Louis Medaing v Ramu Nico (MCC) Ltd

• Jurisdiction: Papua New Guinea
• Judge: Cannings J
• Judgment Date: 07 March 2014
• Citation: (2014) N5525
• Court: National Court
• Year: 2014
• Judgement Number: N5525

Full : WS No 924 of 2013; Louis Medaing for himself and on behalf of Medaing Family and Sawang Family of Basamuk v Ramu Nico (MCC) Limited and Highlands Pacific Limited and Secretary, Department of Lands & Physical Planning and Secretary, Department of Mining and Managing Director, Mineral Resources Authority and the Independent State of Papua New Guinea (2014) N5525

National Court: Cannings J

Judgment Delivered: 7 March 2014

N5525

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

WS NO 924 OF 2013

LOUIS MEDAING, FOR HIMSELF AND ON BEHALF OF

MEDAING FAMILY AND SAWANG FAMILY OF BASAMUK

Plaintiff

V

RAMU NICO (MCC) LIMITED

First Defendant

HIGHLANDS PACIFIC LIMITED

Second Defendant

SECRETARY, DEPARTMENT OF LANDS & PHYSICAL PLANNING

Third Defendant

SECRETARY, DEPARTMENT OF MINING

Fourth Defendant

MANAGING DIRECTOR, MINERAL RESOURCES AUTHORITY

Fifth Defendant

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

Sixth Defendant

Madang: Cannings J

2014: 21 February, 7 March

PRACTICE AND PROCEDURE – application for dismissal of proceedings – whether the proceedings relate to ownership of customary land – whether National Court has jurisdiction – whether the statement of claim discloses a reasonable cause of action – whether rules for commencement of proceedings in a representative capacity complied with

The plaintiff has a long running grievance over the circumstances in which an area of land, which he says was traditionally owned by his families, was acquired from them by the colonial Administration in 1942 and subsequently dealt with by the State, resulting in the land becoming the subject of a State Lease in favour of the first and second defendants, who now occupy the land and use it for mining and industrial purposes. He sought damages against those defendants and four others including the State, the apparent cause of action being trespass, predicated on the proposition that the 1942 acquisition of the land was unlawful. The first and second defendants filed a notice of motion before trial seeking dismissal of the entire proceedings on various grounds.

Held:

(1) The plaintiff is guilty of an abuse of process as he has commenced the proceedings in a representative capacity but has failed to comply with the procedures of the National Court Rules for commencement of such proceedings.

(2) The National Court has no jurisdiction. The land is now Government land and determination of the plaintiff’s claims would require determinations as to (a) whether in fact the plaintiff and his families are the true customary owners of the land and (b) the lawfulness or fairness of the terms on which the land was acquired by the Colonial Administration, both sorts of issues being outside the jurisdiction of the National Court. Furthermore: (c) though the Special Land Titles Commission may have improperly declined to hear a dispute as to customary ownership of the land, this does not enliven the jurisdiction of the National Court.

(3) The statement of claim is prolix, emotive and confusing and consequently discloses no reasonable cause of action.

(4) For each of those reasons, it was in the interests of justice that the proceedings be dismissed.

Cases cited

The following cases are cited in the judgment:

Anton Lavu v Nick Thompson & NBPOL (2002) N2190

Golpak v Kali [1993] PNGLR 491

Louis Medaing v Minister for Lands & Physical Planning (2010) N3917

Madaha Resena v The State [1990] PNGLR 22

Madaha Resena v The State [1991] PNGLR 174

Ramu Nickel Limited v Temu & Ors (2007) N3116

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

Tigam Malewo v Keith Faulkner (2009) SC960

Counsel

L Medaing, the plaintiff, in person

I Shepherd, for the first and second defendants

B W Meten, for the fifth defendant

7th March, 2014

1. CANNINGS J: This is a ruling on an application by the first and second defendants, supported by the fifth defendant, to dismiss the entire proceedings commenced against them and three others by the plaintiff, Louis Medaing.

2. Mr Medaing, who claims to act in a representative capacity on behalf of the Medaing and Sawang families of Basamuk, Madang Province, is suing six parties. He is seeking several billion Kina in damages to compensate him and his families for the injustice and losses caused to them by the alleged unlawful conduct of the defendants. A series of unlawful actions by some or all the defendants, he claims, has resulted in the unlawful acquisition, transfer of interests and occupation and use of land at Basamuk in the Rai Coast District, which rightly belongs to him and his families. This land, an area of about 85 hectares, is the site of the refinery and port for the Ramu Nickel-Cobalt Project. It is formally described as Portions 109 and 110, Milinch of Pommern, Fourmil of Madang, Block 903.

3. The defendants are:

• 1st defendant: Ramu Nico (MCC) Ltd, the primary developer of the Project and the present occupier of the land and operator of the refinery and port, which is alleged to have been the beneficiary of the unlawful manner in which the land has been alienated from its customary owners;

• 2nd defendant: Highlands Pacific Ltd, a joint venture partner in the Project, also alleged to be a beneficiary of the unlawful manner in which the land has been alienated from its customary owners;

• 3rd defendant: the Secretary for Lands and Physical Planning, who is alleged to be responsible for the unlawful transfer of interests in the land;

• 4th defendant: the Secretary for Mining, who is alleged to be responsible for the unlawful granting in 2000 of mining leases pursuant to the Mining Act 1992 over the land;

• 5th defendant: the Managing Director of the Mineral Resources Authority, who is alleged to be also a party to unlawful granting of mining leases over the land;

• 6th defendant: the State, which is alleged to be generally responsible for the unlawful alienation of the land by the Colonial Administration in 1942 and its unlawful allocation (as the Colonial Administration never had proper title) in the form of the grant of an agricultural lease to the Evangelical Lutheran Church of Papua New Guinea and for the compulsory acquisition of the land from the Church in 2002 and its unlawful transfer of interests in the land, in 2004 (when an agricultural lease was granted to a landowner company) in particular to the first and second defendants. (Note that the modern history of the land is set out in detail in Lay J’s judgment in Ramu Nickel Limited v Temu & Ors (2007) N3116.)

4. After careful consideration of the submissions of Mr Shepherd, for the first and second defendants, and Mr Meten, for the fifth defendant, and those of Mr Medaing, who appeared in person, I have decided to uphold the submissions of Mr Shepherd and Mr Meten. The application for dismissal of the entire proceedings will be granted, for three reasons.

1 NON-COMPLIANCE WITH RULES AS TO COMMENCEMENT OF REPRESENTATIVE PROCEEDINGS

5. The plaintiff is guilty of an abuse of process as he has commenced the proceedings in a representative capacity but has failed to comply with the necessary procedures for commencement of such proceedings, which were summarised by the Supreme Court in Tigam Malewo v Keith Faulkner (2009) SC960 as being:

• all intended plaintiffs must be named in the originating process;

• each and every intended plaintiff must give specific instructions (evidenced in writing) to their lawyers to act for them;

• any person in whose name proceedings are commenced and who claims to represent other intended plaintiffs must produce an authority to the court to show that he was authorised by them to file proceedings as a class representative.

6. None of those requirements has been met. And this is a sufficient reason to dismiss the proceedings.

2 THE NATIONAL COURT HAS NO JURISDICTION

7. The National Court has no jurisdiction to determine any of the plaintiff’s claims. The land is Government land and has been since 1942. Determination of the plaintiff’s claims would require determinations as to (a) whether in fact the plaintiff and his families are the true customary owners of the land and (b) the lawfulness or fairness of the terms on which the land was acquired by the Colonial Administration.

8. Neither issue is within the jurisdiction of this Court. The question of who are the true customary owners of any land in Papua New Guinea and whether customary land was properly acquired by the State or by a pre-Independence Administration can only be determined in the first instance by the Land Titles Commission under the Land Titles Commission Act 1962 or by the National Land Commission under the National Land Registration Act Chapter No 35. It is a well-settled principle that the National Court has no original...