N6076

Counsel:

Roland Lenalia, for the Plaintiff
Livai Kuaken, for the First Defendant
John Munnull Jnr, for the Second Defendant

RULING

17^th August, 2021

1. DAVID, J: INTRODUCTION: This is a ruling on an application brought before the Court by notice of motion filed by the Second Defendant, Digicel (PNG) Limited on 6 July 2021 seeking an order to dismiss the proceedings pursuant to Order 10 Rule 9A(15)(1)(a) and (2)(d) and (e) of the National Court Rules and the inherent jurisdiction of the Court.
   

2. The motion is supported by the:

1. Affidavit of John Munnull sworn and filed on 6 July 2018 (Doc 29);
2. Affidavit in Response of Eunice Kapu sworn on 4 December 2019 and filed on 5 December 2019 (Doc 8); and
3. Affidavit of Witness of Patrick M. Halpie sworn 9 March 2019 and filed on 10 March 2019 (Doc 13).
   

3. Leave was granted for the First Defendant to be represented by his counsel, Livai Kuaken at the hearing. The First Defendant does not rely on any affidavit.

4. The Plaintiff relies on the following documents:

1. Affidavit in Support of Kevin Mijare sworn and filed on 29 October 2019 (Doc 3); and
2. A copy of an order issued by Maprik District Court Magistrate, F Kambibel in LC 02 of 2017, Kevin Mijare v John Samkun dated 27 April 2017 (the Local Land Court order of 27 April 2017).
   

5. The Plaintiff contests the application.

SUBSTANTIVE CLAIM

6. In the originating summons filed on 29 October 2019, the Plaintiff claims:

1. A declaration that the Plaintiff is the legitimate landowner of the customary land described as Rekwikim situated at Drekikir Government Station where Digicel Tower No.3702 was constructed pursuant to a Local Land Court order of 27 April 2017.
2. A declaration that ownership of the customary land vests in the Plaintiff as clan leader of the Koki Clan and that the Plaintiff is the traditional and customary landowner.
3. A declaration that the Lease Agreement executed between the First and Second Defendants is void with no legal effect.
4. Costs of the proceedings.
5. An order that the Second Defendant pay all future rentals for Digicel Tower No.3702 to the Plaintiff.
   

LEGAL ISSUES

7. The main legal issues that require my consideration and decision are:

1. Whether the Court has jurisdiction to deal with the matter in which the issue of customary ownership of land arises?
2. Whether the Plaintiff has locus standi or standing to bring this action if the disputed land is State land?
   

JURISDICTION
Parties’ submissions

8. The Second Defendant contends that this Court lacks jurisdiction and therefore the proceedings are an abuse of the process of the Court as the matter involves a dispute over customary land title, ownership or interest pertaining to the piece of land the subject of these proceedings namely, Rekwikim situated at Drekikir Government Station, East Sepik Province (Rekwikim) where its Mobile Base Station or communication Tower No.3702 (Digicel Tower No.3702) is situated which is yet to be determined by the Provincial Land Court on appeal from a decision of the Local Land Court.

9. The application is supported by the First Defendant.

10. On the converse, the Plaintiff argues that this Court has jurisdiction as; the customary land dispute, the subject of these proceedings, was considered in his favour by the Local Land Court at Maprik on 27 April 2017; the time to appeal the decision of the Local Land Court by the First Defendant had long expired so the decision of the Local Land Court stands which was confirmed by the order of the Local Land Court of 13 September 2018 and a letter from the Clerk of Court of the Maprik District Court to the Second Defendant dated 27 February 2019; and the appeal purportedly lodged by the First Defendant was incompetent and void ab initio.

Consideration

11. Order 10 Rule 9A(15)(a) and (2)(d) and (e) of the National Court Rules states:

15. SUMMARY DISPOSAL.

(1) The Court may summarily determine a matter:

a. on application by a party; ....

(2) The Court may summarily dispose of a matter in the following situations:

....

4. under any of the grounds set out in Order 12 Rule 40 and Order 8 Rule 27 of the National Court Rules.....
5. on any competency ground relating to non-compliance with the National Court Rules or any other relevant rules of Court.
   

12. Order 8 Rule 27 of the National Court Rules states:

27. Embarrassment, etc. (15/26)

(1) Where a pleading —

(a) discloses no reasonable cause of action or defence or other case appropriate to the nature of the pleading; or

(b) has a tendency to cause prejudice, embarrassment or delay in the proceedings; or

(c) is otherwise an abuse of the process of the Court,

the Court may at any stage of the proceedings, on terms or otherwise, order that the whole or any part of the pleading be struck out.

(2) The Court may receive evidence on the hearing of an application for an order under Sub-rule (1).

13. Order 12 Rule 40 states:

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).

14. Under Order 10 Rule 9A(15)(1)(a) and (2)(d) and (e), Order 8 Rule 27(1) and Order 12 Rule 40(1) of the National Court Rules, proceedings may be summarily disposed of either by being dismissed or pleadings struck out if they; do not disclose a reasonable cause of action; or are frivolous and vexatious; or are an abuse of the process of the Court; or they have a tendency to cause prejudice or have a tendency to cause prejudice, embarrassment or delay in the proceedings.

15. The Court’s power to strike out pleadings or stay or dismiss proceedings under any of the grounds specified in Order 8 Rule 27(1) and Order 12 Rule 40(1) is discretionary and also by its inherent jurisdiction, it has power to protect and safeguard any abuse of its processes.

16. Order 8 Rule 27 is very similar to Order 12 Rule 40. The principles to apply are therefore similar except that the outcomes are different. Under Order 8 Rule 27, the Court may at any stage of the proceedings, on terms or otherwise, strike out the whole or any part of a pleading. Under Order 12 Rule 40, the Court may stay the proceedings or dismiss the proceedings, either generally or in relation to any claim for relief in the proceedings. Evidence may be received by the Court on the hearing of an application for an order under both rules.

17. Those principles were summarised by Kandakasi, J in Kerry Lerro v Philip Stagg (2006) N3050 and endorsed by the Supreme Court in Philip Takori v Simon Yagari (2008) SC905 and they are set out below:

“1. Our judicial system should never permit a plaintiff or a defendant to be “driven from the judgment seat” in a summary way, “without a Court having considered his right to be heard.” A party has a right to have his case heard, as guaranteed by the Constitution and the laws of the land. The Rules are designed to enhance those rights and to ensure the prompt and fair disposal of matters coming before the Court. That right cannot be lightly set aside.

2. At the same time however, the law such as the Rules under consideration provide for and the Court has an inherent jurisdiction to protect and safeguard against any possible abuse of the processes of the Court.
3. The object of these rules are therefore “to stop cases which ought not to be launched — cases which are obviously frivolous or vexatious or obviously unsustainable.” In other words “the object of the rule was to get rid of frivolous actions.”
4. A claim may be frivolous if it can be characterized as 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. With regard to the issue of disclosing a reasonable cause of action or defence, the Court must be clear that there are two (2) parts to the phrase “cause of action”. First, it entails a right given by law such as an entitlement to reasonable damages for breach of human rights under s.58 of the Constitution, commonly referred to as the “form of action”. Secondly, it entails the pleadings disclosing all the necessary facts which give rise to the form of action.
7. The phrase “cause of action” could thus be defined in terms of a legal right or form of action known to law with:

“every fact which it would be necessary for the plaintiff to prove, if traversed, in order to support his right to the judgment of the court. It does not comprise of every piece of evidence which is necessary to prove each fact, but every fact is necessary to be proved.”

8. A statement of claim or a defence (as the case may be) must therefore clearly plead the form of action by pleading the necessary legal elements or ingredients of the action and relevant and necessary facts (not the evidence) giving rise to the form of action. It follows therefore that, where a statement of claim or a defence is so ambiguous or lacking in particularity that it does not facilitate orderly and rational pleadings, which would enable the real issues to be identified, and instead leaves it to guess work, it should be struck out.
9. These rules provide a summary judgment procedure or remedy which is available to a plaintiff or a defendant, and one which vests and calls for an exercise of a discretion by the Court.
10. The discretion must be exercised sparingly and only in a case where the statement of claim or the defence (as the case might be) is “obviously and almost incontestably bad.” In other words this discretion can be exercised only in cases that “are plain and obvious so that the master or Judge can say at once that the statement of claim [or defence] as it stands, is insufficient, even if proved, to entitle the plaintiff [defendant] to what he asks for.
    

18. To these principles, His Honour added:

“[T]he pleadings must be so bad and or vague and is not a case of lack of particulars or a lack of better pleading which cannot be cured by a request and or orders for further and better particulars and or amendment respectively under O.8, rr. 36, 50 or 51 of the Rules. Lack of particulars or lack of better pleadings is distinctly separate from a failure to disclose a reasonable cause of action or an action that is frivolous, vexatious or harassment. As such, clear and separate consequences follow. There is provision under the rules for requesting and or orders for further and better particulars or better pleadings as opposed to a right in a defendant or an opposing party to apply for a dismissal straightaway. A party must be careful not to ask for and the Court must stop to ensure that it is not being asked to dismiss a claim because of lack of particulars or lack of proper pleading which can be cured by appropriate amendments to the pleadings. Regard must also be had to the fact that the Rules are not an end in themselves but a means to an end and by reason of which a strict compliance of the Rules can be dispensed in the interest of doing justice in accordance with O.1, r.7 of the Rules in appropriate cases.”

19. The Supreme Court in Anderson Agiru v The Electoral Commission & The State (2002) SC687 summarised the basic principles to apply when considering whether the proceedings were an abuse of process of the court as follows:

“Those principles in essence are that, the court’s inherent power is its authority to do all things that are necessary for the proper administration of justice. Such inherent power consists of all powers reasonably required to enable the court to perform efficiently its judicial functions and to protect its dignity and integrity. Essential to those inherent powers is the court’s duty to protect itself by ensuring that vexatious litigants do not abuse the court’s process by instituting frivolous or vexatious suits. It behoves litigants therefore to carefully choose their causes of action before they commence proceedings in this court purporting to enforce their rights. The court should summarily dismiss the proceedings it considers frivolous, vexatious or is an abuse of process. (see generally, Ronney Wabia v BP Exploration Operating Co. Ltd & Ors, Unreported National Court Judgment N1697 dated 28 March 1998).

In The State v Peter Painke [1976] PNGLR 210, O’Leary AJ emphasized that:

“mere motive, however reprehensible, will not be sufficient” (to constitute abuse of process) it must be shown that, in the circumstances in which the interposition of the court is sought, the remedy would be unsuitable, and would enable the person obtaining it fraudulently to defeat the rights of others, whether legal or equitable.”

The court must ensure that a multiplicity of proceedings is not commenced by unsuccessful litigants. That is that a litigant having selected one mode of proceeding and having failed to obtain a remedy, cannot generally be entitled to then institute an alternative proceeding seeking the same remedy that was denied in the earlier proceeding.”

20. In Karl Paul v Aruai Kispe, The Regional Manager, PNG Forest Authority — Lae (2001) N2085 Injia, J held:

“This Court has wide powers to control the conduct of proceedings before it, subject of course, to jurisdictional limitations fixed by Statute. It is in the inherent jurisdiction of the Court to take firm control of the proceedings to ensure that the business of the Court is conducted in an orderly and fair and timely manner and to ensure that justice is done in the particular case.....

There is a wide discretion vested in the Court by the NCR to screen and weed out claims which do not disclose as reasonable cause of action, are frivolous and vexatious or an abuse of process of the Court, (O12 r40) or the documents filed in Court is scandalous, irrelevant or otherwise oppressive (O2 r29), or on the ground of irregularity. That discretion is normally exercised upon application by an interested party. Nevertheless, it goes without saying that the Court may exercise that discretion on its own initiative. It is open to the Court to raise and determine questions concerning the regularity (O1 r1-9) or competency of proceedings at any stage of the proceedings with or without application by an interested party.”

21. I have read and considered all the affidavit material relied on by the parties and the Local Land Court order of 27 April 2017. The material and dispositive facts that form the basis of the dispute between the parties may be summarised as follows.

22. The Plaintiff and the First Defendant are bickering about the ownership of Rekwipim where Digicel Tower No.3702 was constructed. The First Defendant and Second Defendant entered into a lease agreement dated 20 September 2011 for the Second Defendant to lease from the First Defendant an area of land measuring 15 metres x 15 metres (225 square metres) for a term of 10 years at an initial annual rental of K3,000.00 payable six monthly in advance for the purpose of constructing thereon, installing, operating and maintaining the Digicel Tower No.3702 (the Lease Agreement). The customary land dispute was processed through mediation and eventually brought to the Local Land Court at Maprik when on 27 April 2017 the court declared that Rekwikim was owned by the Koki Clan of Musemblem village of Drekikir. The court also declared that the Plaintiff as Clan leader and representative of Koki Clan held the land on behalf of the clan. The court also ordered that; all or any prior agreement entered into by the First Defendant were revoked; Digicel Tower No.3702 remain and that a new agreement be entered into between the Plaintiff and the Second defendant; and that all or any outstanding rentals be paid to the Plaintiff. The Local Land Court order of 27 April 2017 was subjected to what, on the evidence, was an application to review which was dismissed on 13 September 2018 for being an abuse of the process of the Court. The Local Land Court also ordered that the Local Land Court order of 27 April 2017 was valid and effective and the Plaintiff was entitled to the fruits of the judgment. On 12 December 2018, the First Defendant filed an appeal against the decision of the Maprik Local Land Court made on 13 September 2018 by way of Notice of Appeal in the Provincial Land Court at Wewak, PLC 01 of 2018, John Samkum v Kevin Mijare. The appeal is pending.

23. The settlement of disputes relating to customary land in Papua New Guinea is regulated by the Land Disputes Settlement Act, Chapter 45. Section 3(1) states that subject to sub-section 3(2) and Section 4, the Act applies to disputes as to interests in customary land or as to position of boundaries of any customary land.

24. The Land Disputes Settlement Act establishes the mechanism for settlement of disputes relating to customary land in three stages. The first stage is by mediation under Part III (Mediation of Land Disputes) (Sections 9-20). The second stage is where mediation fails, the dispute may be referred to the Local Land Court for hearing and determination of the dispute under Part IV (Local Land Courts) (Sections 21-44). A Local Land Court will have no jurisdiction over a dispute in circumstances set out under Section 27. The final stage is the appellate process regulated by Part V (Provincial Land Courts) (Sections 45-59). Section 54(1) states that subject to that section, a person aggrieved by a decision of a Local Land Court may appeal within three months after the date of the decision to the Provincial Land Court.

25. In the present case, the substantive proceedings seek declarations grounded on the declarations and orders of the Maprik Local Land Court made on 27 April 2017 that the plaintiff is the legitimate customary landowner of Rekwikim and it is vested in him as the Clan leader of the Koki Clan and that the Lease Agreement was void and of no effect.

26. In the Supreme and National Court cases of Louis Lucian Siu v Wasime Land Group Incorporated (2011) SC1107, Talibe Hegele v Tony Kila (2012) SC1180, Doriga Mahuru v Hon Lucas Dekena (2013) N5305 and Manub Edom v Wanor Agun (2015) N6076, the courts have held that the Supreme and National Courts have jurisdiction where the question of the determination of ownership of customary land does not arise.

27. In Talibe Hegele v Tony Kila (2012) SC1180, the Supreme Court suggested that the test to apply when deciding whether the Court lacks jurisdiction or not is:

“15. If the cause of action requires the Court to determine ownership of customary land the Court will lack jurisdiction as it is a well settled principle that the National Court (and also the Supreme Court) has no jurisdiction to hear or determine disputes about ownership of customary land (The State v Lohia Sisia [1987] PNGLR 102; Sioti Bauf and Lavoi Nodai v Poliamba Pty Ltd [1990] PNGLR 278; Golpak v Kali [1993] PNGLR 491; Siaman Riri v Simion Nusai (1995) N1375; Ronny Wabia v BP Exploration Co Ltd [1998] PNGLR 8; Soso Tumu v The State (2002) N2190).

16. If some other cause of action is being prosecuted the proceedings will fall within jurisdiction as the National Court is generally by virtue of Section 166(1) of the Constitution a court of unlimited jurisdiction.”

28. In Doriga Mahuru v Hon Lucas Dekena (2013) N5305 at paragraphs 16 and 17, the Court observed:

“In The State v Lohia Sisia [1987] PNGLR 102 the Supreme Court ruled the National Court has no jurisdiction to hear or determine disputes about whether land is customary land or about competing claims to ownership of customary land. That principle has been applied in numerous other cases, eg Ronny Wabia v BP Exploration Operating Co Ltd [1998] PNGLR 8, Lavu v Thompson & NBPOL (2007) N5018, Thomas Taiya Ambi v Exxon Mobil Ltd (2012) N4844. However, as I indicated in Roderick Tovo Bibilo v Gerard Balbagara (2008) N3291 and Galem Falide v Registrar of Titles (2012) N4775 a distinction must be drawn between two sorts of land cases:

• those in which there is a dispute about whether land is customary land or competing claims to ownership of customary land;
• those in which the dispute centres on interpretation or application of previous court decisions or judicial or quasi-judicial determinations as to the status of land or its customary ownership.
  

Only in the first category does the National Court lack jurisdiction. Cases falling in that category fall within the jurisdiction of the Land Titles Commission or the Local Land Court. The National Court retains jurisdiction if the case falls into the second category. It does not lose jurisdiction simply because the proceedings happen to relate to ownership of customary land (Joe Koroma v Mineral Resources Authority (2009) N3926).”

29. This is a case in which there is a dispute about whether land is customary land or competing claims to ownership of customary land. The relief sought in terms 2, 3 and 5 of the originating summons turns on the outcome of the customary land dispute between the Plaintiff and the First Defendant. On 18 December 2018, the First Defendant filed an appeal against the decision of the Maprik Local Land Court made on 13 September 2018. On the evidence available, the appeal is pending. The only legal authority to make a decision on whether the appeal is time barred or not is the Wewak Provincial Land Court where the First Defendant’s appeal was filed. These proceedings have been filed prematurely and amounts to an abuse of the process of the Court. In the circumstances, this Court has no jurisdiction. Consequently, the proceedings are dismissed in their entirety.

LOCUS STANDI OF PLAINTIFF

30. Given the outcome in relation to the first issue to dismiss the proceedings, it is now not necessary to consider the other submissions of counsel concerning this issue.

COSTS

31. Order 22 Rule 8 of the National Court Rules states that a party shall not be entitled to recover any costs of or incidental to the proceedings from any other party to the proceedings except under an order of the Court. The Court has a wide discretion in deciding whether to make an order for costs or not and the terms of a costs order (Order 22 Rules 4, 5 and 8 of National Court Rules), but the discretion must be exercised judicially and not arbitrarily. Order 22 Rule 11 of the National Court Rules provides that if the Court makes any order as to costs, it would usually order that costs follow the event, i.e., the successful party is awarded costs, but that is always subject to the Court’s discretion as to whether some other order should be made as to the whole or any part of the costs: PNG Ports Corporation Limited v Canopus No 71 Ltd (2010) N4288. I am of the view that the circumstances of this case warrants an order for the Plaintiff to pay the First and Second Defendants’ costs of and incidental to the motion and the proceedings, to be taxed, if not agreed.

ORDER

32. The formal orders of the Court are:

1. The Second Defendant’s application to dismiss these proceedings moved by way of its notice of motion filed on 6 July 2021 pursuant to Order 10 Rule 9A(15)(1)(a) and (2)(d) and (e) of the National Court Rules and the inherent jurisdiction of the Court is upheld.
2. These proceedings are dismissed in their entirety.
3. The Plaintiff shall pay the First and Second Defendants’ costs of and incidental to the motion and these proceedings, to be taxed, if not agreed.
4. Time is abridged.
   

Ruling and orders accordingly
___________________________________________________________________
Public Solicitor: Lawyer for the Plaintiff
John Alman: Lawyers for the First Defendant
John Peter Munnull: Lawyers for the Second Defendant