Weseu v Mataworei Primary School [2007] PGDC 52; DC579 (22 May 2007)

DC579

PAPUA NEW GUINEA
[IN THE LOCAL LAND COURT OF JUSTICE]

LLC 06 OF 2007

BETWEEN

BERNARD WESEU
First Applicant

LINUS WESEU
Second Applicant

AND

PETER S. NDRASAL
First Respondent

MATAWOREI PRIMARY SCHOOL
Second Respondent

Lorengau: G. Madu
2007: 22 May 2007

G. Madu: This is an application by the applicant seeking the following restraining orders:-

1. That the first Respondent his family members, associates or agents are refrained from dealing with the land called Naningkawei along the Worei river situated where the Mataworei Primary School is situated in any manner including building new buildings or structures, felling and beating sago palms for sago flour, making new gardens.

2. That the second Respondent ceases immediately from building or constructing any buildings or structures on the school grounds.

3. That the Honourable Court grants any other orders as it sees fit.

The brief facts to this case is that an application for approval of mediation was filed at Lorengau Local Land Court by Manuhu Kalu-um, Drasal Piro and Pahun Pilai over the land known as Salakane. The agreement was reached on 14 March 1978.
The agreement was made on the reasons that the land is owned by Pahun Pilai as his ancestor received the land Salakane from the ancestors of Manuhu Kalu-um as a gift payment for assisting them in a fight and then when this land Salakane is disposed, some proceed of the sale of the land must be paid by Pahun Palai to Manuhu Kalu-um and Drasal Piro in accordance with the custom of the Worei people.

The respondents on 1 January 2007, filed a Notice of Motion in the National Court seeking declaration that:-

1. the purported mediation of land dispute on 22 February 1986 in relation to customary land known as Naningkawei at Mataworei Village was not properly conducted in accordance with the Land Dispute Settlement Act and is therefore null and void.

2. the application for approval of agreement dated 22 February 1990 in relation to the said customary land was not made by parties on both sides of the land dispute and is therefore null and avoid.

3. the consequential approval of agreement by the Local Land Magistrate dated 24 February 1986 is therefore null and void.

4. an order that the land dispute be remitted for mediation before the mediation in accordance and the Land Dispute Settlement Act.

The issue to determine is whether there is any reasonable grounds for the restraining orders for such applications.

The applicant in substantiating its reasons for seeking restraining orders argued that the respondents have not honour the agreement made between Pahun Pilai and Manuhu Kalu-um and Drasal Piro.

The applicant contends that the law recognised that the land called Naningkawei has been passed on to ancestors of Chapiu Kupe by agreement being entered into and eventually Local Land Court endorsing the agreement as the formal Local Land Court Order on 24 February 1996.

The respondent in this application have given some background information as to the real reason why the applicants have filed the application. The application of Peter Sahau Ndrasal and Jeffrey S. Poiou show that the Worei Primary School has received Ausaid Funding of K28,000.00 for the Basic Education Development Programme an initiative taken by National Department of Education to build new infrastructure for the school.

The first respondent states that the school have been establish on the land for over 50 years and no disputes have occurred from his clan or any other clan for that matter.

There was an understanding for the school to have exclusive rights over the portion that was allocated. The first respondent expressed his concern saying that it would not be in the best interest of the communities especially the education of the children if disruption is allowed to the operation and progress of school activities.

The first respondent denies to personally attempting to settle or build house or deal with the land as he is fully aware of the National Court proceedings he has initiated.

Further a supportive affidavit from George Sulai Manuhu states that the proposed development to Worei Primary School is the first of its kind and that the K28,000.00 funding is being made to the school to upgrade its capacity and general facilities.

That the restraining orders sought by the applicants are against the development plans and therefore is unethical and contravening public interest. The school premise is only a small portion of traditional land and is not the subject of the land dispute.

The school have been free from dispute for the last 55 years when the agreement was signed for the school to be put. Affidavit of George Manuhu states that the applicant’s application if granted will cause irreparable damage and loss to the school.

Having considered all the affidavits, I am of the view that there is no substantive matter in this proceedings and find that the basis of seeking restraining order is unfounded in law.

In this instant case, I find that the applicant seeking restraining order against the Worei Primary School’s development plan is unethical and is against the community or public interest.

The application for restraining order is not granted as the current situation doesn’t warrant such orders sought. The education of children is paramount and the Court would be doing injustice to sabotage their education.

According, I dismissed the application.

-------------------------------------------------

Applicants: In Person
Respondents: In Person