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Barok v Digicel (PNG) Ltd [2019] PGNC 351; N8051 (30 July 2019)

N8051

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

W.S No. 1330 of 2017

STEVEN NINGIMBA BAROK for himself and on behalf his clan members of Nangodumba Clan of Angoram village, Angoram District, East Sepik Province
Plaintiffs

v
DIGICEL (PNG) LIMITED
First Defendant

GEORGE ISIFU
Second Defendant

MEA KASI
Third defendant

AND
JOHN BRIGGS MANAGING DIRECTOR OF DIGICEL (PNG) LTD
Fourth Defendant

Wewak: Gora AJ
2018: 28^th November
2019: 30^th July

REAL PROERTY –Customary Land –Lease Agreement to construct Digicel Tower – Plaintiffs claim ownership – Plaintiffs claim Defendants Lease Agreement invalid under the Land Act – Plaintiffs claim damages and other relief in Originating Summons.

REAL PROERTY–Defendants application to dismiss Plaintiffs claim – Customary Land still in dispute –Whether Plaintiffs have standing to challenge legality of lease agreement –Whether Plaintiffs entitled to claim all relief sought in the Originating Summons.

REAL PROPERTY –Customary Land still in dispute – Plaintiffs lack standing to challenge validity of Lease Agreement –Plaintiffs not entitled to all relief sought in the Originating Summons –Claims by Plaintiff frivolous and vexatious – Abuse of process – Plaintiff’s claims dismissed.

Cases Cited

Victor Golpak v Patrick Alongrea Kali, Alois Malori, Simon Kali, Felix Siname and Niugini Lumber Merchants Pty Ltd [1993] PNGLR 491

Counsel

Mr. J Alman, for the Plaintiffs
Mr. J Munnul, for the First to Fourth Defendant

DECISION ON MOTION TO DISMISS PROCEEDINGS

30^th July, 2019

1. GORA AJ: INTRODUCTION: This is an application by way of Notice of Motion filed on the 22^nd of February 2018 by the First and Third defendants seeking orders to summarily dismiss, prior to trial, whole of the Plaintiff’s claim under Writ of Summons W.S No. 1330 of 2017.
   
2. Their application is made pursuant Order 8, Rule 27 and Order 12, Rule 40 of the National Court Rules. They also invoke the courts inherent jurisdiction to control proceedings before it.
   

BACKGROUND INFORMATION

3. This matter relates to a customary land known as MONAMBIO/UNGUCALE, commonly known as HUNDUKALE land in the Angoram District of East Sepik Province.
   
4. In 2009 the First and Second defendants (Digicel (PNG) Limited and George Isifu respectively) entered into a lease agreement whereby the First defendant leased from the Second defendant a customary portion of land known as HUNDUKALE land to erect a telecommunication (mobile) tower which they did. The Plaintiffs however claim to be the rightful owners of that portion of HUNDUKALE land and not the Second defendant.
   
   5. Plaintiffs therefore filed proceedings under W.S No. 1330 of 2017 claiming that the Lease Agreement between the First and Second defendants was made fraudulently and therefore lease being illegal because the Second defendant is not the owner of the HUNDUKALE land. Furthermore that under Section 132 of the Land Act, (Disposal of Customary Land), a customary land owner (in this case the Second defendant) has no power to sell, lease or otherwise dispose of customary land or customary rights otherwise than to citizens in accordance with custom, and a contract or agreement made by him to do so is void.
      
   6. In proceedings W.S 1330 of 2017,Plaintiffs seek the following relief:
      
      1. An interim injunction restraining the First and Second defendants, their servants and agents from operating and carrying on the Second defendant’s (MobilePhone)Telecommunication Service for financial gain on the Plaintiffs HUNDUKALE portion of the customary land, the subject of these proceedings, pending final determination of the matter;
         
      2. An order that both the First and Second defendants give a full statement of the amount of rental payments that the First defendant made to the Second Defendant in respect of leasing the said portion of the customary land to the said First defendant between 2009 and 2017;
         
      100. An order that both the First and Second defendants make available to the Plaintiff the Lease Agreement for Discovery pursuant to the provisions of the National Court Rules;
           
      4. An order for compensation for breach of Constitutional rights of the Plaintiffs for unjust deprivation of property as per Section 53 of the Constitution at K1,000,000.00;
         
      5. Special Damages to be quantified after the discovery;
         
      6. General Damages to be assessed;
         
      7. Punitive Damages to be assessed;
         
      8. Interest pursuant to Judicial (Proceedings on Debts and Damages) Act;
         
      9. Cost of the Proceedings;
         
      10. Any other or further orders the Court sees fit to grant.
          

THE MOTION

7. In this application the First and Third defendants, being the applicants, seek the following orders:
   
   1. The proceedings under W.S 1330 0f 2017 be dismissed pursuant to Order 8, Rule 27 and Order 12 and Rule 40 of the National Court Rules, Chapter 1983 and pursuant to this court’s inherent jurisdiction to control proceedings before it;
      
   2. The Plaintiffs pay the First and Third Defendants cost on a client-solicitor basis;
      
   100. Such further or other orders as this Honorable court deems fit.
        
8. Defendants application is supported by a Sworn Affidavit of counsel JOHN MUNNUL JR dated 21/02/18 and filed on 22/02/18.
   

ISSUE

9. Should proceedings under W.S 1330 of 2017 be dismissed at this stage prior to trial on the bases of being frivolous, vexatious and abuse of process.
   

ARGUMENTS

For the Applicants/Defendants

10. Defendants argue first, that that the portion of HUNDUKALE customary land which is the subject of the proceedings under W.S 1330 0f 2017 is still in dispute and this is not theproper forum to address this dispute. Therefore, the proceedings are frivolous or vexatious and an abuse of the court process pursuant to Order 12, Rule 40 of the National Court Rules. Second, that the proceedings under W.S 1330 of 2017 is a representative action and an Authority to Act Form must be completed to obtain consent from other persons, which in this case has not been done and therefore the whole action is an abuse of the courts process.
    

For the Respondents/Plaintiffs

11. Plaintiffs on the other hand argue that in 2009, the First and Second defendants entered into a lease agreement whereby the First Defendant leased from the Second Defendant a customary portion of land called HUNDUKALE where the Digicel (PNG)Limited tower is currently situated which is subject of a customary ownership dispute.
    
12. Plaintiffs say that as consequence of entering into this Lease Agreement, which they say is illegal, the First Defendant trespassed onto their customary land and unlawfully erected a Communication Tower and Generator Plant.
    
13. Plaintiffs therefore claim that the First and Third Defendants Notice of Motion seeking wholesale dismissal of proceeding in W.S No. 1330 of 2017 pursuant to the provisions of Order 8, Rule 27 and Order 12, Rule 40 of the National Court Rules should be struck out or dismissed. They claim that the National Court still has jurisdiction to hear or determine cases that involves issues relating to interests in customary land.
    
14. Alternatively, the defendants Notice of Motion be struck out or dismissed because the Lease Agreement that was made between Digicel (PNG) Limited and George Isifu was in breach of the provisions of Section 132 of the Land Act 1996. Plaintiffs say that the provisions of Section 132 of the Land Act provide for disposal of customary land.
    

ANALYSIS OF ARGUMENTS AND FINDINGS

15. Questions arising from Defendants arguments are:
    
    1. Whether this court has Jurisdiction to hear proceedings W.S No. 1330 of 2017 on matters involving customary land.
       
    2. Whether the Plaintiff’s claim in proceeding W.S No. 1330 of 2017 discloses no reasonable cause of action.
       
    100. Whether the Plaintiffs have standing to claim all relief sought in W.S. 1330 of 2017.
         
    4. Whether Plaintiffs are required to obtain signed Authority to Act Forms to obtain consent from others in representative action such as this.
       
    5. Whether the proceeding under WS. No. 1330 of 2017 is frivolous, vexatious and an abuse of the courts process.
       

National Court Rules

16. First, Order 8, Rule 27 of the National Court Rules state:

“(1) Where a pleading-

(a) disclose no reasonable cause of action or defense or othercase appropriate to the nature of the pleading; or

(b) has a tendency to cause prejudice,embarrassment or delay in the proceedings; or

(c) is otherwise an abuse of the process of the court,the court may at any stage of the proceedings, on terms or otherwise, order that the whole or any part of the pleadings be struck out.

(2) The court may receive evidence on the hearing of anapplication for an order under Sub-rule (1).”

17. Second, Order 12, Rule 40 of the National Court Rules provide:

“(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; or

(b) the proceedings are frivolous or vexatious; or

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

Jurisdiction

18. Plaintiffs claim relate to the First Defendants existing lease agreement with the Second Defendant for construction of a communication tower on a customary land known as HUNDUKALE. Second Defendant claims to be the owner of HUNDUKALE customary Land. Following the lease agreement, the communication tower was constructed, and rentals are now being received by the Second Defendant. Plaintiffs on the other hand claim to be the owners of HUNDUKALE land and therefore allege that the lease agreement was made fraudulently and therefore illegal, hence trespass and illegal collection of rentals. Pleadings in these proceedings are centered around those issues. But the question is, whether the court has jurisdiction to hear matters pertaining to a customary land.
    
19. Issues relating to disputes over interests in customary land are matters within the jurisdiction of the Local and Provincial Land Courts respectively pursuant to the Land Dispute Settlement Act, therefore this court lacks jurisdiction in this respect. However, the Plaintiffs pleadings together with all relief sought in W.S 1330 of 2017relate to matters of fact and law for which this court in exercising its inherent powers can determine. Pleadings in these proceedings are not related to dispute over customary land, but on issues arising from the purported lease agreement.Therefore, the court in my view has jurisdiction to hear proceedings in W.S 1330 of 2017.
    

Reasonable Cause of Action

20. Pleadings in W.S 1330 of 2017 questions the legality of the lease agreement from two perspectives. First, the Plaintiffs argue that the Second Defendant is not the owner of HUNDUKALE customary land and therefore did not have the right to enter into a lease agreement with the First Defendant. This is a question of ownership of customary land for which this court lacks jurisdiction to address. It is a matter for the Local Land Court to determine. Second, the Plaintiffs argue that the lease agreement is contrary to Section 132 of the Land Act which says that:

“a customary land owner has no power to sell, lease or otherwise dispose of customary land or customary rights otherwise than to citizens in accordance with custom, and a contract or agreement made by him to do so is void.’’

21. This raises issues of law, but the question of ownership of customary land arises again. Under Section 132 of the Land Act, element of ownership (owner) of a customary land must be first established before declaring an agreement being void. It is the responsibility of the Local Land Court and not the National Court to decide issues of ownership under the Land Dispute Settlement Act. This position was well expressed by Doherty J in the case of Victor Golpak v Patrick Alongrea Kali, Alois Malori, Simon Kali, Felix Siname and Niugini Lumber Merchants Pty Ltd [1993] PGLawRp 560; [1993] PNGLR 491. Her Honour stated:

“It seems to me that the spirit and intent of the legislature in passing the Land Dispute Settlement Act was to prevent the National Court from arbitrating on the forms of succession and hence ownership or control of interest in customary land. I think therefore it would be going against both the letter and spirit of the legislation if I assume the power to make declaration in what is an interest in land.”

22. I am therefore satisfied that the Plaintiffs have not shown a reasonable cause of action by reason that the issue of ownership over HUNDUKALE land is yet to be determined by the Local Land Court or the Provincial Land Court for that matter in its appellate jurisdiction pursuant to the Land Dispute Settlement Act. Plaintiffs may not be the legitimate land owners of HUDUKALE land because dispute over the HUNDUKALE customary land is still an ongoing dispute. Furthermore the 1980 decision of the Local Land Court which decided against the Plaintiffs has not been removed and remain in force. The Plaintiffs are therefore not entitled to seek relief sought in W.S 1330 of 2017. Their claim is incompetent.
    

Standing

23. Plaintiffs claim that they are the customary land owners of a portion of customary land known as HUNDUKALE in the Angoram District. However, court depositions reveal that dispute of the said HUNDUKALE land has been going on for quite a long time and is far from over. There are several issues worth noting.
    
24. First, on the 28^th November 1980, an order was made by theAngoram Local Land Court that the Nagodumba and Kindamara clans from Angoram are NOT the owners of the MADAMBIO and HUNDUKALE customary land. Plaintiffs are from the NagodumbaorNangudumbir clan which is believed to be the same clan.(see Annexure ‘’A’’ of John Munnull’s affidavit dated22/02/18.)
    
25. Plaintiffs being from the Nagodumba/ Nangudumbir clan did not appeal the decision of the Local Land Court dated 28^th November 1980. Under the Land Dispute Settlement Act, they were entitled to appeal to the Provincial Land Court. But I do note that there was a NOTICE OF APPEAL filed on the 28^th November 1980, the same day after the Local Land Court gave its decision. This Notice of Appeal was filed by Gasina, Yaka and Kuina clans of Mansep and Oro, Orona and Karum clans of Mambei and Ragumi and Wakab clans of Gavien. The outcome of this Notice of Appeal is not known,nor has it been disclosed to this court. The possible conclusion is that it may not have been heard and determined by the Provincial Land Court pursuant to the Land Dispute Settlement Act and is still pending.
    
26. It follows therefore that the decision of the Local Land Court of 28^th November 1980 which found that the Plaintiffs are not the owners of HUNDUKALE land remains and is binding.
    
27. Second, on the 15^th of April 2014, a mediation was held between the Plaintiffs and Second Defendant George Isifu and one Theodore Maino of Gasina clan (some 24 years after the LLC decision of1980). Mediation was over HUNDUKALE customary land. Mediation was facilitated by the East Sepik Provincial Administration through its Division of Village Courts and Land Mediation (see annexure ‘’C’’ of Steven John Munnull’s Affidavit dated 21/22/18). In that mediation the panel comprising of mediators Andreas Fisanki and Joachim Saussi decided to reaffirm the Local Land Courts findings of 1980. It stated:

“The Gasina, Yaka and Kuina clans from Mansep have fractural rights of ownership and use of Native Land and including MADAMBIO, and HUNDUKALE land within the boundaries of NUMGARA land of which sketch map was attached to the court order, identifying boundaries of Numgara land.”

28. Another mediation was conducted on the 14^th of May 2014 between the Plaintiffs and George Isifu and Theodore Parum over the same HUNDUKALE portion of the customary land. Mediation panel comprised of TOM PAUL YAVU and PETER YANG. Finding of this mediation was that the Plaintiff Mr. Steven Ningimba Balok is the sole owner by birth right and customary owner of HUNDUKALE portion of the customary land.(see annexure ‘’A’’ of affidavit of Steven Ningimba dated 06/12/17).
    
29. These two mediation proceedings were done 24 years after the Local Land Court decision of 1980 over the same portion of customary land. This is to say that dispute over this portion of customary known as HUNDUKALE land was already decided and or resolved by the court and therefore the subsequent mediation proceedings conducted 24 years later were irregularly conducted contrary to the processes and procedures setout under the Land Dispute Settlement Act.
    
30. In any case, there are two different outcomes from these mediation proceedings. First dated 15^th April 2014 re-affirming the 1980 Local Land Court decision which is not in favor of the Plaintiffs and second dated 14^th May which is in favor of the Plaintiffs. Obviously these two outcomes have no legal effect on the basis that the dispute has already been resolved by the Local Land Court in 1980 and is binding.
    
31. It is further noted that on the 06^th of March 2015, the Wewak Local Land Court made further orders staying the enforcement of the Local Land Court orders of 1980 until the Provincial Land Court decides on the appeal if any. (see annexure ‘’D’’ affidavit of Steven Ningimba dated 06/12/17). However as noted earlier, there are no records to show if the appeal was ever heard, meaning it is still pending hearing and determination. Until this is done, the Local Land Court decision of 1980 still stand.
    
32. It is therefore clear from all the above background information that the dispute over the customary portion of land known as HUNDUKALE in Angoram is far from over, in so far as the mediation proceedings of 15^th April and 14 May 2014 respectively are concerned. But more importantly, the Notice of Appeal which was filed on 28^th November 1980 to appeal the decision of Local Land Courts decision is yet to be determined by the Provincial Land Courtand is still pending. Therefore, the decision of the Local Land Court of 28^th November 1980 remains until such time it is over turned by a court of competent jurisdiction.
    
33. Under the circumstances, thePlaintiffs would lack standing to claim all relief sought in proceedings W. S 1330 of 2017.
    

Authority to Act- Representative Action

34. The Plaintiffs, particularly Steven Ningimba who appear to be the spokesmen or leader for the Plaintiffs has not filed a duly signed AUTHORITY TO ACT FORM to obtain consent from others, which is a requirement in Representative Actions. Plaintiffs are a group of land owners who claim to be the owners of the HUNDUKALE land in Angoram District and therefore must give authority or consent to Steven Ningimba to pursue the matter in court on their behalf. In the absence of such duly signed authority to act, the proceedings are deemed to be defective or incompetent.
    

Frivolous, vexatious and Abuse of Process

35. It follows therefore that the proceedings commenced by the Plaintiffs in proceeding W.S 1330 of 2017 is frivolous and vexatious. It amounts to abuse of process of the court and therefore cannot remain on foot at this stage until the dispute over customary land Known as HUNDUKALE is properly settled in an appeal or through other processes allowed by law.
    
36. In the event the dispute is finally resolved in favor of the Plaintiffs,they can then at that time have the liberty to initiate similar proceedings in the future if they so desire. The Plaintiffs however, being an interested party to the disputed customary land in subject may apply to the Local Land Court under Section 30 of Division 4, of the Land Dispute Settlement Act for Preventive Orders.
    
37. In the meantime, it is safe to conclude that all relief sought in W.S 1330 of 2017 by the Plaintiffs are incompetent on the basis that the Plaintiffs lack standing to pursue the proceedings and the proceedings being frivolous, vexatious and an abuse of process.
    
38. Application to dismiss proceedings under W.S 1330 of 2017 is therefore granted with orders that:
    
    1. Proceedings under W.S 1330 of 2017 are dismissed generally.
       
    2. Parties to meet their own costs on client/solicitor basis.

ORDERED ACCORDINGLY
________________________________________________________________
Alman Lawyers: Lawyers for the Plaintiffs
Munnul Lawyers: Lawyers for the First to Fourth Defendant