Siaman Riri and Dei Riri v Simion Nusai, Wasaf Musas, Nusai Mamas and Fiu Gaus for and on behalf of the Nintzip Clan (1995) N1375

• Jurisdiction: Papua New Guinea
• Judge: Sakora J
• Judgment Date: 09 October 1995
• Court: National Court
• Citation: (1995) N1375
• Year: 1995
• Judgement Number: N1375

Full Title: Siaman Riri and Dei Riri v Simion Nusai, Wasaf Musas, Nusai Mamas and Fiu Gaus for and on behalf of the Nintzip Clan (1995) N1375

National Court: Sakora J

Judgment Delivered: 9 October 1995

N1375

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

OS 42 (L) OF 1993

SIAMAN RIRI AND DEI RIRI — APPLICANTS

V

SIMION NUSAI, WASAF MUSAS, NUSAI MAMAS, FIU GAUS FOR AND ON BEHALF OF THE NINTZIP CLAN — RESPONDENTS

Lae

Sakora J

16 June 1995

21 June 1995

9 October 1995

CUSTOMARY DISPUTES — Interest in customary land — Settlement -Jurisdiction — Local and Provincial Land Courts — Land Disputes Settlement Act 1975, ss. 23, 26, 39, 40, 41, 45, 53, 54, 55, 58, 59, 60 and 67.

PRACTICE AND PROCEDURE — Originating process — No reasonable cause of action — Frivolous or Vexatious — Abuse of process — Application for judicial review — National Court Rules, Order 4, r. 35; Order 12, r. 40., Order 16, r. 4.

PRACTICE AND PROCEDURE — Pleadings — Litigation — Purpose of — Too much litigation — Hopes and unreasonable expectations — Grievance against the legal system.

CONSTITUTIONAL LAW — Jurisdiction — National Court — "Inherent" jurisdiction — Land Disputes Settlement Act, s. 60 — Constitution, ss. 37 (15) and (16), 57, 155 and 166.

WORDS AND PHRASES — "Appeal" — "Review" — No distinction — Constitution, s. 37 (15) and (16) — "Liberty to apply."

Cases Cited

Wenam Elkum v PNG [1988-89] PNGLR 662

Aisip Duwa v Ronald Moyo Senge (Unreported, 28 Sept. 1995)

Victor Golpak v Patrick Kali & Ors. [1993] PNGLR 491

Malipu Balakau v Paul Torato [1983] PNGLR 242

Avia Aihi v The State [1981] PNGLR 81

The State v District Land Court, Ex Parte Caspar Nuli [1981] PNGLR 192

The State v Giddings, Ex Parte Tiangan Koan [1981] PNGLR 423

Augustine Olei v Provincial Land Court [1984] PNGLR 295

The Application of NANGO PINZI [1988-89] PNGLR 464

Counsel

G Langtry for the Applicants

P Ousi for the Respondents

9 October 1995

SAKORA J: It is not without relevance or significance to note at the outset that litigation between these parties over the same subject-matter has had a somewhat chequered history. Three other judges have already been involved in this continuing litigation between members of two clans, the Nintzip and the Zumang.

Whatever customary disputes the parties may have had between them eventually came to the formal attention of the official legal system by the exercising of jurisdiction over and determination by the Local Land Court at Lae under the provisions of the Land Disputes Settlement Act 1975 (Ch.45). Pursuant to s. 26 of the Act the determination concerned dispute over the ownership of customary land known as Ragitamut. The decision of the learned Local Land Court magistrate given on 29 October 1990 determined ownership in favour of the Nintzip Clan. The dispute had been between the Nintzip and Zumang clans. To assist him in the hearing and determination, the Local Land Court magistrate sat with two mediators pursuant to s. 23 (1) of the Act.

A person by the name of Tita Puran appealed against the decision of the Local Land Court to the Provincial Land Court pursuant to s. 53 of the Act. Section 45 establishes that appellate court under the scheme of this Act. The respondent there was the present first applicant in these proceedings. The appellant is, from affidavits filed in these and previous proceedings, a clan leader and member of the Zumang Clan, the losing clan in the Local Land Court proceedings. He was the applicant in an earlier National Court proceedings (OS 6 (L) of 1993) which I shall advert to in due course here.

The Provincial Land Court heard the appeal and made its determination on 10 September 1991. The appeal was dismissed pursuant to s. 59 (1) (a) of the Act. Following this decision the appellant Tita Puran applied to the National Court in 1992 (OS 91 of 1992) seeking judicial review of that decision. Relying upon the background information gleaned from the judgment of my brother Hinchliffe J in a similar but subsequent application (OS 6 (L) of 1993) (unreported and unnumbered, 17 May 1993, Annexure 'C' to the affidavit of Godfrey Langtry sworn 25 July 1994 in re: OS 42 (L) of 1993), the first application was dismissed by the National Court on 10 March 1993 "for want of prosecution" (p. 2 judgment). This happened through no fault of the applicant, as His Honour Hinchliffe J concluded:

"It seems to me that the lawyers for the defendant had no right to refuse to set the matter down for hearing because fees had not been paid. After all it knew what the consequences of such act would be likely to entail but it never warned its client... The applicant, to my mind, is not fully to blame for the dismissal on the 10th March, 1993. I am of the view that if his lawyers had given him full information then the matter may never have been dismissed and the case may by now have been finally determined."

His Honour then granted leave for applicant Tita Puran to apply for judicial review. In the same application Simion Nusai (the first respondent here) also applied for leave to apply for judicial review "for and on behalf of the Nintzip clan." He had not been a party in the OS No 91 of 1992 proceedings, and was then out of time with his application by 14 1/2 months, thus offending against Order 16, r 4 (2) National Court Rules (NCRs) which imposes a time limit of four months. In any case, His Honour found the applicant had not furnished any reasons or explanation for the non-compliance, nor made any application to the Court seeking leave to apply out of time (p. 3 judgment). He was, therefore, refused leave. It should be noted that the 10th March 1993 dismissal of the OS 91 of 1992 proceedings "for want of prosecution" was by my brother Andrew J. Leave to apply for judicial review had been granted for that application, but the dismissal was because of the circumstances cited from the judgment of Hinchlife J (supra).

This present proceedings were commenced by the respondents filing Originating Summons and Notice of Motion together with other necessary documentation on 4 October 1993. The originating summons sought both declaratory and injunctive orders. And, it would seem now, Tita Puran has not, so far, availed himself of the leave granted him by Hinchliffe J on 17 May 1993 to apply for judicial review of the decision of the learned Provincial Land Court magistrate given on 10 September 1991. Except for two orders sought (under paras. (4) and (5) ) beneficial to him and his Zumang Clan by the respondents, Tita Puran does not feature here as a party. Now, the respondents' (plaintiffs') originating process elicited from the defendants (applicants) a Notice of Motion filed 11 October 1993, seeking dismissal of the proceedings. The matter came before my brother Sevua J on 13 December 1993. His Honour's written judgment dated 24 June 1994 is the last judicial involvement before the matter came before me during the June ittings in Lae this year.

It would seem, and it was indeed convenient, that the two motions were heard together. Mr Langtry of counsel for the present applicants (defendants then) argued that those proceedings should be dismissed because, he submitted: (1) they disclosed no reasonable cause of action; and (2) they were frivolous, vexatious and an abuse of process pursuant to Order 12, r. 40 (1) (a), (b) and (c) NCRs. His Honour, whilst finding that the respondents' originating process amounted to an abuse of process because the relief (s) sought involved questions of interest in customary land, the proper province of the Local and Provincial Land Courts by virtue of the Land Disputes Settlement Act, refused to dismiss the proceedings, in the exercise of his discretion. Instead the matter was "referred to the Local Court." See: the 24 June 1994 written judgment (unreported and unnumbered p. 8). Finally his Honour invited the parties to be "at liberty to apply" (ibid).

Following that decision, and presumably availing themselves of the "liberty to apply" invitation, the present applicants filed a fresh Notice of Motion on 27 July 1994 seeking dismissal of the plaintiff's (sic) originating summons. And this is the proceedings, the second OS 42 (L) of 1993 proceedings, that I am concerned with. Mr Langtry of counsel for the applicants returns to his submissions before Sevua J. on the two grounds of the first application (supra) here, in the process questioning his Honour's conclusions. That is to say, Mr Langtry argues that his Honour should not have rejected the first ground on the basis that the applicants did not avail themselves of the remedy under Order 4, r. 35 (1). I would think that what both his Honour and Mr Langtry are meaning to refer to here is Order 4, r. 35 (2) rather than sub-rule (1). And Mr Langtry's second contention is that after finding that the second ground (pursuant to Order 12, r. 40) had been made out, his Honour should have proceeded to dismissthose proceedings.

The submissions on behalf of the respondents here are basically that, firstly, the...