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Job v Tori [2020] PGNC 62; N8254 (16 March 2020)

N8254

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS No. 732 of 2019 (No. 2)

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
2020: 12 & 16 March

SUMMARY DISPOSAL – Court exercising power on own volition – Order 10 Rule 9A(15)(1)(b) – National Court Rules – whether proceeding properly before the Court – whether proper mode should be writ of summons and statement of claim – whether that amounts to abuse of process – Order 10 Rule 9A(15)(2)(d) & (e) – National Court Rules - whether Court has jurisdiction to hear matter – whether proper process should be to refer matter to the dispute-settlement authority - Land Groups Incorporation Act Chapter No. 147 – whether proceeding should instead be converted to pleadings – Order 4 Rule 35(2)(b) – National Court Rules

Cases Cited:

Lawrence Job and Ors v. Jebzes Tore and Ors (2020) N8218
Mavu v. Moto (2005) N2879

Counsel:

Mr S Dadada, for the Plaintiffs
Mr F Alua, for the First, Second and Third Defendants
Mr S Mitige, for the Fourth, Fifth and Sixth Defendants

RULING

16^th March, 2020

1. ANIS J: On 4 March 2020, in handing down a ruling on whether to extend interim restraining orders that had been made on 1 November 2019, I also issued a direction. The direction was made pursuant to Order 10 Rule 9A(15)(1)(b) of the National Court Rules. I directed the parties to show cause why the matter should not be summarily dismissed.

2. I heard submissions from the parties at 1:30pm on 12 March 2020, and reserved my ruling to a date to be advised. Parties have been notified so I will rule on it now.

BACKGROUND

3. I have covered the background of the matter in my earlier written decision, that is, Lawrence Job and Ors v. Jebzes Tore and Ors (2020) N8218. I would refer to that. But it (i.e, the background) is not relevant for this purpose except the following as I will explain.

4. In my ruling, I found serious doubt on whether the relief sought had merit and whether the proceeding may amount to abuse of court process. I also noted that allegation of fraud had been pleaded under relief 2 of the originating summons, and asked whether the correct mode should have been to file a writ of summons and statement of claim instead of an originating summons. These were amongst the reasons why I had decided to issue a direction under term 4 of my orders of 4 March 2020; in this instance, for the parties to appear and make submissions on why the matter should not be summarily dismissed.

ORDER 10 RULE 9A(15)

5. Apart from the inherent jurisdiction of the National Court, Order 10 Rule 9A(15)(1)(b) and (2)(d) and (e), state, and I quote:

15. SUMMARY DISPOSAL.

(1) The Court may summarily determine a matter:

.....

2. on its own initiative; or

.....

(2) The Court may summarily dispose of a matter in the following situations:

......

4. under any of the grounds set out in Order 12 Rule 40 and Order 8 Rule 27 of the National Court Rules.
5. on any competency ground relating to non-compliance with the National Court Rules or any other relevant rules of Court.
   

PRELIMINARY MATTERS

6. During the course of the hearing, it became apparent from counsel for the plaintiffs and the 1^st, 2^nd and 3^rd defendants that the way forward may be for the Court to, instead of summarily dismissing the proceeding, issue orders for the matter to proceed by way of pleadings.

7. Counsel for the 4^th, 5^th and 6^th defendants, however, had a different view. Counsel submits that the proper way forward should be to dismiss this proceeding and let the plaintiffs file fresh proceeding under a writ of summons and statement of claim. But then there was this other argument that counsel had raised that had my attention. Counsel submits that since the plaintiffs, the 1^st, 2^nd and 3^rd defendants are related in that they come from the same clan, disputes amongst their members, he submits, are governed by the Land Groups Incorporation Act Chapter No. 147 (LGI Act). As such, counsel submits that this Court may not have jurisdiction and that the matter should be referred to the appointed committee of the respective incorporated land groups, to resolve.

8. The question of conversion of proceeding, in my view, may be easily dealt with first. I note that the issue is not properly before me. The present hearing is in relation to whether the matter should be summarily dismissed or whether it should not, under Order 10 Rule 9A(15)(1)(b) of the National Court Rules, and that is based on findings in my earlier decision. The Court is not hearing the parties under Order 4 Rule 35(2)(b) of the National Court Rules. I note that an exception to this may be in a situation where all the parties have given their consent. This is, however, not the case, as demonstrated by counsel for the 4^th, 5^th and 6^th defendants. Their position is that this proceeding should be dismissed and the plaintiffs should be at liberty to file the proper mode of proceeding, namely, writ of summons and statement of claim.

9. In my opinion, I uphold the submission by the 4^th, 5^th and 6^th defendants. I find that what is before me is whether I should summarily dismiss the proceeding, that is pursuant to my powers under Order 10 Rule 9A(15)(1)(b) and (2)(d)(e) of the National Court Rules. The question of whether the proceeding should be converted is not properly before me for consideration and determination.

ISSUES

10. The main issues I see are, (i) whether this Court has jurisdiction to hear the matter, or whether the matter should be referred under the provisions of the LGI Act, and (ii), if not, whether the matter should be summarily dismissed.

LGI ACT

11. The relevant provisions under the LGI Act are sections 20 to 25. I set them out herein:

PART IV.—DISPUTE SETTLEMENT.

20. Application and interpretation of Part IV.

(1) This Part applies to disputes between—

(a) an incorporated land group and a member of the group; or

(b) members of an incorporated land group,

concerning the property or the affairs of the group, including—

(c) the distribution or disposal of any property or income of the group; and

(d) any transaction between the group and any of its members,

but, except by agreement, does not apply to any dispute between the group, or a member of the group, and a non-member.

(2) This Part also applies to disputes as to membership of, or the right to membership in, an incorporated land group.

(3) In this Part, a reference to a party to, or to a person interested in, a dispute includes a reference to a person whose interest in the dispute is real, though not necessarily or immediately financial.

21. Dispute-settlement authorities.

(1) In order to be recognized under this Act, each group must have at least one dispute-settlement authority.

(2) A dispute-settlement authority may be a person or a number of persons—

(a) specified by name; or

(b) specified by office or position; or

(c) determined in the manner specified,

in the constitution of the group, or a combination of any such persons.

(3) Notwithstanding Subsection (2), the parties to a dispute to which this Part applies may, with the consent of the group, agree on an ad hoc dispute-settlement authority in relation to the dispute.

22. Settlement of disputes.

All disputes to which this Part applies shall be dealt with, in accordance with Sections 23 and 24, by the dispute-settlement authority or a court having jurisdiction under Section 23.

23. Jurisdiction of courts.

(1) No court has jurisdiction over a dispute to which this Part applies unless—

(a) all parties agree that it should be referred to the court; or

(b) the constitution of the incorporated land group concerned so provides; or

(c) any relevant agreement between the group and a party so provides; or

(d) the dispute-settlement authority thinks that—

(i) it cannot satisfactorily settle the dispute; and

(ii) the court may be able to do so.

(2) The dispute-settlement authority has jurisdiction to decide any matter referred to in Subsection (1) and its decision is not open to challenge in any court.

(3) Where under Subsection (1) a dispute may be referred to a court—

(a) subject to Subsection (4), the court must be a Village Court or a Local Court that has, apart from the effect of this Part, jurisdiction in the matter; and

(b) it shall be referred, in the prescribed manner, by the dispute-settlement authority; and

(c) the dispute-settlement authority is entitled to act, and if the court or a person interested so asks shall act, as an assessor on matters of custom and as to matters of common knowledge within the group, but—

(i) its advice shall be given in open court and is open to challenge; and

(ii) if for good reason the court thinks it proper to do otherwise, the court is not bound to accept the advice.

(4) For the purposes of Subsection (3)(a), each Village Court and each Local Court has jurisdiction over disputes as to land (other than disputes as to registered interests in land).

24. Law to be applied.

A dispute-settlement authority or a court dealing, under Section 23, with a dispute to which this Part applies—

(a) is not bound by any law or rule of law, practice or procedure other than this Act; and

(b) may inform itself on any matter in such manner as it thinks proper; and

(c) shall not make a decision about any matter without calling for argument and hearing any argument made on the matter; and

(d) shall endeavour to do substantial justice between all persons interested, in accordance with this Act, the constitution and any relevant custom.

25. Appeal and review under Part IV.

(1) Subject to this section, no proceedings or decision under this Part, whether before or by a dispute-settlement authority or by a court, are or is subject to appeal or review in any way.

(2) A person aggrieved by a decision of a dispute-settlement authority or a court under this Part may require that the decision be reviewed and, if necessary, the matter be reopened in accordance with this section.

(3) Subject to Subsection (4), the decision shall be reviewed in the first instance, as if the grievance were the subject matter of a new dispute, by an ad hoc dispute-settlement authority appointed in accordance with Section 21(3).

(4) If—

(a) an ad hoc dispute-settlement authority cannot be agreed on; or

(b) the decision on the review differs from the original decision and a person aggrieved by the difference so requires,

the matter shall be reviewed by a Village Court consisting of not less than three Village Magistrates having jurisdiction over the members of the group, sitting with—

(c) the members of the original dispute-settlement authority; and

(d) the members of the ad hoc dispute-settlement authority (if any); and

(e) such other customary authorities having customary jurisdiction over the members of the group as the Village Court thinks appropriate,

but the decision of the Village Court is the decision on the review.

(5) If in a case to which Subsection (4)(a) or (b) applies there is no Village Court referred to in Subsection (4), the jurisdiction of the Village Court under that subsection shall be exercised by a customary authority having customary jurisdiction over the members of the group, nominated by the Registrar after due inquiry and consultation with the members of the group.

WHETHER FRAUD IS A DISPUTE WITHIN THE MEANING OF THE LGI ACT

12. Recapping the submission by the counsel for the 4^th, 5^th and 6^th Defendants, he claims that the dispute is subject to the LGI Act and should be brought first before the dispute settlement authority that is, and if I may add, set up under section 21. I note that the plaintiffs did not make submissions on this issue.

13. I uphold the defendants’ submission generally in so far as disputes concerning ILGs and their members are concerned. Sections 23 and 24 of the Act, however, restrict disputes that arise, that is, within the confines of Part IV of the LGI Act. Disputes that arise between members of an ILG and other members, or disputes that arise in relation to the establishment of the affairs of an ILG, shall first of all be subject to the jurisdiction of the LGI Act, and in particular, the dispute settlement authority. The LGI Act does not define the term dispute. But having looked at the provisions, I note that none of them apply in a situation where an allegation is made against a member or a non-member that is based on fraud which does not relate to the affairs of the ILG, its inception or properties. In this case, I note that the complaint by the plaintiffs against the 3^rd defendant is criminal in nature, and it relates to a Local Land Court Order. It is alleged that the 1^st, 2^nd and 3^rd defendants or in particular the 3^rd defendant, has altered the name of the first plaintiff, and has put his name onto the court documents or order. To me, this type of complaint is not the type of dispute that is prescribed under section 20 of the LGI Act that may be subject to the jurisdiction of the dispute settlement authority or the Act as a whole.

14. I therefore find that the plaintiffs may file proceedings in the National Court to lodge such a complaint, namely, fraud, with proper particulars. But as to which mode of proceeding, I note that I have already addressed that in my earlier decision, that is, Lawrence Job and Ors v. Jebzes Tore and Ors (supra). I quote from paragraphs 17 to 21 of my decision as follows:

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 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

15. For these reasons, I would exercise my discretion and summarily dismiss the proceeding, that is, under Order 10 Rule 9A(15)(1)(b) of the National Court Rules. I find that the proceeding was commenced using the wrong mode; that its commencement was therefore an abuse of the court process within the meaning of Order 10 Rule 9A(15)(2)(d) and (e) of the National Court Rules.

COST

16. An order for cost is discretionary. I will order cost to follow the event, that is, cost shall be awarded in favour of the defendants on a party/party basis to be taxed if not agreed.

ORDERS OF THE COURT

17. I make the following orders:

1. This proceeding is summarily dismissed.
   
2. The plaintiffs shall pay the defendants’ costs of the proceeding on a party/party basis which may be taxed if not agreed.
   
3. Time for entry of these orders is abridged to the date of settlement by the Registrar which shall take place forthwith.
   

The Court orders accordingly

________________________________________________________________

Kumbari & Associates Lawyers: Lawyers for the Plaintiffs

Alua Lawyers: Lawyers for the First, Second and Third Defendants

In-house lawyers Lawyers for the Fourth, Fifth and Sixth Defendants