Anton Lavu, Authorised Representative of Laulimi And Honde Clan Leaders and Members of Morokea-Ruango Village, Talasea District, West New Britain Province v Nicholas Mark Thompson, Managing Director, New Britain Palm Oil Limited and New Britain Palm Oil Limited (2007) N5018

• Jurisdiction: Papua New Guinea
• Judge: Cannings J
• Judgment Date: 26 July 2007
• Court: National Court
• Citation: (2007) N5018
• Docket Number: WS NO 780 OF 2005
• Year: 2007
• Judgement Number: N5018

Full Title: WS NO 780 OF 2005; Anton Lavu, Authorised Representative of Laulimi And Honde Clan Leaders and Members of Morokea-Ruango Village, Talasea District, West New Britain Province v Nicholas Mark Thompson, Managing Director, New Britain Palm Oil Limited and New Britain Palm Oil Limited (2007) N5018

National Court: Cannings J

Judgment Delivered: 26 July 2007

N5018

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

WS NO 780 OF 2005

ANTON LAVU,

AUTHORISED REPRESENTATIVE

OF LAULIMI AND HONDE CLAN LEADERS

AND MEMBERS OF MOROKEA-RUANGO VILLAGE,

TALASEA DISTRICT, WEST NEW BRITAIN PROVINCE

Plaintiff

V

NICHOLAS MARK THOMPSON,

MANAGING DIRECTOR, NEW BRITAIN PALM OIL LIMITED

First Defendant

NEW BRITAIN PALM OIL LIMITED

Second Defendant

Kimbe: Cannings J

2007: 20, 26 July

LAND – customary land – State Leases – whether National Court has jurisdiction to determine a claim that land the subject of a State Lease is, in fact and law, customary land – Land Titles Commission Act, Section 15.

The plaintiff, representing clans who are the traditional owners of land that is the subject of a State Lease, commenced proceedings against the occupiers of the land, seeking a declaration that the clans own the land and can take possession of it, and damages. The defendants argued that the pleadings raise questions of customary ownership of land, which are within the exclusive jurisdiction of the Land Titles Commission, therefore the National Court has no jurisdiction and the proceedings should be dismissed.

Held:

(1) The plaintiff’s cause of action is trespass and is premised on the proposition that the clans represented by the plaintiff are the customary owners of the land.

(2) The clans’ rights of ownership and possession of the land are disputed by the defendants, on the ground that the land is the property of the State and the subject of a State Lease in favour of the second defendant.

(3) Such a dispute falls outside the jurisdiction of the National Court as it has by virtue of Section 15 of the Land Titles Commission Act no original jurisdiction to determine whether land is customary land.

(4) The proceedings were therefore stayed and the plaintiff was given 21 days to notify the court and the parties of the steps he is taking to have the question of customary ownership resolved by the appropriate authorities; failing which the proceedings will be dismissed.

Cases cited

The following cases are cited in the judgment:

Golpak v Kali [1993] PNGLR 491

Joe Kala v NBPOL WS No 879 of 2005, 16.02.07

Madaha Resena v The State [1990] PNGLR 22

Madaha Resena v The State [1991] PNGLR 174

Re Fisherman’s Island [1979] PNGLR 202

Ronny Wabia v BP Exploration Co Ltd [1998] PNGLR 8

Safe Lavao v The State [1978] PNGLR 15

Siaman Riri v Simion Nusai (1995) N1375

Sioti Bauf and Lavoi Nodai v Poliamba Pty Ltd [1990] PNGLR 278

Soso Tumu v The State (2002) N2190

The Administration v Blasius Tirupia (Re Vunapaladig and Japalik Land) [1971-72] PNGLR 229

The State v Lohia Sisia [1987] PNGLR 102

Vitus Sukuramu v NBPOL WS No 1175 of 2003, 16.02.07

NOTICE OF MOTION

This was a motion for a dismissal or stay of proceedings.

Counsel

N B Kubak, for the plaintiff

I R Shepherd, for the defendants

26th July, 2007

1. CANNINGS J: The plaintiff, Anton Lavu, represents two clans who are the traditional owners of 2070 hectares of land near Kimbe on which the second defendant, New Britain Palm Oil Limited, has established a large oil palm operation. The land is called Kumbango. NBPOL is the registered proprietor of a 99-year State Lease over Kumbango, which commenced in 1972. In 2005 Mr Lavu filed a writ against NBPOL and its managing director, the first defendant, Nick Thompson. He seeks:

· a declaration that the two clans, Honde and Laulimi, are the rightful owners according to custom and are entitled to immediate possession;

· K500 million damages for trespass and unjust deprivation of property;

· other damages for unpaid rentals by NBPOL to the two clans, loss of economic value of the land, environmental pollution and loss of income.

2. The pleadings for this case have closed. However, the case has not been set down for trial as the defendants have applied, by notice of motion, for dismissal or a stay of the proceedings on the ground that the National Court has no jurisdiction. This is a ruling on the defendants’ motion.

ISSUES

3. Two issues arise:

1 Does the National Court have jurisdiction?

2 If no, what orders should be made?

1 DOES THE NATIONAL COURT HAVE JURISDICTION?

Foundation of plaintiff’s case

4. The plaintiff’s cause of action is trespass. It is premised on the proposition that the two clans represented by the plaintiff are, and always have been, in fact and law, the customary owners of the land. The statement of claim alleges that when the colonial Australian Administration purported to purchase the land for about AUD$20,000.00 in the 1960s, the clan members who put their X marks on the transfer instruments were illiterate and had no idea what they were signing; they were misled into thinking that they were signing a timber rights purchase agreement. They did not realise that the documents they signed transferred ownership of the land to the Administration.

The defendants’ argument

5. Mr Shepherd, for the defendants, submitted that the National Court has no jurisdiction. The clans’ rights of ownership and possession of the land are disputed by the defendants, on the ground that the land is the property of the State and the subject of a State Lease in favour of the second defendant. NBPOL is protected by the principle of indefeasibility of title under Section 33 of the Land Registration Act, Mr Shepherd submitted. Furthermore, if the plaintiff wants to dispute NBPOL’s title to the land, he will have to mount a challenge to the legality of the original transfer of the land from the clans to the Administration, which occurred in 1966. To do that, the plaintiff will have to register a claim before the Land Titles Commission, a quasi-judicial body that deals with disputes over customary land, including disputes about whether land is customary land. Mr Shepherd bases his argument on Section 15 (determination of disputes) of the Land Titles Commission Act, which states:

(1) 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.]

(2) After the period limited … for review of or appeal against a decision of the Commission has expired, and any proceedings on review have been completed and any appeals have been decided—

(a) a determination of the Commission under this or any other Act is, subject to Section 16, for all purposes and as against all persons conclusive evidence of the ownership as at the date of the decision, of the land the subject of the decision and of rights, titles, estates and interests in the land as set out in the decision; and

(b) the Commission shall forward a copy of its decision to the Registrar of Titles, who shall make such entries in Registers kept by him and issue such documents as are necessary, or as are directed by the Commission, to give effect to the decision of the Commission.

6. Mr Shepherd pointed to a long line of authority in decisions of the Supreme Court and the National Court that shows Section 15 has been given full effect by the courts. As soon as it becomes apparent that a case involves a dispute about whether land is or is not customary land, the courts have held that they have no jurisdiction. Such disputes fall within the domain of the Land Titles Commission.

Plaintiff’s submission on jurisdictional issue

7. Mr Kubak, for the plaintiff, did not dispute the existence of the previous court decisions or the propositions of law they stood for, but asked me not to follow them. Most are National Court decisions, which I am not bound to follow, he argued. The Supreme Court cases Mr Shepherd referred to are not directly on point, so I need not follow them either. I should seize the opportunity to develop the underlying law as required by the Constitution and arrive at a decision that recognises the judicial authority of the National Court as a court of unlimited jurisdiction. It is the court that is best positioned to resolve this dispute, which involves fundamental issues of fairness and justice concerning customary land, so I should not refer it to some other authority or dismiss or stay the proceedings, Mr Kubak submitted.

Resolution of issue

8. Mr Kubak is right to point out that I am not, sitting as a Judge of the National Court, bound by previous National Court decisions (Constitution, Schedule 2.9; Underlying Law Act, Section 19). However, I am bound by previous Supreme Court decisions. In The State v Lohia Sisia [1987] PNGLR 102 the Supreme Court indicated...