Tayabe v Komaipa [2021] PGDC 38; DC5094 (13 May 2021)

DC5094

PAPUA NEW GUINEA

IN THE DISTRICT COURT OF JUSTICE

In the Matter of An Appeal From Piribu Kikita Village Court

VCA No. 22 of 2021

Between:

PETER TAYABE

Appellant

And:

HAYABE KOMAIPA

First Respondent

AMI HELO, YANGALI TAKALI, EKAPE ALIWA AND ANGOBE TAMINAKO – AS VILLAGE COURT OFFICIALS OF PIRIBU KIKITA VILLAGE COURT

Second Respondent

Tari: Magistrate Komia

06^th May 2021and 13^th May 2021

VILLAGE COURT APPEAL – village court’s jurisdiction on customary land disputes – powers of village courts relating to land disputes – power to make interim orders pending determination – no powers of the village courts to decide on land disputes.

Cases Cited

Kupako v Covec (PNG) Ltd [2019] PGNC 165; N7889

Ako v Wia (2013) N5100,

Jospeh Lyaki Taleokon v Jefferey Apakali (2013) SC1306

Katumani ILG v Elizah Yawing & others (2020) N8481

Legislations Cited

Village Courts Act 1989

Land Dispute Settlement Act Chapter 45

Counsels

Counsels for Appelant: in person

Counsels for First Respondent: in person

Counsels for Second Respondent: in person

A. INTRODUCTION

1. This is an appeal against a decision of Piribu Kikita Village Court made on 28^th February 2021, which ordered for Appellant to give free and vacant possession over a customary land located within Piribu, just outside of Tari Town.
   
2. The Order also compelled the respondents to adequately compensate the appellant for the improvements on the said land.
   
3. This is the court’s ruling.
   

B. FACTS

3. The facts surrounding the Appeal are set out below as follows:
   

3.1 The appellant and the respondents according to the Huli custom are father and son, in that, the appellant is the son of Late Tayabe Komaipa, who is the younger brother of the first respondent, Hayabe Komaipa.

3.2 The land which is the subject of the current dispute, was owned by the forefathers of Komaipa, and later transcended down to Hayabe and Tayabe Komaipa.

3.3 Initially the respondent lived on the portion of land which is more like the head part of the stretch of the land, which stretches and perfectly lines with the respondents customary land boundary.

3.4 Tayabe was often engaged in domestic brawls with his wife (appellants mother) and given the volatility of the situation, the first respondent urged his brother to move over and live with him on that piece of land which the first respondent claims, is his ‘haus man.’

3.5 The first haus man built was raided by police and burnt down, and the respondent received monies that were paid as compensation for those destructions by the State.

3.6 The respondent after receiving the monies had left for Ramu and stayed there for several years before returning and living with his brother, who had by that time rebuilt a new house on that same land.

3.7 The house was torn down and rebuilt again due to wear and tear as it was a small traditional hut. All those times, the two brothers both lived together and did things together, as they were only two in their family.

3.8 The appellant’s father passed away recently in 2018 or 2019 as the dates are not clearly remembered. Nevertheless, after the demise of the appellant’s father, the first respondent approached the appellant and requested if the appellant could now allow him (first respondent) to live on his own land as his father has now demised, and since he was invited to live on his land, it would only be proper for him to return and live on his own land.

3.9 The appellant took issues with the request and consequential to that, the respondent took the appellant to court and asked the village court to adjudicate on the dispute.

3.10 The village court heard this dispute and on 28^th February 2021 ordered the first respondent to compensate the appellant K 5, 000.00 for improvements and for the appellant to give free and vacant possession.

3.11 The appellant was aggrieved and appealed to this court citing amongst other grounds, issues of biasness and conflict of interest.

4. From my understanding of the appeal, the ground of appeal is one issue, and that is the issue of biasness on the part of the village court officials. But after a closer look into the appeal, I have identified a focal issue that neither party’s raised and that is the jurisdictional foundation upon which the village court made the decision, on 28^th February 2021.
   

ISSUES

5. Whether the village court had discretion to powers to deal with the land dispute.

DISCUSSION OF FACTS AND LAW

6. Village Courts are established by the Village Courts Act 1989, and has jurisdiction to deal with matters concerning disputes related to the custom of the locality where the village court sits^[1].
   
8. The Village Court Act 1989 sets out the jurisdictional basis for the village court to dela with matters concerning land disputes, but not with respect to the substantive issues regarding ownership. S. 43, under Division 4 which deals with civil jurisdiction of the village court states;

43. Disputes in respect of land.

A Village Court that has jurisdiction over an area in which there is situated any land that is the subject of a dispute as to—

(a) its ownership by custom; or

(b) the right by custom to its use,

may, on the application of a party to the dispute, make an order—

(c) authorizing the use or occupation of the land by one of the parties to the dispute for such purposes and subject to such conditions as are set out in the order; and

(d) where appropriate, prohibiting the use or occupation of the land referred to in Paragraph (c) except in accordance with an order referred to in that paragraph; and

(e) restraining the other party to the dispute from ng with the authorized use or occupation,

or for any other purpose, pending a decision by the Local Land Court or the Provincial Land Court.

9. All it is required to do, when matters concerning land disputes come before it, it has to make orders that are interlocutory in nature and not substantive. The substantive matter is for the local land courts to determine.
   
10. This was not the case in this matter, and I am of the view that the decision made by the Piribu Kikita village court was erroneous in law. Furthermore, the issue is only to be adjudicated and determined by a Local Land Court, and as such, it was improper for the court to order the appellant to give free and vacant possession.
    
11. The cases of Kupako v Covec (PNG) Ltd [2019] PGNC 165; N7889, Ako v Wia (2013) N5100, and Jospeh Lyaki Taleokon v Jefferey Apakali (2013) SC 1306, all unanimously echo the legal principle, that the jurisdiction to deal with customary land disputes lies solely with the local land court, which are adjudicated by local land mediators appointed by the Provincial Land Disputes Committee.
    
12. To be more precise, the National Court per Injia (CJ) in the Joseph Lyaki Taleokon (supra) case stated that;
    

“Neither the District Court nor the .... Village Court have any jurisdiction to determine disputes over customary land issues, not to mention jurisdiction over freehold land, registered or otherwise. Any finding by those Courts over customary ownership of the subject land is made without jurisdiction.

1. In the case of Katumani ILG v Elizah Yawing & others (2020) N8481 at paragraph 28 of the judgment, Dowa (AJ) stated:
   

“Since the Defendants have raised substantial dispute over ownership, I will address them as well so the parties have proper and informed understanding of the process involved in furthering their interests. It is trite law that both the district and National Courts have no jurisdiction to deal with disputes over customary land. Such disputes can be dealt with in the first instance by following the procedures and processes in the Land Dispute Settlement Act. Where a title is issued over customary land as in the present, case a disputing party can mount a case with the Land Titles Commission pursuant to Land Titles Commission Act. The Supreme Court in Kimas v Oala (2015) PGSC69, SC1475 said at paragraphs 6 and 7 of its Judgment and I quote:

“6. It is settled law that the National Court has no jurisdiction to hear and determine disputes concerning ownership by custom of any land, including a dispute as to whether any land is or is not customary land. Such disputes fall within the exclusive jurisdiction of the Land Titles Commission under section 15 (determination of Disputes) of the Land Titles Commission Act, which states:

The Commission has, subject to this Act, exclusive jurisdiction to hear and determine all disputes concerning and claims to the ownership by custom of, or the right by custom to use, any land, water or reef, including a dispute as to whether any land is or is not customary land and may make all such preliminary inquiries and investigations as it deems necessary for the purpose of hearing and determining the disputes and claims.

7. Section 15 has been given full effect by the courts over many years. As soon as it becomes apparent that a case involves a dispute about whether a land is or is not a customary land, the court should divest itself of jurisdiction. Such disputes fall within the exclusive domain of the Land Titles Commission.””

14. Nevertheless, for the purposes of this judgment, I would rather add that, in this case, the Lands Title Commission does not have jurisdiction with issues pertaining to such instance as this appeal, as this is concerning a land that has never been acquired by the State, neither is it a land that is in any government acquisition plan. It is a plain dispute between two parties over s small portion of land, and the land mediators in Tari must deal with the matter.
    
15. Given the law, with the case laws above, I see no point in me deliberating any further on this appeal. It is therefore proper for me to therefore make the following orders:
    

THE COURT HEREBY ORDERS:

1. The Appeal is upheld and the decision of the Piribu Kikita Village Court ordering the Respondent to compensate the Appellant K 5, 000.00 and for the first respondent to give free and vacant possession to the first respondent is hereby quashed for being ultra vires s. 43 of the Village Courts Act 1989, and thereby lacking jurisdiction to deal with such land dispute concerning the customary land described as Takirapu land.
   
2. Pursuant to S.17 (2) (e) of the Land Dispute Settlement Act, the Tari Pori District Lands Clerk, together with assistance of the Provincial Lands Officer, shall liaise with the Provincial Land Disputes Committee, and appoint three land mediators to deal with the matter in the Local Land Court, which shall take place within fourteen (14) days from the date of this Order.
   
3. An order pursuant to S.30 (2) (c) of the Land Dispute Settlement Act 1975 that the First Respondent Hayape Komaipa, shall in the interim, have possession and user rights over the said disputed land described as Takirapu Land, pending the identification of land mediators, and the hearing of the substantive land disputes.
   
4. An order pursuant to S.30 (2) (e) of the Land Dispute Settlement Act 1975 that the Appellant Peter Tayape, is in the interim restrained from interfering with the usage and occupation of the dispute land described as Takirapu, pending the identification of land mediators, and the hearing of the substantive land disputes.
   
5. Cost of the Appeal shall be borne by Parties.
   
6. Time is Abridged
   

BY THE COURT
His Worship Mr. Edward A. Komia

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^[1] Siki v Siki [2021] PGDC 13; DC5060 (2 February 2021)