SC1268

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCA No. 94 of 2009

BETWEEN:

JOSHUA SIAPU YAKO FOR HIMSELF AND ON BEHALF OF
THE MEMBERS OF HIS WAUINI SUB-CLAN
Appellants

AND:

THE DISTRICT ADMINISTRATOR, PORGERA, ENGA PROVINCE
First respondent

AND:

PORGERA JOINT VENTURE
Second Respondent

AND:

PLACER (PNG) LIMITED (now BARRICK (NIUGINI LTD),
MANAGER OF PORGERA JOINT VEVTURE
Third Respondent

Waigani: Injia CJ; Gabi & Kariko JJ
2011: 2nd September

SUPREME COURT – Appeal – appeal against National Court's dismissal of plaintiff/appellant's action for declaratory relief – main point of argument on appeal is whether National Court erred in dismissing the action in the circumstances relied upon by the appellant - The issue is res judicata and not open to re-litigation in the National Court - the proceedings before the National Court were correctly dismissed – for these reasons appeal is dismissed

Counsel:

D Gonol, for the Appellants
D Steven, for the First Respondent
D Wood, for the Second and Third Respondents

2nd September, 2011

1. BY THE COURT: This is an appeal from the judgment given by the National Court sitting in Mt Hagen in which the Court dismissed the plaintiff/appellant's action for declaratory relief. The respondents contest the appeal. 

2. We heard arguments in the June sittings of the Supreme Court and reserved our decision pending advice from counsel as to whether parties wish to settle the matter. When the matter returned before us on Monday this week, parties informed the Court that they had failed to reach a settlement and requested the Court to proceed to deliver judgment, which we now do.

3. The main point in the appeal argued before us is whether the National Court erred in dismissing the action in the circumstances relied upon by the appellant including where previous decisions of the Supreme Court and the National Court found that there did not exist any genuine dispute over customary land and that the plaintiffs had a direct interest over the subject customary land.

4. The customary land in question is the subject of a Special Mining Lease (SML) issued by the State to the Second & Third Respondents. Royalty payments and other benefits for the subject land due to be paid to customary landowners of the land the subject of the SML under the Mining Act is the subject which gave rise to a dispute amongst landowners as to their entitlement to receive those benefits. This dispute in turn gave rise to issues of customary ownership of the subject land for that purpose only. 

5. The case has a long history of litigation involving multi-parties and issues litigated in the District Court at Porgera, the Land Courts situated in the area, the National Court and the Supreme Court. It is not necessary for us to recite those matters as they have been already canvassed by counsel in their submissions. It is also unnecessary to recite submissions of counsel suffice that the way we structure our reasons for decision adequately respond to those submissions. 

6. There are a variety of ways in which our determination of the issues before us could be approached. At the outset we say that any of those approaches will produce the same result as to the outcome of this appeal. 

7. We approach the issues by examining the precise nature of the substantive relief claimed in the National Court in proceedings OS No. 779 of 1999 Sapu Yako for himself and others v District Administrator of Porgera & 2 others that was filed on 23rd December 1999, which was superseded by Amended proceedings OS No. 779 of 1999 Sapu Yako for himself and others v District Administrator of Porgera & 2 others filed on 3rd January 2002 (Amended OS). The only substantive relief claimed was "That the plaintiff be appointed as an Agent representing the Wapini Sub-Clan as per the Agreement of 30th March 2000". It appears this was an action based on the principles of common law on contract or agreements. The relief was in the nature of a declaratory relief to enforce specific performance of a term of an agreement. The action was concerned with enforcing a specific term of the agreement relating to the appointment of the plaintiff as the duly appointed agent or representative of the Wapini Sub-clan and nothing more. 

8. The Agreement dated 30th March 2000 referred to in the Amended OS is found in pages 82-83 of the Appeal Book. In that agreement, the plaintiff is the sole signatory to the Agreement representing the Wapini Sub clan. The other signatories are the Mining Coordinator, Porgera District Office Mr Jeffrey Puge, and the signature of the "Legal Council" for the Enga Provincial Government. 

9. The terms of the Agreement are repeated in a Consent Court Order issued by a District Court Magistrate on 17th August 2000, which accompanies the Agreement. In the Consent Order, the plaintiff is appointed the agent representing the Wapini Sub clan (Clause 1 (a)). 

10. There is evidence of proceedings commenced by the plaintiff in 1998 in the District Court at Porgera which resulted in that court issuing an order recognizing the plaintiff as the only duly appointed representative of the Wapini Sub-clan under the Agreement. Those Court documents are found on pages 502 – 509 of the Appeal Book. 

11. It appears that despite the existence of the Agreement appointing the plaintiff as the sole representative of the Wapini Sub-clan, and despite judicial determinations made by the District Court at Porgera recognizing him as the representative, complications arose when other persons disputed his appointment which resulted in the commencement of proceedings in the National Court in Mt Hagen in OS 779 of 1999. 

12. The proceedings in the District Court was a common law action for specific performance of the Agreement with respect to appointment of the plaintiff as the Agent representing the Wapini Sub-clan. Those decisions had not been appealed. That Court clearly had jurisdiction to deal with the matter and did deal with it and made binding orders. The issue of the plaintiff's representative capacity is governed by the doctrine of res judicata. The District Court order is enforceable on its own terms, insofar as the plaintiff's position is concerned. Going by that decision, the proceedings before the National Court was unnecessary. 

13. The trial judge dealt with multiple procedural and substantive issues which really have little or no bearing on this main point. We have studied the decision of Justice Hinchliffe made on 16th May 2005 which is relied upon by the plaintiff in which the judge found that there was no customary land dispute remaining to be dealt with over the land and that the only remaining issue was the validity of the agreement which appointed the plaintiff as the agent of the Wapini Sub clan. It is clear to us that Hinchliffe J was referring to the same documents that we have seen appearing in pages 502 – 509 of the Appeal Book. Those documents however do not support his Honor's statement that the issue of customary land dispute was determined by the Porgera District Court because the issue of customary ownership was not determined by the District Court and should not have been dealt with by that Court in that it lacked jurisdiction. We agree with the trial Judge on this point.

14. The Supreme Court judgment relied upon by the plaintiff is a judgment delivered by the full Court on 11th May 2008 on an application for leave to appeal, where the respondent's appeal was dismissed on competency grounds. The Court addressed issue of customary ownership of the subject land and made some observations, which we, with respect, consider to be obiter dicta. Those are not binding observations and do not assist the plaintiff in terms of the relief that he sought in the Amended OS. In any case, neither the National Court nor the Supreme Court would lack jurisdiction to determine customary land ownership issues.

15. It seems to us that if issues of customary land ownership of the subject land were still alive, those would have to be dealt with by the Land Courts under the Land Dispute Settlement Act. We agree with the judge that that is the proper course to take. The National Court did recognize that a land dispute had been registered with the Land Courts in Porgera and those proceedings should be allowed to take their normal course. We see nothing wrong with his Honour's decision on that point. 

16. As to who the duly authorized agent of the Wapini Sub-Clan is, there is no question that it is the plaintiff. The Agreement and various District Court decisions and orders referred to support that finding by this Court that the plaintiff is that person and he is entitled to enforce the terms of the Agreement on behalf of the Wapipi Sub clan. The issue is res judicata and not open to re-litigation in the National Court. Therefore, the proceedings before the National Court were correctly dismissed by the National Court.

17. For those reasons, we dismiss the appeal. Costs ordinarily follows the event, however if parties wish to contest costs, this Court will reconvene at a later date to hear parties.

__________________________________________
Paulus M Dowa Lawyers: Lawyer for the Appellant
Stevens Lawyers: Lawyer for the First Respondent 
Blake Dawson: Lawyer for the Second– Third Respondents