Ulaul v Olon [2010] PGDC 17; DC955 (27 May 2010)

DC955

PAPUA NEW GUINEA
IN THE DISTRICT COURT OF JUSTICE SITTING IN ITS CIVIL JURISDICTION

CASE No DCC 22 OF 2010

BETWEEN:

PATRICK ULAUL for himself and members of Sacal Eejok Clan of Atat Village
Complainant

AND:

TELOM OLON
Defendant

Madang: J Kaumi

2010: 8th APRIL13th 27th MAY

SUMMARY CIVIL PRACTICE & PROCEDURE –Eviction proceedings-Land Act 1996-Part XXIV-Offences-Section 145-Unlawful Occupation of Government land and Customary land-Complainant seeks to evict Defendant from land that was previously customary

SUMMARY CIVIL PRACTICE & PROCEDURE-District Court or Magistrate of District Court has no jurisdiction to deal with disputes over ownership of customary land and benefits to be derived from customary land.

SUMMARY CIVIL PRACTICE & PROCEDURE-Jurisdiction to deal with disputes over of ownership of customary land and and benefits to be derived from customary land is the exclusive jurisdiction of Local Land Court and Provincial Land Court-District Courts Act (Ch.No.40)ss.1,5,16,18,21 and 22;Land Dispute Settlement Act (Ch.No.45) ss.1,22,24,26,27,31,35,38,40,41,42,46,47,50,52 and 53(Agalu v Eno [2005] N2904).

The complainant who seeks to evict the defendant from two portions of land pursuant to section 145 of the Land Act 1996.

Held:

(1). It would appear on the face of the complainant’s affidavit that his interest in the said two portions of land is as a customary land owner and nothing more.

(2). It would appear that whilst the interest of the defendant in the two portions of land would be an equitable interest for purposes of registering under the Land Registration Act 1981 arising from his long period of occupancy on the two portions of land, he also contends that as opposed to the claims of the complainant he is the rightful customary owner of the two portions of land and not the complainant.

(3). There is a definitely a dispute over two portions of land which were once customary land. I note that both parties do not dispute that these portions of land were acquired by the colonial administration. Both parties have filed competing affidavits attesting to ownership of these portions of land. This dispute has arisen as a result of the attempts by the defendant through the Lands Office in Madang to register them in his name, which the complainant claims belongs to his clan and not to the defendant.

(4). The District Court does not have any jurisdiction in law to adjudicate in this matter which is patently a dispute over ownership of customary land.

(5). The Local Land Court and the Provincial Land Court are the correct forums to adjudicate in matters that patently involve disputes over the ownership of customary land.

(6). Magistrates of the District Court have no jurisdiction to deal with disputes over ownership of customary land and benefits to be derived from customary land which is the exclusive jurisdiction of the Local Land Court and Provincial Land Court.(Agalu v Eno [2005] N2904 DCJ.Injia).

(7). A magistrate in the District and Land Court perform different roles or wear different caps so to speak, bearing in mind that the only common denominator is the fact that they are magistrates appointed by the Minister for Justice. Further that this did not extend to the jurisdiction and procedure of the Land Courts as opposed to that of the District Courts. (Agalu v Eno [2005] N2904 DCJ.Injia).

(8). A practice has crept into the civil jurisdiction of the District Court whereby it is used as a substitute or as a surrogate forum in the absence of a functioning Land Court in a Province to entertain such applications concerning customary land disputes and consequently issue ‘Preventive or Restraining ‘orders as the immediate one before this court. Clearly such a practice is without legal basis and should be discouraged and not entertained or better still immediately stopped. Chief Justice Injia’s judgment in this matter is a ‘must read’ for all magistrates.

(9). The proceedings are misconceived.

(10). The matter is struck out.

Cases Cited:

Agalu v Eno [2205] N2904] (31 August 2005) DCJ Injia
Siwi v Mathew [2006] N3048 (20 April 2006) Cannings.J

Counsel:

Mr. J Lai, for the Complainant
Defendant in person

19th April 2010

INTRODUCTION

1. Kaumi, M The matter before me this morning is a summons upon complaint by the complainant who seeks to evict the defendant from two portions of land pursuant to section 145 of the Land Act 1996. He further seeks Court orders that:-

(i). The defendant immediately vacate the two customary portions of land known as Beilele and Baliboc which are owned by Sacal Eejok clan of Atat village;

(ii).The defendant is refrained from cutting down trees and plants on the portions of land;

(iii). The defendant is restrained from any further development on these two portions of land;

(iv). An order for costs of these proceedings;

(v).Further orders as the Court deems fit.

RELEVANT BACKGROUND

2. The relevant background to the matter is outlined in chronological order as follows:-

(a). This matter, DCC 22 of 2010 was filed on Tuesday 24th March 2010. This complaint was filed together with a Summons to a person upon complaint, a statement of claim, and supporting affidavits of Patrick Ulaul, Abeul Lalai, and Alimel Faik. The complainants’ complaint was that the defendant was occupying two(2) portions of land, called Baiele and Balibol owned by Sical Eejok clan of Atat village, Amele. That the defendant was falsely claiming these two(2) pieces of the customary land of the said clan and was intending to register the said pieces of land therefore the the complainant and his clan members sought the following orders from court, firstly, for the eviction of the defendant from the said portions of land pursuant to section 145 of the Land Act 1996, secondly, that the defendant be restrained from cutting down trees and plants on the land, thirdly, that the defendant be restrained from any further developments on the said two portions of land, fourthly, an order for cost of these proceedings and fifthly, further orders as the court deems fit.

(b) The matter was first mentioned on the 8/04/10 before His Worship Mr Sareng and it was adjourned to 6/05/10 for mention.

(c) On 6/05/10 both parties failed to make an appearance and matter further adjourned to 13/05/10 for mention.

(d) On13/05/10 the complainant appeared and the defendant was represented by counsel, Mr Lai who had filed a notice of motion and so matter adjourned to 27/05/10 for counsel to move his motion.

RELEVANT EVIDENCE

3. The relevant evidence is highlighted here to identify the issue in this matter.

4. The evidence provided in this matter from the complainants was in form of their affidavits from Patrick Ulaul, Abuel Lalai, and Alimel Faik and they all attest to the following:-

(a). Patrick Ulaul: That he was the clan leader of Sacal Eejok clan of Atat village, Amele. That the defendant was illegally occupying two pieces of land known as Baiele and Balifun owned by the Sacal Eejok Clan and that the defendant had planted cash crops and coconut trees on the land which was not owned by him. That in the early days a leader named Mr Golag Ololi gave these portions of land to the Lutheran Church to make gardens for their schools to produce food to feed their students. That in 1973 Telom Olon was one of the land mediators and took the Lutheran Church to court. That Telom Olon poisoned the Pastor and he died and after that Telom confessed to how the Pastor died after eating the poison he had prepared. That since the said two portions of land were given free to the Lutheran Church by Mr Golag Ololi, the church returned the said potions of land, the Sacal Eejok Clan of Atat village and that time in 1975 the defendant being a land board mediator, he only acted and looked after the said land on behalf of Sacal Eejok clan. That now he is claiming to be the landowner of the said land and planting cash crops without approval from Sacal who own the land. That the defendant has drawn up a land map including the two disputed portions and intends to register them under his own name falsely.

(b). Abeul Lalai: That he is a witness in this matter and aware of this land dispute between the parties. That he is from Kunari village, Amele and that the two portions of land are owned by Sacal Eejok Clan of Atat village, Amele. That the said portions of land were formally given to the Lutheran Church to make gardens for its schools by Mr Golag Ololi and that later the church returned the said portions of land to Sacal Eejok clan of Atat village. That at this time Mr Telom Olon was one of the land mediators and therefore he only acted for Sacal Eejok clan and looked after the said land. That he was the leader of the Kunari Iska Clan of Gunari and that village share a common border with Atat village and therefore he and his people know so well that the said portions of land is owned by Sacal Eejok clan of Atat village and that the defendant is falsely claiming the two portions of land and intends to register them under his name.

(c). Alimel Faik: That he was a witness in this matter and aware of the dispute between the parties. That he was from Amele village and aware of the said two portions of land, Baiele and Balibol which were owned by the Sacal Eejok clan of Atat village. That in the days of his grandfathers he used to tell him about these portions of land that are now under dispute that they are owned by Sacal Eejok clan of Atat village and that his father also told him the same thing. That he was the clan leader of Kokolum Kokohum clan in Amele and knows very well that Sacal Eejok clan is the rightful owner of Baiele and Balibol land. That as far as he understood the defendant had jumped the land boundary between KukulumKokohamu clan and Sacal Eejok clan and is falsely claiming them and intends to register these land under his name.

5. The evidence from the defendants was in the form of affidavits of Telom Olon x 2, Balibal Agug, Inn Olon and Oib Betit: -

(a). Telom Olon Affidavit in Response:That he was the defendant in the proceedings and that his father is Olan Olobai from Sa-cal Amegu Clan of Amele village and that he was eight years old when his father took the Lutheran Mission to court and the land (Portion 810) was seceded to him. That the cash crops that are on Portion 810 were planted by his father and that some of the cash crops and two yam huts were burnt down. That in 1977 he was 14 years old and not a land mediator, that his father was one from 1977 to 1981 when he passed away. That he did not know Pastor Kazu or how he died as he was in Gd.5 at Behir Community School. That the allegations raised by Patrick Ulaul at paragraphs 5 & 6 of his affidavit are very serious and are false and made to tarnish his good name. That the State acquired land from his ancestors and the land belongs to his clan the Sa-cal Amegu. That the State leased it to the Lutheran Mission for 99 years. That the State acquired the land and titled it as Portion 56 and that was only one big portion of land. That upon the expiry of the said 99 year lease his father successfully took the Lutheran Mission to court and Portion 56 was subdivided into portions 809 and 810 and Portion 810 seceded to his father. That in 1973 his father commenced court proceedings and in1974 Portion 801 was given to him and in 1975 he commenced planting cash crops like coconuts and cocoa on the land. That from 1974 to 2010 there was no dispute on this State lease land as the people know that it belongs to my father. That the land dispute between his father and the Lutheran Mission started in 1973 and ended in 1975 and that at this time the complainant was not born and his father, Ulaul Olol was at Gaubin School of Nursing. That the facts stated in the complainant’s affidavit are from people who have their own personal vendettas against the defendant and his family and this is because he was not yet born when much of what he stated in his affidavit occurred. That the complainant was not from Atat village and is not from Sa-cal Eejok clan as he is claiming and that he is from Biso clan of Umun village and according to their custom has no right to claim ownership of the defendant’s land. That the defendant is from a different village of Umun and does not share any land boundaries with his Sa-cal Amegu clan.

(b). Telon Olon Affidavit in Support: That he is the defendant in these proceedings and was born on 24/12/62 and not present when his father Olon Olobai took the Suyau Lutheran Mission Trustee Board to court for Potion 56 when the 99years Lease expired for this portion of land. That the land was not customary but a State lease land. That in 1973 the decision was made in favour of my father and Portion 56 was surveyed by the Department of Lands and demarcated into Portions 809 and 810. That Portion 810 was surrendered to my father whilst Portion 808 was kept by the Suyau Lutheran Mission Trustee. That in 1975 his father occupied the said Portion 810 and planted coconut and cocoa trees and other fruit trees and that they settled on the land and occupied it until his father passed away in 1981 and they continued to occupy the land to date. That when Portion 810 was surrendered to his father he did not register it and get a title under his name. That between 1998 and 2000 the defendant followed up the registration of Potion 810 with the late Mark Zorro of the Lands Office here in Madang. That the title is yet to be issued to the defendant and Mr. Zorro died in 2009. That he was not a Land mediator as claimed by the complainant but that his father was appointed after he successfully claimed part of their customary land which was taken by the Lutheran Mission and not before this as claimed by the defendant. That in 2009 the complainant unlawfully trespassed on to State land, Portion 810. That the defendant is from Biso clan of Umun village not a member of the Sa-cal clan or the Sa-cal Eejok clan and cannot claim the defendant’s land. That this State Lease and the complainant does not have an interest in the land and cannot evict him.

(c). Balibal Agug, Inn Olon and Oib Betit: - These three deponents depose to the defendant’s genealogy.

RELEVANT ISSUE

6. After a closer scrutiny of the affidavits filed for both parties proceedings, a relevant issue arises at this juncture of proceedings and that is, whether this Court has jurisdiction to adjudicate in this matter. It is crucial to the question of the competency of this court to adjudicate in this matter to consider the matters deposed to in the affidavits of the witnesses of both parties.

7. I pose the following questions to highlight the relevant issue as follows:-

(i).Is there a dispute over ownership of customary land?

(a).What is the nature of the complainant’s interest in the two portions of land in dispute?

(b).What is the nature of the defendant’s interest in the two portions of land in dispute?

(ii). Does this Court sitting as a District Court have jurisdiction to adjudicate in a matter that is patently, a dispute over ownership of customary land? If the answer is Yes, then it can proceed to adjudicate in the matter. If the answer is No, then the matter should be struck out and the complainant be directed to institute proceedings in the correct forum.

(iii). What is the correct forum by law to adjudicate in matters that patently involve disputes over ownership of customary land?

RELEVANT LAW

8. I refer to relevant legislation pertinent to the resolution of this issue as follows:-

(i).Land Act 1996

Section 145. UNLAWFUL OCCUPATION OF GOVERNMENT LAND AND CUSTOMARY LAND.

(1) A person who, without authority, enters, occupies or uses Government land or customary land, is guilty of an offence.

Penalty: For a first offence–a fine not exceeding K500.00 or imprisonment for a term not exceeding 6 months.

(ii).Land Dispute Settlement Act

Section 2 of the Land Disputes Settlement Act defines dispute as "a dispute to which, in accordance with Section 3, this Act applies." Section 3 states as follows:

Section 3 Application

(1) Subject to Section (2) and to section 4, this Act applies to disputes as to interests in customary land, or as to the position of boundaries of any customary land.

(iii).District Courts Act

"21. Civil jurisdiction

(1) Subject to this Act, in addition to any jurisdiction conferred by any other law, a Court has jurisdiction in all personal actions at law or in equity where the amount of the claim or the amount or value of the subject matter of the claim does not exceed—

(a) where the Court consists of one or more Principal Magistrates – K10,000.00; and

(b) where the Court consists of one or more Magistrates – K8,000.00.

(iv).Land Dispute Settlement Act

Part IV Division 2 (General Jurisdiction of Local Land Courts) provides for jurisdiction of Local Land Courts. Sections 26 and 27 are the main provisions and they provide as follows:-

"26. General jurisdiction of Local Land Courts

Subject to Section 3 and 4 and to this Part, a Local Land Court has jurisdiction over and in relation to-

(a) a dispute as to an interest in land where the land in dispute is situated wholly or partly within the province for which the Court is established; and

(b) the approval of agreements under Section 19p and

(c) a dispute to which Section 29 applies; and

(d) any other action or decision that it may be required to take under this Act.

9. In order to answer question (i) it is necessary to address parts (a) and (b) of this question first.

(a).What is the nature of the complainant’s interest in the two portions of land in dispute?

10. The complainant states that he is the clan leader of the Sacal Eejok clan of Atat village who owns two portions of land that were returned to them by Lutheran Church in 1975. That these two portions of land were given to the Lutheran Church in the early days by Mr.Golag Ololi for purposes of making gardens to feed their students. That in 1973 the defendant was a land mediator and took the Lutheran Church to court. That at the time the said portions of land were returned to the Sacal Eejok clan in 1975 the defendant being a land board mediator only acted and looked after the two portions of land on behalf of the Sacal Eejok clan.

11. It would therefore appear on the face of the complainant’s affidavit that his interest in the said two portions of land is as a customary land owner and nothing more.

(b).What is the nature of the defendant’s interest in the two portions of land in dispute?

12. The interests of the defendant are as follows:-

(a). That he was the defendant in the proceedings and that his father is Olan Olobai from Sa-cal Amegu Clan of Amele village and that he was eight years old when his father took the Lutheran Mission to court and the land (Portion 810) was seceded to him;

(b). That the State acquired land from his ancestors and the land belongs to his clan the Sa-cal Amegu. That the State leased it to the Lutheran Mission for 99 years. That the State acquired the land and titled it as Portion 56 and that was only one big portion of land. That upon the expiry of the said 99 year lease his father successfully took the Lutheran Mission to court and Portion 56 was subdivided into portions 809 and 810 and Portion 810 seceded to his father;

(c). That in 1973 his father commenced court proceedings and in1974 Portion 801 was given to him and in 1975 he commenced planting cash crops like coconuts and cocoa on the land and that they settled on the land and occupied it until his father passed away in 1981 and they continued to occupy the land to date. That from 1974 to 2010 there was no dispute on this State lease land as the people know that it belongs to my father;

(d).That the land was not customary but a State lease land. That in 1973 the decision was made in favour of my father and Portion 56 was surveyed by the Department of Lands and demarcated into Portions 809 and 810. That Portion 810 was surrendered to my father whilst Portion 808 was kept by the Suyau Lutheran Mission Trustee;

(e). That when Portion 810 was surrendered to his father he did not register it and get a title under his name. That between 1998 and 2000 the defendant followed up the registration of Potion 810 with the late Mark Zorro of the Lands Office here in Madang. That the title is yet to be issued to the defendant and Mr Zorro died in 2009;

(f).That the complainant was not from Atat village and is not from Sa-cal Eejok clan as he is claiming and that he is from Biso clan of Umun village and according to their custom has no right to claim ownership of the defendant’s land.

13. It would therefore appear that whilst the interest of the defendant in the two portions of land would be an equitable interest for purposes of registering under the Land Registration Act 1981 arising from his long period of occupancy on the two portions of land, he also contends that as opposed to the claims of the complainant he is the rightful customary owner of the two portions of land and not the complainant.

(i). Is there a dispute over ownership of customary land?

14. I would answer in the affirmative (yes), there is patently a dispute over two portions of land which were once customary land. I note that both parties do not dispute that these portions of land were acquired by the colonial administration. Both parties have filed competing affidavits attesting to ownership of these portions of land. This dispute has arisen as a result of the attempts by the defendant through the Lands Office in Madang to register them in his name, which the complainant claims belongs to his clan and not to the defendant.

15. I note that on the periphery that no evidence has been provided to this court with regard to these two portions of land clarifying the exact nature of their tenure. The parties have failed to provide any details of how their rights and title to the two portions of land have been or are to be asserted in this court other than what they have attested to in their affidavits but this not the issue before this court nor is it the jurisdiction of this court to make declarations about parties’ rights to land. I make these remarks in the passing.

(ii). Does this Court sitting as a District Court have jurisdiction to adjudicate in a matter that is patently, a dispute over ownership of customary land? If the answer is Yes, then it can proceed to adjudicate in the matter. If the answer is No, then the matter should be struck out and the complainant be directed to institute proceedings in the correct forum.

16. I answer Question (ii) in the negative.

17. DCJ Injia as he then was in the matter of Agalu v Eno (1) succinctly canvassed this issue and also covered the issue of benefits to be derived from customary land and I am indebted to him for his thorough and detailed coverage.

18. His Honour after a thorough discussion of ss.1,5,16,18,21 and 22 of the District Courts Act and ss.1,22,24,26,27,31,35,38,40,41,42,46,47,50,52 and 53 of the Land Dispute Settlement Act, stated that a Magistrate of the District Court has no jurisdiction to deal with disputes over ownership of customary land and benefits to be derived from customary land which is the exclusive jurisdiction of the Local Land Court and Provincial Land Court.

19. His Honour went further to delineate the different roles or caps so to speak which a magistrate in the District and Land Court wear, bearing in mind that the only common denominator is the fact that they are magistrates appointed by the Minister for Justice. Further that this did not extend to the jurisdiction and procedure of the Land Courts as opposed to the District Courts.

20. A practice has crept into the civil jurisdiction of the District Court whereby it is used as a substitute or as a surrogate forum in the absence of a functioning Land Court in a Province to entertain such applications and consequently issue ‘Preventive or Restraining ‘orders as the immediate one before this court seeks. Clearly such a practice is without legal basis and should be discouraged or better still immediately stopped. Chief Justice Injia’s judgment in this matter is a ‘must read’ for all magistrates.

(iii).What is the correct forum by law to adjudicate in matters that patently involve disputes over the ownership of customary land?

21. The obvious answer is the Local Land Court.

DETERMINATION

22. For the reasons given above the decision of the court is as follows:-

(i). The District Court does not have any jurisdiction in law to adjudicate in this matter which is patently a dispute over ownership of customary land;

(ii).The proceedings are misconceived;

(iii).The matter is struck out.

(iv).Costs awarded to the Defendant.

REMARKS

23. There are two matters which are on the periphery to the relevant issue here which ought to be mentioned here.

24. Firstly, the defendant and the complainant must go to the Local Land Court for the issue of ownership to be decided and thereafter should they so wish apply to the National Court for a declaration of their interests in respect of the subject portions of land.

25. Secondly, a dispute about title to land can only be bona fide where a person can demonstrate that they have taken some distinct, formal, legal step to disturb that title. In this matter I note that the complainant has not even shown clear title for that matter. See Siwi v Mathew (2).

Complainant in Person
Illaisa Lawyers for the Defendant

______________________________________________
(1) [2005] N2904
(2) [2006] N3048 (20 April 2006) Cannings.J.)