Ketsena v Sakuan [2016] PGDC 12; DC3001 (24 May 2016)

DC3001

PAPUA NEW GUINEA

[In the District Court of Justice sitting in its (Grade five) civil Jurisdiction]

CL no 09 of 2016

BETWEEN

HELEN KETSENA
Complainant

AND

RODGER SAKUAN

First Defendant

AND

TAGI PIO
Second Defendant

AND
KEVIN PIO
Third Defendant

AND CONSLIDATED PROCEEDING NO 02 /2016

BETWEEN

PATRICK KABOBO
Complainant

AND

RODGER BLAKE
CHARLES KERIAKA
Defendants

BUKA: B.TASIKUL
2016: 24^TH MAY

CIVIL LAW:

COUNSEL:
Appearing for Complainant: In person
Appearing for defendant: In person each

REASON FOR DECISION

1. B.TASIKUL PM: Both matters came before me by way ofan application for a temporary order under section 30 of the Land Dispute SettlementAct.The Applicants is seeking from the court the following orders;

A temporary orders restraining the respondents from carrying out any developments on two particular portions of land known them as; Tuamemga and Kamarau jetty. These two portions of land are within Kamarau land.

2. Section 30 of the Land Dispute Settlement Act states that;
   

1) A party to a dispute, a District Officer, a member of the Police Force or a Village Peace Officer may apply to a District Court Magistrate, or to a Local Land Magistrate, for a temporary order over land in dispute.

(2) Notwithstanding this Act or any other law, where the Magistrate to whom application is made under Subsection (1) is satisfied that–

(a) There is likely to be a delay of not less than one month before the dispute can be heard and determined in the Local Land Court; and
(b) prompt action is needed to preserve peace and order in the area,

he may make a temporary order–

(c) authorizing the use or occupation of the land or part of the land in dispute by a party or parties to the dispute, or any other person for such purposes and subject to such conditions and restrictions as are specified in the order; or
(d) prohibiting the use or occupation of the land by any or all of the parties to the dispute; or
(e) restraining any of the parties to the dispute or any other person from interfering with the authorized use or occupation of the land by the party or person specified in an order under Paragraph (c),pending an agreement between the parties or a decision of a Local Land Court.

3. This provision applies to a fresh land dispute. This will allows the land mediators to mediate the dispute and whilst the mediation is in progress a temporary order must be issued to preserve peace.
   
4. In this two present application the particular portions of land the parties refer to as Tuamemga and Kamarau jetty are within the Ieta land. The Ieta land dispute was heard and determined by the Local Land Court on the 14^th February, 1997. The Local Land Court decision states as I quotes;
   

The court hereby now makes the following orders;

i. That the land in issue before this court is called Ieta Land, but not Pet Land;

ii. That the original owners of the Ieta land are the Naboin Clan but not the Nakaripa Clan;

iii. That the portions of land given to the Nakaripa Clan within the Ieta land mass shall remain as was originally arranged and transferred in accordance with customary law by the past chiefs of both clans. Such portions namely (a) Kamarau (b) Supahehe (c) Motomoto. Ownership shall remain with the Nakaripa Clan

iv. That a new arrangement for the exercise of the right of utility by both parties is here by ordered, that while the traditional owners of the Ieta land is with the Naboin clan, the right of utility be exercised by both parties, to be determine by the chiefs of both parties, or any other legitimate and appropriate authority determine and consented to by both parties of Ieta village for the sake of peace, harmony and good community life.(The right of utility is the right to use the land and get benefit out of it, whatever the benefit may be)

5. According to the decision of the Local Land Court it is not disputed that the Nakaripa clan owns the three portions within the whole of Ieta land. They are Kamarau, Supahehe and Motomoto.
   
6. This application by the complainants namely Helen Ketsena and Josephine Sahoto is in relation to a portion called Tuamemga and Patrick Kabobo in relation to Kamarau jetty. The complainants are claiming that Tuamemga and Kamarau jetty are within the Kamarau land which belongs to the Nakaripa Clan.
   
7. The defendants on the other hand are claiming that Tuamemga is not within the Kamarau land. It is part of the Ieta land which belongs to the Naboin Clan.
   
8. I had the opportunity to visit and inspect the said disputed portion of land and also to see for myself the boundary of Kamarau land as the issue is that the particular portion called Tuamemga and Kamarau jetty are within Kamarau land.
9. The complainant party indicated to me that Kamarau portion of land commences at an Okari nut tree (Talisa known in pidgin) at the beach at Ieta village and stretches along the seashore toward the Buka town main boat stop. Then from the main boat stop it stretches up toward the northwesterly direction to a place called Kemanu where there used to be sago trees. It then stretches Northeasterly direction towards a Walo tree called Matasip and then back to the Okari nut tree
   
10. The defendants however, indicated to me the Kamarau land is just a small portion which commenced at the beach up the drain between the City Pharmacy and Leo Soli Kaibar toward the green house, then to the Bank South Pacific and then towards the now called Kamarau boat stop.
    
11. Let me make this clear to the disputing parties that this court does not have the jurisdiction to decide which of these boundaries you indicated to me is correct. The reason is simply because this land has been determined by the Local Land Court and a decision of ownership has been made. Therefore, it would be wrong for me to declare any decision on which boundary the court should accept.
    
12. Having said that I noted from the Ieta land court decision of the 14^th of February 1997 the Local Land Court failed to properly identify the boundaries of the whole of Ieta land and also the boundaries of each respective portion that was given to the Nakaripa clan. They are Kamarau, Supahehe and Motomoto.
    
13. It is my view that because the Local Land Court decision of the 14^th February,1997 failed to properly identified the boundaries of each of this particular portion of land, it has created more problems to the land owners. So I ask myself how do we address these issues.
    
14. This court as I have said earlier is mindful that it does not have the jurisdiction over a matter which has been dealt with. However, because the Land Court on the 14^th February, 1997 failed to identify the boundaries of the respective portion of land concerned, it would be appropriate that the matter should go before the local land court for review under section 44 of the Land Dispute Settlement Act.
    
15. Because of the circumstance of the matter I will make the following orders and directions;
    
    1. That all the parties or their servants and agents who are subject to this dispute are restrained from carrying out any development on the Tuamemga portion and Kamarau jetty wharf within Kamarau land. This includes clearing of bushes and construction of new buildings or jetty.
       
    2. The matter be refer for mediation before three (3) appointed land mediators who will only mediate the boundaries of the following portions; namely Kamarau, Supahehe, and Motomoto. The mediation must be completed within three months.
       
    3. In the event that the mediation fails, any parties to the Ieta land dispute are directed to file an application to the local land court to review the decision of Ieta land to address the issue of the boundaries under section 44 of the Land Dispute Settlement Act.