Estate of Late Buruka Vai v Agalu [2003] PGDC 13; DC147 (6 October 2003)

DC147

PAPUA NEW GUINEA

[DISTRICT COURT OF JUSTICE]

CASE NO 34 OF 1999

THE ESTATE OF LATE BURUKA VAI,
PETER ENO, DIA ENO, DLKA ENO,
SISIA ENO & LOU VAGI

Applicants

AND

HILA AGALU, KEKE GAVERA, ROSEMARY KONIO RUMA
& BOE ARUA
Respondents

Port Moresby
Danny Wakikura

District Courts Act - Application for orders which are substantive in nature - Need to treat application as interim relief - Substantive proceeding to determine customary ownership.

Practice and Procedure - Other rights as opposed to ownership rights - Questions of ownership to be properly addressed under Land Dispute Settlement Act.

Statutes
District Courts Act
Land Dispute Settlement Act

Spokespersons
Peter Eno for himself as the applicant and others
Rosemary Konio Heni for herself as the Respondent and others

October 06th 2003

REASONS FOR DECISION

This matter came before me as an application by Peter Eno and the others seeking orders for rental and CPI payments over a piece of customary land which was contracted to the use of Protect Security and Pacific Communications. The applicants are seeking for specific orders in the following terms:

(i) That any future payments are made to the rightful owners of the land, Peter Eno and his brothers and sisters.

(ii) That the respondents repay the sum of K56, 054.54 from the total amount of K57, 034.54 unlawfully and fraudulently obtained from Protect Security and Pacom Communications.

(iii) Any other orders this Honourable Court deems fit.

In a nutshell the applicants are seeking orders that they be recognised as the rightful owners for all purposes concerning the land in question. That this court should recognize them by issuing an order that they are the legitimate beneficiaries from CPI payments for the portion of land in question as inherited from Buruka Vai. They basically raising that the respondents have wrongly and unfairly being appropriating distributing the payments which should be repaid back to them.

The parties have come to this court seeking certain orders. I will treat this application as a matter under section 22 of the District Courts Act which gives me jurisdiction. This provision reads:

22. General ancillary jurisdiction.

Subject to this Act, a Court as regards a cause of action for the time being within its jurisdiction, shall, in proceedings before it-

(a) grant such relief, redress or remedy, or combination of remedies, whether absolute or conditional; and

(b) give the same effect to every ground of defence or counterclaim, whether equitable or legal, as ought to be granted or given in a similar case by the National Court and in as full and ample a manner.

This provision allows for remedies to be granted whether absolute or conditional in matters which are currently in court. In this case there is a substantive matter not yet finalized in the Land Court and this application is seeking for interim remedies. Although orders the applicants are seeking for appear to be substantive in nature, I will accept the application as it is and deliberate on the issues in my reasons.

In this matter I am to determine the basis of such payments to the parties and their linkage to the land in question. I am to also determine whether the party obtaining such payment was doing so under what recognizable rights and whether the distributions were fair.

The respondents were allowed to file their response and parties were heard. The respondents on the other hand point out that there is no evidence of unfairness or inequitable distribution of the CPI payments. The respondents have not been obtaining payments fraudulently or unlawfully for land rentals or CPI payments. All issues raised were not settled and matter was set for trial in which the parties called both oral evidence and filed affidavits with their submissions.

The parties produced evidence by way of affidavits where some of the deponents were examined as well as oral evidence from some witnesses. The applicants collectively deposed to an affidavit and tendered documents such as the Native Land Commission Finding, the Agreement Distribution of Lease Payment and a Statutory Declaration. For the respondents, Rosemary Konio Heni and Hila Agalu made affidavits and the Minutes of a Meeting was tendered. The court also heard the oral evidence of Kapena Boi Arua who was also the Chairperson of the meeting.

The applicants collectively deposed to in an affidavit to say that the respondents have in their possession the principal documents namely; The Native Land Commission Finding dated 2nd April 1963, The District Court Agreement Distribution dated 1lth December 1993, The Statutory Declaration of Chairman of Hanuabada Village Court on which their case is based.

The finding by the Native Land Commission was tendered in court as one document that the applicants were relying on in their case. In the findings of the Commission the usufructuary rights to the Biriaga Land with the power of control was vested in Sisia Hila for those descendants. In the finding the custom governing land distribution was spelt out indicating who takes precedence when there are disputes among members of the same lineage. It is best to highlight here in its entirety the wording of the Commission Findings which I quote in its format;

TERRITORY OF PAPUA AND NEW GUINEA

Form 4

Native Land Registration Ordinance 1952

Central Claim No. 150

Finding by Native Land Commission

The Native Land Commission, in pursuance of the Native Land Registration Ordinance 1952 and in connection with a claim by Sisia Hila of the Apau Idibana Iduhu, Poreporena Village to be the owners by Native customary right of certain right and IT APPEARING to the COMMISSION that due notice of inquiry was given as required by law

HEREBY FINDS THAT

Those people whose names appear on schedule 2

AND THAT

the descendants of the Hila Heni No.2 and Hila Heni No.2 are entitled by the Native custom hereinafter set out to (life interest or as the case may be) the usufructuary rights to land known as BIRIAGA with the power of control vested in SISIA HILA for those descendants.

AND THAT the Native custom hereinafter referred to is (set out fully Native custom governing ownership of the land)

Inheritance to Koitabu owned land is determined bilaterally. Those who derive their inheritance through the male take precedence over those who gain it through the female but not at any time to the latter's complete exclusion. The descendants of the original owner who share rights in an area are represented by a controller. The person who holds this position is the eldest male of the senior patrilineage but at times a woman may undertake this work. It is the privilege of the controller to assess the percentage of right each member has in the land. The amount of use made by a person or his family is a major factor in determining this right. Prescription if unbroken usually establishes a title far greater than that derived by normal patrilineal inheritance.

The descendants of a woman, who lived several generations ago and on her marriage vacated her land to work that which belonged to her husband, can not expect to retain their rights to her land. They could reinstate themselves however by working the land if granted permission by the controller and those he represents.

Dated the Second day of April 1963.

(End of quote)

The other document tendered was the Distribution Agreement and it expresses that Buruka Vai was the Landlord and the controller of the subject land. The Distribution Agreement of the Lease Payment for the Biriaga Land was made at the Port Moresby District Court and signed before a Commissioner for Oaths. There were five persons who signed to the terms as stipulated in the agreement. The signatories are Buruka Vai, Hila Agalu, Ranu Oala, Keke Gavera and Agalu Hila and the agreement basically nominates Buruka Vai as the Landlord to receive one cheque payment. The cheque is then to be cashed into Kina's worth and distributed in the varying proportions to the different concerned parties. That agreement was to remain in force and to cease upon registration of the said land.

They also tendered a statutory declaration by the Chairman of Hanuabada Village Court declaring the village court dealt with and completed the matter concerning the land in question. They decided and gave right to Buruka Vai to collect the money. That was declared to by Gini Uru, the Chairman of Hanuabada Village Court and this what he declared in the following form;

PAPUA NEW GUINEA

STATUTORY DECLARATION

I, (a) I, Gini Urn of Hanuabada Village Court

do solemnly and sincerely declare that: (b)

1. I am the Chairman of the Hanuabada Village Court.
2. The matter stated in DCC. 1253/93 was laid at my village court.
3. The 4th Defendant erected the two way radio tower in the defendant No. 2 Buruka Vai's (INOGO) piece of land not the whole family.
4. Therefore the Village Court dismissed the complaint and gives right to Buruka Vai to collect money from the No. 4 defendant.
5. This matter is already completed by a village court.
   

And I make this solemn declaration by virtue of Oaths, Affirmation and Statutory Declaration Act 1962 conscientiously believing the statements contained therein to be true in every particular.

Declared at ... Port Moresby... the 12th day of

(c) (signed)...............

Before me-

(d) (signed)...............

October 1993.

(e) Commissioner for Oaths...

(sealed)

"(a) Here insert name, address and occupation of person making the declaration.

(b) Here insert the mater declared to. Where the matter is long it should be set out in numbered paragraphs.

(c) Signature of a person making the declaration.

(d) Signature of a person before whom the declaration is made.

(e) Here insert title of person before whom the declaration is made.

Note: Any person who wilfully makes a false statement in a Statutory Declaration is guilty of an indictable offence, and is liable to imprisonment, with or without hard labour for four years.

The applicants deposed in their affidavit that the Agreement Distribution of the 14 December 1993 state that the late Buruka Vai was to have her share for her own use from the monies. That Peter Eno was the incumbent Landlord and he is to be the direct recipient of the CPI payments. They have never received any Lease Payment monies from Protect Security. They stated that the respondents failed to provide evidence on the distribution list to account for the monies received by them. They have not shown that they are legally entitled to receive payments as rental payment for the land in issue.

Peter Eno on behalf of himself and the others as the applicants submitted that the respondents were not the rightful heirs to the land; the land belonged to his mother, the late Buruka Vai. She inherited the land from Sisia Hila who was originally the owner and by custom he with his brothers and his sisters should be the controllers of the land. Likewise they should legally be entitled to the rental payments for the land in question. They rely on a will left by their late mother Buruka Vai for the said land. As the former controller his mother, the late Buruka Vai, transferred such rights to Peter Eno as the incumbent controller and direct recipient agent for all matter concerning the subject land. The question of equity and proportional share entitlement were adequately covered in the Native Commission Finding, the Agreement Distribution and the Lease Agreement.

The respondents on the other hand submitted that the power of control over the land was vested in Sisia Hila and her sister Seura Hila. Between April 1993 and April 2003 the late Buruka Vai together with Hila Agalu and Keke Gavera had been receiving Lease Rental payments from Protect Securities and Pacom Communications. Such a lease agreement expired on 31st March 2003 and a new lease arrangement is pending subject to a formal recognition of an incumbent controller.

As stated by the respondents, Buruka Vai took it upon herself to be vested the controlling powers for reasons unknown to them. She never had the courtesy to invite other family members even of the respondents to appoint a controller by consensus. Buruka Vai entered into the lease agreement and she had benefited from the rental payments and other benefits. The respondents through their spokesperson Rosemary Konio took the initiative to negotiate the CPI payment on behalf of the Sisia Hila's descendants as there was no incumbent controller to lead and organize. Peter Eno as the eldest son of Buruka Vai had continued to receive lease payments after Buruka Vai's death which were never distributed or apportioned between the immediate families of Sisia Hila or Seura Hila. All previous payments have been unfairly distributed amongst the various family lineages.

For the respondents Rosemary Konio Heni testified that Buruka Vai and her father Heni Ruma Vai are the natural children of Sisia Hila and her father was the first born male. Sisia Hila had the vested powers of control which was conferred to Buruka Vai. Such conferment does not warrant such sole proprietorship over the customary land as indicated on the purported "will" which allows for a transfer of the estate. According to common practice the incumbent controller is appointed from the living descendants. Since Buruka Vai's dead the incumbent controller has not been determined and is yet to be recognised. The CPI was not subject to the 1993 Lease Agreement but a result of negotiations she was a part of. She took the initiative as the place of the incumbent controller was vacant since Buruka Vai's death.

Hila Agalu in the affidavit that was deposed highlighted their different relationships and the family tree. He stated that the land belongs to Apau Idibana Clan group and the applicants are from the Mavara Clan. He is from the Apau Idibana Clan and he claims rights over the land in question.

The testimony of Kapena Boi Arua indicated that Rosemary Heni was elected at a meeting where they all attended. He tendered the Meeting Minutes which shows he was acting Chairman then. He further stated that the rights of a male descendant take precedence over the rights of the female descendant. As such Ruma Vai was the first male descendant of Sisia Hila and Buruka Vai was the second born and a female.

Quite a fair amount of material has been presented to me in evidence, a lot which touches on the land in issue and I must say at the outset that this is not a land case determining ownership. Only a Local Land Court or a process under the Land Dispute Settlement Act is the appropriate court and process to determine questions of ownership over customary land. This is an application seeking certain orders in the middle of a case as it appears to me not yet finalized in the Land Court. The registration number of this case is a Local Land Court registration number and this application seems to be an interim application seeking interim orders while the substantive land matter is yet to be concluded. To maintain the status quo in the whole matter I proceeded to deal with the application.

I note from what has been presented before me that there was an arrangement in place where rental and CPI payments were made to Buruka Vai who was then to distribute among other members of the family. That was through an arrangement that was to be in place for 10 years from 1993 to 2003 and it expired in March 2003. The arrangement has not been renewed and an incumbent controller of the Biriaga land has not yet been recognised properly and amicably by the concerned groups and parties.

From evidence presented I considered the Native Land Commission Finding to be conclusive material in which Sisia Hila and the descendants were recognised to be vested with the controlling powers. Those rights were then transferred to Buruka Vai being the second born of Sisia Hila and after Buruka Vai passed away no controller has formally being recognised. It appears to me that the real dispute is between the applicants and the respondents with Rosemary Konio included Heni and they all come from the same family lineage.

I do not quite agree that there would be any such thing as a 'will' over any customary land in any Papua New Guinea traditional land distribution. Although this differs in many societies in the country the application of a wills fails in an area of law on its own and I can not deliberate on that in this proceedings.

I also note that in an effort to settle this issue the village court at Hanuabada presided over the case and made some ruling. I take notice of the statements declared in the Statutory Declaration that says that Buruka Vai was to be the recipient of the lease rental and other related payments for the land in question. It appears now that there is no dispute over Buruka Vai being the controller as well as a beneficiary of payments; however this dispute is over the incumbent controller after her death which has not been properly addressed by the concerned parties. One party can not in the circumstances claim sole ownership over land which in most cases is communal especially when the disputing parties are from the same family lineage. One can claim complete ownership only when duly recognised. In this case Sisia Hila was duly recognised and that was then conferred to Buruka Vai, and there has been no proper appointment since Buruka Vai passed away.

In these whole issue there appears to be two outstanding concerns which have to be properly attended to. First is the amicable appointment and recognizable controller after Buruka Vai and secondly the renewable of the lease agreement which expired in March 2003. I take note of the meeting in which Rosemary Konio Heni was appointed as spokesperson but that does not seem to be a balanced and representative of all the interest groups including the applicants in this matter.

There is no proof of fraud or unlawfulness on the part of the respondents as they also have an interest in the land and I rule out fraud and unlawfulness on the part of the respondents. The applicants pleaded fraud and it is for them to prove fraud by providing evidence that such fraudulent activities did occur.

Likewise no orders would be granted in the terms that the applicants are seeking and in any case the monetary value is well over and in excess of this court's powers to grant. As for ownership I recognize Sisia Hila from the undisputed evidence and then Buruka Vai then further onto her descendants now which is now in dispute. Unless the outstanding issues are properly and amicably sorted out, the applicants remain in the control of the land.

In recognizing the Native Land Commission Finding and the Village Court ruling in recognizing Sisia Hila, then Buruka Vai, it is common sense to have Buruka Vai's direct descendants have control and have distribution rights over the land. That would be seen to be fair on what has transpired in the past which now can be retained until the outstanding issues are properly settled among the parties.

Accordingly I now order that the payments for the land in question be made to the applicants Peter Eno and his brothers and sisters who have the controlling and distributing rights. Peter Eno with his brothers and sister take the place of their mother Buruka Vai until a proper arrangement is in place.

Orders accordingly.