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Kamang v Madang Provincial Government [2016] PGNC 399; N6709 (11 October 2016)

N6709

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

OS NO 730 OF 2015

BETWEEN
PAUL KAMANG, PRESIDENT,
MADANG TOWN LANDOWNERS ASSOCIATION
Plaintiff

AND
MADANG PROVINCIAL GOVERNMENT
First Defendant

AND
DANIEL ALOI, PROVINCIAL ADMINISTRATOR
Second Defendant

AND
NOP SESEKU INCORPORATED LAND GROUP
Third Defendant

Madang : Cannings J
2016: 23^rd August &11^th October

LAND – ex gratia payments made by governmental body as compensation for acquisition of customary land – whether reviewable by the National Court.

The plaintiff was aggrieved by a decision of a provincial government and the provincial administrator (first and second defendants) to pay an incorporated land group (third defendant) the sum of K500,000.00 as compensation for acquisition by previous governments of customary land on which the provincial capital is located. He argued that the payment had no proper legal or factual basis and sought three remedies: (1) a declaration that the third defendant was not one of the native tribes identified in a 1932 court decision that identified traditional owners of the land; (2) a declaration that the third defendant is not entitled to any ex gratia payments; and (3) an order that the third defendant return all compensation payments it has received from the provincial government.
Held:

(1) The National Court has no jurisdiction to determine the question of ownership of customary land. Such questions fall within the exclusive jurisdiction of the Land Titles Commission. In any event the payment to the third defendant appeared to have a rational basis.

(2) It is not the function of the National Court to undertake anything other than a cursory inquiry into the merits of an ex gratia payment, so as to be satisfied that the payment is neither manifestly excessive nor unconscionably inadequate. There were no grounds on which the Court could declare that the third defendant was not entitled to the money.

(3) There were no grounds on which the Court could properly order the third defendant to return the money.

(4) All relief sought by the plaintiff was refused.

Cases cited:

The following cases are cited in the judgment:

Anton Lavu v Nicholas Mark Thompson (2007) N5018
Custodian of Expropriated Property v Commissioner of Native Affairs (Re Jomba Plain) [1971-72] PNGLR 501
Golpak v Kali [1993] PNGLR 491
Kimas v Loa (2015) SC1475
Paul Kamang v David Chan (2016) N6164
Paul Kamang v Lina Joshua (2013) N5236
Paul Kamang v Madang Provincial Government (2011) N4394
Paul Kamang v Namba Tumu & Tunamb Agents & Distributors Ltd (2011) N4313
Ronny Wabia v BP Exploration Co Ltd [1998] PNGLR 8
Simon Mali v The State (2002) SC690
Tamati Inara v Soge Mariori (2006) N3041
The State v Lohia Sisia [1987] PNGLR 102
Tigam Malewo v Keith Faulkner (2009) SC960

ORIGINATING SUMMONS
This was a trial in which the plaintiff sought declarations and orders challenging an ex gratia payment made to an incorporated land group as compensation for acquisition of customary land.

Counsel:

P Kamang, the Plaintiff, in Person
D F Wa’au, for the third Defendant

11^th October, 2016

1. CANNINGS J: The plaintiff, Paul Kamang, is aggrieved by a decision of Madang Provincial Government (first defendant) and the Provincial Administrator, Daniel Aloi (second defendant) to pay Nop Sesiku Incorporated Land Group (third defendant) the sum of K500, 000.00 as compensation for acquisition by previous governments of customary land on which the provincial capital, Madang town, is located. He argues that the payment has no proper legal or factual basis.
   
2. A trial has been conducted of an originating summons by which the plaintiff seeks three remedies:
   

(1) a declaration that the third defendant is not one of the native tribes identified in the decision of the Central Court of the Territory of New Guinea, constituted by Justice Phillips, of 25 May 1932, which has been reported as Custodian of Expropriated Property v Commissioner of Native Affairs (Re Jomba Plain) [1971-72] PNGLR 501, which decision identified the traditional owners of the land;

(2) a declaration that the third defendant is not entitled to any ex gratia payments; and

(3) an order that the third defendant return all compensation payments it has received from the provincial government.

1. SHOULD A DECLARATION BE MADE THAT THE THIRD DEFENDANT IS NOT A RECOGNISED NATIVE TRIBE?
   

No, the National Court must exercise caution when it is asked to determine the question of customary ownership of land. It was recently confirmed by the Supreme Court in Kimas v Loa (2015) SC1475 that the National Court has no jurisdiction to hear and determine disputes concerning ownership by custom of any land, including a dispute as to whether any land is or is not customary land or who were the traditional owners of land that is now government land. Such disputes fall within the exclusive jurisdiction of the Land Titles Commission under Section 15 (determination of disputes) of the Land Titles Commission Act, which states:

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

3. Section 15 has been given full effect by the courts over many years. The leading case of The State v Lohia Sisia [1987] PNGLR 102 has been consistently followed by the National Court in numerous cases including Sioti Bauf and Lavoi Nodai v Poliamba Pty Ltd [1990] PNGLR 278, Golpak v Kali [1993] PNGLR 491, Ronny Wabia v BP Exploration Co Ltd [1998] PNGLR 8 and Anton Lavu v Nicholas Mark Thompson (2007) N5018, to name just a few.
   
4. In any event, I am not persuaded that the third defendant was not in effect recognised in Justice Phillips’ 1932 decision. Having heard from Mr Wa’au for the third defendant, it is strongly arguable that Nop Seseku Land Group is the modern legal embodiment of two tribes, Nob tribe and Sisiak tribe, both of which were recognised as having traditional landownership rights over Madang town land. I decline to make the declaration sought by the plaintiff.
   
2. SHOULD THE COURT DECLARE THAT THE THIRD DEFENDANT IS NOT ENTITLED TO RECEIVE ANY EX GRATIA PAYMENTS?
   
5. This is a straightforward issue. The answer is no. The plaintiff is asking the Court to review an ex gratia payment. As I pointed out in Tamati Inara v Soge Mariori (2006) N3041, it is not the function of the National Court to undertake anything other than a cursory inquiry into the merits of an ex gratia payment, so as to be satisfied that the payment is neither manifestly excessive nor unconscionably inadequate and that the beneficiaries of the payment appear to have a legitimate expectation to receipt of the payment.
   

In this case the Provincial Government in its wisdom evidently decided that the third defendant is the modern legal embodiment of two tribes recognized as having traditional landownership rights in the 1932 decision. As it was an ex gratia payment, the Provincial Government has a very wide discretion to make the payment.

6. I agree with Mr Kamang that it is an unsatisfactory way in which to make decisions to allocate a lot of public money. The process appears not to have been transparent. It might have been a transparent and orderly process but the Court does not know that, and the reason it doesn’t know is that the evidence has not been put before it. I must criticise very strongly the Provincial Government and the Provincial Administrator, who have not assisted the Court at all. The Provincial Legal Counsel, Mr Haumu, was appearing in the interlocutory stages of this case but failed to appear at the trial.
   
7. It is in the public interest and in everybody’s interest that these sort of decisions are made openly, in an orderly and transparent way, and that appears not to have happened in this case. However, that does not mean that I am in a position to declare that the third defendant is not entitled to the money. It appears, and I am persuaded by Mr Wa’au’s submission in this regard, that there is some rational basis for giving this large sum of money to the third defendant.
   
8. There is no evidence that the Provincial Government has decided that the tribe or people or traditional landowners aligned with the plaintiff – the Matulon tribe – will not receive any money, or the plaintiff’s people have been cut out of the process.
   
3. SHOULD THE COURT ORDER THE THIRD DEFENDANT TO RETURN THE MONEY?
   
9. This issue must also be answered no. It follows naturally from my conclusion as to the second remedy sought that I am not in a position to order the third defendant to reimburse the money. I am not persuaded that they received the money unlawfully or improperly. It would be unfair, given that they appear to have been in possession of the money or the bulk of it for four years, to order that they now have to give it back.
   

REMARKS

10. I encourage the plaintiff to pursue his claims and the claims of his tribe with the Provincial Government. A word of caution, however. He continues to bring these sorts of proceedings by himself, purporting to act on behalf of Matulon tribe (Paul Kamang v Madang Provincial Government (2011) N4394, Paul Kamang v Namba Tumu & Tunamb Agents & Distributors Ltd (2011) N4313, Paul Kamang v Lina Joshua (2013) N5236, Paul Kamang v David Chan (2016) N6164). To have a realistic prospect of success, if the plaintiff brings a case in the name of Matulon tribe of any other group such as in this case, Madang Town Landowners Association, he must come equipped with signatures of all of the members of the tribe or the group that are supporting him. If he doesn’t do that he runs the risk of having the proceedings dismissed because he will have commenced representative proceedings without complying with the necessary requirements. The leading Supreme Court cases of Simon Mali v The State (2002) SC690 and Tigam Malewo v Keith Faulkner (2009) SC960 show that if a person puts himself forward as a plaintiff acting in a representative capacity for other persons:
    

• all intended plaintiffs (those who he claims to represent) must be named in the originating process;
• each and every intended plaintiff must give specific instructions (evidenced in writing) to their lawyers or as in this case their personal representative to act for them;
• any person in whose name proceedings are commenced and who claims to represent other intended plaintiffs must produce an authority to the court to show that he was authorised by them to file proceedings as a class representative.
  

ORDER

11. The formal Orders of the Court are:
    
    • (1) All relief sought in the amended originating summons filed 19 January 2016 is refused and the proceedings are entirely dismissed.
      
    • (2) Costs of the proceedings shall be paid by the plaintiff and the first and second defendants and apportioned on an equal basis to the third defendant,on a party-party basis, to be taxed if not agreed.
    • (3) Time for entry of the order is abridged.
      
    • (4) The file is closed.
      

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Ninerah Lawyers: Lawyers for the Third Defendant