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National Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
OS NO. 732 OF 2019
BETWEEN:
LAWRENCE JOB, Chairman of Evele Emasi Incorporated Land Group, Reg. No. 8785
First Plaintiff
AND:
EVELE EMASI INCOPORATED LAND GROUP REG No. 8785
Second Plaintiff
AND:
JABZES TORI, Chairman of Evele Nge Masi Incorporated Land Group, Reg No. 12237
First Defendant
AND:
EVELE NGE MASI INCORPORATED LAND GROUP, REG No. 12237
Second Defendant
AND:
MARTIN KANGERE
Third Defendant
AND:
MICHAEL GAMUNG, Monitoring Officer, New Ireland Provincial Forest Office
Fourth Defendant
AND:
PAPUA NEW GUINEA FOREST AUTHORITY
Fifth Defendant
AND:
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Sixth Defendant
Waigani: Anis J
2019: 13th December
2020: 4th March
NOTICE OF MOTION – Inter-pates hearing – whether the interim ex-parte orders should be set aside – whether the plaintiffs have an arguable case - whether the relief sought raise serious controversy – mode of proceeding – whether correct mode of proceeding based on allegation of fraud should have been by way of pleadings – whether the plaintiffs should commence proceeding by filing a writ of summons and statement of claim – Order 8 Rule 30 – National Court Rules
Cases Cited:
Waigani Heights Development Ltd v. Benjamin Mull (2018) N7162
Nali Hole v. Allan Mana (2016) SC1536
Open Bay Timber Limited v PNG Forest Authority and Ors (2013) N5109
Anson Ising v. Lucy Ande (2014) SC1359
The Papua Club v. Nusaum Holdings Ltd (No. 2) (2004) N2603
Counsel:
Mr S Dadada, for the Plaintiffs
Mr F Alua, for the First, Second and Third Defendants
No appearances, for the Fourth, Fifth and Sixth Defendants
RULING
4th March, 2020
1. ANIS J: This was an inter-pates hearing on whether to extend an earlier ex-parte order of the Court that was made on 1 November 2019. I reserved my ruling to a date to be advised.
2. This is my ruling.
BACKGROUND
3. The plaintiffs are seeking various declaratory relief in their originating summons. Based on the evidence filed, let me set out the brief background of the matter. The plaintiffs claim that their incorporated land group, which is the second plaintiff, represents the legitimate landowners of a customary land. The customary land is described as Emasi land. The land is situated in Mussau Island in the New Ireland Province. The land had been and continues to be subject to logging operations. Disputes had arose in the past as to which clan owned the Emasi land and should benefit, that is, from the proceeds of logging operations that had operated on the land.
4. The plaintiffs allege that on 27 January 1997, a land mediation was conducted, and that a total of 10 clans including the primary claimants namely Evele Clan and Epaus Clan, had registered in the said mediation. The plaintiffs allege that an outcome was reached on 29 June 1998 whereby it was sanctioned by the Kavieng Local Land Court. The plaintiffs allege that based on the Local Land Court Order of 29 June 1998, and an agreement that was also signed together with the said Court Order, the Emasi land or customary land was awarded to the plaintiffs’ clan, namely, the Evele Clan. The second plaintiff claims to represent members of the Evele Clan.
5. In November and December of 2018, a logging company called Mussau Timber Development Limited (timber company) commenced logging operations on site. The plaintiffs allege that the said logging is carried out on their customary land Emasi land without their knowledge and consent. The plaintiffs allege that royalty moneys that were due to the landowners from the said logging operation have been paid to the Kavieng Provincial Forest Office, for distribution to the legitimate landowners. The plaintiffs say they received information in August of 2019 that the royalty payments were about to be released to the landowners. The plaintiffs took steps to notify those concerned of their intention. The plaintiffs engaged lawyers and commenced this proceeding.
MOTION
6. The plaintiffs’ notice of motion (application) was filed on 16 October 2019. The main relief sought were the following:
7. On 1 November 2019, this Court granted interim orders in favour of the plaintiffs. The interim orders include terms 2 and 3 of the application. The 1st, 2nd and 3rd defendants (defendants) now challenge these interim ex-parte orders; they submit the application should be dismissed.
ISSUES
8. I have considered the submissions of the parties. The main issues in my view are as follows, (i), whether the plaintiffs have a meritorious claim or claims, and (ii), whether the plaintiffs’ Undertaking as to Damages is valid.
ARGUABLE CASE
9. Let me refer to the originating summons. The main relief sought are, and I quote:
10. The main relief in the originating summons are terms 1 and 2. Other relief including terms 3 and 4 are consequential. Let me address relief 1. So the plaintiffs are asking this Court to declare an existing Local Land Court Order dated 29 June 1998, and an agreement that was signed based upon the said Local Land Court Order, valid and enforceable. The question that I have is this. Can this Court or any Court for that matter declare another existing or valid Court Order, as valid and enforceable? The obvious answer to that is, “of course not”. In my view, the Local Land Court Order is a Court Order and is enforceable. An agreement that is signed following that should also be binding and enforceable subject to its terms and conditions. I ask myself this. “Why would anyone go to another Court or a higher Court like the National Court, and ask for another Court Order to validate an earlier existing Court Order, which in this case, is an order from the Local Land Court?” A Local Land Court is established under statute, that is, the Land Dispute Settlement Act Chapter No. 45 (LDS Act). It powers and functions and its processes are set out under the LDS Act. Orders made by a Local Land Court may be subject to appeals to the Provincial Land Court and review in the National Court. Otherwise, its decisions are of course binding and enforceable.
11. The next question I have is this. Is there a challenge to relief 1? My answer to that is, “no, there is no challenge to relief 1”. I have considered the affidavit of the defendants and in particular the affidavit of Martin Kangere that was filed on 5 December 2019. He and his group, namely, the 1st and 2nd defendants, do not challenge the validity of the Court Order or the agreement of 29 June 1998. So, I ask myself this. “If there is no challenge or controversy then why are the plaintiffs seeking the relief?”
12. The case law is settled when considering whether an originating summons discloses a reasonable cause of action. Justice Hartshorn in the case Waigani Heights Development Ltd v. Benjamin Mull (2018) N7162 states, and I quote:
8. As the plaintiff seeks declaratory relief, it is necessary to consider the factors that are required to be established before a declaratory order can be made. These factors are set out in The Russian Commercial and Industrial Bank v. British Bank for Foreign Trade Ltd [1921] 2 AC 438. This case has been referred to in various cases including Ok Tedi Mining Ltd v. Niugini Insurance Corporation and Others (No 2) [1988-89] PNGLR 425; Placer Dome (PNG) Ltd v. Yako (2011) N4691; Independent State of Papua New Guinea v. Central Provincial Government (2009) SC977; Dr. Onne Rageau v. Kina Finance Ltd (2015) N6175 and National Fisheries Authority v. New Britain Resources Development Ltd (2009) N4068
9. The factors are:
10. In the High Court of Australia decision, Ainsworth v. Criminal Justice Commission [1992] HCA 10; (1991-1992) 175 CLR 564, Brennan J. referred to the Russian Commercial case (supra) and said that notwithstanding the wide discretion that exists in deciding whether a declaration should be made, it was not appropriate to grant a declaration if there was no real controversy to be determined.
11. Also, recently, the Supreme Court in considering the issue of standing to seek declaratory orders in Pius Pundi v. Chris Rupen (2015) SC1430 held amongst others that:
“A declaration is a discretionary remedy that should only be granted where there exists a real controversy between the parties to the proceedings, a legal right is at issue, the party seeking it has a proper or tangible interest in obtaining it, the controversy is within the court’s jurisdiction, the defendant has a proper or tangible interest in opposing the plaintiff’s claim and the issues involved are real, and not merely of academic interest or hypothetical.”
12. It has been held to be an abuse of process to seek declaratory relief that will not resolve all of the issues between the parties or relief that will not finally settle the real dispute between the parties: TS Tan v. Elcom (2002) SC683 and the National Court decisions of National Capital District Interim Commission v. Bogibada Holdings Pty Ltd [1987] PNGLR 135 and Ok Tedi Mining Ltd v. Niugini Insurance Corporation and Ors (No. 2) [1988-89] PNGLR 425 and Shengtai Investments Ltd v. Chen Jing (2017) N6753.
13. I adopt these as my own.
14. When I consider the first relief, I note the following. Firstly, I note that there is no controversy to the said relief. Both parties do not deny that they come from the same clan namely the Evele Clan. The said clan was awarded the Emasi customary land by the Local Land Court on 29 June 1998. The ownership position of the clan over the land has not changed. The real controversies I see are internal disputes between the incorporated land groups of the Evele Clan and their leaders, that is, as to their ‘legitimacies’, and as to who should receive royalty monies that had been paid by the timber company to the State from logs that had been harvested on the Emasi land. The feud appears to arise between the group that is led by Martin Kangere, the 3rd defendant, and the other group that is led by the plaintiff Lawrence Job. It appears that one of the parties, namely the 3rd defendant and his group, may have entered into a logging agreement with the timber company and have been receiving benefits from logs harvested on the land prior to August of 2019. The plaintiffs gave evidence that they were not aware of the logging operations on the land; that they had learnt about it and of the payment that was supposed to have been made in August of 2019. This, they claim, had prompted them to file this proceeding and to obtain the interim orders. I find that the plaintiffs are not being entirely truthful here. And it is not ‘rocket science’, in my view, to see that. Both parties and their groups live on their land where the logging was or is. How can one party then claim that it was shocked or that it was not aware of the operations that was conducted on their traditional land? Evidence disclosed by both parties also shows various mediation processes that had been conducted over the Emasi land over the past years.
15. The defendants also argue that the issue relates to dispute of ownership of customary land and therefore they argue that this Court has no jurisdiction to hear the matter. I reject this argument for the reasons stated above in my decision. If I may add that the disputes are “in-house” matters, that is, between clan members of the Evele Clan. They tend to argue either expressly or impliedly on the following issues, (i), which ILG is ‘legitimate’ and represents the interest of the Evele clan, (ii), which person should lead or be the leader of their clan, and (iii) the ‘legitimate’ ILG that should receive the royalty payments. The disputes, again, are not over who should own the Emasi customary land. The ownership of the said customary land has been determined. The Evele clan owns the said land.
16. But in summary, I am not satisfied that there is a real controversy to be determined by this Court under relief 1. I also note and find that obtaining relief 1 itself will not resolve the controversies that surround the 2 groups.
17. Let me address relief 2. The plaintiffs argue that the defendants had acted fraudulently by altering the Local Land Court Order to include their names, and that they had used the altered Court Order to do business with third parties including the timber company. I note the submissions presented by both counsel regarding this relief. Let me say this. The argument which I find should be considered first, relates to the mode of proceeding and pleadings. In my view, the National Court Rules and case law are settled. They all say that a party that alleges fraud must properly plead the allegation with particulars. The law and case law also states that the correct originating process or mode of proceeding, to plead fraud is by way of a writ of summons and statement of claim. See cases: Nali Hole v. Allan Mana (2016) SC1536; Open Bay Timber Limited v PNG Forest Authority and Ors (2013) N5109; Anson Ising v. Lucy Ande (2014) SC1359 and The Papua Club v. Nusaum Holdings Ltd (No. 2) (2004) N2603. The Supreme Court in Anson Ising v. Lucy Ande (supra), held and I quote in part:
3. A writ of summons attaching a statement of claim is the appropriate mode of commencing proceedings for an action based on fraud.
4. In this case, the appellant commenced proceedings by originating summons. No leave was obtained to proceed by way of pleadings, consequently trial was conducted without pleadings and purely on affidavit material. Given the seriousness of an allegation of fraud and in this case, fraud against the grant of title to the appellant, the trial judge erred in law by allowing the matter to proceed to trial on the originating summons and without requiring the first respondent to particularise the allegation of fraud as required by O. 8, rr. 2, 3 and 30 of the National Court Rules. The effect is the entire proceeding was an abuse of process.
18. The said decision is binding upon this Court.
19. Finally, Order 8 Rule 30 of the National Court Rules states, and I quote:
30. Fraud, etc. (16/2)
A party pleading shall give particulars of any fraud, misrepresentation, breach of trust, wilful default or undue influence on which he relies.
20. In my view, the provision appears mandatory. An allegation of fraud is of course a serious matter. As such, the Court rule requires or demands proper particularization, that is, when one makes an allegation that is based on fraud. And the same view I note is also expressed in the case law as stated above.
21. In this case, I note that fraud is alleged in relief 2 of the originating summons instead of under a writ of summons and statement of claim. This to me suggests or indicates possible serious defect to the mode of proceeding. I therefore also find reasonable to serious doubt, to the merit of relief 2 as pleaded in the originating summons. There is doubt, in my view, as to whether such a relief may be sought in the manner as pleaded, or whether such a relief is attainable.
SUMMARY
22. In summary, I find the merit of the proceeding to be at reasonable to serious doubt. I also find that it is reasonably arguable whether the proceeding amounts to abuse of process because of the type of originating process chosen by the plaintiffs herein.
23. Given these, I need not consider the other issue or issues. The plaintiffs’ application must fail. I will make orders to that effect. I also believe given my findings, that this is an appropriate case where I should also issue a direction, that is, for the matter to return for directions hearing, and at which time for the parties to make submission on whether this Court should summarily dismiss the proceeding.
COST
24. An order for cost is discretionary. I will order cost to follow the event on a party/party basis to be taxed if not agreed. The application fails and as such the defendants will be entitled to their costs.
ORDERS OF THE COURT
25. I make the following orders:
The Court orders accordingly
________________________________________________________________
Kumbari & Associates Lawyers: Lawyers for the Plaintiffs
Alua Lawyers: Lawyers for the Defendants
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