N11259

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

WS 315 OF 2020 (IECMS)

BETWEEN
IORI BAEAU
First Plaintiff

AND:
GOROGAHA LAND GROUP, INCORPORATED
Second Plaintiff

AND
NOU TAMARUA
First Defendant

AND
GOROGAHA TUBUSEREIA	 LAND GROUP INCORPORATED
Second Defendant

WAIGANI: KANDAKASI DCJ
06 MARCH 2023; 24 APRIL 2025

PRACTICE & PROCEDURE – Application seeking dismissal of proceedings for failure to disclose reasonable cause of action, abuse of process, failing to name State and State parties as parties to the proceeding despite allegations against them and failure to give notice under s5 of the Claims By and Against the State Act (CBASA) – Pleadings disclose reasonable cause  – Application dismissed – Abuse of process established because the plaintiffs (1) failed to use the processes provided for under ss34 and 38  the Land Titles Commissions Act 1962 (LTCA 196), (2) seeking prerogative writs in an ordinary writ of summons proceeding instead of judicial review under Order 16 of the Courts Rules (3) raising customary  landownership issue over which this Court has no jurisdiction and (4) res judicata – State, the Land Titles Commission and Commissioners against whom allegations have been made needed to be named as parties – failure amounts to abuse – requirement for notice under s5 of the CBASA a condition  precedent – failing to meet condition precedent – Proceedings precluded – Proceedings dismissed with costs to the defendants.

Facts

Aggrieved by a Conversion Order given by the Land Titles Commission (LTC) pursuant to the Land Titles Commission Act 1962 (LTCA 1962), under the Land (Tenure Conversion) Act 1963 (Conversion Act) the plaintiffs took out fresh proceedings by writ of summons against the defendants. They did so after having withdrawn an application to join in another prior proceeding by the defendants under Court file reference OS No. 530 of 2016 which resulted in several orders in favour of the defendants with the principal order confirming ownership of the Land by the defendants pursuant to the Conversion Order. They later issued their own proceedings under Court file reference WS No. 1355 of 2017 which was dismissed on account of the plaintiffs failing to comply with timetabling orders and failing to prosecute the matter with due diligence. The plaintiffs had the right of appeal or review under ss34 and 38 of the LTCA 1962 which they failed to exercise, claiming they were not aware of the proceedings leading to the Conversion Orders. Similarly, the plaintiffs had the right of appeal against the decision in OS 530 of 2016 and WS 1355 of 2017 which they also failed to exercise.

The plaintiffs claimed the defendants and the LTC committed an act of fraud against them in that, the defendants lied to the LTC that they were the owners of a land known as Mauru (the Land), the subject of the Conversion Order and the LTC without hearing the plaintiffs granted the Conversion Order. They also claimed they were the traditional owners of the Land by custom as confirmed by the LTC’s predecessor, Native Land Titles Commission (NLTC). The LTC and the State and other State parties were not named as parties to the proceedings despite making allegations against them.  Having not named the State, the plaintiffs did not meet the requirements for notice under s5 of the Claims By and Against the State Act (CBASA). Evidence before the Court disclosed the relevant application for Conversion Orders were published in a newspaper and the hearings were conducted in public and members of the plaintiffs’ clan participated in the LTC hearings.

The defendants applied for a dismissal of the proceeding, claiming an abuse of process a failure to disclose a reasonable cause of action, or it is frivolous and vexatious within the meaning of O12, r40 of the National Court Rules. Included in the abuse of process claim was an argument that the State and the LTC (State parties) should have been named as parties as allegations of fraud are leveled against them and the relevant Commissioners constituting the LTC which made the various decisions leading to the Conversion Order. That the defendants claim was deliberate by the plaintiffs to avoid meeting the requirements for notice under s5 of the CBASA.  Additionally, the defendants claim the Court’s jurisdiction was not been correctly invoked because: (1) the prescribed process were appeals and or reviews the LTCA 1962, which the plaintiffs failed to use; (2) the plaintiffs were seeking prerogative writs through an ordinary writ of summons and not the prescribe process of judicial review under Order 16 of the National Court Rules; (3) the plaintiffs were raising customary land ownership is over which the Court lacked jurisdiction; and (4) given the prior proceedings and final decisions under OS 530 of 2016 and WS 1355 of 2017, the common law doctrine of res judicata applied.  

The plaintiffs argued to the contrary. They claimed their pleadings disclose a reasonable cause of action. As for the claims of abuse of process, the plaintiffs claim (1), because they were not aware of the proceedings and the various hearings that led to the conversion order, they were not able to utilize the prescribed process under the LTCA 1962, (2) their claim is mainly against the named defendants and not the State parties which makes it not necessary to name and pursue claims against the State parties and before doing so, meet the requirements of s5 of the CBASA. In response to the argument that the correct mode of proceedings should be judicial review proceedings under O16 of the National Court Rules, they cite the decision of the Supreme Court in Charlie & Ors v. Paki & Ors (2021) SC2134 and argue that they are entitled to use the mode they have chosen and is therefore not an abuse of process. Finally, regarding the argument based on the doctrine of res judicata, the dismissal order was technical and not a determination of the issues on their merits.  They are thus entitled to file and pursue fresh proceedings. 

Held: 

1.	On the pleadings, the Court could not conclude at once, after examining the statement of claim, that the plaintiffs’ claim was so obviously and incontestably bad that it was beyond repair and that the only option left was to dismiss the claim pursuant to O12, r40 of the National Court Rules. Instead, the pleadings disclosed a reasonable cause of action which could only be determined by a proper trial and not summarily.
Applied Kerry Lerro v. Philip Stagg & Ors (2006) N3050 and Philip Takori v. Simon Yagari & Ors (2007) SC905.  
2.	The evidence before the Court supported a finding that the plaintiffs were aware or had reason to be aware of the application for conversion orders and did participate in the LTC proceedings which eventually led to the Conversion Orders. Consequently, the plaintiffs claim of not being aware and therefore were not able to utilize their right of appeal or review under the LTCA 1962 was rejected.
3.	The proceeding was an abuse of process of the Court because:
(1)	the plaintiffs failed to exhaust the prescribed rights of appeal or review against the Conversion Order provided for under ss34 and 38 of the LTCA 1962: Adopted and applied In re Anderson Agiru; Review Pursuant to ss 155 (2) and 155 (4) of the Constitution [2002] PNGLR 27; [2007] PNGLR 587.
(2)	the LTC, the State and the LTC Commissioners were not named as parties to the proceeding despite allegations level against them;
(3)	the plaintiffs failed to meet the condition precedent of notice under s5 of CABSA: Adopted and applied Bluewater International Ltd v. Mumu (2019) SC1798 and Geru Holdings Ltd v. Kruse (2023) SC2492.
(4)	the plaintiffs were seeking prerogative writs under ordinary writ of summons proceedings instead of by judicial review proceedings under Order 16 of the National Court Rules: Adopted and applied Telikom PNG Ltd v. ICCC (2008) SC906.
(5)	the plaintiffs were raising the main issue of customary land ownership, in respect of which the Court has no jurisdiction pursuant to the expressed provisions of the Land Dispute Settlement Act: Adopted and applied Siu v. Wasime Land Group Inc (2011) SC1107.
(6)	finally, the plaintiff issued proceedings contrary to the common law doctrine of res judicata given the final decisions in the prior proceedings under OS 530 of 2016 and WS 1355 of 2017 over the same Land and or cause: Adopted and applied Henry Joshep Mokono v. Water PNG Ltd (2023) N10354.
4.	The proceedings were therefore dismissed for an abuse of the process of the Court with costs against the plaintiffs to be taxed if not agreed. 

Cases cited
Application by Pinzi on behalf of certain Sio People [1988-89] PNGLR 464
Blair v. Curran [1939] HCA 23; (1939) 62 CLR 464
Bluewater International Ltd v. Mumu (2019) SC1798
Charlie & Ors v. Paki & Ors (2021) SC2134
Geru Holdings Ltd v. Kruse (2023) SC2492
Golpak v. Alongkarea Kali & Ors [1993] PNGLR 8
Greenhalgh v. Mallard (1947) 2 All ER 255
Henderson v. Henderon (1843) 3 Hare at p.115 (67 ER, at 319
Henry Joshep Mokono v. Water PNG Ltd (2023) N10354
In re Anderson Agiru; Review Pursuant to ss 155 (2) and 155 (4) of the Constitution [2002] PNGLR 27; [2007] PNGLR 587
John Wasis & Ors v. Margaret Elias & Ors (2016) SC1485
Karaie v. Puruno (2021) N8916
Kerry Lerro v. Philip Stagg & Ors (2006) N3050
Lord & Company Ltd v. Timothy Inapero (2014) SC1624
Nilkare v. Ombudsman Commission of Papua New Guinea [1999] PNGLR 333
Philip Takori v. Simon Yagari & Ors (2007) SC905
Popuna v. State & Owa (2026) SC1564
Port of Melbourne Authority v. Anshun Pty Ltd [1981] HCA 45
Pupuna & Ors v. Owa & Ors (2017) SC1524
Ronnie Wabia v. BP Explorations Operating Co. Limited & 2 Ors [1998] PNGLR 8
Siu v. Wasime Land Group Inc (2011) SC1107
Telikom PNG Ltd v. ICCC (2008) SC906
Tex Onsite (PNG) Ltd v. Nekitel (2017) N6651
The State v. District Land Court; Ex parte Caspar Nuli [1981] PNGLR 192
Titi Christian v. Rabbie Namaliu (1996) SC1583
Tuwi v. Goodman Fileder International Ltd (2016) SC1500
Wilson v. Kuburam (2016) SC1489
Yat Tung [1975] UKPC 6; (1975) AC 581
Yugari v. Waranduo (2024) SC2671

Counsel	
Mr. E. Asigau for the applicants/defendants
Mr. R. Diweni for the plaintiffs/respondents

1.	KANDAKASI DCJ: This matter concerns a customary land that was converted via a Conversion Order made by the Land Titles Commission (LTC), under the Land (Tenure Conversion) Act 1963 (Conversion Act) in favour of the defendants made on 03 February 2016. The land then known as Mauru is situated between Dogura and Bautama just outside the City of Port Moresby and is now known and described as Mauru Land Portion 247C, National Capital District (the Land). The plaintiffs, however, claim the conversion order was fraudulently arrived at because they as genuine owners of the Land by custom were not aware of the proceedings which led to the Conversion Order.  They go on to claim the defendants who are not the genuine owners lied about owning the Land and the Conversion Order was made in their favour.

Defendants’ application and the parties’ arguments

2.	The defendants are applying to have this proceeding dismissed based on several grounds. First, they claim the proceeding is an abuse of process and secondly, it fails to disclose a reasonable cause of action, or it is frivolous and vexatious within the meaning of O12, r40 of the National Court Rules. Included in the abuse of process claim is an argument that the State and the LTC (State parties) should have been named as a party as allegations of fraud are leveled against the LTC and the relevant Commissioners constituting the LTC which made the various decisions leading to the conversion order.  Elaborating on these, the defendants claim not naming the State parties was deliberate on the part of the plaintiffs to avoid meeting the requirements for notice under s5 of the Claims By and Against the State Act (CBASA).  Additionally, the defendants claim this Court’s jurisdiction has not been correctly invoked for four main grounds.  Firstly, the Land Titles Commissions Act 1962 (LTCA 1962) pursuant to which the Conversion Order was made, provides for appeals and or reviews against the decisions of the LTC, which the plaintiffs have failed to use. Secondly, to the extent that the plaintiffs are seeking prerogative writs in the reliefs they seek, they should have filed judicial review proceedings under Order 16 of the National Court Rules.  Thirdly, the plaintiffs’ main assertion of them being the customary owners of the Land, is an issue over which this Court has no jurisdiction to deal with.  Finally, the defendants point to prior proceeding under WS 1355 of 2017 raising the same issues as in the present case was dismissed for a failure to comply with Court orders.  Subject to any appeal or review of the dismissal order, that order finally determined the conclusiveness of the Conversion Order, all related issues and brought into operation the common law doctrine of res judicata.  

3.	In response, the plaintiffs are of course opposing the application, arguing to the contrary. They claim their pleadings disclose a reasonable cause of action; it concerns land that was formerly customary land but now State land through the Conversion Order by reason of which this Court has the jurisdiction to deal with the matter. As for the claims of abuse of process, the plaintiffs claim (1), because they were not aware of the proceedings and the various hearings that led to the conversion order, they were not able to utilize the prescribed process under the LTCA 1962, (2) their claim is mainly against the named defendants and not the State parties which makes it not necessary to name and pursue claims against the State parties and before doing so, meet the requirements of s5 of the CBASA. In response to the argument that the correct mode of proceedings should be judicial review proceedings under O16 of the National Court Rules, they cite the decision of the Supreme Court in Charlie & Ors v. Paki & Ors (2021) SC2134 and argue that they are entitled to use the mode they have chosen and is therefore not an abuse of process. Finally, regarding the argument based on the doctrine of res judicata, the dismissal order was technical and not a determination of the issues on their merits.  They are thus entitled to file and pursue fresh proceedings. 

Issues for determination

4.	The foregoing arguments present the following issues for the Court to consider and determine.  These are:
(1)	Is this proceeding an abuse of the Court’s process on the grounds that the plaintiffs:
(a)	failed to use the processes provided for under the LTCA 1962;
(b)	are seeking prerogative writs in an ordinary writ of summons proceeding instead of judicial review under Order 16 of the Courts Rules;
(c)	are raising a customary landownership issue over which this Court has no jurisdiction; and
(d)	issued this proceeding contrary to the common law doctrine of res judicata?
(2)	Do the pleadings fail to disclose a reasonable cause of action?
(3)	Should the LTC and the State be named as parties to the proceeding?
(4)	Depending on the answer to question (3) above, were the plaintiffs required to give notice under s5 of the CBASA?

5.	The second issue is an issue that can easily be disposed of by a careful examination of the statement of claim attached to the writ of summons and the body of law that has developed around O12, r 40.  Nothing more is required to determine the issue. I will therefore deal with that issue first. 

Do the pleadings fail to disclose a reasonable cause of action?

6.	The relevant law on failure to disclose a reasonable cause of action is well settled.  In my decision in Kerry Lerro v. Philip Stagg & Ors (2006) N3050, I looked at most of the cases on point at the time of that decision and summed up the law in the following terms at [13]. Then at [14] I added:

“...the 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.”

7.	These summation and statement of the law has been subsequently endorsed and applied with approval in numerous National and Supreme Court decisions.  The decision of the Supreme Court in Philip Takori v. Simon Yagari & Ors (2007) SC905 is an example of a case on point. At [25] the Court, after quoting the above summation said in its own words:

“We agree with the above summation of the relevant principles of law. We also agree with the addition to those principles because, they are consistent with the way in which the law has built around O12 r 40 in our jurisdiction to avoid any confusion between disclosing a cause of action as opposed to insufficiency of pleadings which can be cured by amendments.”

8.	The decision in Takori v. Yagari (supra) has been in turn endorsed with approval and applied by several other Supreme Court decisions. This includes for example the Supreme Court decisions in Bluewater International Ltd v. Mumu (2019) SC1798 at [12]; Geru Holdings Ltd v. Kruse (2023) SC2492 at [31]; Yugari v. Waranduo (2024) SC2671 at [53] and Tuwi v. Goodman Fileder International Ltd (2016) SC1500 at [23].

9.	Going by the principles of law as discussed above, I had a look at both the original statement of claim as well as the amended statement of claim filed in this proceeding. In my considered view, the pleadings per either of the statement of claims, are alleging fraud with some particulars pleaded against the defendants as well as the LTC concerning the Conversion Order. That allegation is based on two foundations.  Firstly, that the plaintiffs claim they are the customary owners of the Land and not the defendants.  Secondly, they claim they were not aware of the process leading to the Conversion Order. I note the Defendants own submissions at [22] to [24] effectively agree that is the plaintiffs’ claim.  

10.	Whether the plaintiffs will succeed in their claim is a matter for trial. That is not a relevant question at this stage as against the requirements of O12, r40.  Given the pleadings, this Court with respect can not at once come to a decision that the pleadings fail to disclose a reasonable cause of action known to law and that, no amount of amendment could easily cure it. Or put it another way as did the Supreme Court in Takori v. Yagari (supra), this Court could not conclude at once, after examining the statement of claim, that the plaintiffs claim here is so obviously and incontestably bad that it is beyond repair and that the only option left is to dismiss the claim.  

11.	For these reasons, I find the application to dismiss this proceeding pursuant to O12, r40 is not supported by what is disclosed by the pleadings in the plaintiffs’ statement of claim and is also against the law on point.  Hence, I answer the question of do the pleadings fail to disclose a reasonable cause of action, in the negative. Proceeding on that basis, I dismiss the application to dismiss this proceeding pursuant to O12, r40.

Is this proceeding an abuse of process?

12.	I now turn to a consideration of the first main issue of whether this proceeding is an abuse of the process of the Court based on the ground listed at [4] above. To answer this question, it is necessary to consider the relevant background and facts. 

Relevant background and facts

13.	The relevant background and facts come from the following affidavits:

For the applicant/defendants are the affidavits of:
(1)	Emmanuel Asigau filed 3 August 2021 (Document no. 21);
(2)	Nou Tamarua filed 31 August 2021 (Document no. 22); 
(3) 	Gomara Tamarua filed 31 August 2021 (Document no. 23); and 
(4)	Emmanuel Asigau sworn on 23 September 2021.

For the plaintiff/respondents are the affidavits of:
(1)	Iori Baeau filed on 03 August 2021, (document no. 13);
(2)	Ken Kuruku Vaibua, filed on 03 August 2021, (Document no. 14);
(3)	Julienne Kassman, filed on 03 August 2021, (Document no. 16); 
(4)	Deacon Mou Sisima, filed 03 August 2021, (Document no. 17);
(5)	Iori Baeau filed on 03 August 2021, (Document 18); and
(6)	Danley March, filed on 03 August 2021, (Document no. 15).

14.	These affidavits and the evidence, they disclose, reveal the defendants responded to a notice of an application for conversion of the Land then a customary land to a titled State Lease under the Conversion Act by the Tua Family Business Group through the LTC. After a hearing, the LTC on 03 February 2016, came to the Conversion Order.  Notice of the hearing leading to the Conversion Order was published in the National Newspaper on 02 March 2015. A copy of the relevant notice is annexure “A” to the affidavit of Gomara Tamarua sworn on 31 August 2021, document number 23.  

15.	The plaintiffs had the right to have the order reviewed and or appealed against which right they had to exercise within 90 days of the decision. These rights are respectively provided for by ss34 and 38 of the old and then applicable LTCA 1962, or now ss81 and 77 of the Land Titles Commission Act 2022. The plaintiffs did not utilize any of these two processes. They claim through the Affidavit of Mr. Baeau sworn on 18 November 2020, document number 13, that they were not aware of the proceedings and the hearing leading to the Conversion Order. They, therefore, did not participate in the LTC hearings.  Consequently, they claim they were not able to lodge their appeal or review within the 90 days allowed.  But according to Mr. Tamarua’s affidavit, on 13 March 2015, at the second hearing before the LTC, a person who identified himself as Kawa Sura appeared claiming he was representing the Gorogaha clan of Korobosea village. Then on the third and final hearing on 18 March 2015, a Manaka Bore appeared for and on behalf of Gorogaha Clan of Korobosea village.  On 18 March 2015, when the LTC handed down its decision, the said Manaka Bore was present.

16.	The plaintiffs say nothing about the notice of the LTC hearings published in the National Newspaper and the hearings that subsequently proceeded.  Yet, Mr. Baeau deposes at [43] of his affidavit:

“I also note that the Registrar Ms Agi lla when approached by my younger brother Inoa Baeau whose name appeared on the Objection to the LTC Conversion proceedings dated 03rd March 2015 and his wife Julienne Kassman must have suggested further hearing of the LTC proceedings on the Mauru land, as the evidence disclosed, but was instructed that there was no need for any further hearing.”

17.	This suggests the members of the plaintiff’s clan, the Gorogaha clan of Korobosea or the members of Gorogaha Korobosea ILG knew or had reason to know about the notice that was published and the related hearings of the LTC which eventually led to the Conversion Order.

18.	For the defendants, Mr. Tamarua, through his affidavit, deposes that the publication of the notice in the National Newspaper preceded earlier notices concerning the same Land. One such notice was a publication also in the National Newspaper on 12 November 2014 of a hearing for a conversion application by a Tua Family Business Group. That notice led to the defendants approaching and negotiating with members of the Tua Family Business Group who are part of the Gorogaha Tubusereia ILG and convinced them to allow Gorogaha Tubusereia ILG to make the application. On 16 December 2014, the LTC conducted a preliminary hearing with further hearings conducted between 13 and 18 March 2015. On 18 March 2015, the LTC formally made orders refusing the application by Tua Family Business Group on the basis that the business group was part of the Gorogaha Tubusereia ILG. It further ordered that the application for conversion would be made through the Gorogaha Tubusereia ILG.

19.	Another notice concerning the same Land, was published on 25 November 2014 in the National Gazette. That was of an application by Gorogaha Tubusereia ILG for it to be incorporated and registered as a customary land group. That application covered areas of customary land that included the whole or parts of the Mauru Land. A copy of the relevant gazettal notice is annexure “D” to Mr. Tamarua’s affidavit.  On 19 December 2014, the Registrar of Incorporated Land Groups issued a certificate of registration of Gorogaha Tubusereia ILG. Again, the plaintiffs make no mention of the notice that was published and the eventual incorporation of Gorogaha Tubusereia ILG. If the plaintiffs were the owners of the Land, they would have objected to the application for incorporation of Gorogaha Tubusereia ILG on the grounds of the application including Mauru Land. There is no evidence of the plaintiffs having done so. Similarly, there is no evidence of the plaintiffs challenging the incorporation of Gorogaha Tubusereia ILG. 

20.	On or about 03 May 2016, the period for any review or appeal against the Conversion Order expired.  A month thereafter on 10 June 2016, the Registrar of Titles, issued a certificate of title over the Land in favour of the second defendant, Gorogaha Tubusereia ILG. Since 10 June 2016, Gorogaha Tubusereia became the registered title holder of the Land, and its title became indefeasible. Thereafter, Gorogaha Tubusereia took steps to evict people who were on the Land without its permission or approval.  This included a filing on 19 August 2016, of National Court proceedings, OS No. 530 of 2016 seeking eviction orders against several people.  The first plaintiff, Iori Baeau applied to join in those proceedings as a defendant for himself and on behalf of his Gorogaha clan.

21.	On 7 June 2017, OS No. 530 of 2016 came before me as the judge in the case.  Appreciating he had not exercised his right of appeal or review under the LTCA 1962, within the required time and that, he had not separately challenged the title vested in the Gorogaha Tubusereia possibly through a judicial review proceeding, Mr. Baeau sought, and I granted him leave to withdraw his application for joinder. The defendants then proceeded with a hearing of their claim at the end of which, I made certain final orders in their favour. In short, the orders confirmed ownership of the Land by Gorogaha Tubusereia ILG, orders for the eviction of illegal occupants and injunctive orders in protection of Gorogaha Tubusereia ILG’s title.

22.	About six months later, on 13 December 2017, Diwenis Lawyers filed a Writ of Summons with a statement of claim by a Victor Nuana on behalf of the Gorogaha Clan of Korobosea village. The proceeding was styled, WS No. 1355 of 2017, a copy of which is annexure “EPA 2” to Emmanuel P. Asigau’s affidavit sworn on 25 September 2021.  Mr Nuana is a relative of the first plaintiff, both of whom are from the same Gorogaha clan of Tubuseria.  Annexure “B” to the Affidavit of Mr. Baeau filed 3 August 2021, document number 18 confirms that.  Again, the case came before me as a judge in the case and I issued several orders and directions aimed at enabling the parties to resolve the matter and failing that, an expedited hearing and disposal of the case. Upon return of those orders and directions, on 17 September 2019, I ordered a dismissal of the proceedings on account of the plaintiff, failing to comply with the Court’s orders and his failure to produce any reasonable explanation for his failures. 

23.	The statement of claim in the present case is almost identical to the one filed by Mr. Nuana in WS No. 1355 of 2017. A closure look at the statement of claim in the present case reveals a possible duplication or replication of the claim under WS No.1355 of 2017.  None of the affidavits filed for the plaintiffs go into the reasons for their failing to appeal against the decision in WS 1355 of 2017 and explain how it is possible for them to file fresh proceedings over the same subject matter that was covered in two prior concluded proceedings. 

24.	With these facts, I turn to the specific issues raised by the defendants in support of their claim that this proceeding is an abuse of process.  The grounds for this issue as earlier noted are the defendants’ submissions that the plaintiffs: 
(a)	failed to use the processes provided for under the LTCA 1962;
(b)	are seeking prerogative writ as a relief by writ of summons instead of judicial review under Order 16 of the National Court Rules;
(c)	are raising a customary landownership issue over which this Court has no jurisdiction; and
(d)	issued this proceeding contrary to the common law doctrine of res judicata?

(a)	Failed to use the processes provided under the LTCA 1962

25.	I will deal with these grounds in the order presented.  Turning first to the ground of the plaintiffs’ failure to use the prescribed process under ss34 and 38 of the LTCA 1962 of either an appeal or review against the Conversion Order, I note the plaintiffs take no issue with the existence of these prescribed processes. Their only response is that they were not aware of the proceedings and their claim of fraud by the defendants and the LTC. However, the evidence and the facts as discussed at [14] – [19] above, clearly establish as a fact that the plaintiff and his clan or the Gorogaha Koroboseia ILG and its members were aware or had reason to be aware of the application before the LTC and the various hearings before it.  I find that was the case because the plaintiffs’ representatives did attend or had reason to attend at the various hearings with the final hearing resulting in the issuance of the Conversion Order. Additionally, and most importantly, through the various newspaper notices and the public nature of the hearings of the LTC, all persons having an interest in the Land were informed of the conversion application and the hearings. Accordingly, I find that the claim of not being aware of the LTC hearings, and the grant of the Conversion Orders cannot be sustained.  Being so aware, they had the opportunity to either appeal against the Conversion Order or seek a review of the decision leading to the order. They had 90 days to do so.  That is more than the shorter time frames for appeals, for example, 40 days by s17 of the Supreme Court Act 1975 for appeals against National Court decisions. Unfortunately, for reasons only known to them, the plaintiffs failed to utilize the process and rights granted by statute, namely ss34 and 38 of the LTCA 1962.

26.	Further, under s32 of the LTCA 1962, the plaintiffs had every opportunity to apply to the National Court during any of the hearings of the LTC and prior to the Conversion Order for the National Court to determine any matters of concern that they felt were being ignored by the LTC. There is no evidence of the plaintiffs making any use of that avenue. Furthermore, under s38 (1AA) and (1AB) the plaintiffs had the opportunity and right to apply for an extension of time both before and after the expiry of the prescribed 90 days.  There is no evidence of the plaintiffs making or attempting to make any such application for extension of time or any attempt to make any such application. Finally, there is no evidence from the plaintiffs providing a reasonable explanation for their failing to make use of the opportunity and right given to them by statute. 

27.	Failing to utilize both the opportunity to appeal or apply for review as of right under ss34 and 38 of the LTCA 1962 or failing that, apply for an extension of time under the same Act, to do so, and instead come to this court claiming fraud in fresh proceedings is, in my humble view, an abuse of the Court’s process. If there were no public notices, there were closed and private hearings and no hearings at all before the LTC and members of the defendants did not at all participated at the hearings, there may be reason to claim fraud but not when the opposite of these factors is the case. 

28.	It is settled law that, where a party does not utilize a process of appeal or review of a decision by a court or any other public authority and instead files a process other than that which is prescribed by law, amounts to an abuse of the Courts process.  The Supreme Court in its twin decisions in In re Anderson Agiru; Review Pursuant to ss 155 (2) and 155 (4) of the Constitution [2002] PNGLR 27; [2007] PNGLR 587, emphasis that point.  In that case, the application was found guilty and a recommendation for his removal from office was made by a leadership tribunal for misconduct in office.  He filed a judicial review application against the decision by originating summons. Whilst that proceeding was pending the applicant filed his application with the Supreme Court raising the same issue he was raising in the judicial review proceeding. The Court found it amounted to an abuse of the process of the Court. The applicant had a duty to exhaust the available remedy and if he failed there, he still had the right to appeal to the Supreme Court. Consequently, the Court dismissed the offending proceeding.

29.	The decision in In re Anderson Agiru (supra) has been adopted and applied in many subsequent decisions of the Supreme and National Courts.  An example of that are the decisions of the Supreme Court in Wilson v. Kuburam (2016) SC 1489 and Popuna v. State & Owa (2026) SC1564.

30.	Additionally, a case that comes closer to the present case is the National Court decision in Tex Onsite (PNG) Ltd v. Nekitel (2017) N6651, which the learned counsel for the defendants referred to in their submissions.  In that case, the plaintiff applied for judicial review of a decision of the Register of Tenements under the Mining Act. The respondents responded with an application for its dismissal claiming the proceeding was an abuse of the Court’s process because the plaintiff did not utilize its right of appeal granted and provided for by s125 of the Mining Act.

31.	In refusing leave, Justice Makail held the plaintiff had a right of appeal as of right under s125(3) of the Mining Act. It was therefore not necessary to invoke the judicial review jurisdiction of the Court to review the decision of the Registrar of Tenements under Order 16 of the National Court Rules. Consequently, his Honour dismissed the proceeding.

32.	These decisions, in my view, highlight the fact that it is against good administration and therefore an abuse of process for a party who is aggrieved by a decision of a public authority to challenge such decisions without and outside the processes prescribed by law.  In the present case, the plaintiffs failed to follow the prescribed process of an appeal or a review under the LTCA 1962.  Coming to this Court outside either of these prescribed processes is clearly an abuse of process.  Not only that, whilst the plaintiffs are alleging impropriety on the part of the LTC, they themselves have failed to comply with the relevant provisions of the LTCA 1962.  By their own conduct, they allowed both their right of review or appeal periods to lapse.  They also failed to request an extension of time to do so after having failed to exercise the rights given to them. Consequently, they acquiesced the grant of title to the Gorogaha Tubuseria ILG and is now not open for them to change the grant of title. 

33.	The plaintiffs’ failure to use the prescribed process as discussed above alone forms the basis for a dismissal of this proceeding without more.  However, for completeness, I will consider the other basis for the defendants’ claims that this proceeding is an abuse of the Court’s process.

(b)	Seeking prerogative writ as a relief by writ of summons 

34.	Order 16 r1 of the National Court Rules and the decision of the Supreme Court in Telikom PNG Ltd v. ICCC (2008) SC906 are the basis for the defendants raising this ground.  Their argument is that, since the plaintiffs are seeking reliefs in the form of prerogative writs, they should have come to this Court by way of judicial review with leave of the Court.   Order 16, r1 reads:

“(1)	An application for an order in the nature of mandamus, prohibition, certiorari or quo warranto shall be made by way of an application for judicial review in accordance with this Order. 

(2)	An application for a declaration or an injunction may be made by way of an application for judicial review, and on such an application the Court may grant the declaration or injunction claimed if it considers that … it would be just and convenient for the declaration or injunction to be granted on an application for judicial review.”
(Emphasis supplied)

35.	The decision of the Supreme Court in Telikom PNG Ltd v. ICCC, which was a decision on appeal from me in the National Court, considered the rule in question.  There the Supreme Court held at [124] per Kirriwom and Cannings JJ held:

“We agree … that, the literal meaning of Rule 1 is that if a plaintiff wants to apply for orders in the nature of any of the four prerogative writs specified by Rule 1(1), the only proper procedure is to file an originating summons and seek leave for judicial review under Order 16. Further, that the wording of Rule 1(2) – in particular, the use of the word ‘may’ – suggests that if a plaintiff wants to apply for a declaration or injunction only, the Order 16 procedure is optional.
(Emphasis supplied)

36.	In response the plaintiffs refer the Court to the decision of the Supreme Court in Charlie & Ors v. Paki & Ors (supra). They argue, they are entitled to seek prerogative writs in proceedings other than judicial review proceedings under O16 of the Court Rules.

37.	The decision in Charlie v. Paki (supra) is clearly distinguishable from the decision in Telikom v. ICCC (supra) and the present case in four respects.  Firsly, the Court in Charlier v. Paki (supra) did not consider the provisions of O16, r1 of the National Court Rules. Secondly and most importantly, the then predecessor of the LTC, the Native Land Titles Commission had already determined the ownership of the relevant land in favour of the appellants, which was not the subject of any question or challenge by any competing customary land group.  Thirdly, the land in Charlie v. Paki’s (supra) case got sold to the first respondents, Mr and Mrs Evan (Ivan) Paki and the second respondent, Pacific Medical Center Inc. by the third respondent Di Tene Vata Land Group Inc., which did not own the land, and without the prior approval and consent of the appellants. Fourthly, the undisputed customary landowners being the first and second appellants challenged a conversion of their customary land without their consent and approval outside the process provided for under the Land Act.  The appellants, therefore, sought a declaration that the purported sale of their customary land by the third respondent and eventual grant and registration of a State Lease title in favour of the first and second respondents was null and void and have their land return to them.  Given the four factors, the Supreme Court upheld the appeal and granted the reliefs sought by the appellants. Clearly given, the four factors, the decision in Charlie & Ors v, Paki & Ors (supra) does not support the plaintiffs in the present case. 

38.	The submissions of the defendants on the position of the law in terms of O16, r 1 of the Court Rules with the case law on pointed as submitted by them is trite law. In addition to this point and the earlier point on the need to exhaust any prescribed process of appeal or review, it is settled law that, all decisions of public authorities, which include judicial and quasi-judicial authorities are subject to review or appeal.  This is the case, as may be provided for by subject specific legislation or generally pursuant to s155 (2) (b) and (3) (b) of the Constitution. The provisions of the Constitution apply where there is an absence of prescribed processes or where the right of review is not prohibited by statute.  Good examples of this are in the customary land dispute settlement area. This includes decisions of Provincial Land Courts under the Land Dispute Settlement Act 1975.  Despite the clear prohibition under s. 60 of the said Act, judicial review applications have been allowed against the decision of Provincial Land Courts under s. 155 (3) (4) of the Constitution. This has been the case, as early as the decision in The State v. District Land Court; Ex parte Caspar Nuli [1981] PNGLR 192, with followings thereafter in subsequent decisions as in Application by Pinzi on behalf of certain Sio People [1988-89] PNGLR 464 and Karaie v. Puruno (2021) N8916.

39.	Applying the law as discussed to the case at hand, I note, the plaintiffs in the present case are directly challenging the decision of the LTC which determined an application for conversion of the then customary land Mauru into State land pursuant to the Conversion Act. That decision would have come about through the process prescribed by s9 and 10 of the said Act.  These provisions require the LTC to consider amongst others ownership and other interests in the subject land before coming to a decision on an application for conversion and any objection thereto. Without exhausting their right of appeal or review under the LTCA 1962, the plaintiffs have come to this Court through a writ of summons which seek the following reliefs:

“1.	An order declaring null and void ab initio the Certificate of Title held by the second defendant over land known as Portion 2471C, Milinch Granville, Fourmil Moresby, National Capital District, being all of the land contained in Registered Book Volume 36 Folio 120. 
2.	An order directing the Registrar of Incorporated Land Groups to forthwith amend the register of incorporated land groups relevant to the second defendant by cancelling the Certificate of Title over Portion 2471C, Milinch Granville, Fourmil Moresby, National Capital District, being alt of the land contained in Registered Book Volume 36 Folio 120. 
3.	An order permanently restraining the first defendant from dealing in any way with the land known as Mauru and interfering with the rights of the plaintiffs and the Gorogaha clan members over Mauru land. 
4.	An order directing the Registrar of Incorporated Land Groups to forthwith cancel the registration of the second defendant in the register of incorporated land groups. 
5.	Alternatively, an order directing the Registrar of Incorporated Land Groups to forthwith vary the register of incorporated land groups relevant to the second defendant by deleting Mauru land from the list of properties/land as registered. 
6.	An order that any issue of ownership of Mauru be heard and determined following the process set out under the Land Disputes Settlement Act. 
7.	Interim orders to preserve the status quo on the land, including orders that the defendants be restrained from – 
(a) transferring title over the land; and 
(b) sub-dividing the Land or conducting any dealings whatsoever in, over or in relation to the Land; and 
(c) carrying out eviction of the settlers on the Land; and 
(d) issuing threats of any nature or disturbing the settlers quiet enjoyment of the land; and 
(e) carrying out any development on, in or over the Land. 
8.	An order for costs of this proceeding in favor of the plaintiff; 
9.	Such further or other orders, including consequential orders as to the Court may be just.”

40.	A quick look at the reliefs sought without more clearly shows, the plaintiffs are seeking reliefs that are not only declarations and injuctions but other reliefs as well in the nature of prerogative writs. This brings into operation the provisions of O16, r 1 of the Court Rules, as interpreted and applied by the Supreme Court in its decision in Telikom v. ICCC (supra).  The correct process should have been a judicial review proceeding with leave of the Court, which would be consistent with the law generally on challenging a decision of a public authority. This clearly renders the commencement and further pursuance of this proceeding in the current form, an abuse of the process of the Court, which on its own would be sufficient to dismiss the proceeding.  For completeness however, I will go onto consider the remaining issues.

(c)	Customary landownership issue - Court has no jurisdiction

41.	The next issue for consideration is the issue of the plaintiffs raising customary landownership issues, in respect of which this Court has no jurisdiction.  In support of their argument that the plaintiffs’ claim is raising the issue of ownership of the Land by custom, the defendants point to the plaintiffs’ pleadings at [11] to [16] in both the original and amended statement of claim. These parts of the pleading essentially plead that the plaintiffs are the customary owners of the land as confirmed during the hearing by the Native Land Commission between 6 and 8 January 1960 of Central Claim No. 88, where the Commission determined ownership under lori Govea. The plaintiffs go on to claim, the defendants had no customary ownership of the Land and were not entitled to apply for and secure the Conversion Order. They pleaded further that, as they were not aware of the application for conversion and its hearing leading to the grant of the Conversion Order, they were not able to attend and object. Ultimately, one of the reliefs they seek per item 6, is a prayer for an order that “any issue of ownership of Mauru be heard and determined following the process set out under the Land Disputes Settlement Act”. 

42.	The plaintiffs again refer to the decision in Charlier & Ors v. Paki & Ors (supra) and submit, that decision settled the issue beyond any doubt. Elaborating on the submission, learned counsel for the plaintiffs, Mr. Diweni, submits that case involved compulsory acquisition of a customary land, which the customary landowners challenged and sought to have it returned to them. That was based on a claim of fraud. The customary landowners relied on the finding of the Native Lands Titles Commission under Central Claim no. 88, which found them to be owners of the land by custom.  Counsel goes on to submit, Central Claim No. 88 covers a large area of customary land. Part of that land was determined in the plaintiffs’ favour. The National Court dismissed the case on the grounds that the Court lacked jurisdiction to deal with the matter.  Finally, Counsel submits, on appeal, the Supreme Court overturned the National Court decision.  The Court found that the action was founded on fraud over land that was no longer customary land. The proceeding was not frivolous or vexatious.

43.	Applying the above decision to the present case, Counsel for the plaintiffs submits, the plaintiffs also rely on Central Claim No. 88 among other evidence to prove their rights to part of the land decided under Central Claim No. 88 (Mauru Land). 

44.	Unfortunately, learned Counsel for the plaintiffs, makes no mention or submission on the four distinguishing factors I mention at [37] above, which makes this case distinguishable and different to the Charlie & Ors v. Paki & Ors. Further, the plaintiffs’ pleadings and submissions do not claim the issue of ownership of the Land by custom was conclusively determine by the decision in Central Claim No. 88 and that they are the undisputed owners of the Land.  Instead, they concede by relief number 6 in their prayer for relief that the ownership issue needs to be determined by the process under the Land Disputes Settlement Act. The Court with the relevant and necessary jurisdiction under that legislation is the Local Land Court and on appeal to the Provincial Land Court and from there to this Court only by judicial review with the Court’s leave. Further, even if the decision in Central Claim No.88 determined the ownership issue, there is still the need to prove by appropriate evidence that the plaintiffs are the descendants of the people found to be the owners of the land by the Native Land Titles Commission and are members of those persons’ clan as the relevant customary landowning group.  

45.	With the plaintiffs clearly raising the issue of their ownership of the Land by custom, in respect of which the defendants are seriously contesting, it will be most critical and necessary for the question of ownership of the Land by custom to be first inquired into and determined. That is not an issue, this Court has the necessary jurisdiction but by expressed legislative language vested in the Local Land Court under the Land Disputes Settlement Act, with final appeals to the Provincial Land Courts.  Upon a determination of the ownership question in favour of the plaintiffs will there be foundation for the Court to consider a grant of all or any of the reliefs sought. 

46.	The decision of the Supreme Court in Siu v. Wasime Land Group Inc (2011) SC1107, which learned Counsel for the defendants, Mr. Asigau assisted me with is relevantly on point. There, the Supreme Court defined what amounts to an interest in customary land for the purpose of determining the issue of jurisdiction.  The Court also adopted and applied the decisions of the National Court in Golpak v. Alongkarea Kali & Ors [1993] PNGLR 8 and Ronnie Wabia v. BP Explorations Operating Co. Limited & 2 Ors [1998] PNGLR 8.

47.	In the first case, Doherty J, while holding that the National Court had no jurisdiction to deal with issues as to ownership or interests in customary land made the following comments:

“It seems to me that the spirit and the intent of the legislature in writing the Land Dispute Settlement Act was to prevent the National Court from arbitrating on the forms of accession and hence ownership or control on interests in customary land and I think therefore that it would be against both the letter and the spirit of the legislation if I took upon me the powers to make declarations on what is an interests in land. I therefore consider that this Court does not, at this time, have jurisdiction to arbitrate in this case and I must therefore refer it to the Local Land Court to determine who have the interests in the land.”

48.	In the second case, Sevua J applied the decision in the Golpak’s case to hold that the National Court was deprived of and had no jurisdiction to inquire into traditional forms of accession into traditional lands and ownership and interest in such customary lands.

49.	On its part, the Supreme Court held:

“We agree with the comments expressed above and we too are of the view that His Honour the learned Judge erred in law when he did not dismiss the entire proceedings for want of jurisdiction. In our opinion there is no proper basis for the Judge to entertain this claim and we conclude that His Honour fell into error in that respect. There were sufficient evidentiary materials before the National Court which showed that this was really a dispute over monetary and other financial benefits and interests arising from the control, use and ownership of customary lands.”

50.	The Court went on to hold:

“The person or persons who are declared as the customary owners of this land will have the ultimate control over how financial and other monetary benefits are to be distributed. Hence ultimately the dispute was not only about ownership of customary land per se but also a dispute over interests in customary land.”

51.	Having regard to all the foregoing, I accept the defendants’ submission that this Court has no jurisdiction to determine the primary issue of ownership of the Land by custom.   Hence, the commencement of this proceeding and pursuing the same in this Court is clearly an abuse of the Court’s process.  I would thus dismiss the proceeding on this ground alone too.

(d)	Common law doctrine of res judicata?

52.	This leads us to the final reason for the defendants’ grounds for claiming abuse of process. This issue is based on the defendants’ claim that this is a re-filing of proceedings styled WS 1355 of 2017 commenced by Victor Nuana on 13 December 2017. This the defendants (although not expressly) argue offends against the common law doctrine of res judicata. Those proceedings as noted were filed through, Diwenis Lawyers, who are also the lawyers for the plaintiffs in the present case.  As already noted, Mr Nuana is a relative of the first plaintiff, both of whom are from the same Gorogaha clan of Koroboseia.  Annexure “B” to the Affidavit of Mr. Baeau filed 3 August 2021, document number 18 confirms that.  Again, as already mentioned, that case came before me as a judge in the case and I issued several orders and directions aimed at enabling the parties to resolve the matter and failing that an expedited hearing and disposal of the case. Upon return of those orders and directions, on 17 September 2019, I ordered a dismissal of the proceedings on account of the plaintiff, failing to comply with the Court’s orders and his failure to produce any reasonable explanation for his failures. 

53.	The dismissal order finally concluded the matter between the parties, the subject matter and all issues and concerns associated with those proceedings subject only to any appeals to the Supreme Court.  Appeals against such decisions have gone as of right to the Supreme Court as demonstrated by many decisions of the Supreme Court as in: Lord & Company Ltd v. Timothy Inapero (2014) SC1624; Pupuna & Ors v. Owa & Ors (2017) SC1524 and John Wasis & Ors v. Margaret Elias & Ors (2016) SC1485, to name a few.

54.	If there is any doubt, the decision of the Supreme Court in Pupuna & Ors v. Owa & Ors (supra) is instructive. There, the Supreme Court held in respect of a summary determination of an appeal was final in these terms:

“In relation to the application before us, the order of the Supreme Court summarily dismissing the appeal SCM 34 of 2015 was a final determination of the grounds of grievance the applicants have against the National Court decision appealed against. The Supreme Court’s order of 30th June, 2016 was the end of that matter. It is immaterial that the appeal was summarily dismissed and not determined on its merits. It is also irrelevant that serious issues of public interest are involved. There must be finality in litigation. The applicants are now re-agitating the same grounds of grievance as they raised in appeal SCM 34 of 2015.By taking this course they are having “a second bite of the cherry”, which the Courts guard against as an abuse of process; Anderson Agiru v Electoral Commission and The State (supra) SC687, Application by Anderson Agiru (supra) SC704.”
(Emphasis supplied)

55.	The only argument in response from the plaintiffs is that, their claim of fraud was not raised in the earlier proceedings. As such, their argument is that they are entitled to file this proceeding.  They also argue that the decision to dismiss the earlier proceeding was a technical one and as such, that did not determine the issues as between the parties on the merits. 

56.	A decision on this issue is dependent on what the relevant principles of law say on the issue and their application in the present case.  The relevant principles of law on point are well settled.  In my decision in Henry Joshep Mokono v. Water PNG Ltd (2023) N10354, I discussed the relevant principles of law on the subject based on prior decisions of the Supreme Court in Titi Christian v. Rabbie Namaliu (1996) SC1583 and Telikom v. ICCC (supra).  After considering the relevant parts of the decisions I concluded at [18]:

“From these discussions it should be clear that, where a cause of action is litigated and final decision is arrived at, the parties are bound by the decision and are therefore precluded from relitigating or reagitating the same cause. That is when a matter is said to have reached cause estoppel. The same applies to any issue that has been considered and determined in the earlier proceeding aside from the cause of action itself. This (sic) when a matter is said to have reach issue estoppel. There is a third component. That component has not been expressly raised and determined in PNG yet. This has to do with cases in which certain matters ought to have been included in the earlier proceedings but were not and a party seeks to litigate those points ... This is part of the cause estoppel as it has to do with the cause or matter that was previously heard and determined by a court of competent jurisdiction.
(Emphasis supplied)

57.	As I noted in that case, there was no local decision or authority on the third aspect of the doctrine of res judicata.  I therefore tasked the learned Counsel in that case to assist with research and submissions on the issue. Only the Counsel for the defendant, Ms Samol assisted with submissions based on the Australian High Court decisions in Port of Melbourne Authority v. Anshun Pty Ltd [1981] HCA 45 and Blair v. Curran [1939] HCA 23; (1939) 62 CLR 464.  The decision in the first case also considered the English Courts decisions in Henderson v. Henderon (1843) 3 Hare at p.115 (67 ER, at 319); Yat Tung [1975] UKPC 6; (1975) AC 581 and Greenhalgh v. Mallard (1947) 2 All ER 255.  I discussed these decisions at [19] to [24] and concluded at [25]:

“As can be gathered from the foregoing discussion of the law, the notion of res judicata extends [not only] to issues or facts which are clearly part of the subject-matter of a litigation but also to matters that were not pleaded or raised in earlier proceedings. This is part of the cause estoppel principle. The courts and the law require the parties to all litigation to bring forward their entire case either as plaintiffs or defendants to a litigation. Hence, the parties will not be permitted to open the same subject of litigation which should have been brought forward as part of the subject in contest in the earlier proceeding, but was not brought forward due to their negligence, inadvertence, accident, or a deliberate choice not to make them part of the earlier proceeding. For when the court comes to a decision in a case, the decision or pronouncement of judgment covers all matters or every point which properly belonged to the subject of litigation, and which the parties, exercising reasonable diligence, might have brought forward at the time. This is necessary to ensure finality in litigation and to also ensure the parties are not caused to face multiple proceedings over the same cause with increased costs.”

(Emphasis supplied)

58.	Applying the law to the present case, the duty was on the plaintiffs through the earlier proceeding under the WS 1355 of 2017 proceedings, to raise all issues concerning and or connected to the eventual granting of the Conversion Order. That was required whether the issues were grounded on the tort of fraud or anything else.  Whether the plaintiff there was only Victor Nuana for himself or for and on behalf of his Gorogaha Clan of Koroboseia and its membership, that was an action against the Conversion Order. This was necessary to ensure all relevant and related issues, rights and interests are considered and determined in the one proceeding and not through duplicate or multiple proceedings. That was in turn necessary to minimise costs and to meet the public policy requirement of finality in litigation subject only to the right of appeal.

59.	In these circumstances, I find the doctrine of res judicata applies to preclude the plaintiffs from reagitating an issue they went to court earlier or had reason to join in if the action by Victor Nuana was not by them or was against their interest.  It should follow therefore that. The current proceeding is open for dismissal solely on this ground also.

60.	I now turn to a consideration of the remaining issues starting with the issue on not naming the LTC and the State as parties.

Should the LTC and the State have been named as parties?

61.	As noted, the defendants argue that the plaintiffs’ statement of claim, plead fraud against the State parties. However, despite these allegations, the State parties have not been named. The plaintiffs take issue and submit they are claiming only against the defendants they have named and none of the State parties.  

62.	To resolve the controversy these competing arguments present, it is necessary to examine the allegations contained in the plaintiffs’ statement of claim.  From a consideration of the statement of claim, clearly, the plaintiffs’ claim is one based on the tort of fraud. They allege fraud and impropriety against the defendants as well as the State agencies or authorities, namely the LTC, and tacitly the Commissioners that presided at the relevant hearings up to the grant of the Conversion Order.  They also make claims against the Registrar of Incorporated Land Groups (Registrar). Specifically, the plaintiffs claim that the decision by the LTC was fraudulently arrived at resulting in a conversion order in favour of the Gorogaha Tubuseria ILG.  As against the Registrar for accepting Gorogaha Tubuseria ILG application and have it incorporated as an ILG. These allegations appear in the pleadings at [16] – [19] of the Amended Statement of Claim filed 10 December 2020, document number 2 in the Court file or the corresponding pleadings in the original statement of claim.  

63.	The plaintiffs have, however, failed to specify who committed the alleged fraudulent acts.  In the absence of any such clarity, the pleadings do suggest either the LTC, the Commissioners dealing with the case or the defendants or all of them committed the alleged acts of fraud. Yet the LTC and the Commissioners who conducted the hearing nor the State which is vicariously liable for the acts of the LTC or the Commissioners are not named as parties to this proceeding. 

64.	In our system of justice, anyone who is accused of committing an offence, misconduct in office or civil wrong must be given the opportunity to be heard before a determination of one’s guilt or liability and the consequences that should follow are determined.  The relevant principles of law are articulated in the provisions of s37 and 59 of the Constitution. As was held by the Supreme Court in the context of alleged leadership breaches in Nilkare v. Ombudsman Commission of Papua New Guinea [1999] PNGLR 333, this entails apart from naming the alleged offender or tortfeasor in the relevant proceedings and giving them:

 (1)	notice of the nature and substance of the allegations made against them by serving the proceedings on them; 
(2)	reasonable opportunity to respond to the allegations;
(3)	where requested provide further and better particulars of the allegations;  and 
(4)	provide copies of all relevant and necessary documents either voluntarily or on their request. 

65.	In this way, the accused are enabled to defend the proceeding and participate in the relevant proceedings from the start to finish with a final determination of the allegations against them. 

66.	In this case, in addition to the named defendants, serious allegations of fraud are raised in the plaintiffs’ statement of claim against the LTC and therefore the Commissioners who constituted the relevant hearings that led to the Conversion Order.  They should therefore have been named as parties to this proceeding as defendants, but they have not been so named.  Also, the State which would be vicariously liable for the actions of the LTC and the Commissioners is similarly not named as a party.  Thus, I answer the question, should these parties have been named, in the affirmative. The effect of this is that this proceeding is defective.  This does not, however, on its own, form any foundation for a dismissal of the proceedings because the defect can be fixed by appropriate applications for the State parties to be joined as parties and consequential amendments to the pleadings. 

Issue 4 - Were the plaintiffs required give notice under s5 of the CBASA?

67.	Leading from the last issue dealt with, is the last and final issue.  The issue is, should the plaintiffs have complied with the provisions of s5 of the CBASA. The defendants claim the plaintiffs did not include the State parties deliberately to avoid meeting the requirements for them to give notice of their intention to make a claim against the State, pursuant to s5 of the CBASA.  The plaintiffs’ response is the same as their response to the last issue. The plaintiffs claim their claims are only against the parties they have named and not against the State parties. In my view, if this was an omission by inadvertence of the plaintiffs and their lawyers, they could have applied to amend the pleadings to include these parties.  However, the plaintiffs failed to do that either voluntarily or upon the defendants raising the issue. I find in the circumstances, whether deliberate or by inadvertence, the omission of the State parties to this proceeding was a serious omission. The matter cannot proceed any further unless and until the missing parties are named, the proceedings are served on them, and they have filed their defence and are ready to proceed with the next steps leading to a trial if need be.  But that is not all, the issue of notice under s5 of the CBASA becomes critically important.

68.	It is well settled law that the requirement for notice under s5 is a condition precedent to making any claim against the State.  That includes all State agencies and instrumentalities.  The decision of the Supreme Court in Bluewater International Ltd v. Mumu (2019) SC1798 reiterated that principle in the following terms at [41] and [42] as follows:

“To this we add, an application for default judgment is based on a technical failure, namely failing to file a defendant’s defence within time periods required by the National Court Rules. Sometimes, such applications are contested. Other times, they are ex parte the defendants. In either case, technically, plaintiffs applying for such judgment have an obligation to demonstrate to the satisfaction of the Court that they themselves have complied with all the relevant and applicable technical requirements as they apply to them. Such requirements include meeting condition precedents such as, the notice requirements under s. 5 of the CBASA in the case of a claim against the State … 

Proceeding on the basis of the above, we are of the view that, the learned trial Judge was entitled and was within her discretion to raise the issue of notice under s.5 of the CBASA. As already mentioned, the requirement for notice is a condition precedent  that must be first met before any claim against the State can proceed. The learned trial Judge needed to be satisfied that, a condition precedent to the claim was met and there was no impediment to signing default judgment against the State. The duty was on Bluewater to demonstrate to the satisfaction of the Court that, this condition precedent was met. When it failed to do so, the learned trial Judge was within her discretionary power to raise the issue of s. 5 notice in the way she did.”
(Emphasis supplied)

69.	As could be noticed, that was in the context of an application for default judgment which was refused on account of the plaintiff (respondent) failing to meet the requirements for notice under s5 of the CBASA.

70.	In the present case, given the plaintiffs’ claims of fraud against the State parties, notice of the plaintiffs’ intention to make a claim against the State should have proceeded this action.  This the plaintiffs failed to observe and give the required notice within the required time or on proper application any extended time frame.  However, the plaintiffs have chosen deliberately or inadvertently to exclude the State parties as parties to this proceeding and by their own action or inaction, failed to meet the condition precedent per s5 of the CBASA. Issuing the proceedings without first meeting the condition precedent also renders this proceeding invalid and amounts to an abuse of the process of the Court. The proceeding is dismissible on this ground alone if not for the other grounds. 

Conclusion and outcome

71.	The sum effect of all the foregoing discussions is this.  This proceeding is an abuse of the process of the Court because:

(1)	the plaintiffs have failed to use the process of an appeal, or a review provided for under the LTCA 1962, including the provisions for extension of the prescribed period for these processes;
(2)	by filing a proceeding against the common law doctrine of res judicata by refiling proceedings over a cause of action that was the subject of an earlier proceeding that was dismissed which could only be revisited on appeal of review;
(3)	failed to name the State parties against whom allegations have been made; and 
(4)	failing to meet the condition precedent of notice under s5 of the CBASA;

72.	For the foregoing reasons, the application to dismiss this proceeding is granted.  The proceeding is dismissed in its entirety.  Costs will follow the event in favour of the defendants to be agreed if not taxed.

73.	Judgment and orders accordingly.
_____________________________________________________________________
Lawyers for the plaintiffs: Diwenis Lawyers				
Lawyers for the defendants: Pacific Legal Group Lawyers