Managius v Anumara [2009] PGDC 40; DC897 (4 June 2009)

DC897

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE
SITTING IN IT’S LOCAL LAND COURT JURISDICTION]

LLC 10 of 2009

BETWEEN

MATHEW MANAGIUS
ON BEHALF OF BABIN RAM CLAN, MUNAI VILLAGE, ULAU
Applicant/Complainants

AND

MICHAEL ANUMARA
ON BEHALF OF BABIN DIMIEN CLAN, MUNAI VILLAGE, ULAU
Respondent/Defendants

AITAPE: M. Samala Chairperson
2009: 04 JUNE

CIVIL - Customary land dispute, Proceedings pursuant to section 30 of LDSA, Application for Temporary order refused, Need to treat sub clan dispute as clan matter, Clan and sub clan elders to settle according to respective customs, Land Court only will intervene to impose and enforce consensus clan decision on unwilling clan members not comply.

Cases Cited:
NIL

References:

Section 1 (a) (b) of LDSA, Chapter 45
Section 30 of the Land Disputes Settlement Act 1975

Counsel:

In person, the Applicant Clan group
In persons, the Respondent Clan group

04 June 2009

M. Samala: The matter is before this court by way of application pursuant to section 30 of the Land Disputes Settlement Act, Chp. NO. 264 seeking temporary orders to restrain members of Respondents sub clan group from using and occupying the “SOLKALIU” interest.

HISTORY

Both the Applicants and Respondents are from the same land clan group namely, Babin Clan of Munai Village, Ulau in Aitape District. However, Babin Clan has three sub clans, and it consist of members of Babin Ram sub clan, Babin Dimien sub clan and Babin Sayar sub clan members.

The applicants are applying to restrain respondents from occupying and using Solkaliu interest claiming that each sub clans have equal land area divided by the clan elders for use and all have land boundaries but the respondent with his members of Babin Dimien sub clan aren’t keeping to their land area and have moved onto their side of the land so they are coming to court to obtain temporary orders to restrain them till the ownership issue is settled.

LAW

The Land Disputes Settlement Act, Chapter No. 45 is not clear on what types of disputes be real disputes and what type not. This dispute before court is by members of the same clan. The common customary practice in Papua New Guinea owning land is that, land belongs to the clan and every member, especially family groups/units within the clan or its sub clans have communal interest to it but will own several portions of it to live and work on. As such, if ever there is any challenge over its interest either to usage or ownership, it will be the clan’s duty to resolve or to stand to depend it as to who be vested the interest according to the custom of the dispute locality.

As in this case, there are three sub clans of Babin Clan, two are in dispute over said portion interest and one not. The issue of dispute of occupation of Babin Ram’s land portion by Babin Dimien sub clan members is governed by Ulau’s own custom to judge and weigh out if respondent and members of Babin Dimien clan have acted improperly against the clan laws in occupying land areas belonging to the clan divided to its sub-clans resulted in this dispute.

This presumption of law having the matter referred back to the clan is well supported by section 1 (a) (b)of LDSA defining the purpose of the Act in that, The purpose of this Act is to provide a just, efficient and effective machinery for the settlement of disputes in relation to interests in customary land by-

(a) encourage self-reliance through the involvement of the people in the settlement of their own disputes, and

(b) the use of the principles underlying traditional dispute settlement processes.

As such, I am of the opinion that since there is no clear procedure under the Land Dispute Settlement Act to effectively deal with internal clan disputes amongst its own clan groups. There is need to treat such dispute as clan’s own dispute and should remit the dispute for settlement by the very clan and its sub clans concerned encouraging their own involving in settlement. The Land Court can only be used as review medium for such disputes if injustice is seen done in the application of custom by clan group or in situation to impose and enforce consensus clan decisions against its unwilling members failing to comply with clan laws when fairness not an issue. In that way it will cut down on many unnecessary land dispute litigations coming before land courts.

Accordingly, with reasons alluded to, I refuse granting of temporary orders and remit the matter to Babin Clan to resolve amongst its sub clan members to be resolved within four weeks. And that if, decision of this dispute not amicably reached by the Clan, it should be referred back to District Land Mediation Division at District Lands Office Aitape for settlement thru mediation by the land court.

Orders accordingly.

____________________________