N9506

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS NO. 327 OF 2021

BETWEEN:
JAMES AKUILA, Chairman – SUKPARMATKA INCORPORATED LAND GROUP
First Plaintiff

AND:
JOSEPH VOSS, Vice Chairman – SUKPARMATKA ILG
Second Plaintiff

AND:
VINCENT PHILIPO, Secretary – SUKAPARMATKA ILG
Third Plaintiff

AND:
LINA AINUI, Women’s Representative – SUKPARMATKA ILG
Fourth Plaintiff

AND:
LATKI MISIEL, Women’s Representative, SUKPARMATKA ILG
Fifth Plaintiff

AND:
NELSON LEVI, Elder SUKPARMATKA ILG
Sixth Plaintiff

AND:
MICHAEL ELIAS, Elder SUKPARTMATKA ILG
Seventh Plaintiff

AND:
KAIRAK ILG
First Defendant

AND:
ELIAS KAMARA, Managing Director for KAIRAK ILG
Second Defendant

AND:
THOMAS KALA, ILG – Chairman for KAIRAK
Third Defendant

AND:
MARKO PAKUK, Vice Chairman for KAIRAK ILG
Fourth Defendant

Kokopo:  Kassman, J
2022:  9th & 23rd March

CIVIL – PRACTICE AND PROCEDURE – National Court – proceedings by originating summons – seeking declarations to declare null and void certificates of title – Whether judicial review is the only remedy – whether filing of originating summons is an abuse of process – National Court Rules Order 4 Rules 1, 2 and 3 and Order 16

LAND – customary land – Certificate of Title – declaration sought to declare title null and void – jurisdiction – National Court – Local Land Court and Provincial Land Court – Land Disputes Settlement Act – process of issue of title challenged – ownership of customary land not raised – Land Disputes Settlement Act c. 45 

Facts
The plaintiffs claimed declarations that certain certificates of title issued to the First Defendant be declared null and void for being issued contrary to certain provisions of the Land (Tenure Conversion) Act and the Land Registration (Amendment) Act 2009.  By notice of motion, the Defendants sought dismissal of the proceedings on two grounds.  Firstly, it was argued the National Court has no jurisdiction to deal with or determine disputes over customary land.  Secondly, it was argued the procedure available to challenge decisions of administrative bodies or authorities is provided by Order 16 of the National Court Rules and in this matter, the Plaintiffs have instituted this proceeding by ordinary originating summons and not by an application seeking leave for judicial review pursuant to Order 16.  It was argued the Plaintiffs are aggrieved with the decision of the Land Titles Commission to make the Conversion Order and the Registrar of Titles who issued the Certificates of Title to Kairak ILG.

Held

1.	The Land Disputes Settlement Act provides for the settlement of disputes in relation to interests in customary land and for related purposes.  Only the Local Land Court and Provincial Land Court have jurisdiction to hear and determine disputes in relation to interests in customary land and for related purposes and the National Court has no such jurisdiction and power. 

2.	On examining the originating summons, the claim was that title was issued in contravention of certain applicable laws.  The matter in issue before the National Court was not a determination of ownership of customary land but whether proper process according to law was followed in the issue of instruments or title. 

3.	By Order 4 Rule 1 of the National Court Rules, a proceeding in the National Court shall be commenced by writ of summons or by originating summons.  Rule 2 provides for where a writ of summons is required and Rule 3(1) provides the plaintiff may choose one or the other.  Rule 3(2) prescribes circumstances where it is appropriate to file an originating summons and that includes proceedings in which “ … the sole or principal question at issue is, or is likely to be, one of the construction of an Act or of an instrument made under an Act … or some other question of law”.  The Plaintiffs were entitled to come to court by the filing of an originating summons.    

Cases Cited:

Albert Camilus & Akami Oil Palm Limited vs David Mota & 12 Others (2022) SC2210 
Kekedo -v- Burns Philp (PNG) Ltd and Others [1988-89] PNGLR 122

Legislation Cited:

National Court Rules O 16 and O 4 rr 1, 2 and 3(1) and (2) 
Land Disputes Settlement Act c.45 ss. 3(1) and (2), ss. 26, 53 and 60 
Land (Tenure Conversion) Act 1963 
Land Registration (Amendment) Act 2009 

Counsel:

Jan-Marie Ainui, for the Plaintiffs / Respondents 
Wesley Donald, for the Defendants / Applicants

DECISION

23rd March, 2022

1.      KASSMAN J:  By the Originating Summons filed 15 October 2021, the Plaintiffs claim various declarations concerning three Certificates of Title over customary land known as Trans Kerevat being Portions 6605, 6606 and 6607 Milinch of Kokopo, Fourmil Rabaul East New Britain Province (“the land) issued to the First Defendant Kairak Incorporated Land Group (“Kairak ILG”) on 12 April 2019.  

2.     The Plaintiffs claim the three Certificates of Title were issued by the Deputy Registrar of Titles on 12 April 2019 contrary to Sections 7, 8 9, 10, 11 12, 13, 14 and 15 of the Land (Tenure Conversion) Act 1963.

3.      The Plaintiffs also claim the three Certificates of Title are defective on the basis they do not contain the following words “This Certificate of Title is issued subject to the conditions and restrictions imposed by the Land (Tenure Conversion) Act 1963” as required by Section 11(2) of the Land (Tenure Conversion) Act 1963.

4.	The Plaintiffs also claim the three Certificates of Title were obtained contrary to the requirements of Sections 34D, 34E, 34F, 34T, 34H, 34I, 34J, 34K and 34L of the Land Registration (Amendment) Act 2009.

5.	If the declarations sought are granted, the Plaintiffs seek orders that the three Certificates of Titles be declared null and void and of no legal effect.

6.	On 11 November 2021, Acting Justice Tusais, after hearing the Plaintiffs and the Defendants, issued interim orders restraining Kairak ILG from disposing, transferring, assigning and using as security the land titles the subject of these proceedings.    

7.	On 9 March 2022, the court heard the Defendants’ Notice of Motion filed on 6 December 2021 in which the Defendants sought orders for dismissal of the proceedings on certain grounds. 

8.	By the Notice of Motion, the Defendants argued, the proceedings should be dismissed for disclosing no cause of action.  The Defendants also argued the proceedings were frivolous and vexatious, and an abuse of the court process on the ground that the National Court has no jurisdiction to deal with disputes over customary land.  The Defendants sought those orders pursuant to Order 14 Rule 10(1) of the National Court Rules and Section 155(4) of the Constitution.

9.	By the Notice of Motion, the Defendants also argued the proceedings should be dismissed on the ground this Court has no jurisdiction outside of the procedures provided under Order 16 of the National Court Rules and Section 155(4) of the Constitution to make declarations in relation to decisions of administrative bodies or authorities.  The Defendants sought those orders pursuant to Order 12 Rule 1 of the National Court Rules and Section 155(4) of the Constitution.

10.	The Defendants relied on four affidavits namely the Affidavit of Thomas Kalas filed on 10 November 2021 [document number 8], the Affidavit of Elias Komara filed on 6 December 2021 [document number 18], the Affidavit of Marko Pakuk filed on 10 November 2021 [document number 11] and the Affidavit of Nelson Levi filed on 10 November 2021 [document number 0].  The Defendants also relied on a written Submission filed on 9 March 2022 [document number 24]. 

11.	The Plaintiffs relied on two affidavits of James Akuila, one filed on 15 October 2021 [document number 3] and the other filed on 9 March 2022 [document number 26].  The Plaintiffs also relied on a written submission filed on 9 March 2022 [document number 25]. 

12.	In written and oral submissions, the Defendants confined their arguments to two aspects.  Firstly, the Defendants say the National Court has no jurisdiction to deal with or determine disputes over customary land. 

13.	The preamble to the Land Disputes Settlement Act c.45 states that Act provides for the settlement of disputes in relation to interests in customary land and for related purposes.  By section 3(1), it states the Act applies to disputes as to interests in customary land or as to the position of boundaries of any customary land.  Interestingly, section 3(2) states nothing in the Act applies to a dispute as to whether land is or is not customary land but that is of no relevance to the issues now under consideration.  Most importantly in this matter, section 26 states a Local Land Court has jurisdiction and section 53 states a Provincial Land Court has jurisdiction to hear and determine appeals from a decision of a Local Land Court.  Further, section 60 states a decision of a Provincial Land Court on an appeal is final and is not subject to appeal.  It is clear in my mind from considering these legislative provisions that only the Local Land Court and Provincial Land Court have jurisdiction to hear and determine disputes in relation to interests in customary land and for related purposes and the National Court has no such jurisdiction and power.

14.	The issue must now be addressed by examining what is claimed by the Plaintiffs in their originating process and that is the Originating Summons filed 15 October 2021 which I have referred to above.  I understand the Plaintiffs claim various declarations concerning three Certificates of Title over customary land and they argue those titles were issued in contravention of or without compliance with provisions of the Land (Tenure Conversion) Act 1963 and the Land Registration (Amendment) Act 2009.  Although the matters raised by the Plaintiffs concern customary land, it is the validity of the instruments or titles over those customary lands, issued by the Registrar of Titles, that is in issue in this proceeding.  The Plaintiffs has not asked this court to determine who is the rightful owner of customary land in issue or to determine the boundaries of customary land in issue.  That would rightly be a matter for the Local Land Court.     

15.	In a recent decision in Albert Camilus and Akami Oil Palm Limited and David Mota and 12 Others SC2210, the Supreme Court, when considering a similar argument in a matter addressing similar circumstances, said the principal issue before the trial court or the National Court was whether proper process according to law was followed in the grant of certain Special Agricultural Business Leases.  In dealing with a similar argument that the National Court lacked jurisdiction when it determined ownership of the land by custom, the Supreme Court said the argument was misconceived as the matter in issue before the National Court was not a determination of ownership of customary land but whether proper process according to law was followed in the issue of instruments or title.   

16.	This argument by the Defendants is misconceived and is rejected. The Plaintiffs have a reasonable cause of action disclosed in their Originating Summons. 

17.	Secondly, the Defendants say the procedure available to challenge decisions of administrative bodies or authorities is provided by Order 16 of the National Court Rules and in this matter, the Plaintiffs have instituted this proceeding by ordinary originating summons and not by an application seeking leave for judicial review pursuant to Order 16.  It was argued the Plaintiffs are aggrieved with the decision of the Land Titles Commission to make the Conversion Order and the Registrar of Titles who issued the Certificates of Title to Kairak ILG. This is an interesting argument but unfortunately, I have not been assisted with submissions that adequately address the issue, by both counsel for the parties, with supporting case authorities.    All that was said in submissions for the Defendants, I have restated in this paragraph.  This would not be the first time this issue has been raised for this court to address.   

18.	I have stated above the Plaintiffs claims made in their Originating Summons filed 15 October 2021.  By Order 4 Rule 1 of the National Court Rules, a proceeding in the National Court shall be commenced by writ of summons or by originating summons.  Rule 2 provides for where a writ of summons is required and Rule 3(1) provide the plaintiffs may choose one or the other.  Rule 3(2) prescribes circumstances where it is appropriate to file an originating summons and that includes proceedings in which “ … the sole or principal question at issue is, or is likely to be, one of the construction of an Act or of an instrument made under an Act … or some other question of law”. By my reading of these provisions, the Plaintiffs were entitled to come to court by the filing of an originating summons.    

19.	As stated above, I understand the Plaintiffs claim various declarations concerning three Certificates of Title over customary land and they argue those titles were issued in contravention of or without compliance with provisions of the Land (Tenure Conversion) Act 1963 and the Land Registration (Amendment) Act 2009. 

20.	The Plaintiffs say they are not challenging the decision of the Land Titles Commission of 30 March 1992.  They say they are challenging the grants of the certificates of title for the reasons I have discussed. 

21.	I am aware of the decision in Kekedo -v- Burns Philp (PNG) Ltd and Others [1988-89] PNGLR 122 at 124, the National Court said when discussing the principles applicable for judicial review of administrative or quasi judicial decisions or actions said “The circumstances under which judicial review may be available are where the decision-making authority exceeds its powers, commits an error of law, commits a breach of natural justice, reaches a decision which no reasonable tribunal could have reached or abuses its powers”. 

22.	Although the point made by the Defendants is arguable, I am reluctant to summarily determine this proceeding without being convinced that the filing of the originating summons contravened any law.  The Defendants made the application and carried the onus to establish their argument.  I am not satisfied they have adequately addressed the issue now before this court. 

23.	For the reasons stated above, I refuse the Defendants applications. 

24.	The Defendants’ Notice of Motion filed on 6 December 2021is refused.

25.	As costs follow the event, the Defendants will pay the Plaintiffs costs of the application on a party and party basis, such costs to be taxed if not agreed.

Judgment accordingly:
____________________________________________________________________
Namani & Associates Lawyers:	Lawyers for the Plaintiffs
Donald & Co. Lawyers: Lawyers for the Defendants