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Masoe v Tugan [2024] PGNC 31; N10686 (14 March 2024)

-N10686

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS NO 369 OF 2023

MATHIAS MASOE, JULIANA MATANI & GERARD STANLEY
Plaintiffs

V

HERMAN TUGAN
First Defendant

BRUCE TASIKUL, SENIOR PROVINCIAL MAGISTRATE,
AUTONOMOUS REGION OF BOUGAINVILLE
Second Defendant

Waigani: Cannings J
2024: 12^th, 14^th March

PRACTICE AND PROCEDURE – whether proceedings are frivolous, vexatious or an abuse of process – National Court Rules, O 12 r 40(1).

LAND – customary land – whether proceedings commenced in National Court seeking declarations as to the boundaries and ownership of customary land were beyond the jurisdiction of the National Court.

The plaintiffs commenced proceedings by originating summons in the National Court seeking declarations that their clan was the owner of a particular area of customary land, that the first defendant is not a member of that clan, that customary land over which the first defendant was in the District Court claiming ownership was within the area of customary land owned by the plaintiffs’ clan, and that the District Court proceedings commenced by the first defendant were time-barred and an abuse of process as ownership of the customary land had been determined by decisions of the Local Land Court and Provincial Land Court in 1993. The plaintiffs also sought a declaration that the first defendant was liable for damages for unlawful use of the plaintiffs’ clan’s land and a permanent injunction restraining the first defendant from interfering with the plaintiffs’ clan’s enjoyment of their land. The first defendant filed a notice of motion seeking summary dismissal of the proceedings for being frivolous, vexatious and/or an abuse of process. The key issue was whether the National Court had jurisdiction due to the subject matter of the proceedings being ownership of customary land.

Held:

(1) The general principle is that the National Court has no jurisdiction to hear and determine disputes concerning ownership by custom of any land, including disputes as to whether any land is customary land or to the boundaries of customary land Such disputes fall within the jurisdiction of the Land Titles Commission under the Land Titles Commission Act or Land Courts established under the Land Disputes Settlement Act.

(2) However, a distinction must be drawn between two types of land cases: (a) those in which there is a dispute about whether land is customary land or competing claims to ownership of customary land and (b) those in which the dispute centres on interpretation or application of previous judicial decisions as to the status of land or its customary ownership. Only in type (a) cases does the National Court lack jurisdiction. If the case is type (b), the National Court has jurisdiction.

(3) There is nothing in the 1993 Local Land Court or Provincial Land Court decisions that sets out the boundaries of the customary land owned by the plaintiffs’ clan. The present dispute between the plaintiffs’ clan and the first defendant cannot be resolved by interpretation or application of the 1993 decisions.

(4) This is not a type (b) case. Resolution of the dispute will require assessment of evidence of the boundaries of customary land. It is a type (a) case. The National Court has no jurisdiction.

(5) The proceedings are an abuse of process and are dismissed under O 12 r 40(1)(c) of the National Court Rules.

Cases Cited

Galem Falide v Registrar of Titles (2012) N4775
Joe Koroma v Mineral Resources Authority (2009) N3926
Kimas v Loa [2015] 2 PNGLR 568
Lavu v Thompson & NBPOL (2007) N5018
Mahuru v Dekena (2013) N5305
Masoe v Tugan LLC 47 of 2023 Unreported, 19 October 2023
Roderick Tovo Bibilo v Gerard Balbagara (2008) N3291
Ronny Wabia v BP Exploration Operating Co Ltd [1998] PNGLR 8
The State v Lohia Sisia [1987] PNGLR 10
Thomas Taiya Ambi v Exxon Mobil Ltd (2012) N4844

Counsel

H K Monei, for the Plaintiff
B Lakakit, for the First Defendant

14^th March 2024

1. CANNINGS J: The plaintiffs, Mathias Masoe, Juliana Matani and Gerard Stanley have commenced proceedings by originating summons in the National Court seeking declarations that their clan, Nakaripa Clan, is the owner of Kubukukul customary land near Buka town, in the Autonomous Region of Bougainville.

2. They also seek declarations that:

• the first defendant, Herman Tugan, is not a member of Nakaripa Clan,
  
• customary land known as Kero over which the first defendant was claiming ownership in proceedings he commenced in Buka District Court in 2021 is within the area of Kubukukul
  
• the District Court proceedings commenced by the first defendant are time-barred and an abuse of process as ownership of Kubukukul has been determined by decisions of the Local Land Court and Provincial Land Court in 1993,
  
• the first defendant and other members of his clan are liable for damages for their unlawful use of Kero land.
  

3. The plaintiffs also seek a permanent injunction restraining the first defendant and his associates from interfering with the Nakaripa Clan’s enjoyment of their land.

4. The first defendant filed a notice of motion seeking summary dismissal of the proceedings for being frivolous, vexatious and/or an abuse of process. This is a ruling on that motion.

KEY ISSUE

5. The key issue is whether the National Court has jurisdiction due to the subject matter of the proceedings being ownership of customary land.

6. The general principle is that the National Court has no jurisdiction to hear and determine disputes concerning ownership by custom of any land, including disputes concerning whether land is customary land or the boundaries of customary land. Such disputes fall within the jurisdiction of the Land Titles Commission under the Land Titles Commission Act or Land Courts established under the Land Disputes Settlement Act. The leading case in support of that principle is the Supreme Court decision in The State v Lohia Sisia [1987] PNGLR 10. The principle has been applied in numerous National Court 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. It has been reconfirmed by the Supreme Court in Kimas v Loa [2015] 2 PNGLR 568.

7. However, as I indicated in Roderick Tovo Bibilo v Gerard Balbagara (2008) N3291, Galem Falide v Registrar of Titles (2012) N4775 and Mahuru v Dekena (2013) N5305, a distinction must be drawn between two types of land cases:

(a) those in which there is a dispute about whether land is customary land or competing claims to ownership of customary land; and

(b) those in which the dispute centres on interpretation or application of previous judicial decisions as to the status of land or its customary ownership.

8. Only in type (a) cases does the National Court lack jurisdiction. If the case is type (b), the National Court has jurisdiction. 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).

9. Getting back to the present case, the 1993 Local Land Court and Provincial Land Court decisions clearly state that the Nakaripa Clan has ownership of Kubukukul. However, there is nothing in either decision that precisely describes the boundaries of Kubukukul. There is no mention of Kero land and whether it falls within Kubukukul (which is the plaintiffs’ contention) or whether it falls within a neighbouring area of customary land called Ieta (which is the first defendant’s contention).

10. This is the critical point made by his Worship Mr Tasikul (the second defendant) in his judgment in Masoe v Tugan LLC 47 of 2023 Unreported, 19 October 2023. His Worship heard an application by the plaintiffs to set aside an ex parte order of his Worship Mr Keria in the Buka District Court on 9 December 2021, which restrained the plaintiffs from cutting down coconut trees on Kero land and referred the question of the boundaries of Kero and Kubukukul to mediation. Mr Tasikul refused the application on the ground that the question of the boundaries was not clear-cut as nothing in the 1993 Local and Provincial Land Court decisions addressed the precise boundaries of Kubukukul and Kero. Mr Tasikul stated:

So my next question is where is the Kero land? As I have mentioned earlier, the Local Land Court when making the decision on Kubukukul land never identified the boundaries which in this case have now created a boundary dispute.

His Worship Luke Keria in his ruling was right because there was an issue of boundary that needs to be addressed. The only way to address this matter was to go through a mediation process which has already been done by the land mediators, where mediation has failed and the matter was referred to the Local Land Court for hearing.

11. I agree with the approach taken by their Worships Tasikul and Keria. The best, and only proper, way to resolve the question of boundaries of customary land is through a mediation process and through other conventional procedures sanctioned by the Land Disputes Settlement Act and the Land Titles Commission Act. The National Court has no role to play, not at this stage anyway.

12. If the present case were to go to trial in the National Court, there would have to be evidence called as to where the boundaries of Kubukukul and Kero and Ieta are. The dispute between the plaintiffs’ clan and the first defendant’s clan cannot be resolved by interpretation or application of the 1993 decisions.

13. This is not a type (b) case. It is a type (a) case and the National Court has no jurisdiction.

14. I am satisfied that the proceedings are an abuse of process and should be dismissed under O 12 r 40(1)(c) of the National Court Rules. It is unnecessary to address any other grounds of dismissal argued by the first defendant.

Costs will follow the event.

ORDER

1. The proceedings are entirely dismissed.
   
2. The interim ex parte order of 28 December 2023 is dissolved.
   
3. The plaintiffs shall pay the first defendant’s costs of the proceedings on a party-party basis which shall if not agreed be taxed.

__________________________________________________________________
Asia Pacific Group Lawyers: Lawyers for the Plaintiffs
Lakakit & Associates Lawyers: Lawyers for the Second Defendant