Owasi v Dorona [2022] PGLLC 1; DC9032 (1 March 2022)

DC9032
PAPUA NEW GUINEA.

LOCAL LAND COURT.
LLC NO: 28/2021.

IN THE MATTER BETWEEN:

1. WILLIE OWASI Chief of Zati Clan, and,
2. WORISIYA CHESTER NAURI, of Sedema Kerua Clan.

Complainant/Respondents.

AND:

1. AREWA DORONA, Chairman of Konoma ILG
2. MOSES HAU, Konoma ILG.

Defendant/Applicants.

Popondetta: Michael W. Apie’e –Chairman
John Haenare-Land Mediator.
Jairus Sumbiri-Land Mediator

2022: March 01^st.

CIVIL PROCEEDINGS.
-Notice of Motion seeking Summary determination of a Local Land Court Proceeding Referred to the Local Land Court Pursuant to Section 31 of the Land Dispute Settlement Act.

-Claim that the defendant/Applicants had no case to answer to the Land Dispute Referral.

-Further Claim that the matter is ‘Res Judicata’ given the fact that the matter had being deliberated on by the Secretariat of Incorporated Land Groups and Certificate of Incorporation awarded to the Konoma ILG.

Cases Cited:
Golpak v. AlongKarea Kali and Others [1993] PNGLR 8
Wabia v. BP Exploration Co. Ltd and others [ 1998] PGNC 18; N1697 (26 March 1998)

References:
Land Dispute Settlement Act.

Representation:
Complainants each appear in person.
Mr. Daniel Lalewa and Mr. Jerry Geno Noesa appear for the Defendants

JUDGEMENT ON TRIAL.
Background.

1. The Complainants each separately on behalf of their various clans in the Kira LLG Area of the Northern Province had initiated Mediation requests against the Defendants and their Konoma ILG Grouping on the basis that the Konoma ILG had included in its land Parcels, certain Portions of Lands that their various clans had claims over.
   
2. The Zati Clan had their matter referred to the Local Land Court (LLC) as LLC 26 of 2021 on the 17/08/21and Sedema Kerua Clan had theirs referred as LLC 28 of 2021 on the 30/08/21.
   
3. This matter first came to the Local Land Court in the August and September civil mentions and the matter was mentioned at various times between the parties until the early part of this year when it was agreed that the matter be listed for hearing between the Parties.
   
4. However, on the 02/02/22, a Notice of Motion was filed by the Defendants seeking various orders as follows;
   
   1. ‘The Duty of the Complainants to establish a Sufficient Case in order to allow the case to continue’ and the Defendants to be called on to respond, otherwise there is No-Case to answer.
      
   2. In the matter of Law, Complainants will loss the case is their fail to prove the facts in issue.
      
   3. The Fact that ILG registrations were made after Notice was published in the media and concerned people given sufficient time to object before the ILG Certificate was granted to them- Issue of Res Judicata therefore claimed at this juncture.
      
5. Their Application is allowed under Section 31 on the Land Dispute Settlement Act (LDSA), and is therefore Properly before this Court and hence will be given its due consideration.
   
6. The Defendants relied on the Submission filed with the Notice of Motion of 02/02/22 and also a Supplementary Affidavit by Mr. Arewa Dorona dated 02/02/22.
   
7. The essence of the Applicants Notice of Motion is as follows,
   
   1. The Konoma Incorporated Land Group Registration was done after consultation with all ‘Papua Waria’ people along the Border of Oro and Morobe Provinces, and the Complainants had not responded with any objections to the ILG Certification within the allowable time frame of 21 days or so.
      
   2. Accordingly, from what this court can gather from the Applicants submission, it is apparently deemed by the Applicants that the Complainant/Respondents do not have a case (No- Case to Answer by the Defendants) in pursuing this Local Land Court Hearing and also the Fact that Konoma ILG Certificate was issued after a vetting Period during which they should have raised objections but did not do so basically meant that they were then estopped from initiating any further action against Konoma ILG on the basis of Res Judicata.
      
   3. Also on a more specific note, the Applicant moved that Zati Clan be ousted from the dispute as they have not identified any Land Interests in their Case against the Konoma ILG.
      
   4. The Applicant therefore asked for the whole of the Referred matters LLC No 26 of 2021 and LLC No: 28 of 2021 to be summarily struck off or dismissed on those grounds.
8. In Response, Mr. Chester Nauri on behalf of Sedema Kerua clan submitted as follows as per his filed submissions;
   
   1. The issue of these ILG Registration by other Groups came to light in 2017 as the Konoma ILG process started in September of 2015.
      
   2. The Gazettal Notice to Register Konoma ILG was not sighted by the Complainants or their agents, but they did notice the Owasupe and Mauwe ILG Notices in the papers and they tried to mobilize but were intervened by the Spokesman Jerry Geno and his followers and so that meeting was not completed.
      
   3. Objection were raised for the other ILG’s but not for Konoma and the Complainants never saw any Gazettal Notice relating to the Konoma ILG.
      
   4. They then referred the matter to Customary Lands Officer Mr. Merire Dubo to commence mediation, but the Defendants never attended mediation in 2018 and this matter is referred to the Local Land Court in 2021.
      
   5. These delays were caused by the onset of Covid 19 and other factors.
      
   6. He also submitted that the Concept of Res-Judicata had no relevance in this case and the matter should be allowed to proceed.
      
9. Mr. Willie Owasi on the other hand spoke through his written Submission of 08/02/22 via his spokesman Mr. Brian Owasi and stated as follows that;
   
   1. He initiated the Mediation and Court Processes as Zati Clan owns certain Portions of Land wrongfully included in Konoma ILG Land Parcels.
      
   2. He further stated that ‘Konoma is not a Recognized Clan in the Kira LLG Area and therefore being a Fabricated ‘Clan’ that fell in from Space to claim to own Lands in Kira, its claims to Land must be properly tested in court.’
      
10. In Response, Mr. Jerry Geno Noesa made certain concessions that are noteworthy and they are generally as follows;
    
    1. If the Local Land Court is of the view that the Complainants had failed to Respond within the Prescribed time frame to object to the ILG Certification Process under the Land Group Incorporation Act, then the Local Land Court should end this case here and now.
       
    2. However, on the other hand, he also conceded that this matter was referred to the Local Land Court without proper Lands Mediation being carried out at the mediation level and if the Court is inclined to order Land Mediation, the matter must be referred back to the Kira LLG for proper and comprehensive Land Mediation to be carried out.
       

Observations:

11. The Local Land Court makes the following observations on this matter in respect of Jurisdiction as follows;
    
    1. Incorporated Land Groups, are derived and sustained in Law under the Land Group Incorporation (LGIA) Act Chapter 147 of the Revised Laws of Papua New Guinea.
       
    2. The Purpose for the LGIA in Section one of that Act Reads;
       
       1. PURPOSES OF THIS ACT.

The purposes of this Act are to encourage–

(a) greater participation by local people in the national economy by the use of the land; and

(b) better use of such land; and

(c) greater certainty of title; and

(d) the better and more effectual settlement of certain disputes, by–

(e) the legal recognition of the corporate status of certain customary and similar groups, and the conferring on them, as corporations, of power to acquire, hold, dispose of and manage land, and of ancillary powers; and

(f) the encouragement of the self-resolution of disputes within such groups.

3. Land Courts, that is the Local Land Court and the Provincial Land Court have their authority and genesis from the Land Disputes Settlement Act (LDSA).
   
4. The LDSA is purposed as follows under section 1;
   
   1. PURPOSE OF THIS ACT.

The purpose of this Act is to provide a just, efficient and effective machinery for the settlement of disputes in relation to interests in customary land by–

(a) encouraging self-reliance through the involvement of the people in the settlement of their own disputes; and

(b) the use of the principles underlying traditional dispute settlement processes.

5. Aligning these purposes side by side, it is clear that the LDSA is Related to the determination of Customary Ownership of Lands in Papua New Guinea, whilst the LGIA relates to the Registration of such determined Customary lands into Incorporated Land Groups for the Purpose enabling economic and commercial mobility and viability.
   
6. Therefore, when it comes to determination of Customary Ownership of Lands in Papua New Guinea, the Process under the LDSA will take Precedence over any and all other Legislations including the LGIA.
   
7. On the same token, when it comes to Customary Land Disputes, the Local Land Court (LLC), and by process of appeal, the Provincial Land Court (PLC) only have Jurisdiction ahead of all other courts, including the Supreme Court of Papua New Guinea.
   
8. The Settlement Committees allowed for under the LGIA is for Disputes that arise within the Group itself for Disputes Arising from Persons outside such ILGs relating to Lands within the ILG, the LDSA takes precedence.
   
9. The Registration of Incorporated Land groups on the other hand is premised on the assumption that the one seeking ILG registration has undeniable or strong ownership claims to the Land submitted for inclusion in their ILG Land Parcels.
   
10. The 21 days or so of grace period for objections is to enable any lingering Objection to be raised after Publication of the ILG Application in gazette in the Print media.
    
11. If no Objection is raised, then the matter of application proceeds to Certification and issuance of ILG Certificate.
    
12. If Objections are raised and found to be substantial, then most likely, the Certification Process is put on hold and the Applicants and objectors referred to the Land Courts to resolve their claims.
    
13. In this case it is interesting to note Chester Nauri Claiming to have not sighted any Notice in the Papers of Konoma ILG’s intended Registration of their ILG.
    
14. The general contention from the Complainant /Respondents is that no comprehensive consultations were done before the various land parcels to which their clans had interests were lumped into the Konoma ILG Land Claims for the Certification process.
    

12. The National Court Decisions of Golpak v. AlongKarea Kali and Others and Wabia v. BP Exploration Co. Ltd and others both emphasize the Statutory fact that when it comes to determination and declaration of Customary Land Ownership, the Local Land Court and by Appellate Jurisdiction the Provincial Land Courts are the only Authorities vested with that power.
    
13. On that basis, it is a fact of Law that an ILG Certification by the Incorporated Land Groups Division of the Lands Department does not convey Customary Ownership Declarations as this Division of the Lands Department is not seized with the power to make Customary Land Ownership Declarations.
    
14. Given that ILG Certifications of Land Interest only is approved on the presumption that the Applicant for ILG Certification is indeed comprised of Customary Land Owning clans or Persons means that when such lands included in the Parcel of land Submitted for Certification become subjected to Dispute, the matter must logically and Legally revert back to the mediation process and ultimately if no agreement is reach to the Land Courts.
15. Given that, in answer to the Contentions by the Defendant /Applicants the Court will rule as follows;
    
    1. No case to Answer: This contention that there is no case to answer is a misconception on the part of the defendant /applicant in that a ‘No-case to Answer’ Submission normally only arises at the end of one parties case being presented, for instance in a Criminal Case at the end of Prosecution cases.
       
    2. In this case, the Complainants (Both) have not presented their case as yet, so this contention is misguided.
       
    3. Res Judicata: this Maxim arises when a matter is brought to a court while the same matter is before another Court, for instance is a Summons is filed in the District Court whilst the same issues are before the National Court in another proceeding, then the District Court proceeding can be estopped (Stopped) for being Res Judicata.
       
    4. The Incorporated Land Group Division of the Lands Department is not a Court nor is it a Judicial Body recognized under the Constitution of Papua New Guinea.
       
    5. The Fact of it having made determinations in any matter does not and cannot Legal stop a Local Land Court from Deliberating on the Lands Incorporated into an ILG is disputes arise over such land before it.
       
    6. Res Judicata does not arise in this instance.
       
16. In the final Analysis, the Court finds and Orders as follows that;
    

ORDERS.

1. The Applications by the Defendant Applicants to Dismiss /Strike out the Land Claims by the Complainant/Respondents over certain Portions of the Konoma ILG’s Land Parcels is rejected.
   
2. The matters of LLC 26 of 2021 between the Zati Clan v. Konoma ILG and LLC No: 28 of 2021 between the Sedema Kerua Clan v. Konoma ILG is allowed to remain and continue as follows;
   
   1. The Referrals to the Local Land Court will remain as they are before the Local Land Court at Popondetta.
      
   2. However, since no real mediation was carried out in respect of the various Land Claims and interest between the Parties, the whole of LLC No: 26 of 2021 and LLC No: 28 of 2021 are referred back for Supplementary Mediations to be carried out at the Community Level at Kira LLG.
      
   100. The Sohe District Administration and Land Mediation Teams are allowed up to 90 days from today within which to mount Supplementary Mediations into the various Land claims between the Parties to ascertain land claims and land boundaries with a view to reaching a mediated settlement between the Parties.
        
   4. When such mediations are completed within the allotted time, the matter will be brought back to the Local Land Court to Endorse Whatever Agreements that might be reached between the parties or to commence hearing into whatever Disagreements and Disputes that might remain unresolved between the Parties.
      
3. In the Event that the Supplementary Mediations cannot be reached within the Allotted time, application for extension of time for purposes of ‘Supplementary Mediations can be made before the Local Land Court.
   
4. No orders will be made on costs.

Complainants each in Person.
Daniel Lalewa and Jerry Geno Noese for the Defendant Applicants.