Wafihawa v Hosea [2022] PGNC 418; N9967 (23 September 2022)

N9967

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

HR (WS) 697 OF 2019

BETWEEN:
SIXTUS WAFIHAWA representing himself
and members of Hamandogum/Abusivi
clan of Saundogum Village
Plaintiff

AND:
CAMILUS HOSEA representing himself
and Rofumi clan of Rofundogum village
First Defendant

AND:
THE SECRETARY FOR THE
DEPARTMENT OF LANDS
Second Defendant

AND:
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Defendant

Waigani: Narokobi J
2022: 23 June, 23 September

HUMAN RIGHTS – Constitution, Section 57 (Enforcement of guaranteed rights and freedoms) – s 53, Protection from Unjust Deprivation of Property.

The plaintiffs sue the defendants for unjust deprivation of their property contrary to s 53 of the Constitution. They allege that the State surveyed the portions of customary land without their consent.

Held:

(1) To determine whether there was unjust deprivation of property contrary to s 53 of the Constitution, three issues should be resolved to determine whether there was unjust deprivation of property:

• Who owns the property?;
• How the acquisition of the property was done, and if so when?;
• If it was acquired, was it on just terms or was there just compensation paid?
  

(2) In this particular case, the ownership of the property was not certain and there was no evidence of acquisition of property and therefore the claim was dismissed with each party to bear their own costs.

Cases Cited:
Reference by the Ombudsman Commission Pursuant to Constitution, Section 19(1), Re Public Money Management Regularisation Act 2017 (2020) SC1944
Yal v Mission of the Holy Ghost (New Guinea) Property Trust (2017) N6530

Statutes Cited:
Land Dispute Settlement Act, Ch 45

Counsel:

Ms. G Kubak, for the Plaintiffs
Mr. E Ellison, for the First Defendants
Mr J Bakaman, for the Second and Third Defendant

JUDGMENT

23^rd September, 2022

1. NAROKOBI J: The Plaintiff Sixtus Wafihawa represents himself and the members of Hamandogum/Ambusive Clan of Suandogum Village, Kubalia in East Sepik Province. They are claiming breach of their rights under s 53 of the Constitution, that he and his clan were unjustly deprived of their property.
   
2. They sue Camillus Hosea and the Rofumi Clan of Rofundogum Village as the First Defendant, and the Secretary for Department of Lands and Physical Planning as the Second Defendant, and the State as the Third Defendant.
   
3. The claim relates to an area known to the Plaintiffs as, “Yakameri,” “Mambis,” “Nyarogu,” “Hwinjaruo,” and “Wariba,” being portion 20, Kubalia, Wewak, East Sepik Province which the State purchased under a Native Land Dealing arrangement and each specific area was given NLD numbers 1859, 1860, 1861, 1943 and 1944.
   
4. The Plaintiff says that their forefathers received payment for Portion 20 from a Patrol Officer called John Taylor in 1966. I gather that, they are asserting that since, their forefathers received payment for these portions of land, they are the rightful owners of Portion 20.
   
5. The Plaintiff is concerned with two areas – “Yakameri,” or NLD No 1943 and Maebai or NLD No 1943. The essence of their grievance is that there was a re-survey done in 1998 of the Kunai grass/savannah land which covers land parcels Yakameri and Maebae, and it was done without their express consent – either the Plaintiff Sixtus Wafihwa or his clan members. The Plaintiff says the survey of 1998, survey plan 3/573 clearly overlaps parcels of land for Maebae NLD 1943 and Yakameri 1944, Portion 20 of Milinch of Kubalia and can be the subject of cancellation if they succeed in this claim.
   
6. The First Defendant says that the Plaintiffs clan, Hamandodum/Asive are the customary landowners of Wariba, Hwinjaruo and Nyarogu only. They say that Maebai clan is owned by the First Defendant’s clan, the Rofumi clan and the Yakameri land is owned by the Numuindohum clan of Rofyndohum Village. They go on to say that in 1998, the Land Investigation Report and Survey Plan 3/573 by the Department of Lands and Physical Planning registered portion 160C and 161C road access which now accommodates Sausoo Council Chambers, Kubalia Secondary School and Telikom Tower in Kubalia Station, Yangoru Saussia District, East Sepik Province. Importantly, the First Defendant says that the Local Land Court on 25 June 2009 declared that customary land described as Yakameri, Maebae and Portions 160C and 161C are customary lands belonging to Rofumi Clan of Rofundohum Village, Sausso LLG, Yangoru Saussia District, East Sepik Province. They say that the survey in 1998 was conducted to lands outside the boundaries of then Portion 20, now Portion 138 and the results are now Portion 160C and 161C road access. They then say that according to the records of the Survey Section of the Department of Lands and Physical Planning and the National Archives, payments were made for Niyarogu, Waribia and Hwinjaruo only, which are in Portion 138, but used to be Portion 20.
   
7. The Second and Third Defendants says that they have a right to conduct survey on State land. If there was a re-survey outside of the five NLDs into portions of customary land, then they have to prove where the excess occurred and then prove their ownership.
   
8. The issue that I must determine is whether, there was unjust deprivation of the Plaintiff’s property pursuant to s 53 of the Constitution. I have had recourse to the decision of the Supreme Court in Reference by the Ombudsman Commission Pursuant to Constitution, Section 19(1), Re Public Money Management Regularisation Act 2017 (2020) SC1944 to guide my discussion on this issue. To do that I have to determine three issues:
   
   • Who owns the property?;
   • How the acquisition of the property was done, and if so when?;
   • If it was acquired, was it on just terms or was there just compensation paid?
     
9. The property the subject of the dispute is known as Maebae and Yakameri, allegedly contained in Portion 20.
   
10. I must remind myself that if it is customary land, and the matter concerns disputes over who owns the parcel of customary land in dispute, then I will not have any jurisdiction to determine ownership.
    
11. In the case of Yal v Mission of the Holy Ghost (New Guinea) Property Trust (2017) N6530 Justice Cannings made this statement which I endorse:
    

“31. The defendants argue that the subject of this case is ownership of customary land, therefore the National Court has no jurisdiction and the proceedings are an abuse of process.

32. I agree that the National Court does not have original jurisdiction concerning questions of ownership or control of customary land (The State v Lohia Sisia [1987] PNGLR 102). However, as I have said in a number of cases (Roderick Tovo Bibilo v Gerard Balbagara (2008) N3291, Galem Falide v Registrar of Titles (2012) N4775, Doriga Mahuru v Hon Lucas Dekena (2013) N5305) a distinction must be drawn between two sorts of land cases:

• those in which there is a dispute about whether land is customary land or competing claims to ownership of customary land;
• those in which the dispute centres on interpretation or application of previous court decisions or judicial or quasi-judicial determinations as to the status of land or its customary ownership.

33. Only in the first category does the National Court lack jurisdiction. Cases falling in that category must be dealt with by statutory bodies and courts such as the Land Titles Commission, the Local Land Court and the Provincial Land Court. The National Court retains jurisdiction if the case falls into the second category. It does not lose jurisdiction simply because the proceedings happen to relate to land which was once customary land (Joe Koroma v Mineral Resources Authority (2009) N3926).

34. The present case does not fall into the first category as the Court has not been called upon to decide whether Portion 625 is customary land or which of competing parties are the owners of customary land. Everyone including the plaintiffs accept that Portion 625 (and subsequently Portions 1349 and 1350) is no longer customary land.”

12. The preliminary question I have to determine is whether there are competing claims to customary land, in which case, I would not have jurisdiction to determine and therefore the claim must fail from the outset. Additionally, and importantly, it will mean that the Plaintiffs have not established that they own the property, and it therefore precludes them from making a claim under s 53 of the Constitution.
    
13. The affidavit of the Plaintiff filed on 5 June 2020 he says the following:
    

“4. During the colonial administration there were five parcels of land within close vicinity of Kubalia station and this is confirmed by the search I conducted which proves that there are five parcels of land under Portion 20 Milinch of Kubalia.

5. In order to confirm and consolidate those 5 Land Parcels, acquired from Suandogum People, a survey was conducted in 1966. On the 24^th of May 1968 the land was register]ed as 1. Waribia 2. Nyarogu 3. Hwinjaruo. 4. Maibae 5. Yakameri, all under Portion 20 – Kubalia. Each individual Land Parcel has its own NLD Numbers as 1859, 1860, 1861, 1943 & 1944. The massive Kunai Land or Grassland/Savannah Land covers two separate land parcels registered as MAIBAE & YAKAMERI with their own separate NLD Nos under Portion 20- Milinch of Kubalia. All 5 Land Parcels were recorded in National Archive office.

6. I further confirm that after the survey plan was completed, on the 26^th of September 1966 Patrol Officer Kieran John Taylor paid $108.00 to the people of Hamandogum Clan of Suandogum Village. The Land improvement pay for the cash crops was paid to Jumuira Krinduo, Fokomu Sausianakna, Jonduo Wabiwa, Kaniaka Horori, Fekisae Kuakan, Semenjo Kousa, Naguso Baiferi, Kous Baiferi, and Harigofia Hupmangui (refer to NLDs 1860, 1861 and 1859).

7. It cannot be denied that Portion 20 Milinch of Kubalia is inclusive of 5 parcels of land mentioned above as indicated in the LAND ACQUISITION FILE 63/356. However, after the initial survey map of 1966 it was resurveyed in 1998 without the express consent of the Plaintiff or his clan members. This facts is also confirmed by East Sepik Provincial Administration Lands Officer Mr Caspar Wangi and former Officer in Charge of Kubalia Sub-District of Kanauki.”

14. This is in essence is the evidence of the Plaintiffs as to their claim of the ownership of the said portions of land, the subject of this case.
    
15. What do the First Defendants say about this? Camillus Hosea in his affidavit of 29 January 2020 provides this. That affidavit which is exhibit D1 annexes the decision of Provincial Magistrate Singomat dated 14 January 2011, delivered in Wewak, East Sepik Province. In that case His Worship at paragraphs 7 to 11 states the position of the Plaintiff now in the District Land Court. I highlight the pertinent points here in my summary of that decision:
    
    1. Honjeriwi (Land in Dispute) is part and parcel of the state lease that was surveyed and demarcated in 1968 and that is known as “Wariba” and
    2. The 2009 Local Land Court without proper cause refused to allow certain of their (appellants) witnesses which amounted to Local Land Court not properly exercising its jurisdiction, and
    100. That the recent survey map 1998/1999 was done without notice been given to them (Appellants and people of Suadogum Village;
    4. That the government officers, Peter Yapok, Camillus Kawi and the Land Surveyor failed to consult the Land Boundary Survey 1968 done by John Taylor, concerning the land, “Waribia”
       
16. Part of His Worships reasons for dismissing the Plaintiffs case are set out in paragraphs 24, 25 and 26:
    

“24. The Appellants have contended that the Court ought to accept that Honjeriwi land is part and parcel of Waribia State Lease. Such is mere speculation. They (Appellants) have not established otherwise by Survey Map isolating the whole area of the land mass including “Honjeriwi” land (in dispute).

25. Only a qualified cadastral surveyor would demarcate between the whole “Waribia” State Lease and can also identify and dissect (on the map) the parcel of land named “Honjeriwi.”

26. In the absence of such evidence and taking into account the existing evidence of 1998/1999 survey map before this court to which judicial notice was given, the contention that the disputed land, “Honjeriwi” is part of Waribia State land must fail.”

17. From all the evidence, there is no dispute that the land is customary land.
    
18. After comparing these two pieces of evidence, I am left with the impression that there is a dispute as to who owns the parcel of land. The fact that the Plaintiff knowingly chose to name the First Defendant, who has been his main antagonist suggests to me that it is not straightforward matter. If it was a straightforward matter, the State would have been named as the only Defendant and will be sued for not paying just compensation for acquiring state land.
    
19. The issue of the initial survey in 1966 versus the recent survey in 1998 that featured in the Local Land Court, and then to the National Court and appealed to the Supreme Court has again featured in this case. This is clear from His Worship Magistrate Singomat’s decision, which I have quoted above.
    
20. In order for me to make some sense of what is going on, I ask the same question that was asked in the District Land Court - which part of the land surveyed in 1998 is the traditional customary land of the Plaintiffs that falls outside of the customary land that was decided in favour of the First Defendant? There is simply no evidence to guide me to this. All I have is the Plaintiffs claiming that they were not consulted before the survey was done.
    
21. The best that the Plaintiff can do is to initiate proceedings under s 51 of the Constitution for the State to produce information from the archives it needs to assist them clearly understand where their land ends, and where the First Defendant’s land is situated. Then they will need to have a survey done to show how of the area was encroached into. As it is, I have no evidence to conclusively say that the Plaintiffs’ own the land the subject of the proceedings, such that it can make a claim for unjust deprivation of property.
    
22. Even if I am wrong on this point, the Plaintiffs must also show that the State has acquired the land. There is no evidence that the State has acquired the land and issued a Section and Allotment and registered it with the Registrar of Titles. The State has also submitted that it has not acquired the land yet, so it is not required to pay compensation to the customary landowners. There is therefore no basis to hold the State responsible.
    
23. My overall conclusion is that the Plaintiffs are using the wrong forum to agitate their claim. I am not satisfied on the balance of probability that they have persuaded me that their portion of land exists outside of the land awarded to the First Defendants. Even if they do, it appears to be disputed and the proper forum for this would be under the mechanism established under the Land Dispute Settlement Act, Ch 45. I therefore dismiss this case, and order that each party will bear their own costs. I do this for the simple reason, that parties have chosen to come to court to resolve their dispute rather than to take the law into their own hands as often happens in the country and this is to be encouraged.
    

________________________________________________________________
Kubaka and Kubak Lawyers: Lawyers for the Plaintiffs
Luther’s Lawyers: Lawyers for the First Defendants
Solicitor-General: Lawyers for the Second and Third Defendant