Louis Lucian Siu v Wasime Land Group Incorporated (2011) SC1107

• Jurisdiction: Papua New Guinea
• Judge: Injia CJ, Manuhu & Kawi JJ
• Judgment Date: 28 April 2011
• Citation: (2011) SC1107
• Docket Number: SCA NO 36 OF 2007
• Court: Supreme Court
• Year: 2011
• Judgement Number: SC1107

Full Title: SCA NO 36 OF 2007; Louis Lucian Siu v Wasime Land Group Incorporated (2011) SC1107

Supreme Court: Injia CJ, Manuhu & Kawi JJ

Judgment Delivered: 28 April 2011

SC1107

PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE]

SCA NO 36 OF 2007

LOUIS LUCIAN SIU

Appellant

-V-

WASIME LAND GROUP INCORPORATED

Respondent

Waigani: Injia CJ, Manuhu & Kawi JJ

2010: 31st August

2011: 28th April

REAL PROPERTY - Customary land- Dispute over ownership of customary land - Interests in customary land – What isinterests in customary land? Interests in receiving royalty payments, premium payments and levies are interests in customary land within the meaning of Section 26 of the Land Dispute Settlement Act-In addition any monetary benefits including any other benefits derived from the use of such lands are interests in customary lands-Proceedings seeking declaratory reliefs and court recognition of various interests in customary amounts to an abuse of the court process. No reasonable cause of action disclosed- Appeal dismissed. Practice and Procedure- Application to dismiss case for not disclosing reasonable cause of action-National court lacks jurisdiction to enquire into issues of customary land ownership and dispute over interests in customary lands – Order 12 rule 40. No reasonable cause of action disclosed- non disclosure of a cause of action amounts to an abuse of court process within the meaning of Order 12 rule 40. Appeal dismissed.

HELD:

(1) A dispute as to an interests in Land” as used in Section 26 and other provisions of the Land Dispute Settlement Act means a property interests or proprietary interests or a legal or equitable interests or any financial and monetary interests arising out of one’s ownership of such customary lands.

(2) Interests in customary lands also means interests over the use of such traditional lands and includes financial benefits and any other benefits derived from the use of such lands. It also means any monetary or financial benefits arising from or associated with or in connection with the use of or with one’s ownership of such a customary land and includes financial payments and benefits paid to land owners.

(3) Preliminary issues can be raised at any time and at any stage of the proceedings but preliminary issues which goes to the root of or competency of the appeal should have been more appropriately raised in an Objection to Competency filed under Order 7 rules 14-18 of the Supreme Court Rules. Any substantive preliminary matter that goes to the root of or competency of an appeal should be raised at the competency stage.

(4) Receiving of royalty payments, premium payment and levies are an ‘interests in customary land’ within the meaning of Section 26 of the Land Dispute Settlement Act.

(5) The National Court has no jurisdiction to inquire into or deal with issues relating to disputes over customary ownership or interests in customary lands. Golpak - v - Alongkarea Kali & Ors [1993] PNGLR 8 and Ronny Wabia –v- BP Petroleum Explorations Operating Co. Limited & 2 Ors [1998] PNGLR 8 applied.

(6) Any proceedings seeking declaratory reliefs and court recognition of various interests in customary land from which they stand to derive monetary benefits or any other benefits including financial and any other physical benefits amounts to an abuse of the court process because it does not in any way disclose a reasonable cause of action.

Cases cited

Papua New Guinea Cases

Golpak - v - Alongkarea Kali & Ors [1993] PNGLR 8

Mamun Investments –v- Paul Ponda & Ors [1995] PNGLR 1

Ronny Wabia –v- BP Petroleum Explorations Operating Co. Limited & 2 Ors [1998] PNGLR 8

Overseas cases

Burton v Shire of Bairnsdale [1908-09] 7 CCR

Dey –v- Victorian Railways Commissioner [1994] 78 CLR 62

Tapion –v- Anderson [1973] VR 321

Counsel:

Mr F. Griffin, for the Appellants

Mr C. Narokobi, for the Respondents

28 April, 2011

1. BY THE COURT: This is an appeal against the interlocutory judgement of Cannings J given on the 27th April 2007 in the National Court proceedings OS 606 of 2006, Wasime Land Group Incorporated –v- Louis Lucian Siu, and the Vanimo Forests Products and Terry Wara.

2. In OS 606 of 2006, the respondent herein, (who was the plaintiff in OS 606 of 2006) by Originating Summons sought inter alia substantive declaratory orders relating to their rights to receive royalties and other monetary benefits arising from their ownership of certain customary lands in Vanimo, the subject of an ongoing ownership dispute.

3. On the 27th of May 2007, the appellant Louis Lucian Siu filed and moved a Notice of Motion to have OS 606 of 2006, dismissed pursuant to Order 12, rule 40 of the National Court Rules on the basis that the entire court proceedings in OS 606 of 2006 are frivolous, vexatious and amount to an abuse of the court process. The court dismissed that Motion.

4. This appeal lies from that decision. In dismissing that motion, the learned Judge ruled that he was “not satisfied that this is an appropriate case for the proceedings to be dismissed in their entirety.” His Honour said:

“There are clearly, in my view, arguments to be made on both sides. It is not clear that this is a frivolous or vexatious case or that there is no cause of action available to the plaintiff. There have been arguable points of law raised by both counsels. So the matter should not be dismissed. I consider that the most appropriate cause of action is to preserve the status quo as it existed between 10th November and 6th December 2006 which means that I consider the next appropriate position to be that the interim orders of 10th November 2006 be reinstated or orders in those terms.”

5. Clearly this was an interlocutory decision for which leave was required and was granted under Section 14 (3)(b)(iii) of the Supreme Court Act.

PRELIMINARY ISSUES

6. Mr Narokobi of counsel for the respondents raised a number of preliminary issues which in our opinion goes to the competency of this appeal. It is our judgement that whilst preliminary issues can be raised at any time and at any stage of the proceedings, we are of the opinion that preliminary issues raised by Mr Narakobi which goes to the root of the appeal should have been more appropriately raised in an Objection to Competency under Order 7 rules 14-18 of the Supreme Court Rules. In our opinion any preliminary matter that goes to the root of or competency of an appeal should be raised at the competency stage. We will address only simple issues that can be cured by simple amendments. Hence we dismiss all preliminary issues raised by Mr Narakobi.

7. The only preliminary issue that we will deal with here is the names of who the proper parties are in his appeal. The cover page to the appeal book showed different parties to the parties named in the first and subsequent pages. Counsel for the respondents moved the court to dismiss the entire appeal on the basis that wrong parties were named on the appeal books. In the whole appeal book, we find that there are sufficient evidence to show that the correct parties are those named in pages 1 and 2 of the appeal book and not those appearing on the cover page. We are quite satisfied that this was really a typing mistake which can be cured by a simple amendment and we therefore grant leave to change the names of the parties appearing in the cover page to render consistency with those appearing in pages 1 and 2 of the appeal book.

BACKGROUND TO THIS APPEAL.

8. On the 10th of May 2004, the Vanimo Local Land Court in proceedings LLC No. 1 of 2004, Tom Bais & Ors of Isimbu Clan of Ningra village -v- Robert Bipu & Ors of Wasime Iyam Clan also of Ningra village, made a decision over a disputed portion of customary land identified as “Basse Land Ningra Reserve Block B – Portion 47”. The Local Land Court had recognized and accepted that the Land Titles Commission had previously declared that the ownership of this land was vested in the Wasime Iyam Clan of Ningra village.

9. This prompted the Appellant (The Respondents) to lodge an appeal to the Provincial Land Court on the 6th of July 2004. At the time of the National Court decision on the 27th April 2007 dismissing the appellants application, that appeal to the Provincial Land Court had not been determined as yet and was still pending.

10. Based on this Local Land Court decision of the 10th May 2004, to recognize the respondents as being the owners of this traditional land, they (i.e. Wasime Land Group Incorporated) filed the proceedings OS 606 of 2006 in the National Court to have the court recognize their rights and entitlements to receive any royalties and monetary benefits arising from their ownership of the land in dispute.

11. In the proceedings of OS 606 of 2006, the respondents sought inter alia Orders that it and its members “are the lawful recipients of premiums from Vanimo Forest Products Limited pursuant to Local Land Court decision of 10th May 2004, from logging operations conducted on Basse land, Ningra Reserve Block B – Portion 47 – Sandaun Province”.

12. In October 2006, the respondents obtained ex parte interim orders from the National...