Kukilkas v Kamps [2001] PGDC 38; DC460 (6 November 2001)

DC460

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE]

CASE NO 01 OF 2000

In The Matter of an Application Pursuant Section 44
of the Land Dispute Settlement Act Chapter 45

BETWEEN

The Kukilkas
Appellants

V

Jiga Mela Kamps
Respondents

Mt. Hagen: Appa, P.M.
2001: 6th, November

RULING

Application for review – enforcement of Local Land Court decision causing hardship – Land Dispute settlement Act, Ch. 45, section 44.

Counsel
Wani Bar for the Kukilkas
James Poli Mantela for the Jiga Mela Kamps.

6th November, 2001

APPA: Sitting as a Local Land Court Magistrate. There was a Local Land Court decision in place over this disputed land in 1990 by Mr John Gesling of Goroka base. There was no appeal from that decision and its now almost 11 years gone (the maximum appeal period is 12 years). The Local Land court awarded the disputed land to the Kukilkas being the original landowners but due to long period of usage of the land by the Jiga Mela Kamps, the disputed land Lalinga was ordered to be equally divided. This had not been done.

The Local Land court decision (LLC) was a subject of review or variation under section 44 of the Land Dispute Settlement Act on the basis that enforcement of the LLC’s decision would cause hardships and had the potential of reviving inter tribal conflicts, which should be discouraged at all costs. Although there had not been any formal application made, a written request to that effect was made by the Kukilkas.

That request for review was made before the Local Land Court and taken up by Mr. Kaping Isong but due to threats and harassment made against him by one of the parties he withdrew from the case and was referred to this court to deal with it.

All interested parties appeared before me on 6/08/2001 and were explained the status of the case and that such review would have to be made by a Local Land Court Magistrate. Due to the long delay and the urgent need to enforce or vary the Local Land court decision, I now put on a different hat and sit as a Local Land Court Magistrate for the purpose of expediting the matter.

The Kukilkas maintain that boundaries between them and Jiga Mela Kamps should follow the (informal) decision and declaration made by Land Mediators, Politicians, PPC, Councillors and community leaders in 1989 when the tribal fight between the Kukilkas and Jiga was being stopped and made peace. On the other hand, the Jiga Mela Kamps wanted to follow and enforce the 1990 decision of Mr. John Gesling to divide the land equally. I have no idea about the old traditional boundaries between the Kukilkas and Jiga Melakampls and the proposed ones but that will become significant later on. I only rely on whatever information is made available for the urpose of review or variation.

The issue on where the boundaries should be drawn as proposed by land mediators, PPC, Councilors, Politicians and Local Leaders was brought to the attention of Mr. John Gesling but he refused to consider in his decision. The proposed boundaries were done in the best interest of both parties to restore peace and normalcy in the communities.

I have perused Mr. Gesling’s decision in particular in paragraph 5-5 of the decision in which he directed the Secretary or now Administrator of the Province to arrange for conversion of all customary land owned by the Kukilkas and Jiga Mela Kamps into leased holds under the Land Tenure conversion Act 1963 including the Lalinga disputed land before any resettlement could take place. In my view, these conditions had further complicated the enforcement of the decision. It has taken almost eleven (11) years for any such thing to happen. Its going to take another decade before anything happens if we allow this part of the decision to stand. This is a huge exercise and expensive. I think it is better to allow the customary land tenure system to prevail and its up to individual’s to exercise the options.

I have also noted from correspondences filed by both parties that they have been patient long enough and they both wanted the Lalinga disputed land to be demarcated and boundaries be placed quickly before they let their patience go. This is a very important consideration because of the fact that these two are big tribes and have had conflicts before and because of the intervention by Police, Politicians, Land Mediators, Kiaps Local Leaders and Councillors from within and outside the tribes, peace was restored and nothing happened so far. Our bureaucratic and court systems must be mindful about this volatile situation and should not turn blind eyes to their pleas because it could turn out to be a costly mistake.

If what the Kukilikas claimed that in 1989 both parties to the dispute and those involved in the tribal fighting publicly declared at Bowling Club to accept and comply with the boundaries proposed by authorities referred to above to be true then that should be considered for the purpose of restoring peace in the communities. Others would argue that such decision or proposal was not legal or not on merit.

After taking into account all the circumstances, I am of the view that justice of the case would or may be better served by slightly varying the Local Land Court’s decision, in particular the 2nd part of Mr. John Gesling’s decision to divide the Laling disputed land equally and for parties to convert their portions of the land into leasehold before resettlement.

There was no dispute that the Local Land Court of Mr. Gesling found from evidence that the traditional ownership of Lalinga land remains with the Kukilikas. The Jiga Mala Kamps was allowed to stay on it because of their long association with the Kukilikas.

I must refrain from making any comment on the actual decision of the 1990 Local Land Court decision on ownership of the disputed land because this is not an appeal hearing. My duty is only confine to varying the decision where it is justified.

What I propose to do now under the given circumstance is to dispense with the second part of Gesling’s decision to divide the Lalinga land equally and for each party to have equal portion of it but before the parties could resettle on the land, parties had to convert their portions into lease hold. This part of the decision had caused hardship and could not be complied with. I therefore vary this part of the decision in its place the boundaries between the Kukilikas and Jiga – Mala Kamps be drawn as proposed and accepted by majority in 1989 provided no hardships or inconveniences to be caused to those Jiga-Mala Kamps already occupying parts of or within the Lalinga land.

My final recommendation or direction to both parties is that if the variation made above to the Gesling 2nd leg of the decision still or would still cause hardship to either of the parties, the affected party or parties should immediately lodge an appeal to the District Land Court for its final determination on the whole 1990 decision. You have until August 2002 before the appeal period expired.

Wani Bar: Appellant
James Poli Mantela: Respondent