Tauja v Ibil [2010] PGDC 39; DC1032 (22 September 2010)

DC1032

PAPUA NEW GUINEA

IN THE DISTRICT COURT OF JUSTICE
V/CT 30/2010

DONBEN TAUJA
Appellant

V

ROBER ABUI IBIL
Respondents

MADANG: J KAUMI

2010:20th, 25th August 8th, 22nd September

APPEAL

VILLAGE COURT ACT- Appeal to District Court against a Preventive Order issued by a Village Court

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 of ownership over customary land 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)

PRACTISE AND PROCEDURE-Strict application of the rules of evidence and of the acceptance of documents into evidence not applicable when a decision of Village Court under appeal or review.

A man appealed against a "Preventive Order" issued against him by a Village Court made pursuant to a dispute over ownership of customary land.

Held:

(1). The strict application of the rules of evidence and of the acceptance of documents into evidence are relaxed when a decision of a V.Ct is under appeal or review by the District Court and this is mandated by the operation of Sections 89 (5) and 59 (1) of the V.Ct Act.

(2). 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.( See Agalu v Eno DCJ.Injia as he then was )

Cases cited:
The following cases are cited in the judgment:
Agalu v Eno [2005] N2904
Wali vs Wali (2006) N 3051 (20th /04/06),
Legislations

Village Court Act 1989

Abbreviations:
The following abbreviations appear in the judgment:
DCJ Deputy Chief Justice
J Justice
N National Court judgment
V.CT Village Court
VS Versus

APPEAL

This was an appeal against a preventive order of a Village Court.

Representation:
Appellant in person
Respondent, in person

INTRODUCTION

1. Kaumi. M. This is a judgment on an appeal against a Preventive Order issued by the Amele No.2 V.Ct here in Madang.

2. At the outset I adopt as a matter of practice parts of the outline only of a judgment by Cannings J in Wali vs. Wali ¹. This is for a want of a suitable precedent in our jurisdiction.

BACKGROUND

3. The respondent Mr. Abui Mamat had summoned Mr. Donben Tauja, the appellant to appear before the Amele No.2 V.Ct on 28/07/10 for allegedly breaching a Preventive Order No. 69694 by continuing to work on a disputed piece of land.

4. The said Preventive Order No 69694 was issued by the Amele No.2 V.Ct on the 2/04/08 applicable to both Messrs.Tauja and Mamat after it had received a letter from the District Land Officer dated 9/08/07. Both parties had opposing claims to a piece of land not specified in this particular Preventive Order however the order stated further that this dispute was now with the D.L.C for decision. Both parties were required to appear before the said V.Ct on 16/04/08.

VILLAGE COURT PROCEEDINGS

5. The Amele No.2 Village Court issued a Preventive Order No. A20626 (Form 4) dated 04/08/10 against both the appellant, Donben Tauja and respondent Abui Mamat preventing either of them making gardens or planting cash crops or making houses or doing 'business' on a piece of land called "Durauris". Further that this Preventive Order would remain in place pending a decision by the Land Court on this dispute between the appellant and respondent.

APPEAL TO DISTRICT COURT

6. On 12th May 2010 the appellant filed a notice of appeal, stating four grounds of appeal. The grounds of Appeal are not well articulated to the extent that it is confusing to understand exactly what the appellant is appealing about. Three of these grounds No.1,2 and 3 are not grounds of appeal but are submissions in support of the ground No.4 which I find is the only ground of appeal and is as follows:-

(i). That the land 'Durauris' is outside of the areas which the Timber Company has cleared which are Rakeu Buru and Ariage for the purpose of building a sawmill.

SUBMISSIONS

7. The strict application of the rules of evidence and of the acceptance of documents into evidence are relaxed when a decision of a V.Ct is under appeal or review by the District Court and this mandated by the operation of Sections 89 (5) and 59 (1) of the V.Ct Act. This court can therefore admit and consider documents which would otherwise be not admissible and I make these comments at this juncture as the documents submitted by both appellant and respondent are of such a nature.

APPELLANT'S SUBMISSIONS

8. The appellant's submission was contained in two documents, an affidavit and a document titled affidavit in response and both sworn and filed on 1/09/10.

9. The appellant's affidavit in response dated 01/09/10 is a rebuttal of the depositions of the respondent's affidavit of 23/08/10.

10. In paragraph one the Appellant states that Preventive Order No.69694 (issued on 2/04/08) was for a piece of land called 'Torubu' only and not in relation to any other land. However in paragraph two he states that he has no knowledge of Preventive Order No.69694 as he wasn't summoned to appear before any court and no copy of the order served on him. In paragraph three he states that the 'Torubu' land was mediated and filed with the Local Land Court for hearing and not the 'Durauris' land and the Timber company did not enter the mentioned land but only entered the land known as 'Ariage' and 'Rakeuburu'.

11. The appellant's second paragraph sets out what I believe was the real motive for his appeal. And its main thrust is the appellant's claim is that the land Durauris covered by Preventive Order was not mediated on and filed with the District Land Court and that 'Torubu' covered by Preventive Order No.69694 issued on 2/04/08 was the only land mediated and filed in the District Land Court. In paragraph four he states that the land at Garim village have different names and have no disputes and were not mediated on.

RESPONDENTS' SUBMISSION

12. The respondents' response was contained in one document, his Affidavit sworn on 23/08/10.

13. Paragraph seven of his affidavit of 23/08/10 is the crux of his dispute with the Appellant. It deposes to his claim to the land in dispute called 'Durauris' where the Timber company has cleared to build a sawmill.

ISSUES

14. First and foremost is whether or not this Court sitting as a District Court have jurisdiction in a matter that is patently a dispute over the ownership of customary land.

15. 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.( See Agalu v Eno ² DCJ.Injia as he then was )

16. I find in this matter that there is a dispute over ownership of customary land though there are different names given for the land, what is undisputed is that the Respondent is opposed to the Timber company clearing up a certain piece of land for purposes of building a sawmill on it.

17. As a consequence of my finding that there is a dispute over ownership of customary land this Court sitting as a District Court clearly does not have jurisdiction to deal with such disputes as this is the exclusive jurisdiction of the Local Land Court and Provincial Land Court. There is therefore no need for this Court to further deliberate on this matter as it cannot disturb the Preventive Order of the Amele No.2 Village Court No.20626 of the 04/08/10 in any way.

DETERMINATION

18. The decision of the Court on the Appeal:-

(i). The Preventive Order of the Amele No2 V.Ct dated 04/08/10 No. A 20626 remains in force until the Local Land Court deliberates on the dispute.

REMARKS

19. Whilst this Court does not find anything wrong with landowners' efforts in trying to bring development and services to their localities, these efforts must be done in accordance with law and where a dispute arises as in the immediate matter parties must allow the due process of law to run its full course and therefore the Appellant's forum for redress for the issues he raises in his appeal is in the Local Land Court (and not the District Court) when it convenes to deliberate on this matter and as a consequence any proposed development on the said land must await an outcome from the Local Land Court.

Appellant in person
Respondent in person

________________________
[1] (2006) N 3051 (20th /04/06)
[2] (2005) N 2904