Tomakala v Meriba [1994] PGNC 142; [1994] PNGLR 10 (25 February 1994)

PNG Law Reports 1994

[1994] PNGLR 10 - Meriba Tomakala v Robin Meriba 

[1994] PNGLR 10

N1247

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

MERIBA TOMAKALA

V

ROBIN MERIBA

Rabaul

Doherty J

9 October 1993

25 February 1994

REAL PROPERTY - Application to convert tenure - Objections by "persons interested" - Who are persons interested?

CUSTOMARY LAW - Self-acquired property - Right of owner to convert to fee simple.

INFERIOR COURTS - Powers of Provincial Land Court in hearing appeal from Local Land Court.

WORDS AND PHRASES - "Persons interested" - Contrasted with "persons affected or likely to be affected".

Facts

The Local Land Court found that the appellant was the sole and exclusive owner of land. The Provincial Land Court upheld that decision but added that his children may apply for an injunction if he tried to bequeath the land to his customary clansmen. He subsequently applied to have it registered under the Land (Tenure Conversion) Act. The children objected. The Land Titles Commissioner upheld their objection, holding that they were "persons interested" under s 9(1)(b) Land (Tenure Conversation) Act. The appellant appealed from that decision.

Held

N1>1.       The Provincial Land Court had no power to both upheld and vary the Local Land Court's decision.

N1>2.       The Provincial Land Court's amendment of the order was only an indication that the children could apply for a discretionary order from the National Court.

N1>3.       A discretionary order is not an "interest" in land.

N1>4.       Only persons with an interest, real or future, are "persons interested" per s 9(1)(b) Land Tenure Conversion Act.

Cases Cited

Olei v Provincial Land Court at Port Moresby [1984] PNGLR 295.

State v District Land Court, ex parte Nuli [1981] PNGLR 192.

Counsel

E Jubilee, for the appellant.

A Marat, for the respondent.

25 February 1994

DOHERTY J:  The appellant appeals against the decision of the Land Titles Commissioner dated 13 April 1992, when the Commissioner did not approve an application of Meriba ToMakala to register land under the Land (Tenure Conversion) Act. The respondent is the son of the appellant and he and others opposed the application. The land and the parties had been the subject of other proceedings under the Land Disputes Settlement Act Ch 45. In reaching the decision, the Land Titles Commissioner applied the provisions of s 9(1)(b) of the Land (Tenure Conversion) Act and ruled as follows:

"As the decision of the Local Land Court determined that Meriba ToMakala's children had the rights of inheritance by custom and as the District Land Court upheld this decision, the Commission determined that the children were persons with rights in the land under s 9(1)(b). As the children were not in agreement with the application, the Commission had no alternative but to refuse the application."

The Local Land Court powers under the Land Disputes Settlement Act are wide. At s 39 they include powers to give exclusive use or possession of land, disposal of land or an interest in land, use or possession of land for limited purposes, growing and harvesting of garden crops, exclusive use of possession of trees or improvements, use or possession of trees, hunting rights, and rights of passage or places to land.

The Local Land Court, in its deliberations, made a decision which reads as follows:

"Before the Court were Meriba ToMakala and another person Meriba ToVae ToPite. The land was Ravava/Nabata and the discision of the court was 'the ownership of the land known as Ravava/Nabata goes to Meriba ToMakala.' The reasons he decided on that where that he developed the land, he bought the land, he spent most of his time and money on the land and the improvements were expensive." (sic)

The Local Land Court then went on to say "the land is solely the property of the old man Meriba ToMakala, he has the power and the authority to make decision as to who has the use of the land". (sic)

That decision was appealed against, and the District or Provincial Land Court upheld the original decision, quashed the appeal, but added that the appellant should be barred from transferring the land to his "vunatarai", which I understand to mean his clan members in accordance with custom, and suggested that, on death, it should pass to his children. However, that is not the actual wording shown in the Provincial Land Court decision. It appears to have been interpreted in that way by the learned Commissioner. The actual decision reads as follows:

N2>1)       That the appeal be dismissed,

N2>2)       The children may, however, in the future take out an injunction order if and when Meriba ToMakala hands the land to his "vunatarai" without proper consideration for his children, who have a right of inheritance to his property.

It does not actually say that the children will inherit the land on his death.

I must concur with counsel and with the Commissioner that this order is confusing. The powers of the Provincial Land Court as stated in s 59(1)(a) of the Land Disputes Settlement Act, are to either affirm the original order or to quash that order. If the order is quashed, the Provincial Land Court may make other orders which, in the opinion of the court, will dispose of the appeal and the dispute or, if justice so demands, remit it for rehearing.

The question of whether a District or Provincial Land Court on appeal can affirm an order and change it has been considered in State v District Land Court, ex parte Nuli [1981] PNGLR 192, s 59(1)(a) was held to limit a Provincial Land Court to affirming the order. It cannot go outside the four corners of the order and amend it. It can only make further orders when it quashes an appeal. It, therefore, cannot uphold and amend.

The learned Commissioner in the case before this Court was clearly bothered by this decision, and I can well appreciate his dilemma. According to counsel, and this appears also from the facts, the parties before this court were originally in unison, or at least in agreement, before the Local Land Court. They appear to have come to dispute only when the land came before the Land Titles Commissioner.

The powers of the Land Titles Commissioner no longer extend to determining title under custom. This jurisdiction is now vested in a Local Land Court under the Land Disputes Settlement Act. In this, I refer to the decision of National Court Justice McDermott in Olei v Provincial Land Court at Port Moresby [1984] PNGLR 295. He has made it quite clear that, once the transitional provisions of the Land Disputes Settlement Act were implemented, the Land Titles Commission powers were changed; and the power to determine title and to hear all disputes concerning claims of ownership by native custom or by rights of native custom, etc, passed from the Land Titles Commissioner and are now vested in the Local Land Court.

I agree with the learned Commissioner when he felt obliged and bound by the decision and the findings of the Local Land Court. When I consider the wording of the order of the Provincial Land Court, which I have quoted, I consider that the wording used is somewhat vague as to time in the future when, or if, the land is likely to be handed over to the "vunatarai". The learned Commissioner referred this dilemma and this situation to the National Court, with questions asking the National Court to determine what should be done. However, no ruling was given by the National Court. I do not know why. The matter eventually was withdrawn because of time constraints.

I consider the wording of the Provincial Land Court decision vague. I do not consider that they had power under the Land Dispute Settlement Act to make that further amendment to the Local Land Court decision, particularly when the Local Land Court had made no findings of inheritance by custom.

The situation before this court is not that the appellant was seeking to pass the land on to someone else. The situation here is that he is seeking registration of the land in his own name. Once it is converted, he would have power to dispose of it as he wishes, either in the present or in the future, away from the constraints of custom. My own view is that that vague recommendation in the Provincial Land Court's ruling did not fetter the Commissioner in the decision that was before him. The situation before the Commissioner was that people other than the applicant were objecting at the hearing to the conversion. The people objecting were the children of the applicant himself. He then refused to approve the registration on the basis that all "persons interested" were not in agreement, and he relied and referred to s 9(1)(b) of the Land (Tenure Conversion) Act. The act itself does not define either "persons interested" or state what constitutes "persons interested".

The intent of the act is set out in a very long preamble, which stresses and repeats several times the intention of the act and the duty of Commission to guarantee and protect the rights of people under native custom. That duty, I will note in passing, was imposed on the Australian Administration when New Guinea became a mandated Trust Territory under the League of Nation. The act stresses the importance and the need of the Commission to protect "land held in accordance with native custom". The expression "persons interested" is used in several sections. Section 8, which is a procedural section, provides that "persons affected or likely to be affected" may appear at the hearing. This expression is not defined either but, given the wide powers in the act, I consider that it is intended to include those with both a future interest and those who are likely to be immediately affected by any decision concerning the land. People who are likely to be affected may object on giving notice in accordance with s 8. One of the arguments in this appeal is that that particular provision had not been conformed with.

I note the difference in the use of the words "persons affected" in s 8, stating who may appear, and "persons interested", whose interest must be considered. I consider that it was a deliberate decision on the part of the legislature to permit those affected to voice their views, but only persons interested have the status to actually restrict or maintain an interest. Once those persons interested are ascertained, their agreement must be determined before the Commissioner can make a decision. I consider that the expression "persons affected" is a very wide expression. In my view, it could range from persons such as neighbours, whose own land could be affected by a use of the land. It could include a planning authority or other statutory group. I consider that the expression "persons interested" is more limited. It is a legal status, and to have a legal status, a person must have an interest. An "interest" is not defined by the act, as I have already remarked, and I look, therefore, to other cases relating to the meaning of "interest."

"Interest" has been held to be more than a mere possibility or an expectancy of an interest. A person is said to have an interest in a thing when he has a right or title or an advantage or a liability connected with it, whether present or future or ascertained, provided it is not too remote. So an interest, which includes both the legal and equitable interest, is something that must be clearly determined. It must be a right.

In the situation before me, the Local Land Court made a decision. That decision which, whilst it may have considered future entitlements and future devolution in custom, stated the land is solely the property of the "old man, Meriba ToMakala." He has the power and the authority to make decisions as to who is to use the land. The order also says ownership of the land goes to Meriba ToMakala. I consider the addition by the Provincial Land Court is both vague and does not vest an interest.

An application to take out an injunction is a matter that is a discretionary one in the National Court and does not vest a right or an interest in the land. I think, therefore, that the Commissioner did not have persons with an interest before him when he had before him the family of the applicant, who might or might not be people ToMakala eventually would leave the land to.

I think the Commissioner was morally correct in his decision. Given a difficult case where family members are disputing among themselves, it is very difficult for an outsider to make a decision acceptable to all parties. But I think, on the law, the Commissioner did not have a definite finding by the Local Land Court and the District Land Court that the children had a right. The Local Land Court said that the appellant had an exclusive right, and the District Land Court, acting outside its jurisdiction under s 59 of the Land Disputes Act, said that the children may apply for an injunction. An injunction is a prerogative writ discretionary in the National Court. I think, therefore, that the people objecting were not "persons interested" within the legal meaning used in the Land (Tenure Conversion) Act and, therefore, they were persons who could not be the subject of the application or have to agree to registration. I, therefore, uphold the appeal on ground 1 and remit the matter to the Commissioner for completion of his determination. Having made that decision, I do not have to consider the other grounds of appeal. I would, again, remark that, faced with the impasse that the Commissioner had, I can see why he made the moral decision he did.

Lawyer for the appellant: Jubilee & Co.

Lawyer for the respondent: Marat & Associates.