Mandor Kusup for and on behalf of the Nob Clan whose names appear in the Schedule A to this Writ and Others v Luther Sipison as Secretary for Lands & Physical Planning and Others

• Jurisdiction: Papua New Guinea
• Judge: Narokobi J
• Judgment Date: 26 May 2023
• Neutral Citation: N10269
• Citation: N10269, 2023-05-26
• Counsel: B, Wak, for the Plaintiffs,E, Manihambu for the Defendants
• Docket Number: H.R. (WS) NO. 14 OF 2019
• Hearing Date: 31 May 2022,26 May 2023
• Court: National Court

N10269

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

H.R. (WS) NO. 14 OF 2019

Between:

Mandor Kusup for and on behalf of the Nob Clan whose names appear in the Schedule A to this Writ

First Plaintiff

and

Paul Kamang for and on behalf of the Matulon Clan whose names appear in the Schedule B to this Writ

Second Plaintiff

and

Kunkun Lang & Michael Fan for and on behalf of clan members of the Laupain Biliai Clan whose names appear in the Schedule C to this Writ

Third Plaintiff

and

Steven Bogas for and on behalf of members of the Kakon Clan whose names appear in the Schedule D to this Writ

Fourth Plaintiff

and

Martin Kubai for and on behalf of members of the Asuapain Clan whose names appear in the Schedule E to this Writ

Fifth Plaintiff

and

Lulal Hoheg for and on behalf of the members of the Mahoban Clan whose names appear in the Schedule F to this Writ

Sixth Plaintiff

and

Larry Nalon for and on behalf of Uribu Clan whose names appear in the Schedule G to this Writ

Seventh Plaintiff

and

Joseph Masil for and on behalf of the members of GA Gali Clan whose names appear in the Schedule H to this Writ

Eight Plaintiff

and

Anakai Web Mor for and on behalf of members of Bau Malehu Clan whose names appear in the Schedule I to this Writ

Ninth Plaintiff

and

Baibin Big for and on behalf of the members of Kanurua Clan whose names appear in the Schedule J to this Writ

Tenth Plaintiff

v.

Luther Sipison as Secretary for Lands & Physical Planning

First Defendant

and

Benjamin Samson as Registerar of Title of Papua New Guniea

Second Defendant

and

Honourable Justin Tkatchenko as Minister for Lands & Physical Planning

Third Defendant

and

The Indpendent State of Papua New Guinea

Fourth Defendant

Madang: Narokobi J

2022: 31^st May

2023: 26^th May

PRACTICE AND PROCEDURE — Mode of proceedings — whether proceedings should have been commenced by way of judicial review under Order 16 Rule 3 of the National Court Rules — Whether option available where relief sought are declaratory orders only and no orders in the nature of prerogative writs claimed.

PRACTICE AND PROCEDURE — Standing to commence proceedings — whether plaintiffs have standing to make claim — Nature of interests of the plaintiffs — plaintiffs expressly identified by court and authority of competent jurisdiction.

RES JUDICATA — Principles of res judicata — whether claim barred by operation of res judicata — requirements of res judicata considered and applied.

HUMAN RIGHTS — Section 53 of the Constitution, “Protection from Unjust Deprivation of Property” — Whether claim for breach of s 53 of the Constitution has been made out — Considerations for claim of unjust deprivation of property.

LAND LAW — National Land Registration Act 1977 — Section 10 “Appeals Against Declarations of National Land” — Whether human rights claim for unjust deprivation of property to the National Court is an alternative to the settlement process stipulated in the National Land Registration Act — Liberal interpretation applied to reading of s 10 — Relevant Considerations considered.

The Plaintiffs claim to be the landowners of present Madang town. They say their interest was recognised by the pre-independence case of Custodian of Expropriated Property v Commissioner of Native Affairs (Re Jomba Plain) [1971–72] PNGLR 501 and also by the National Land Titles Commission. In 1988 the Minister for Lands declared certain areas in Madang town to be State Land pursuant to his powers under s 9 of the National Land Registration Act 1977. The Plaintiffs claim that they were not aware of the notice. The State has been willing to pay compensation over the years but for some reason this did not eventuate. The plaintiffs now claim negligence and breach of their rights under s 53 of the Constitution. The State has submitted that the claim should have come by way of a judicial review under Order 16, rule 3 of the National Court Rules, that the Plaintiffs lack standing and the defence of res judicata applied on account of previous decisions.

Held:

(1) Each of the plaintiffs in this case are identified in the pre-independence case of Custodian of Expropriated Property v Commissioner of Native Affairs (Re Jomba Plain) [1971–72] PNGLR 501 and also by the National Land Commission decision in 1996 to the land the subject of the proceedings. Accepting this evidence, the Plaintiffs have standing to come to court regarding land the subject of this proceeding.

(2) Where a Plaintiff (s) only seeks declaratory relief, they have a choice as to the mode of proceedings (Telikom PNG Ltd v Independent Consumer and Competition Commission (2008) SC906 followed). Here, the Plaintiffs seeks declarations only, and no other orders in the nature of prerogative writs have been sought. There is therefore no abuse of process with regards to the mode of proceedings instituted by the Plaintiffs.

(3) For a defence of res judicata to hold, the following must be shown to exist (Telikom PNG Ltd v Independent Consumer and Competition Commission (2008) SC906, per Injia DCJ (as he then was), para 16):

• The parties in both matters are the same;

• The issues in both matters are the same;

• The previous judgment or decision extinguished the foundations of the claim or the right to set up an action. The result is therefore final and conclusive and it binds every other Court; and

• A Court of competent jurisdiction made the first decision.

(4) After having considered the cases of Pipoi v Seravo, National Minister for Lands (2001) N2120, and on appeal, Pipoi v Seravo, National Minister for Lands (2008) SC909 and having considered the parties and the cause of action it is determined that the issue is not res judicata for the following reasons:

• Pipoi v Seravo (National Court and Supreme Court decisions) had different parties. In that case only the NOB No 1 tribe was involved. Here there are 10 different clans – five of which have been expressly referred to in Custodian of Expropriated Property v Commissioner of Native Affairs (Re Jomba Plain);

• In Pipoi v Seravo, (National Court and Supreme Court decisions) the court did not deal with the merits of the case. Leave was refused at the leave stage as the Plaintiff did not have standing. The cause of action here is not for judicial review but involves a claim for just compensation for breach of s 53 of the Constitution.

(5) Applying a liberal interpretation to the reading of s 10 of the National Land Registration Act under sch 1.5 of the Constitution and an interpretation that will promote the National Goals and Directive Principles as obligated by s 25(3) of the Constitution, especially National Goal two is on equality and participation and national goal three on national sovereignty and self-reliance, an election can be made after a declaration is made under s 9 of the National Land Registration Act for payment of just compensation under s 53 of the Constitution (Gabi v Nate (2006) N4020 considered).

(6) A condition for such an election must be that there is no dispute as to ownership of the land the State seeks to acquire.

(7) The lands the subject of the proceeding have been acquired compulsorily by the State pursuant to the National Land Registration Act. The evidence shows that there was no consultation, no social mapping, no demarcation of boundaries, and no prior notice before these lands were formally acquired by the State. The Plaintiffs have therefore established that there was an unjust deprivation of property pursuant to s 53 of the Constitution.

(8) All other reliefs sought are refused and a trial shall ensue to determine just compensation due to the Plaintiffs.

Cases Cited

The following cases are cited in the judgment:

Custodian of Expropriated Property v Commissioner of Native Affairs (Re Jomba Plain) [1971–72] PNGLR 501

Gabi v Nate (2006) N4020

Pipoi v Seravo, National Minister for Lands (2001) N2120

Pipoi v Seravo, National Minister for Lands (2008) SC909

Telikom PNG Ltd v Independent Consumer and Competition Commission (2008) SC906

Statutes Cited:

Constitution

Frauds and Limitation Act 1988

National Land Registration Act 1977

Counsel:

B, Wak, for the Plaintiffs

E, Manihambu for the Defendants

Bradley and Co Lawyers: Lawyers for the Plaintiffs

Solicitor-General: Lawyers for the Defendants

JUDGMENT

26^th May, 2023

1. Narokobi J: The Plaintiffs claim to be the landowners of Madang town, more specifically areas within Madang township referred to as “Jomba Plain,” “Modilon-Jomba,” “Wagol,” and “Wagol Reserve.” They say that these areas of land which houses the Madang township were not properly acquired by the State. In their view, the State had failed to exercise its duty properly under the National Land Registration Act 1977 to convert the said land to State land. The ownership status of these tracts of land was determined by the pre-independence case of Custodian of Expropriated Property v Commissioner of Native Affairs (Re Jomba Plain) [1971–72] PNGLR 501 (a case decided in 1932, hereafter also variously referred to as the “the 1932 decision”).

Background

2. The claim is founded on negligence and breach of human rights under the Constitution. The Plaintiffs seek declaratory relief and an award of compensation for breach of their rights to s 53 of the Constitution, that is to say, they claim unjust deprivation of their property.

3. The Plaintiffs come from the following clans, in and around Madang town:

• Nop Clan;

• Matulon Clan;

• Biliai Clan;

• Kakon Clan;

• Asupain Clan;

• Mahoban Clan;

• Uribu Clan;

• Ga Gali Clan;

• Bau Malehu Clan; and

• Kanurua Clan.

4. The contest for this land has a long history that spans more than a century, two world wars, two different colonial powers – Germany and Australia and now, a post-colonial independent State, Papua New Guinea. The history of this claim is well documented by Justice Philips in his decision in Custodian of Expropriated Property v Commissioner of Native Affairs (Re Jomba Plain), decided on 25...