Home | Databases | WorldLII | Search | Feedback National Court of Papua New Guinea

Abel (trading as Abels Aviation Security Services) v National Airports Corporation [2024] PGNC 268; N10936 (26 July 2024)

N10936

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS NO.100 OF 2023

BETWEEN:
FRANK ABEL AND JAMES ABEL
trading as ABELS AVIATION SECUIRTY SERVICES
Plaintiff

AND:
NATIONAL AIRPORTS CORPORATION
Defendant

Lae: David, J
2023: 23^rd & 24^th November
2024: 8^th, 12^th, 22^nd & 26^th July

LAND – Nadzab Airport land - declarations sought that defendant not the owner of the land on which Nadzap Airport is located and the land on which Nadzap airport is situated is owned by the persons who signed a Lease Agreement in 1973 with the then colonial administration - dispute as to ownership – whether National Court has jurisdiction to arbitrate - Land Disputes Settlement Act 1975, ss. 3(2)(a), 4 and 26 - Land Commission Act 2022, preamble, ss.16, 17 and Part XI, Transitional and Savings (ss95-102)– Business Names Act, s.1 – Companies Act, s.16.

Cases Cited:
Golpak v Malori [1993] PNGLR 491
Amet v Yama (2010) SC1064
Kembu v Vuho (2011) N3988
Kimas v Oala (2015) SC1475
Geamsa v Paita (2021) N8855

Counsel:
M. Karu, for the Plaintiff
T. Dawidi, for the Defendant

JUDGMENT

26^th July 2024

1. DAVID, J: INTRODUCTION: This is a decision of the Court after a contested trial. In the originating summons filed on 1 May 2023, the plaintiff, Frank Abel and James Abel trading as Abels Aviation Security Services (Abels Aviation Security Services) claims against the defendant, the National Airports Corporation (the NAC) the following principal relief:
   

“1. A declaration pursuant to Order 12 Rule 1 of the National Court Rules that the Defendant is not the owner of the land on which the Nadzap Airport is located.

2. A declaration pursuant to Order 12 Rule 1 of the National Court Rules that the land on which the Nadzap airport is situated is owned by the persons who signed the Lease Agreement in 1973 with the State.
   3. A declaration pursuant to Order 12 Rule 1 of the National Court Rules that the Plaintiff as a landowner company which was properly engaged in accordance with Clause 9 of the Lease Agreement signed with the State in 1973, but its contract was terminated prematurely and unlawfully by the Defendant.
   4. That all payments due and outstanding to the Plaintiff be backdated to the date of termination of the contract by the Defendants.
   5. That all security contracts and any other spin off benefits on the airport be awarded to the Plaintiff as a landowner company.
   6. That the Defendant pay all royalty payments due and outstanding to the Plaintiff for the use of the airport.” (sic)
      

EVIDENCE

2. Abels Aviation Security Services relies on and reads the Affidavit of James Abel sworn and filed on 1 May 2023 (Exhibit A).
   
3. Abels Aviation Security Services’ attempts to tender the Further Affidavit of James Abel sworn and filed on 23 November 2023 (Doc 15), was objected to by the NAC for want of compliance of s.35(1) of the Evidence Act and this resulted in Abels Aviation Security Services not pursuing the tender further.
   
4. The NAC relied on and read the affidavit of Ian G. Mileng sworn on 10 August 2023 and filed on 17 August 2023 (Exhibit DA).
   
5. The deponents of the affidavits were not subjected to cross-examination.
   

SUMMARY OF PLAINTIFF’S EVIDENCE

6. James Abel is a director of Abels Aviation Security Services.
   
7. Abels Aviation Security Services is a landowner company.
   
8. Abels Aviation Security Services was registered as a business name (No.6-229168) under the Business Names Act on 4 April 2018 (annexure J, Affidavit of James Abel). The owners of the business name were Frank Abel and James Abel both of Moazimunkip village, Wampar LLG, Huon District, Lae, Morobe Province, Papua New Guinea whose Postal Address was PO Box 4140, Lae. The registration of the business name expired on 30 April 2019.
   
9. Abels Aviation Security Services was issued a Class B Licence No.MR-SPL-18-00140 to carry out, engage in or provide security guard service to others for reward by the Security Industries Authority on 5 May 2018 pursuant to s.40 of the Security (Protection) Industry Act 2004 and the licence holders were Frank Abel and James Abel: annexure K, Affidavit of James Abel. The licence expired on 5 May 2019.
   
10. Abels Aviation Security Services was issued a Taxpayer Registration Certificate No.057054175 including Tax Identification No. 501080615 by the Internal Revenue Commission, Lae Tax Office on 13 April 2018 whose nature of business was recorded as the provision of security services. James Abel was issued a Taxpayer Registration Certificate No.057054480 including Tax Identification No.501080631 by the Internal Revenue Commission, Lae Tax Office on 13 April 2018 whose nature of business was recorded as a partner in a partnership.
    
11. Abels Aviation Security Services was engaged by the NAC to provide security services sometime in 2006 after consultation with the NAC.
    
12. His father was Frank Abel who was also known as Kibon Afef and Ismael Abel. His father passed away in 2019.
    
13. His father was one of the signatories to a Lease Agreement entered into between the customary landowners of the Orognalon Clan of Gabsonkek Village, Lae Sub-District, Morobe Province as lessors and the Administrator of Papua New Guinea as the lessee on 25 May 1973 for the lease of all that piece of land containing an area of approximately 625 hectares known as Nadzab situated near Gabsonkek Village upon which the airport is situated (the Airport Land) for a term of 999 years and at an annual rent of $5,000.00 per annum for the first four years and for the balance of the term at the rate of fifteen per centum per annum of the unimproved value of the land or $5,000.00 per annum which sum shall be greater (the Lease Agreement): annexure N, affidavit of James Abel. His father used the name Kibon Afef in the Lease Agreement. He signed the Lease Agreement with three other persons namely, Wanti Chafang, Engke Nasanao and Paul Lafed.
    
14. Clause 9 of the Lease Agreement provides that the landowners be given priority in any commercial activity undertaken on the Airport Land.
    
15. The security work was given to Abels Aviation Security Services as a spin-off benefit consistent with Clause 9 of the Lease Agreement.
    
16. The NAC has not paid any royalty payments to Abels Aviation Security Services and members of the Orognaron Clan for over 16 years.
    
17. The rent payable at K30,000.00 per annum ceased in 2007.
    
18. Several legal proceedings have been instituted in the National Court by the NAC against Abels Aviation Security Services in relation to the Airport Land and these are:
    
    1. OS No.641 of 2018, National Airports Corporation Ltd v Frank Abel and James Abel trading as Aviation Security Services filed on 18 September 2018 (OS No.641 of 2018);
    2. OS No.13 of 2020, National Airports Corporation Ltd v Frank Abel and James Abel trading as Aviation Security Services (OS No.13 of 2020); and
3. OS No.101 of 2020, National Airports Corporation Ltd v Frank Abel and James Abel trading as Aviation Security Services (OS No.101 of 2020).
   
19. In OS No.641 of 2018 (annexure A, affidavit of James Abel), the NAC claimed, among others, orders in the nature of declarations that:
    
    1. It was the owner, manager and operator of the Nadzab Aerodrome in Lae, Morobe Province pursuant to s.132(1)(a) of the Civil Aviation (Amendment) Act 2010; and
       
    2. Abels Aviation Security Services had no lawful and or equitable rights to the land described as Portion 397, Milinch of Erap, Fourmil of Markham, Morobe Province, being the Nadzab Aerodrome (Airport) and declared in the National Gazette No.G28 dated 10 May 1979.
       
20. On 11 May 2020 following a hearing of a contested application moved by Abels Aviation Security Services to dismiss the proceedings for being frivolous or vexatious or for being an abuse of the process of the Court pursuant to Order 12 Rule 40(1)(b) and (c) of the National Court Rules, Her Honour, Murray J granted the application and dismissed the proceedings for being an abuse of the process of the Court: annexures B and C, affidavit of James Abel. At [23] of the judgment, Her Honour said:
    

“From the evidence before the Court, the evidence showed there is clearly a dispute in something else other than what the Plaintiff seeks in its declaratory orders. The declaratory orders seek a proclamation as to ownership of the land upon which Nadzab airport is built on, however the evidence do not address that or go to show that the Plaintiff has a legal interest over that land. Even if that is a controversy, which AASS denies, this Court would not have any jurisdiction to deal with ownership of a customary land. This is clearly a case that does not involve a dispute or controversy that has been pleaded or sought in the declaratory orders. From a perusal of the wording of the declaratory orders and the evidence relied upon by NAC, there is no claim in my view that, NAC is entitled to, or have a right to the property as they claim.”

21. As to OS No.13 of 2020, the relief sought there is not known as the relevant originating summons is not in evidence. On 14 August 2020, the Court granted leave for OS No.13 of 2020 to be withdrawn with a further order that NAC was at liberty re-file proceedings: annexure H, affidavit of James Abel.
    
22. The status of OS No.101 of 2020 is unknown.
    

SUMMARY OF DEFENDANT’S EVIDENCE

23. Ian G. Mileng is the Acting Company Secretary of the NAC.
    
24. Abels Aviation Security Services’ concern arises from the lease of the Airport Land. The lease arrangements to his belief and understanding are managed by the National Government through the Morobe Provincial Administration.
    
25. The NAC is a corporate entity tasked with the management and upkeep of the airports within the country.
    
26. Accordingly, the issues raised with respect to landownership and lease arrangements over the Airport Land do not prima facie fall within the province of the corporation. That is a matter that is to be appropriately determined between Abels Aviation Security Services, Morobe Provincial Administration and the Independent State of Papua New Guinea through its National Land and Physical Planning functions.
    
27. Additional issues raised by Abels Aviation Security Services regarding contractual arrangements between Abels Aviation Security Services and NAC regarding business opportunities can be discussed and resolved between the parties.
    
28. The claims in the originating summons regarding payment of royalties, lease rent and spin-off benefits is premised on a grant of declaration of a claim to ownership of the Airport Land and can be compensated by way of damages.
    

SUBMISSIONS

29. Mr. Karu for Abels Aviation Security Services submitted that Abels Aviation Security Services has proven its claim by evidence it has produced and should be granted the relief sought as:
    
    1. The proceedings are properly before the Court as the dispute between the parties does not concern ownership of customary land;
    2. The Lease Agreement clearly shows who the customary landowners of the Airport Land are;
    3. Abels Aviation Security Services is a landowner company;
    4. The NAC has not provided any evidence to the contrary to show that it is the owner of the Airport Land;
5. The judgment of Her Honour Murray J in OS 641 of 2018 delivered on 11 May 2020 dismissed the NAC’s claim over ownership of the Airport Land;
   6. The State is using the Airport Land through the NAC and should pay all rentals and royalties which are due and outstanding;
   7. Abels Aviation Security Services was offered a security service contract as of right pursuant to Clause 6 of the Lease Agreement so its termination by the NAC was premature and unlawful;
   8. Abels Aviation Security Services’ security service contract was prematurely and unlawfully terminated so all payments due and outstanding to Abels Aviation Security Services should be backdated to the date of termination of the contract; and
   9. Being a landowner company, all security service contracts and any other spin-off benefits arising from the use of the Airport Land be awarded to Abels Aviation Security Services.
      

30. The NAC opposes the proceedings on the basis that:

1. They are incompetent as the dispute between the parties concerns ownership of customary land;
2. Disputes in relation to interests in customary land or as to whether land is or is not customary land should be arbitrated before the appropriate forums established under the Land Disputes Settlement Act 1975 and the Land Titles Commission Act 1962 which now appears to have been repealed by the Land Commission Act 2022, No.47 of 2022;
3. The dispute should be brought before the Land Commission of Papua New Guinea pursuant to s.16 of the Land Commission Act; and
4. The evidence before the Court does not warrant the grant of any of the relief sought by Abels Aviation Security Services.
   

31. The NAC contends that the issue of competency should be determined first before the court delves into the merits or otherwise of the action by Abels Aviation Security Services.

ISSUES

32. The main issues that I need to determine are:
    
    1. Whether or not the proceedings are competent?
    2. If the proceedings are found to be competent, whether or not Abels Aviation Security Services has established by evidence the basis for the grant of the relief sought.
       

COMPETENCY OF PROCEEDINGS

33. The Supreme Court has said that the issue of competency concerns the validity of the proceedings and can be raised at any stage of any proceedings: Amet v Yama (2010) SC1064.

34. The jurisdiction to determine issues of ownership and title of customary land is in the Local Land Court under the Land Disputes Settlement Act: Golpak v Kali (1993) PNGLR 491. Section 26 of the Land Disputes Settlement Act states:
    

“GENERAL JURISDICTION OF LOCAL LAND COURTS.

Subject to Section 3 and 4 and to this Part, a Local Land Court has jurisdiction over and in relation to–

(a) a dispute as to an interest in land where the land in dispute is situated wholly or partly within the province for which the Court is established; and

(b) the approval of agreements under Section 19; and

(c) a dispute to which Section 29 applies; and

(d) any other action or decision that it may be required to take under this Act.”
35. Section 3(2)(a) of the Land Disputes Settlement Act states that that Act does not apply to a dispute as to whether land is or is not customary land.

36. Section 4 of the Land Disputes Settlement Act provides that where exceptional circumstances exist, alternative means of resolving disputes other than under that Act may be adopted.

37. In Kimas v Oala (2015) SC1475, the Supreme Court, at paragraphs 6 and 7 of the judgment said:

“6. It is settled law that the National Court has no jurisdiction to hear and determine disputes concerning ownership by custom of any land, including a dispute as to whether any land is or is not customary land. Such disputes fall within the exclusive jurisdiction of the Land Titles Commission under Section 15 (determination of disputes) of the Land Titles Commission Act, which states:

The Commission has, subject to this Act, exclusive jurisdiction to hear and determine all disputes concerning and claims to the ownership by custom of, or the right by custom to use, any land, water or reef, including a dispute as to whether any land is or is not customary land and may make all such preliminary inquiries and investigations as it deems necessary for the purpose of hearing and determining the disputes and claims. [Emphasis added.]

7. Section 15 has been given full effect by the courts over many years. As soon as it becomes apparent that a case involves a dispute about whether land is or is not customary land, the Court should divest itself of jurisdiction. Such disputes fall within the exclusive domain of the Land Titles Commission.”
   

38. During my research, I discovered that in 2022, Parliament enacted the Land Commission Act which was certified on 2 September 2022. That Act purportedly repealed the Land Titles Commission Act: see preamble (g) and Part XI, Transitional and Savings (ss95-102) of the Land Commission Act. This was not brought to my attention by counsel for the parties when I heard final submissions on 24 November 2023. Hence, I requested further submissions on the application or otherwise of the Land Commission Act with regard to the issue under consideration. I heard further submissions on that on 22 July 2024.

39. The declarations sought in the originating summons clearly show that there is a dispute as to ownership of the Airport Land upon which the Nadzab Airport is built. Abels Aviation Security Services relies heavily on the Lease Agreement and the judgment of Her Honour Murray J in OS 641 of 2018 delivered on 11 May 2020 in claiming the declarations and the other relief sought.

40. In her judgment, Murray J, with respect, observed that the Court would not have jurisdiction to deal with ownership of customary land. In dismissing OS 641 of 2018 for being an abuse of the process of the Court, at [23], Her Honour said:

“From a perusal of the wording of the declaratory orders and the evidence relied upon by NAC, there is no claim in my view that, NAC is entitled to, or have a right to the property as they claim.”

41. The issue of sufficiency of or proper pleadings or lack of them to set the foundation for the claim by NAC and to substantiate them by evidence appears to have been an important consideration in dismissing OS 641 of 2018.

42. In addition, in dismissing OS 641 of 2018, Her Honour did not make any determination on the question of ownership of the Airport Land either in favour of Abels Aviation Security Services or anyone else for that matter.

43. Mr. Mileng’s evidence is that:

1. Abels Aviation Security Services should take up the matter concerning the Airport Land with the Morobe Provincial Administration and the Independent State of Papua New Guinea through its National Land and Physical Planning functions; and
2. The claims regarding payment of royalties, lease rent and spin-off benefits is premised on a grant of declaration of a claim to ownership of the Airport Land.
   

44. I accept Mr. Milengs evidence in regard to those aspects.

45. The dispute is one that cannot be arbitrated under the provisions of the Land Disputes Settlement Act 1975 as it is prohibited by s.3(2)(a) of that Act. This is because the dispute, which I think is thinly veiled in the relief sought in the originating summons, especially the first and second declarations sought, raises the issue as to whether the Airport Land is or is not customary land and this is demonstrated by or can be discerned from the competing evidence brought by the parties before the Court.

46. The Court does not have jurisdiction to hear and determine disputes concerning ownership by custom of any land or a dispute as to whether land is or is not customary land: Kimas v Oala (2015) SC1475, Geamsa v Paita (2021) N8855, Golpak v Malori (1993) PNGLR 491.

47. It appears that the Land Titles Commission Act was repealed by the Land Commission Act and the functions and jurisdiction of the Land Titles Commission under the Land Titles Commission Act are now exercised by the Land Commission of Papua New Guinea by virtue of s.95(3)(a) of the Land Commission Act: see also ss.16 and 17 of the Land Commission Act. Consequently, the Land Commission of Papua New Guinea will be the right forum to take the dispute to about the Airport Land for determination under the provisions of the Land Commission Act.
    
48. In Kembu v Vuho (2011) N3988, from the first headnote, the Court held:
    

“A Declaration giving effect to an Agreement for usage of customary land is tantamount to deciding ownership of customary land and defining interests in customary land.”

49. The declarations sought to declare that the NAC is not the owner of the Airport Land and that the Airport Land is owned by persons who signed the Lease Agreement are in my view tantamount to or in fact asking the Court to decide the question whether the Airport Land is or not customary land with which the Court has no jurisdiction.
    
50. The proceedings are incompetent and are dismissed.
    

MERITS OR OTHERWISE OF THE CLAIM

51. Given the above conclusion, it is not necessary to consider the second main issue.
    
52. However, if I am wrong in coming to the above conclusion (which I think I am not), I would essentially accept and adopt the defendant’s submissions that Abels Aviation Security Services has failed to adduce cogent evidence to substantiate its claim on the balance of probabilities.
    
53. In addition, evidence adduced in support of Abels Aviation Security Services’ claim discloses that it is not a company or landowner company for that matter. Abels Aviation Security Services was a business name. The registration of the business name expired on 30 April 2019.
    
54. There is a clear distinction in law between a company and a business name. They are not synonymous with one another. A business name is a name, style, title or designation under which a business is carried on (s.1, Business Names Act) while a company is a legal entity on its own (s.16, Companies Act).
    

ORDERS

55. The orders of the Court are:
    
    1. The plaintiff’s claim instituted by OS No.100 of 2023 is dismissed in its entirety.
    2. Costs shall follow the event, ie, the plaintiff shall bear the defendant’s costs, to be taxed, if not agreed.
    3. Time is abridged.
       

Judgment and orders accordingly.
________________________________________________________________
Daniels & Associates Lawyers: Lawyers for the Plaintiff
Dawidi Lawyers: Lawyers for the Defendant