Mavu v Moto [2005] PGLawRp 20; [2005] PNGLR 411 (25 August 2005)

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MATHIAS MOTO AND THOMAS RINGBUNG OF NAKISE CLAN OF RU VILLAGE; EREMAS PALIU AND SAVULU PALU OF OTHO CLAN OF LAVEGE VILLAGE; STETTIN BAY LUMBER COMPANY LTD; AND PETER RAMUTE, KIMBE PROVINCIAL FOREST OFFICER, KIMBE PROVINCIAL FOREST OFFICE.
KIMBE: CANNINGS J

LAND – Dispute as to receipt of royalties according to customary ownership of land – Forestry – Timber rights purchase area – Land Disputes Settlement Act – Mediation and agreement – Approval of agreement by Local Land Court – Effect of approval – Dispute about interpretation and application of agreement and order – Declarations sought.

JUDGMENTS AND ORDERS –Jurisdiction of National Court –Inherent power of National Court to make orders necessary to do justice in the circumstances of a particular case.

The plaintiff claimed to be the leader and agent of a clan whose interest in a piece of customary land was registered in 1994 under the Lands Disputes Settlement Act. Two other clans had a dispute with the plaintiff's clan in 1994 about ownership of the land. The dispute was mediated by land mediators, and an agreement was reached and approved by the Local Land Court. The plaintiff claimed that the third defendant i.e, the logging company had been logging the subject land for ten years without paying royalties to the plaintiff. Furthermore, he and his clan were entitled to all royalties. The first and second defendants, representatives of neighbouring clans, disagreed, saying that the plaintiff had not been denied any royalties he was entitled to. They argued that royalties had only been paid for the last two years and that, in any event, the plaintiff was not an authorised clan agent, had no authority to receive royalties on behalf of his clan and that any royalties paid had to be shared amongst the three clans, in accordance with the 1994 agreement. The logging company, the third defendant, did not want to be involved in the dispute. The provincial forest officer, the fourth defendant, distributes royalties paid to the Forest Authority by the third defendant. The fourth defendant did not favour any side of the dispute. The plaintiff filed proceedings in the National Court seeking a declaration that he and his clan are entitled to all future royalties arising from logging on the subject land.

1. The agreement between the Evusovul, Nakise and Otho clans of 31 May 1994, regarding Gimomi-Lapo, as approved by the Local Land Court order of 14 October 1994, was made in accordance with the Land Disputes Settlement Act (Chapter No 45) and is valid, enforceable and legally binding.

2. The agreement and order are evidence that the customary owners of Gimomi-Lapo are entitlement to timber royalties and all other resource payments in respect of Gimomi-Lapo. These are to be equally divided and distributable amongst the Evusovul, Nakise and Otho clans.

3. The agreement and order do not purport to appoint clan agents for any of the three clans.

Cannings J. This case is about a dispute over customary land and who are the right clans and individuals to receive timber royalties. The land is called 'Gimomi-Lapo'. It is a large tract of land in the Hoskins District of West New Britain Province. It is a designated timber rights purchase area under the Forestry Act.

The plaintiff claims to be the leader and agent of a clan whose interest in the land was registered in 1994 under the Lands Disputes Settlement Act. He claims that the third defendant has been logging the subject land for ten years, without paying any royalties to his clan under the Forestry Act. Furthermore, he and his clan are entitled to all royalties.

The first and second defendants, representatives of neighbouring clans, disagree, saying that the plaintiff is not entitled to any royalties. They say that royalties have only been paid for the last two years and, in any event, the plaintiff is not an authorised clan agent, has no authority to receive royalties on behalf of his clan and that any royalties have to be shared amongst three clans, not paid to just one.

· the plaintiff, Francis Mavu, who claims to be the leader of Evusovul clan, of Ru village;

· the first defendants, Mathias Moto and Thomas Ringbung, who claim to be clan leaders of Nakise clan, also of Ru village;

· the second defendants, Eremas Paliu and Savulu Palu, who claim to be clan leaders of Otho clan, of Lavege village;

· the third defendant, Stettin Bay Lumber Company Limited, the company conducting timber operations on Gimomi-Lapo;

· the fourth defendant, Peter Ramute, the West New Britain Provincial Forest Officer, an officer of the National Forest Service.

The third and fourth defendants are adopting neutral positions. It appears that the third defendant just wants to conduct its operations without disruption and satisfy its obligation to pay royalties at fixed intervals, calculated according to the volume of timber harvested. It pays the amount calculated to the fourth defendant, who then distributes it to the landowners. The fourth defendant is obliged to ensure that the royalties are paid to the right clans; but other than that, I gather that the fourth defendant is not supporting any particular clan or individual.

The dispute is really only between the plaintiff, on the one hand, and the first and second defendants, on the other hand. The dispute is about two things. First, which clans are entitled to receive royalties? Secondly, which individuals are entitled to represent or act as agents for each clan? The plaintiff says that his clan – Evusovul – is the only one that should be receiving the royalties; and that he is the authorised agent for his clan. The first and second defendants say that the royalties should be shared amongst three clans – Evusovul, Nakise and Otho; and that the plaintiff is not authorised to act for any of them. The dispute centres on interpretation of an agreement between the three clans registered in 1994 under the Land Disputes Settlement Act.

The plaintiff commenced these proceedings on 20 October 2004 by filing an originating summons, seeking the following:

1 a declaration that the mediation agreement of 31 May 1994 is valid and enforceable;

3 an order that the plaintiff and his clan – Evusovul – are to receive all royalties for Gimomi-Lapo.

On 21 October 2004 the National Court (Mogish J) ordered the fourth defendant to pay future royalties for Gimomi-Lapo into the National Court Trust Account, pending trial. That order has apparently been complied with. The plaintiff's lawyer, Mr Waisi, maintains that K173,110.01 has been deposited into the account.

On 26 May 2005 the parties appeared before me to argue the case. Further appearances were made on 7and 24 June and 8 and 21 July 2005.

Four documents were formally tendered in evidence, as shown in the table below. Column 1 gives the exhibit number, column 2 describes the exhibit and column 3 summarises its evidentiary content.

Exhibit	Description	Content
A	Affidavit: Francis Mavu, plaintiff, 19.10.04	States that he is the clan leader and representative of Evusovul clan and that his clan owns Gimomi-Lapo – the third defendant, Stettin Bay Lumber Company Ltd, moved into the area to harvest timber in 1994 – mediation between the plaintiff and the first and second defendants took place in 1994 – agreement was reached that they would all receive timber royalties – however his clan has missed out completely. A number of documents are annexed to this affidavit.
B	Affidavit: Eremas Paliu, joint-second defendant, 16.03.05	States that he is the clan leader of Otho clan and that three clans – Evusovul, Nakise and Otho – are the rightful owners of Gimomi-Lapo – the plaintiff is not a clan leader or agent for Evusovul. A number of documents are annexed to this affidavit.
C	Affidavit: Mathias Moto joint-first defendant, 16.03.05	States that he is the clan leader and clan agent of Nakise, clan – the plaintiff is not a clan leader or landowner for Gimomi-Lapo. A number of documents are annexed to this affidavit.
D1/D2	Payment schedule: Undated	This is a payment schedule for another timber rights purchase area, Koroko-Manseng

In addition to the formal exhibits I have found it necessary when making findings of fact to have regard to a number of other documents filed in these proceedings, in particular the affidavit of Seri Mitige, a lawyer with the PNG Forest Authority.

There was only one piece of oral evidence: sworn testimony by Penias Togiao, land mediator. He is one of the two land mediators who mediated the dispute between the three clans in 1994.

As indicated above this case is mainly about the interpretation and application of an agreement, the existence of which is not disputed. There are, however, some disputed facts. So it is best that I clearly spell out the facts as I have found them, bearing in mind that the plaintiff has the onus of proving them, according to the civil standard of proof, on the balance of probabilities.

The story begins in 1994 when the third defendant, Stettin Bay Lumber Company, expressed interest in starting logging in Gimomi-Lapo. The various clans with an interest in the land apparently had a dispute about who owned the land and who would be entitled to timber royalties. So it was decided to have the dispute mediated by land mediators under the Land
Disputes Settlement Act.

Two land mediators mediated the dispute: Penias Togiao, who gave evidence in these proceedings, and Gabriel Goloki, who has since died. The mediation took place from 25 to 31 May 1994. Agreement was reached and recorded in the following terms:

During mediation questions were raised by the mediation group as to who owns the land and response as that the land is owned by the same three clans only and mediation closed at 11.30 am.

Gimomi is a huge land area within Manseng however during that time there were no landowners of the land following a court order between Ubae and Lavege village as they are the custodians of the land only and both had the right to use or claim what ever is on the said land.

Name	Clan	Village
Thomas Ringbun Mathias Mota Philip Save Emmanuel Sueli	Nakise Nakise Nakise Nakise	Bereme Ru Bereme Lavege
Pius Lelu Francis Mavu Joky Atis	Evusovul Evusovul Evusovul	Lavege Ru Umoa
Eremas Awul Paliu David Savulu	Otho Otho	Lavege Lavege

2 The three clans are entitled to collect any payment of TRP development levy and also gravel royalties within the Lapo area.

3 They are entitled to control the area as from Kapiura West direction to Koroni Creek east and from Kapiura north to Koroko Manseng south inland direction.

4 The mediation has no power to point out any clan agent to any royalty payments to represent their clan for any payments.

5 Two from each clan to be appointed from Ru, Lavege, Bereme, Sare, Umoa by the three clan members to be their new clan agents.

[signed] [signed]
Penias Togiao Gabriel Goloki
Permanent Land Mediator Ad hoc Land Mediator

The mediation was carried out and the agreement was reached and recorded under Sections 17 (mediation) and 18 (agreements) of the Land Disputes Settlement Act.

On the same day that the agreement was recorded, 31 May 1994, an application to the Local Land Court at Kimbe for approval of the agreement was signed. The application appears to have been made under Section 19 (approval of agreements) of the Land Disputes Settlement Act. Section 19 provides that where the Local Land Court is satisfied that the terms of the agreement are fully understood by the parties, that a substantial majority of the persons comprising the party concur with the terms of the agreement and that the agreement is not in breach of any law or contrary to natural justice or public policy, it may approve the agreement. The agreement then has effect as an order of the Local Land Court. The application was signed by representatives of each clan as follows:

· Mathias Moto, the joint-first defendant, appears to have signed for Nakise clan;

· David Savulu, one of two clan agents recognised in the agreement, appears to have signed for Otho clan.

I say that Mathias Moto and David Savulu appear to have signed as it is difficult to tell exactly whose signatures are on the application and it is not relevant to the current proceedings who actually signed the document on behalf of the Nakise or Otho clans. The important thing to note is that Francis Mavu did sign the application. It became an issue in these proceedings as to the capacity in which he signed. Did he sign as a clan agent or just as a witness? Mr Togiao was asked about this. He explained that after agreement was reached, he asked the parties to provide one person each to sign on behalf of their clan to witness that the agreement had been reached. Francis Mavu signed on behalf of Evusovul clan and the other two signed on behalf of the other two clans. The three of them were all signing to witness or verify that the agreement had been reached. Their signatures on the application did not mean that they were clan agents. The identity of the clan agents was recorded in the terms of the agreement. I accept that as a proper explanation.

Though the application was apparently signed on behalf of the three clans on the same day the agreement was reached, 31 May 1994, there was a delay of more than four months before the application to the Local Land Court for approval of the agreement was actually made. The application and the terms of the agreement attached to it were not certified by the mediators, Penias Togiao and Gabriel Goloki, until 13 October 1994.

In the meantime somebody (it is not clear who) drafted a statutory declaration in the names of Pius Levu (presumably the same person as 'Pius Lelu', one of the clan agents in the agreement of 31 May 1994), Mathias Mato (presumably 'Moto') and Eremas Paliu, stating that they were the recognised clan agents for Evusovul, Nakise and Otho clans of Ru village and that Francis Mavu and Thomas Ringbun should be recognised in the absence of Pius (for Evusovul) and Mathias (for Nakise) 'when needed by the landowners'. There are a number of marks and crosses on this statutory declaration and it is not clear that it has been properly signed.

On 14 October 1994 the agreement was approved by the Local Land Magistrate at Kimbe.

In his affidavit (exhibit A) Francis Mavu suggests that the third defendant, Stettin Bay Lumber Company Ltd, moved into Gimomi-Lapo in 1994 to harvest timber and paid royalties for the next 10 years and that his clan, Evusovul, received nothing. I find that that version of the facts is not correct. The third defendant did not start logging until 2003. Royalties for the period July to December 2003 were K106,403.83. I base that finding on Mr Mitige's affidavit of 25 May 2005, paragraphs 7 and 8. It is not clear when those royalties were paid, who they were paid to, and what other royalties, if any, have been paid. I presume that the plaintiff, Francis Mavu, has been paid nothing; though it is possible that other persons have received some royalties on behalf of Evusovul. I presume that nobody has received any royalties since Mogish J ordered on 21 October 2004 that future royalties be paid into the National Court Trust Account.

In February 1998 Penias Togiao signed three documents regarding 'Lapo TRP'. First, a letter dated 11 February 1998 to the Local Land Magistrate. Secondly, a document dated 16 February 1998 addressed to Evusovul, Nakise and Otho clans. Thirdly an undated document entitled 'Summary of Mediation'. He states in all documents that the May 1994 mediation found that there were three traditional landowners, Nakise, Evusovul and Otho clans, and that their clan agents were confirmed as follows:

· Nakise – Philip Save (Ru village); Manuel Seuly (Lavege) and Mathias Moto (Ru);

· Evusovul – Gerard Sou (Bereme) and Michael Vua (Lavege);
· Otho – Eremas Paliu (Lavege) and Kurah Liu (Lavege).

In the third document he states that "Pius Lelu and Francis Mavu tupela ipapa long Mansing TRP". I interpret that to mean: 'Pius Lelu and Francis Mavu are landowners and agents for the Manseng TRP [a different TRP to Gimomi-Lapo].

Mr Togiao signed all documents under the letterhead of Posela Private Land Mediation Service. He was asked in evidence what Posela was and why he had prepared the documents. He said that Posela was a business that he formed as he was not always paid for his services as a land mediator. He prepared the documents because people asked him to, to clear up the ongoing disputes about Gimomi-Lapo, and some people missed out. "This dispute is non-stop", he said. The documents are not evidence that there was another mediation in 1998. The only mediation and agreement concerning Gimomi-Lapo was in 1994.

Rather than clarifying the terms of the 1994 agreement, Mr Togiao's 1998 documents seem to have added to the confusion. The clan agents he identified are not the same as those in the 1994 agreement. Significantly, there is no mention of Francis Mavu, other than in the third document where he suggests that Francis Mavu and Pius Lelu belong to the Manseng TRP.

The next thing that happened officially was on 18 February 2004 when the Local Land Court Magistrate at Kimbe, Mr Joe Voku, wrote a letter to the PNG Forest Authority headed 'Ownership – Gimomi-Lapo TRP'. Mr Voku advised that the Local Land Court had on 14 October 1994 endorsed an agreement, which then became a decision of the Local Land Court. Mr Voku stated that the decision specified the owners of Gimomi-Lapo as the Nakise, Evusovul and Otho clans and listed the clan representatives as the same persons identified in Mr Togiao's three 1998 documents. This meant that there was no mention of Francis Mavu (not even to say that he was linked to the Manseng TRP). Mr Voku added that no appeal court has ever overturned the decision of 14 October 1994 and that the temporary order of 16 February 2004 (it is not clear who made that order) is discharged and ineffective. He concluded: "Disregard all other correspondences and pay the royalties respectively."

1 Is the agreement of 31 May 1994 valid, enforceable and legally binding? (This addresses the first relief sought by the plaintiff in the originating summons.)

2 Which clan or clans should be paid timber royalties for Gimomi-Lapo? (This addresses the third order sought by the plaintiff in the originating summons.)

Mr Waisi, for the plaintiff, submits that the agreement became an order of the Local Land Court when it was approved. It has never been appealed against. Therefore it is valid and enforceable.

Evusovul clan should receive all future royalties for Gimomi-Lapo, as they have so far missed out completely and spent a lot of money in bringing these proceedings. In the alternative, he seems to submit that Evusovul should, at least, receive all the money that is presently in the National Court Trust Account (which he maintains is K173,110.01); and then receive a one-third share of future royalties.

As to which individuals are authorised to act for Evusovul, Mr Waisi submits that it is only the plaintiff, Francis Mavu, as he was the clan agent who signed the application for approval of the agreement on 31 May 1994. He signed as a clan agent, not as a witness, and this means that he is entitled to receive royalties on behalf of Evusovul. His authority to receive royalties has not been altered by the actions of Mr Togiao who in 1998 compiled a new list of clan agents. Mr Togiao altered the terms of the agreement, which he had no power to do; and he did so because of undue influence by the first and second defendants. So the 1998 list of clan agents has no legal effect and should be disregarded, Mr Waisi submitted.

Francis Mavu remains the only authorised clan agent and therefore all royalties for Evusovul should be paid to him, to be received by him on behalf of the clan.

Mr Linge, for the first and second defendants, does not dispute the legality of the 31 May 1994 agreement. However he emphasises that the principal focus of the agreement is to specify which clans own Gimomi-Lapo. The agreement makes that clear: Evusovul, Nakise and Otho.

The agreement does not purport to appoint clan agents, as that issue is a matter for each clan to sort out. The persons who signed the application for approval of the agreement – including Francis Mavu – are not automatically clan agents. The members of each clan can change a clan agent at any time. In any event when Francis Mavu signed the application he merely signed as a witness, not as a clan agent. As it happened, Evusovul changed their clan agents, who are now Gerard Sou of Bereme and Michael Vua of Lavege. They have been receiving royalties since 2003. Francis Mavu is no longer a clan agent for Evusovul. He and his brother, Pius Lelu, are already receiving royalties from the Manseng TRP. Mr Linge relied on Mr Togiao's oral testimony and the affidavit of Mathias Moto to support that claim. It is inequitable and incongruous for individuals to claim customary ownership of different parcels of land and receive multiple royalties.

I will now consider the relevant law and address the three major issues in turn.

This case is about the terms of an agreement between three clans that was mediated and achieved in 1994. The mediation was carried out by authorised land mediators appointed under Part III (mediation of land disputes) of the Land Disputes Settlement Act. Section 15(1) (powers and functions of land mediators) states:

The primary function of a Land Mediator is to assist in the attainment of peace and harmony in the Land Mediation Division or Divisions for which he is appointed by mediating in, and endeavouring to obtain the just and amicable settlement of, disputes.

(a) a dispute exists as to interests in land situated wholly or partly within the area of the Land Mediation Division or Divisions for which he is appointed; and

a Land Mediator may mediate the dispute if no other Land Mediator has been appointed, or has commenced, to mediate the dispute.

If an agreement is reached between the parties to a dispute as to the whole or part of the dispute, the Land Mediator shall—

(b) unless he thinks it inappropriate to do so—record the terms of the agreement; and

(c) ensure that the terms of the agreement are understood by the parties and are formally and publicly acknowledged by or on behalf of the parties; and

(d) where the terms of the agreement are recorded—forward a copy of the record to the nearest Local Land Court.

(1) The parties to an agreement may apply to a Local Land Court to have the agreement approved.

(2) On receiving an application under Subsection (1), the Court shall make such inquiries as it thinks necessary to ensure that—

(b) where a party to the agreement consists of more than one person, a substantial majority of the persons comprising the party concur with the terms of the agreement; and

(3) Where the Court is not satisfied as to any matter specified in Subsection (2), it may—

(b) by order direct the Land Mediator who mediated the dispute or another Land Mediator specified in the order to conduct further mediation, with, if it thinks fit, a direction as to how any defect in the original agreement might be overcome.

(4) Where further mediation has been carried out under Subsection (3)(b) and an agreement has been reached and recorded, the parties may re-apply to the Court to have the agreement approved in accordance with this section.

(5) Where the Court is satisfied as to the matters specified in Subsection (2), it may approve the agreement.

(6) An agreement approved under Subsection (5) has effect as an order of a Local Land Court made under this Act.

In the present case the agreement of 31 May 1994 was approved on 14 October 1994 and therefore has effect as an order of the Local Land Court. Such orders are otherwise made under Part IV (local land courts) of the Act.

(1) Subject to Section 44, an order of a Local Land Court made under this Part is, as between the parties and all persons claiming through them, conclusive evidence that the interest or interests in the land the subject of the dispute that is or are specified in the order may be exercised by the person or group of persons named in the order as being the person or group of persons vested with the interest or interests.

(2) An order under Subsection (1) is not a bar to any claim of right by any person to exercise any interest other than the interest, as set out in the order, over the land or part of the land the subject of the order.

(3) An order under Subsection (1) has effect, subject to Section 59, from the date on which it is made. The primary function of a Land Mediator is to assist in the attainment of peace and harmony in the Land Mediation Division or Divisions for which he is appointed by mediating in, and endeavouring to obtain the just and amicable settlement of, disputes.

Section 44 (variation of orders) allows a party to apply to the Local Land Court for variation of an order if it can be shown that circumstances have changed so that enforcement of the order is causing hardship. An application for variation cannot be made within 12 years after the date of the order and can only be made by a party who was originally a party to the dispute or by a party claiming through such a party.

There is a right of appeal from an order of a Local Land Court given by Part V (provincial land courts). Section 54 (appeal against decision of Local Land Court) states that a person aggrieved by a decision of a Local Land Court may appeal within three months after the decision to the Provincial Land Court. The powers of the Provincial Land Court are prescribed by s 59 (powers on appeal). Section 60 (effect of decision on appeal) states that the decision of the Provincial Land Court on an appeal from a Local Land Court is final and is not subject to appeal. That provision would, however, have to be applied in the light of s155(3)(a) (the national judicial system) of the Constitution, which states that the National Court has an inherent power to review any exercise of judicial authority.

I consider that the agreement recorded on 31 May 1994 suffers from being poorly drafted and rather vague, but not to the extent that it is invalid or unenforceable. The agreement was mediated and its terms recorded in a way that is compliant with the Land Disputes Settlement Act. An application under Section 19(1) was made for approval of the agreement. The Local Land Court at Kimbe, upon being satisfied of the matters prescribed by s 19(2), approved the agreement under s19(5). On 14 October 1994 it took effect as an order of the Local Land Court. There has been no application for variation of the order (that cannot be done until 14 October 2006, anyway). There has been no appeal to the Provincial Land Court (that had to be done by 14 January 1995). The agreement of 31 May 1994 is therefore valid, enforceable and legally binding.

To be precise, the agreement has, since 14 October 1994, taken effect as an order of the Local Land Court. Therefore per force of s.43, the agreement is:

· conclusive evidence, as between the parties to the agreement and all persons claiming through them, that the interests in Gimomi-Lapo specified in the agreement may be exercised by the person or group of persons named in the order as being the person or group of persons vested with the interest or interests; and

· is not a bar to any claim of right by any person to exercise any interest other than the interest, as set out in the agreement, over Gimomi-Lapo.

The agreement of 31 May (and therefore the order of 14 October) 1994 clearly states that the customary landowners of Gimomi-Lapo are Evusovul, Nakise and Otho clans. Though not expressly stated it is sufficiently implied that ownership – and with it the right to receive timber royalties or other resource payments – is split evenly between the three clans. The plaintiff's claim (being the third remedy sought by the originating summons) that he and/or Evusovul clan are entitled to receive all royalty payments for the Gimomi-Lapo timber rights purchase area has no merit and is rejected.

WHICH INDIVIDUALS ARE AUTHORISED TO ACT AS AGENTS CONCERNING TIMBER ROYALTIES?

This seems to be the most contentious issue. On the one hand, as explained earlier, the plaintiff says he is the only authorised clan agent for the Evusovul clan, as he is named in the agreement, he signed the application for approval as clan agent and his subsequent removal from the list of clan agents was illegal. On the other hand, the first and second defendants say that the agreement did not appoint clan agents, that the plaintiff only signed the application for approval as a witness and that it lies within the power of each clan to change their agents from time to time.

To resolve this issue it is necessary to examine the terms of the agreement. I reiterate that it is poorly drafted and, at first glance, ambiguous. The agreement is recorded in two parts. The first part, 'record of mediation', begins with the words "mediation commenced from 25 May ..." and continues to the end of the table that gives names and villages of clan agents for each of the three clans. The second part, 'decision', consists of five numbered paragraphs. This part of the document contains the more meaty material. It contains the actual terms of the agreement, in contrast to the first part, which describes the land that is the subject of dispute and records the mediation procedure. Paragraphs 4 and 5 address the issue of clan agents, as follows:

4 The mediation has no power to point out any clan agent to any royalty payments to represent their clan for any payments.

5 Two from each clan to be appointed from Ru, Lavege, Bereme, Sare, Umoa by the three clan members to be their new clan agents.

· This mediation process has no power to appoint clan agents to represent clans for the purposes of receiving royalty payments.

As for the clan agents whose names appear in the table in the first part of the agreement, I infer that they were the individuals – including the plaintiff, on behalf of Evusovul – who took part in the mediation. The inclusion of a person's name in the table does not mean that that person is a clan agent for purposes other than the mediation and agreement. The agreement, and Local Land Court order, does not purport to appoint any clan agents. I have arrived at that interpretation by considering the document on a stand-alone basis. That it is the correct interpretation has been reinforced by the oral testimony of Mr Togiao, who indicated that appointment of clan agents is a matter for the members of each clan to sort out. The ambiguity arising from the loose drafting of the agreement has been resolved.

That means that when, on the day of the agreement, 31 May 1994, Francis Mavu signed the application to the Local Land Court for approval, he did so as a representative of the Evusovul clan. I do not think it matters what label is put on him at that point. Both counsel regarded it as a crucial issue – whether he signed as clan agent or as a witness – but I do not see it that way. He was one of the clan agents or representatives who took part in the mediation. He was one of the clan agents or representatives who signed the application. He was therefore a witness to the agreement and a witness to the application. All of those labels are appropriate. He did not acquire any additional rights or responsibilities by signing the application form. The Land Disputes Settlement Act does not say who has to sign an application under Section 19(1). So he acquires no particular status by having signed the application.

I am led to the conclusion therefore that clan agents were not appointed by the agreement or order of the Local Land Court Order. I reject Mr Waisi's submission that the plaintiff's signing of the application means that the plaintiff is entitled to receive royalties on behalf of Evusovul. I uphold Mr Linge's submission that the appointment of clan agents is a matter for each clan to determine.

That means that when, in 1998, Mr Togiao re-entered the scene and distributed a new list of clan agents, he was not necessarily acting unlawfully or improperly or in a way contrary to the 1994 agreement. It appears that he was just passing on information that had been conveyed to him by some members of each clan. The mistake he made was that he was notifying all and sundry who the clan agents were, without indicating what authority he was acting under or explaining how the new clan agents were appointed.

That information is also not before the court in these proceedings. So it is not possible to immediately resolve the third issue, ie it cannot be said with any certainty who is entitled to receive royalties on behalf of the Evusovul clan. Nor, I add, can it be said with certainty who is entitled to receive royalties on behalf of the Nakise or Otho clans.

The declaration sought in paragraph 2 of the originating summons – that Francis Mavu was a party to the application for approval – will not be granted. Though he was a party to the application, in that he signed the form, that has not changed his status or given him any additional rights and responsibilities. It would only confuse things more, to make the declaration sought.

In the preceding paragraphs I have used the epithets 'confusing' and 'ambiguous' on a number of occasions as that is the best way to describe the uncertainty that has surrounded Gimomi-Lapo. The seeds of uncertainty were sewn in 1994 by the loosely drafted agreement and the apparent failure by the three clans – particularly Evusovul – to record how their clan agents would be appointed.

I intend to make some orders aimed at clearing up the uncertainty, confusion and ambiguity. I do not think it would be helpful for the National Court, having become seized of this dispute, to confine itself to 'yes' or 'no' answers to the relief being sought in the originating summons. The disputing parties have come to court to resolve their grievances in a peaceful and orderly way and they should be encouraged to continue doing that. This is an imbroglio that will only be solved with clear and definite orders, crafted in accordance with s155(4) of the Constitution, which confers on the National Court inherent power to make, in such circumstances as seems to it proper, such orders as are necessary to do justice in the circumstances of the particular case.

1 The agreement between the Evusovul, Nakise and Otho clans of 31 May 1994, regarding Gimomi-Lapo, as approved by the Local Land Court order of 14 October 1994, is valid, enforceable and legally binding.

4 The members of each of the Evusovul, Nakise and Otho clans must meet and nominate three clan agents for the purposes of receiving royalty payments in respect of Gimomi-Lapo and determine how royalty payments are to be received by each clan and distributed to the members (eg by the opening of a bank account in the name of the clan, with the three clan agents being authorised signatories to the account, with any two of them to authorise withdrawals).

5 A document evidencing the above matters in relation to each clan must be filed and served by 7 September 2005.

6 Upon being satisfied that each document is satisfactory, the court will make an order to give effect to it.

(a) Linge Lawyers will assist the first and second defendants and the other members of the Nakise and Otho clans;

(a) the Public Solicitor, through his Kimbe-based lawyer, Mr O Oiveka, will assist the members of the Evusovul clan other than the plaintiff. (I make this request as I am not satisfied that the plaintiff is representing the interests of the other members of Evusovul and I think this is the sort of case in which the court would be justified in giving a direction to the Public Solicitor to provide legal aid, under s.177(2)(b) of the Constitution.)

Lawyers for the plaintiff : Parkil Lawyers
Lawyers for the defendants: Linge & Associates.
Lawyers for the third defendant: unrepresented.
Lawyers for the fourth defendant: unrepresented.

Papua New Guinea Law Reports

Mavu v Moto [2005] PGLawRp 20; [2005] PNGLR 411 (25 August 2005)