Dagari v Gasom [2024] PGNC 39; N10692 (22 March 2024)

N10692

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS NO. 676 OF 2019

BONGA DAGARI for himself and on behalf of Mangu Clan of Astrolabe Bay, Raikos, Madang
First Plaintiff

PHILIP PAPAIM for himself and on behalf of Gomblom Clan of Astrolabe Bay, Raikos, Madang
Second Plaintiff

MARTIN GOSSIBE for himself and on behalf of Marmer Clan of Astrolabe Bay, Raikos, Madang
Third Plaintiff

-V-

STABIE GASOM
Defendant

Madang: Narokobi, J
2024: 22^nd March

LAND LAW – dispute as to ownership of customary land – Jurisdiction of the National Court - Orders sought for dispute to be resolved under the Land Dispute Settlement Act – Orders Sought Appropriate to be Issued

The plaintiffs are seeking declaratory orders against the Defendant over a portion of land described as Malemu Plantation Portion 423 Milinch Bogadjim Fourmil Madang, located in Astrolabe Bay in Raikos District of Madang Province. The land is about 140ha in size.

Held:

1. Since the plaintiffs are asking for orders to preserve the status quo and for the question of ownership of customary land to be determined under the process established by the Land Dispute Settlement Act, it was considered appropriate to make orders sought, except for those orders which the court was not satisfied on the evidence, should be made.
   

Cases Cited:
Masoe v Tugan (2024) N10686

Counsel:
Mr D Wa’au, for the Plaintiffs
No appearance for the Defendant

DECISION

22^nd March 2024

1. NAROKOBI J: The plaintiffs are seeking declaratory orders against the Defendant over a portion of land described as Malemu Plantation Portion 423 Milinch Bogadjim Fourmil Madang, located in Astrolabe Bay in Raikos District of Madang Province. The land is about 140ha in size.
   
2. The land was acquired by the State for a plantation in 1976 from associations known as Kurenduk Bangliu-So and Galmagi Business Groups. According to the plaintiff’s evidence the state wishes to return the land back to the customary landowners because the land has not been used. The defendant has been holding himself out to be the customary owner of Malemu Plantation.
   
3. The plaintiffs are asking the court to declare the business groups as non-existent, to have the defendant restrained from dealing with the land and for process for determination of the customary land ownership under the Land Dispute Settlement Act to be engaged to determine who the legitimate customary landowners of the land are to receive the land from the State.
   
4. The following affidavits were tendered by the plaintiffs and the defendants:
   

No	Date	Affidavits Tendered by the Parties	Exhibit No
	19.06.23	Affidavit of Martin Gosiba, filed 02.12.19 and sworn on 14.11.19	“P1”
	19.06.23	Affidavit of Philip Papaim filed 02.12.19 and sworn on 27.10.19	“P2”
	19.06.23	Further Affidavit of Martin Gossiba, filed 03.12.19 and sworn on 28.11.19	“P3”
	19.06.23	Affidavit of Mapoi Rasik, filed 107.10.20 and sworn on 22.09.20	“D1”
	19.06.23	Affidavit of Tugu Kokila, filed 07.10.20 and sworn on 22.09.20	“D2”
	19.06.23	Affidavit of Garu Pariwa, filed 07.10.20 and sworn on 22.09.20	“D3”
	19.06.23	Affidavit of Tua Guta, filed 07.10.20 and sworn on 22.09.20	“D4”
	19.06.23	Affidavit of Kiki Doum, filed 07.10.20 and sworn on 22.09.20	“D5”
	19.06.23	Affidavit of Stabbie Gasom, filed 04.12.20 and filed on 22.12.20	“D6”

5. The plaintiffs say that the defendant is not a genuine landowner by custom as he does not originate from Bongu area. He is misusing the name Kurenduk to obtain ownership over Melamu Plantation. They say that the proper person are members of Marmer, Gomblom and Mangu Clans of Bongu Village.
   
6. The defendant’s evidence questions the representative capacity of Bonga Dagari, Philip Papaim and Martin Gossiba. They say that these persons are not really from Bongu Village. They came from other parts of Madang and settled in Bongu. They therefore have no standing to represent the village.
   
7. I am reminded that I have no jurisdiction to determine customary landownership, and I quote from the recent decision from Cannings J in Masoe v Tugan (2024) N10686 where he says at paragraph 6:
   

6. The general principle is that the National Court has no jurisdiction to hear and determine disputes concerning ownership by custom of any land, including disputes concerning whether land is customary land or the boundaries of customary land. Such disputes fall within the jurisdiction of the Land Titles Commission under the Land Titles Commission Act or Land Courts established under the Land Disputes Settlement Act. The leading case in support of that principle is the Supreme Court decision in The State v Lohia Sisia [1987] PNGLR 10. The principle has been applied in numerous National Court cases, eg Ronny Wabia v BP Exploration Operating Co Ltd [1998] PNGLR 8, Lavu v Thompson & NBPOL (2007) N5018, Thomas Taiya Ambi v Exxon Mobil Ltd (2012) N4844. It has been reconfirmed by the Supreme Court in Kimas v Loa [2015] 2 PNGLR 568.

8. But this is not really a case concerning dispute over customary land. All it seeks is to maintain the status quo while ownership is adequately determined under the process of land mediation under the Land Dispute Settlement Act. It falls into the category that Cannings J discussed again in Masoe v Tugan at paragraph 7 of the decision:

7. However, as I indicated in Roderick Tovo Bibilo v Gerard Balbagara (2008) N3291, Galem Falide v Registrar of Titles (2012) N4775 and Mahuru v Dekena (2013) N5305, a distinction must be drawn between two types of land cases:

(a) those in which there is a dispute about whether land is customary land or competing claims to ownership of customary land; and

(b) those in which the dispute centres on interpretation or application of previous judicial decisions as to the status of land or its customary ownership.

9. This is a case that relates to State land, to be returned to the customary landowners, and who should be the legitimate owners for the land to be returned to. I will therefore proceed to deal with the case as one, in which the National Court has jurisdiction.
   
10. There is nothing preventing me from granting the orders the plaintiffs seek. It is only fair that the question of ownership is fairly contested. Plaintiffs are not claiming outright ownership of the land. All they are asking for is that the appointed process is utilised to determine ownership. It may well be the case that the defendant also has an interest in the land. Let the process under the Land Dispute Settlement Act decide that question.
    
11. The only difficulty I have is to grant the orders sought in paragraph one and two of the originating summons, that is that Kurengu Banglau So and Galmagi – Goraga Business Groups are defunct and have no interest to deal with the Malemu Plantation Land. In my view the plaintiff has not adduced sufficient evidence to support this claim.
    
12. I will therefore make the following orders:
    
    1. The defendant is restrained from holding himself out and representing himself as owner of Malemu Plantation Land, described as Malemu Plantation Portion 423 Milinch Bogadjim Fourmil Madang, located in Astrolabe Bay in Raikos District of Madang Province and is further restrained from dealing and transacting with the land.
    2. The plaintiffs and the defendant are to register their dispute forthwith under the process stipulated in the Land Dispute Settlement Act to determine who is or are the legitimate customary owner(s) of Malemu Plantation Land, described as Malemu Plantation Portion 423 Milinch Bogadjim Fourmil Madang, located in Astrolabe Bay in Raikos District of Madang Province.
    3. The defendant, his servants and agents are restrained from threatening, intimidating and harassing the plaintiffs and their family members.
    4. Each party will bear its own costs.
    5. Matter is considered determined, and the file is closed.
    6. Time is abridged.
       

Judgment and orders accordingly.

DFW Lawyers: Lawyers for the Plaintiffs
Thomas More Ilaisa Lawyers and Attorneys: Lawyers for the Defendant