Ibung v Apuan [2020] PGNC 470; N8734 (12 November 2020)

N8734

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CIA NO. 76 OF 2019

BETWEEN:
EDDIE IBUNG IBUNG
Applicant/Plaintiff

AND:
ANDREW APUAN
First Respondent

AND:
JOHN HOBBIE
Second Respondent

Lae: Dowa AJ
2020: 11^th August & 12^th November

DISTRICT COURT APPEAL – appeal is based on District court magistrates decision in granting orders, declarations and directions to do with clan lineage and customary land ownership – issues for consideration include whether the Appellant had locus standi to institute the appeal - whether the learned magistrate had the jurisdiction to inquire into and make declarations of clan lineage and land ownership rights - whether there was a proper basis for orders that the Respondent John Hobbie to have 50% of the compensation monies to be paid by PNG Power, and the balance to be shared by the 10 sub clans of the Moansis Isi clan – appellant has sufficient interest and proceedings are competent - His worship fell into error in exercising powers that was not conferred on him - The decision by the District Court magistrate appears to be unreasonable and is quashed –appeal is upheld - matter remitted to the Local Land Court for rehearing

Cases cited:

Katumani ILG v Elizah Yawing & others (2020) N8481
Kimas v Oala (2015) PGSC69, SC1475

Counsel:

K. Kevere, for the Appellant
P. Yama, for the Respondents

DECISION

12^th November, 2020

1. DOWA AJ: This is a decision from an appeal from the Ramu District Court.
   
2. The appeal is against the decision of his Worship N. Bingtau made on 14^th August 2018, in a combined ruling of two proceedings: DC No. 84/2018 between Andrew Apuan -v- John Hobbie and DC No. 85/2018 between Mathias Marigai v Andrew Apuan.
   
3. His Worship made 11 orders, which comprise of declarations, orders and directions.
   
4. The Appellant alleges, the orders were made without regard for customary land rights, clan lineage and leadership structure of the people of Moansis Isi, Moansis Isi sub clan, and Angamp clans represented by leaders, Andrew Apuan, John Hobbie and Mathias Marigai. These leaders represent the different sub-clans who own or have interest over land described as “Ngaru Yunga Land” of Marawasa, Umi/Atzera LLG, Markham District, Morobe Province.
   

APPEAL

5. The proceedings in DC No. 84/2018 was instituted by Andrew Apuan against John Hobbie. The main complaint was to declare and restrain the Defendant John Hobbie and his family from breaking away from Moansis Isi clan to form their own sub-clan.
   
6. The proceedings in DC No.85/2018 was instituted by Andrew Apuan against Mathias Marigai, even though the citations are not correctly shown. Andrew Apuan is seeking declaration and restraining orders against Mathias Marigai from breaking away from Moansis Isi Clan and forming his own Angamp clan.
   
7. After hearing, the District Court upheld the applications of the complainant and made certain declaratory orders as well as restraining orders. The District Court identified 11 clans of Moansis Isi. Amongst the orders, the Court also made an order that 50% of the royalty/compensation payment is to be made to John Hobbie and family and the balance is to be shared by the 10 sub clans of the Moansis Isi clan.
   
8. Aggrieved by the decision the Appellant appealed against the decision of the District Court.
   
9. It is worth noting that, the Appellant Eddie Ibung Ibung was not one of the original parties. However, it is clear he is representing the interest of the Angamp family, previously led by Mathias Marigai.
   

Issues

10. The issues for consideration are:
    
    1. Whether the Appellant, Eddie Ibung Ibung had locus standi to institute the appeal.
       
    2. Whether the learned magistrate had the jurisdiction to inquire into and make declarations of clan lineage and land ownership rights.
       
    100. Whether there was a proper basis for orders that the Respondent John Hobbie to have 50% of the compensation monies to be paid by PNG Power, and the balance to be shared by the 10 sub clans of the Moansis Isi clan.
         

Whether the Appellant Eddie Ibung Ibung has locus standi to institute this appeal

11. Mr Yama submitted that the Appellant Eddie Ibung Ibung was not a party in the District Court proceedings. He is not an aggrieved party to lodge this appeal. He has no standing, and therefore, his appeal be dismissed.
    
12. On the other hand, Mr Kevere submitted that, the original party in the District Court was Mathias Marigai, who was representing the Angamp clan. The Appellant is a member of the Angamp clan. As a member of the clan he is very much affected by the decision of the District Court and he has every right to lodge the Appeal on behalf of the Angamp clan.
    
13. I note that leave was granted to the Appellant to lodge this appeal. I note the proceedings were issued by persons representing clans, against persons who were also representing other clans.
    
14. The decision of the District Court affects the interest of clan members represented by their leaders. It is therefore not unreasonable for a clan member affected by the decision of the Court to take up the case in the form of an appeal as is done in the present case. I am of the view that the Appellant Eddie Ibung Ibung has sufficient interest and therefore the proceedings are competent.
    

Whether His Worship had the jurisdiction to inquire into and make declarations of clan lineage and land ownership issues.

15. Mr Kevere, counsel for the Appellant, submitted that the Learned Magistrate did not hear out Mr Mathias Maragai of Angamp clan properly on clan lineage and customary land ownership. He submitted that the Land Title Commission’s decision in 2005 recognised the Appellants Angamp clan as the major landowner of the Ngaruyunga land and his Worship did not properly consider the evidence that was before him.
    
16. Mr Yama, counsel for the Respondent, submitted that his Worship was only dealing with restraining orders and did not make any substantial decision touching customary land ownership rights.
    
17. I note from the orders of his Worship that the orders are substantial in nature. His worship made declarations of clan lineage, even declaring that the Appellant’s clan was non-existent. His worship made declarations giving due recognition to the First and Second Respondents including ownership rights.
    
18. In my view, his Worship did not have the jurisdiction to deal with clan lineage and customary land rights. The issue of determining customary land ownership and clan lineage is a matter for the Local Land Court under section 26 of the Land Disputes Settlement Act 1975. The procedure to be followed is set out in the Land Disputes Settlement Act, and the Land Titles Commission under Section 15 of the Land Titles Commission Act.
    
19. This is what I said in a recent decision in the case Katumani ILG v Elizah Yawing & others (2020) N8481 at paragraph 28 of the judgment:
    

“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.””

20. I am of the view His worship fell in error in exercising powers that was not conferred on him.
    

Whether there was a proper basis for the orders that John Hobbie be paid 50% of the royalty/ compensation monies.

21. The Appellant submits that there was no reason or proper basis for the orders made by the Magistrate. The Appellant submits that the Angamp clan is the major landowner recognised by the Land Titles Commission when the dispute was first heard. His Worship gave no reasons why the Appellant’s interest was totally ignored, and one family led by John Hobbie was given undue recognition.
    
22. I have perused the Appeal Book and could not find any reasons or basis for his worship’s decision. I note from the submissions of the Respondents where they concede that John Hobbie does not have a claim of his own. If that were so, how is it possible or justifiable for the Learned Magistrate to award 50% of the royalty/compensation monies to be paid to John Hobbie and his family whilst the rest of the 10 clans were to share the balance of the 50%.

I note Order 7 is inconsistent with Orders 3, 4 and 6. His Worship rejects the recognition of the clan led by John Hobbie and yet he gave an order for the allocation of 50% of the royalty payment to John Hobbie. Again, His Worship gave no reasons. In the absence of any reasons, I am inclined to agree with submissions of the Appellant that there is no basis for the decision. The decision appears to be unreasonable and ought to be quashed.

23. For the foregoing reasons, I am inclined to allow the appeal. I will also refer the matter for re hearing by the Local Land Court as requested by the Appellant.
    

Orders

1. The Appeal is upheld.
   
2. The decision of the Ramu District Court made on 14^th August 2018 is quashed.
   

100. The matter is referred to the Local Land Court for the rehearing of the dispute.
     

4. The Respondents pay the cost of the Appeal.
   

________________________________________________________________
Public Solicitor: Lawyers for the Appellant
Kusip Lawyers: Lawyers for the Respondent