Ketene v Hiru [2022] PGDC 34; DC8045 (28 March 2022)

DC8045

PAPUA NEW GUINEA

IN THE DISTRICT COURT OF JUSTICE

CIVIL JURISDICTION

CV NO. 06 of 2022

Between:

MAPIRIA KETENE

Complainant

And:

YANGE HIRU

First Defendant

And:

HAPALE KAI

Second Defendant

Koroba: E. Komia (SM)

28^th March 2022

CIVIL JURISDICTION – compensation claim for environmental damage – ownership in contest – damages improper remedy – issue of ownership outstanding – environmental damages claim only proper after ownership determined.

CUSTOMARY LAND – land ownership dispute – jurisdictional basis for ownership determination – local land mediation – ownership not in contest between clans – where ownership is contested between family members – local land mediation not necessarily the only mode.

Legislations

District Courts Act

Land Act

Land Dispute Settlement Act

Papua New Guinea cases cited

nil

INTRODUCTION

1. The complainant instituted this proceeding by way of a complaint on 10^th January 2022, and sought permanent restraining orders against the defendants from further using or cultivating the land described as Kumata.
   

FACTS.

2. The complainant and the defendants are from Mapili clan in the Hundia area of Koroba District.
   
3. The complainant is the first born son of one late Hundia Kerene, a former land mediator within the Koroba District. Late Hundia Kerene is the son of from the first wife of one late Mr. Hiru, a former local leader who demised long ago during the late nineteen eighties (1980’s). The first defendant is the brother of late Hundia Kerene and is the son from Hiru’s third wife.
   
4. The complainant is the grandson of Late Hiru, whilst the first defendant is the son of Late Hiru, and the second defendant’s relations to the first defendant and the complainant is not made known.
   
5. The land that is the subject of dispute was at all material times kept as a natural habitat by the complainant’s late father.
   
6. On or around December 2021, the defendants entered the subject land and felled down all the trees, shrubs and the natural vegetation to make garden. There was an argument between the complainant and the first defendant and the first defendant took the matter to court and filed this proceeding.
   

ISSUE

7. Whether the complainant should be granted free and vacant possession of the land described as Kumata
   

EVIDENCE

8. The court during hearing heard various witnesses from the leaders of Mapili clan namely, Mathew Ikipe, Kojumba Alembo, and Paul Porawi. The leaders of neighbouring Wa’ Amu clan namely Akori Andiki also testified.
   
9. All these persons gave evidence that the subject land was protected and kept as a natural habitat since the eighties, and the land was never cultivated, and the defendant is the first to destroy the natural habitat that was always protected by late Hundia Kerene.
   
10. Essentially, the evidence established that late Mr. Kerene had been the custodian of the said land, and his children have taken over from him after his demise.
    
11. There was not much contest to this aspect of the evidence.
    

DISCUSSION

12. It is trite law that customary (un-alienated) land are regulated and managed under the customary laws, and the statute such as the Land Act 1996, and Land Title Registration Act protect customary landowner’s interests over customary land from being exploited, sold, transferred or diverted ordinarily, unless and until there is a consensus reached by the clan members of the clan owning the land.
    
13. In cases where there are competing interests between clan members or different clans regarding their interest over a certain portion of customary land, the local land mediators who are appointed by the local districts assume jurisdiction over such disputes. This is stipulated under the Land Dispute Settlement Act.
    
14. The interesting thing I am faced with in this case is the complainant’s prayers or remedies sought in the complainant. The complaint seeks remedies for compensation of the for the destruction of their forest, and also sought to have this matter dealt with at the local land court for the land mediators to determine ownership.
    
15. Whilst the issue may be for me to make orders for mediation, the compensation for the destruction of the forest cannot be pragmatic at this stage because, there is still and issue of ownership. It would be only better for this court to make orders for compensation at a later time when the ownership issue is settled.
    
16. What this court is now faced with is for this court to determine whether the relief in the complaint should be granted. The remedies sought by the complainant only seeks this court to order for land mediation, but there are no orders seeking interim orders such as restraining orders for parties to keep the peace and cease work on the subject land pending the findings and agreement by the local land mediators.
    
17. Nevertheless, just because there is no such remedy sought in the pleadings does not render the proceeding to be incompetent and for this court to merely dismiss this proceeding. The court is now made aware of a dispute concerning customary land, and given this fact, this court should not ignore the need for an interim order.
    
18. I find solace in s. 22 of the District Court Act which gives this court the jurisdictional basis to deal with any matter that comes before it, for the time being within its jurisdiction, shall, in proceedings before it grant such relief, redress or remedy, or combination of remedies, whether absolute or conditional; and give the same effect to every ground of defence or counterclaim, whether equitable or legal, as ought to be granted or given in a similar case by the National Court and in as full and ample a manner.
    
19. It is therefore incumbent to this court to make necessary orders for cases such as this that is now before this court, and also where it concerns land dispute, and a summons has been filed seeking to have this matter transferred to the land mediation, it is befitting for this court to invoke its jurisdiction in granting interim orders pending the determination of the ownership of the land.
    
20. At this juncture, it is important for me to note that the issue of ownership is not with another clan, but is rather an infighting within the family members, and that issue of ownership within family members and inter-clan, is somewhat an area I believe should not be the subject of an expensively long drawn out land mediation. It should rather be a simple resolution and agreement on who should be the rightful occupant or caretaker (as the case may be) for the land, as the dispute is within the Hiru family.
    
21. In returning to address the claim or the complainants prayers for compensation, I will leave that to be determined by another court at the proper time when the issue of ownership has been settled, but for the purposes of this proceeding and since there is an imminent danger in the preservation of peace amongst the Hiru family, I will only make interim orders for preservation of peace and for the local leaders of Koroba, and Mapili clan to determine who should be the rightful person to assume custody and possession over the land.
    

THE COURT THEREFORE ORDERS:

1. Both the complainant and the defendants are restrained from doing any developments such as gardening, housing or animal grazing of any sort or assuming proprietorship, transferring, disposing or tampering with the customary interest associated with the land described as Kumata, in Hundia area of Koroba District pending the determination of ownership and proprietorship of the land by the local land mediators and local leaders of Mapili Clan in Koroba.
   
2. The Local Land Court Manager for Koroba District shall ensure that local leaders namely Mathew Ikipe, Koijumba Alembo, Paul Porawi and a local land mediator shall convene and hear the parties dispute and determine the ownership of the land.
   
3. Cost to be borne by parties.
   
4. Time is abridged.
   

BY THE COURT
Senior Magistrate Mr. E. Komia