SC1107

PAPUA NEW GUINEA
IN THE SUPREME COURT OF JUSTICE

SCA NO 36 OF 2007

LOUIS LUCIAN SIU
Appellant

V

WASIME LAND GROUP INCORPORATED
Respondent

Waigani: Injia CJ, Manuhu & Kawi JJ
2010: 31st August
2011: 28th April

REAL PROPERTY - Customary land- Dispute over ownership of customary land - Interests in customary land – What isinterests in customary land? Interests in receiving royalty payments, premium payments and levies are interests in customary land within the meaning of Section 26 of the Land Dispute Settlement Act-In addition any monetary benefits including any other benefits derived from the use of such lands are interests in customary lands-Proceedings seeking declaratory reliefs and court recognition of various interests in customary amounts to an abuse of the court process. No reasonable cause of action disclosed- Appeal dismissed. Practice and Procedure- Application to dismiss case for not disclosing reasonable cause of action-National court lacks jurisdiction to enquire into issues of customary land ownership and dispute over interests in customary lands – Order 12 rule 40. No reasonable cause of action disclosed- non disclosure of a cause of action amounts to an abuse of court process within the meaning of Order 12 rule 40. Appeal dismissed.

HELD: 

(1) A dispute as to an interests in Land" as used in Section 26 and other provisions of the Land Dispute Settlement Act means a property interests or proprietary interests or a legal or equitable interests or any financial and monetary interests arising out of one's ownership of such customary lands.

(2) Interests in customary lands also means interests over the use of such traditional lands and includes financial benefits and any other benefits derived from the use of such lands. It also means any monetary or financial benefits arising from or associated with or in connection with the use of or with one's ownership of such a customary land and includes financial payments and benefits paid to land owners.

(3) Preliminary issues can be raised at any time and at any stage of the proceedings but preliminary issues which goes to the root of or competency of the appeal should have been more appropriately raised in an Objection to Competency filed under Order 7 rules 14-18 of the Supreme Court Rules. Any substantive preliminary matter that goes to the root of or competency of an appeal should be raised at the competency stage.

(4) Receiving of royalty payments, premium payment and levies are an 'interests in customary land' within the meaning of Section 26 of the Land Dispute Settlement Act.

(5) The National Court has no jurisdiction to inquire into or deal with issues relating to disputes over customary ownership or interests in customary lands. Golpak - v - Alongkarea Kali & Ors [1993] PNGLR 8 and Ronny Wabia –v- BP Petroleum Explorations Operating Co. Limited & 2 Ors [1998] PNGLR 8 applied.

(6) Any proceedings seeking declaratory reliefs and court recognition of various interests in customary land from which they stand to derive monetary benefits or any other benefits including financial and any other physical benefits amounts to an abuse of the court process because it does not in any way disclose a reasonable cause of action. 

Cases cited
Papua New Guinea Cases

Golpak - v - Alongkarea Kali & Ors [1993] PNGLR 8
Mamun Investments –v- Paul Ponda & Ors [1995] PNGLR 1
Ronny Wabia –v- BP Petroleum Explorations Operating Co. Limited & 2 Ors [1998] PNGLR 8

Overseas cases

Burton v Shire of Bairnsdale [1908-09] 7 CCR
Dey –v- Victorian Railways Commissioner [1994] 78 CLR 62 
Tapion –v- Anderson [1973] VR 321
 
Counsel:

Mr F. Griffin, for the Appellants
Mr C. Narokobi, for the Respondents

28 April, 2011

1. BY THE COURT: This is an appeal against the interlocutory judgement of Cannings J given on the 27th April 2007 in the National Court proceedings OS 606 of 2006, Wasime Land Group Incorporated –v- Louis Lucian Siu, and the Vanimo Forests Products and Terry Wara.

2. In OS 606 of 2006, the respondent herein, (who was the plaintiff in OS 606 of 2006) by Originating Summons sought inter alia substantive declaratory orders relating to their rights to receive royalties and other monetary benefits arising from their ownership of certain customary lands in Vanimo, the subject of an ongoing ownership dispute.

3. On the 27th of May 2007, the appellant Louis Lucian Siu filed and moved a Notice of Motion to have OS 606 of 2006, dismissed pursuant to Order 12, rule 40 of the National Court Rules on the basis that the entire court proceedings in OS 606 of 2006 are frivolous, vexatious and amount to an abuse of the court process. The court dismissed that Motion.

4. This appeal lies from that decision. In dismissing that motion, the learned Judge ruled that he was "not satisfied that this is an appropriate case for the proceedings to be dismissed in their entirety." His Honour said:

"There are clearly, in my view, arguments to be made on both sides. It is not clear that this is a frivolous or vexatious case or that there is no cause of action available to the plaintiff. There have been arguable points of law raised by both counsels. So the matter should not be dismissed. I consider that the most appropriate cause of action is to preserve the status quo as it existed between 10th November and 6th December 2006 which means that I consider the next appropriate position to be that the interim orders of 10th November 2006 be reinstated or orders in those terms." 

5. Clearly this was an interlocutory decision for which leave was required and was granted under Section 14 (3)(b)(iii) of the Supreme Court Act.

PRELIMINARY ISSUES

6. Mr Narokobi of counsel for the respondents raised a number of preliminary issues which in our opinion goes to the competency of this appeal. It is our judgement that whilst preliminary issues can be raised at any time and at any stage of the proceedings, we are of the opinion that preliminary issues raised by Mr Narakobi which goes to the root of the appeal should have been more appropriately raised in an Objection to Competency under Order 7 rules 14-18 of the Supreme Court Rules. In our opinion any preliminary matter that goes to the root of or competency of an appeal should be raised at the competency stage. We will address only simple issues that can be cured by simple amendments. Hence we dismiss all preliminary issues raised by Mr Narakobi. 

7. The only preliminary issue that we will deal with here is the names of who the proper parties are in his appeal. The cover page to the appeal book showed different parties to the parties named in the first and subsequent pages. Counsel for the respondents moved the court to dismiss the entire appeal on the basis that wrong parties were named on the appeal books. In the whole appeal book, we find that there are sufficient evidence to show that the correct parties are those named in pages 1 and 2 of the appeal book and not those appearing on the cover page. We are quite satisfied that this was really a typing mistake which can be cured by a simple amendment and we therefore grant leave to change the names of the parties appearing in the cover page to render consistency with those appearing in pages 1 and 2 of the appeal book.

 BACKGROUND TO THIS APPEAL.

8. On the 10th of May 2004, the Vanimo Local Land Court in proceedings LLC No. 1 of 2004, Tom Bais & Ors of Isimbu Clan of Ningra village -v- Robert Bipu & Ors of Wasime Iyam Clan also of Ningra village, made a decision over a disputed portion of customary land identified as "Basse Land Ningra Reserve Block B – Portion 47". The Local Land Court had recognized and accepted that the Land Titles Commission had previously declared that the ownership of this land was vested in the Wasime Iyam Clan of Ningra village.

9. This prompted the Appellant (The Respondents) to lodge an appeal to the Provincial Land Court on the 6th of July 2004. At the time of the National Court decision on the 27th April 2007 dismissing the appellants application, that appeal to the Provincial Land Court had not been determined as yet and was still pending.

10. Based on this Local Land Court decision of the 10th May 2004, to recognize the respondents as being the owners of this traditional land, they (i.e. Wasime Land Group Incorporated) filed the proceedings OS 606 of 2006 in the National Court to have the court recognize their rights and entitlements to receive any royalties and monetary benefits arising from their ownership of the land in dispute.

11. In the proceedings of OS 606 of 2006, the respondents sought inter alia Orders that it and its members "are the lawful recipients of premiums from Vanimo Forest Products Limited pursuant to Local Land Court decision of 10th May 2004, from logging operations conducted on Basse land, Ningra Reserve Block B – Portion 47 – Sandaun Province".

12. In October 2006, the respondents obtained ex parte interim orders from the National Court, by which the payment of royalties and levies to both the plaintiffs and the first defendants by the second and third defendants was restrained.

13. On the 13th of February 2007, the appellant filed a Notice of Motion seeking to dismiss proceedings OS 606 of 2006 on the basis that it is frivolous and vexatious. On the 27th of April 2007, this motion was heard, argued and determined by the motions judge in favour of the respondents.

 GROUNDS OF APPEAL 

14. The appellant advances three grounds of appeal. These grounds of appeal raised the single issue of whether or not the Judge erred in law in refusing to dismiss OS NO 606 of 2006, under order 12, rule 40 of the National Court Rules when the National Court did not have jurisdiction to determine ownership of customary land. 

15. The Originating Summons (OS 606 of 2006) does not specifically plead the "ownership of land Basse" and the benefits deriving from ownership of such lands. 

ISSUE NO 1. INTERESTS IN LAND

16. The first issue for us to determine is whether the pleadings in OS 606 of 2006 sufficiently raise the issue of customary land ownership or interests in customary lands such as to deprive the National Court of jurisdiction to hear issues relating to a dispute over ownership or interests in or arising out of the use of customary land. 

17. The reliefs claimed in the OS 606 of 2006 are in these terms;

(1) A declaration that the plaintiff and its members are the lawful recipients of royalties from the National Forest Service pursuant to Local Land Court decision of 10th May 2004, from logging operations conducted by the first defendant on Basse land, Ningra Reserve Block B – Portion 47, Sandaun Province.

(2) A declaration that the plaintiff and its members are the lawful recipients of premiums from Vanimo Forests Products Limited pursuant to local land court decision of 10th May 2004, from logging operations conducted on Basse land, Ningra Reserve Block B, Portion 47 – Sandaun Province.

18. Is the receiving of royalty payments, premium payment and levies an 'interests in customary land' within the meaning of Section 26 of the Land Dispute Settlement Act? In M & E Professional Dictionaries; A Dictionary of Law; 1983, Second Edition MacDonald and Evans the word "interests" is defined as follows:

" 
A right in property; it extends to estates, rights and titles that a man has of, in, to, or out of the lands" (page 192)

19. The Land Dispute Settlement Act itself defines "interests" in section 2 of the as follows: "Any interests in the land of whatsoever nature, that is recognized by the customs of the people of the area in which the land is located."

20. In Mamun Investments v Paul Ponda & Ors [1995] PNGLR 1. The Supreme Court (Kapi DCJ and Injia J as their Honours were then), stated that "sufficient interests" in the context of locus standi or standing "means property interests" or proprietary interests, legal or equitable or even social or political interests".

21. So too in the present appeal, it is our considered opinion and we do hold that the phrase "a dispute as to an interests in Land" as used in Section 26 and other provisions of the Land Dispute Settlement Act means a property interests or proprietary interests or a legal or equitable interests or any financial and monetary interests arising out of one's ownership of such customary lands or over the use of such traditional lands and includes financial benefits and any other benefits derived from the use of such lands. 

It also means any monetary or financial benefits arising from or associated with or in connection with the use of or with one's ownership of such a customary land and includes financial payments and benefits paid to land owners.

22. Section 3 of the Land Dispute Settlement Act states, that the Act applies to disputes as to interests in customary land or as to the position of the boundaries. Doherty J, in Golpak v Patrick Alongkarea Kali and others [1993 PNGLR 8 stated that the right to make a contract over an interests in land, is caught by Section 2 (d) of the Land Dispute Settlement Act where land is defined to be customary land and includes an interests in land. A contract for use of land is "an interests in land."

"Interests is defined in Section 2 of the Act as "any interests in the land of whatsoever nature, that is recognized by the customs of the people of the area in which the land is located", And "land" is defined as "customary land and includes a reef or bank, and a house or other structure built on land or over water, and things growing on land, earths and minerals or under the land; and interests in land". Section 3 of the Act states, "this Act applies to disputes as to interests in customary land" and Section 26(a) provides amongst other things, that the Local Land Court has jurisdiction "over and in relation to a dispute as to an interests in land".

23. In our view, any monetary or financial benefits arising from the use of or associated with the extraction of any natural resources from the customary land identified as "Basse land, Ningra Block B Reserve, Portion 47 – is a "dispute as to an "interests in land" comes within the meaning of Section 26 of the Land Dispute Settlement Act.

24. It is therefore our considered view that the reliefs claimed in OS 606 of 2006, in so far as they seek to have the plaintiffs (respondents in this appeal) declared as being the "lawful recipients of royalties and premiums from the Vanimo Forests Products Limited, pursuant to the Local Land Court decision of 10th May 2004 from logging operations conducted on Basse Land, Ningra Reserve Block B, Portion 47, are in effect asking the National Court to declare them as the legitimate owners of the land "Basse".

25. It is true that OS 606 of 2006 does not specifically plead ownership of customary land Basse. Despite this we find that the reliefs sought do necessarily relate to a monetary interests arising out of the ownership and use of the customary land known as Basse land, Ningra Reserve Block B, Portion 47, which land is now the subject of an ownership dispute between the appellants and the respondents.

 ISSUE NO: 2 JURISDICTION 

26. The next question that arises is whether or not the National Court has jurisdiction to inquire into or deal with issues relating to disputes over customary ownership or interests in customary lands.

27. Under section 26 of the Land Dispute Settlement Act 1975; only the Local Land Courts and Provincial Land Courts have jurisdiction over and in relation to a dispute as to ownership or an interests in customary land. Section 26 of the Land Dispute Settlement Act 975 is stated in the following terms:

"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 interests 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 agreement 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";

28. Section 53 is stated in the following terms:

s. 53 – Jurisdiction

Subject to this part, a Provincial Land Court has no jurisdiction to hear and determine appeals from a decision of a Local Land Court where the land in dispute is situated wholly or partly within the area of the Provincial Land Court. 

29. In Golpak -v- Alongkarea Kali & Ors [1993] PNGLR 8, the National Court held that it had no jurisdiction to determine or inquire into issues relating to interests in a customary land or ownership of customary land. In Ronnie Wabia v BP Explorations Operating Co. Limited & 2 Ors [1998] PNGLR 8, Sevua J applied the decision in the Golpak 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 

30. In the Golpak case, Doherty J while holding that the National Court had no jurisdiction to deal with issues as to ownerships 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" 

31. 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. 

32. 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. 
 
33. Furthermore there was an appeal by the appellants over the Local Land Court decision of the 10th May 2004 which was then pending in the Provincial Land Court at the time when the learned Judge dealt with this matter. His Honour should not have dealt with this matter when he became aware of the pending appeal in the Provincial Land Court as it was that court which was vested with the jurisdiction to hear such disputes over ownership and disputes over interests in customary land. 

COURT'S POWER TO DISMISS CASES FOR FRIVOLITY ETC.

34. Having found that the National Court lacked jurisdiction to deal with this claim we now address the question of whether or not the reliefs claimed by the respondent in OS 606 are frivolous, vexatious or amounts to an abuse of the court process. Whilst Order 8 rule 27 of the National Court Rules deals with embarrassment, the remedy for which is, striking out, Order 12, rule 40 on the other hand deals with frivolity etc. The Court's power under Order 12, rule 40 is discretionary. Order 12 rule 40 is in these terms:

40: Frivolity etc. (13/5

(1) Where in any proceedings it appears to the court that in relation to the proceedings generally or in relation to any claim for relief in the proceedings- 

(a) No reasonable cause of action is disclosed;

(b the proceedings are frivolous or vexatious; 

(c) the proceedings are an abuse of the process of Court.

the court may order that the proceedings be stayed or dismissed generally or in relation to any claim for relief in the proceedings.

 (2) The court may receive evidence on the hearing of an application for an order under sub-rule (1) of this Rule."

35. In Ronny Wabia's case His Honour Justice Sevua referred to a number of Australian cases dealing with frivolous and vexatious claims. His Honour also referred to Rule 5 of the New South Wales Supreme Court Rules 1970 and the discussions under that Rule which His Honour stated that are basically the same as our Order 12, rule 40 (i) of the National Court Rules 

36. "Frivolous" by its ordinary meaning, means, "not worth serious attention or manifestly futile". Proceedings which disclose no reasonable cause of action as well as proceedings which are otherwise unsustainable are frivolous in this sense. In its ordinary meaning, "vexatious" means "causing vexation or harassment",

37. It is used to describe the harassment of a defendant being put into trouble and expense of defending proceedings which are either a mere sham, or which cannot possibly succeed. As to abuse of process, it is said that the use of court process to pursue proceedings which disclose no reasonable cause of action or one which is frivolous or vexatious, is clearly an abuse of that process.

38. Sevua J referred to a number of Australian cases dealing with the NSW Supreme Court Rules equivalent of our Order 12 rule 40 (1)which we adopt in respect of frivolity the following cases describe their application.

(a) Burton v Shire of Bairnsdale [1908-09] 7 CCR at page 92 per O'Connor J, 

(b) Proceedings where it is clear that if they were allowed to go to trial, the plaintiff would be bound to fail: Tapion –v- Anderson [1973] VR 321. Proceedings that put the defendant to the trouble of having to defend law suits which are useless and futile. 
See also Dey –v- Victorian Railways Commissioner [1994] 78 CLR 62 at page 84 per Latham CJ.

39. Proceedings which disclose no reasonable cause of action or which are frivolous or vexatious amount to an abuse of the process of court. Order 12 rule 40 (1) confers powers in this court to dismiss such proceedings. That power is however discretionary. 

 CONCLUSION

40. In the present case, it is our opinion that because the National Court has no jurisdiction to deal with issues relating to ownership or title to customary land, or to an interest in customary land, the plaintiff/respondents have no cause of action in the National Court. The proceedings instituted by the respondents, in OS 606 of 2006 seeking certain declaratory reliefs and court recognition of their interests in customary land "Basse" from which they seek to derive monetary benefits, in our view amounts to an abuse of the court process. We find that OS 606 of 2006 in its entirety amount to an abuse of the Court process because it does not in any way disclose a reasonable cause of action. The learned motions judge should have dismissed OS 606 of 2006 there and then. This was not an issue of whether or not the proceedings presented an arguable case or not. The proceedings here concerned interests in customary land and whether or not the National Court had jurisdiction to entertain such claims. 

41. Consequently we would allow this appeal and quash the judgement of the National Court. Further pursuant to section 16 (c ) of the Supreme Court Act, we dismiss the proceedings in OS 606 of 2006 and discharge the interim orders.

 42. We must also make it very clear that the allowing of this appeal and the dismissal of the entire National Court proceedings in OS 606 of 2006 does not in any way determine and give recognition to the appellants claim for ownership of or interests in the customary land identified as Basse, Ningra Reserve Block B, Portion 47, Vanimo.

 COSTS

43. We would order costs of this appeal and costs of the National Court proceedings in favour of the appellant.

_____________________________________
Young & Williams: Lawyer for Appellants
Narokobi Lawyers: Lawyer for Respondents