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Provincial Land Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE PROVINCIAL LAND COURT OF JUSTICE]
PLC. No: 03 of 2021
BETWEEN
John Mondo for himself and on behalf of the Saikou Clan
Appellant
AND
Vincent Dau for himself and on behalf of the Tarawa Wawa Clan
01st Respondent
AND
Steven Moses for himself and on behalf of the Tarawa Wawa Clan
AND
02nd Respondent
Kimbe: S.Lavutul
Mediators: Nil
2021: 09th, 13th, 14th September
PROVINCIAL LAND COURT PRACTICE & PROCEDURE- Section 50 Land Dispute Settlement Act –Section 54 (1) “Aggrieved Party” – Section 58 Grounds of Appeal – Provincial Land Court – Appeal from Local Land Court Decision – Approval of Agreement – Validity of Agreement – Section 18 LDSA – Agreement after mediation and recorded by Land Mediators – Section 19 LDSA – Approval of Agreement – inquiry into matters required before endorsement –process and requirements on approval of agreement – Section 20 LDSA – Effects of Agreements – Court Orders upon endorsement by Local Land Court – Section 59 LDSA- Appeals from the Local Land Court – Powers of the Provincial Land Court.
Cases Cited
References
Land Dispute Settlement Act
National Constitution
Counsel
REASONS FOR DECISION
15th September 2021
Samuel Lavutul - Principal Magistrate; The Appellant in this matter is John Mondo for himself and on behalf of the Saikou Clan of Tarawa village, West Kove, Kimbe, West New Britain Province. Whilst the Respondents are Vincent Dau and Steven Moses for themselves and on behalf the Tarawa Wawa clan of Tarawa village, West Kove, Kimbe West New Britain Province.
2. Apart from the Appellant and Respondents the newly interested parties in this proceeding are the Augitno clan of Inland Kaliai of Kove and the Nutanavua clan of the Kove Tribe – Kaliai LLG, Kandrian Glouster District, West New Britain Province. The respective spoke persons for the newly interested parties are Francis Mara and Joe Aka. The newly interested parties are seeking the court in order to join this proceeding as parties with customary interests over the said Tarawa Wawa Land should the court upheld the Appeal and quashed the Local Land Court decision through the endorsed Application for Approval of Agreement dated 17th December, 2020 and remit the matter back to the Local Land Court for rehearing.
3. The Appellant John Mondo aggrieved by the Local Land Court decision dated the 17th of December, 2020 in accepting and endorsing the Application for Approval of Agreement with the Respondents without his presence filed an Appeal on the 18th of December, 2020 pursuant to Sections 54 (1) and 55 of the Land Dispute Settlement Act. The Appellant raised the following grounds of Appeal;
1. That the Local Land Court exceeded or refused to exercise its jurisdiction
2. That the Local Land Court conducted its hearing in a manner contrary to natural justice.
3. That in the circumstances of the case no court doing justice between the parties would have made the decision appealed against.
4. In the case of appeal against a decision given under Section 40, the order for return of the interests in land or grant equivalent interest or interests was not supported on the facts.
Background
3. By way of background this Appeal is over an Application for Approval of Agreement filed before the Kimbe Local Land Court dated the 15th of December, 2020 by Respondents Vincent Dau and Steven Moses. The Application for Approval of Agreement was co -endorsed by the Applicants/Respondents, Land Mediators Emmanuel Nuli, Tobias Kolokolo and Local Land Court Magistrate Ben Tanewan on the 17th of December 2020.
4. And for the records in that on the 07th of May 2019 in the matter of John Mondo v- Steven Moses & Vincent Dau (2019) DC4025 (and I refused to discuss the details of this particular proceeding by the previous Provincial Land Court), however I only wish to restate the conclusion and directions in terms of the orders in the following;
“In consideration of all the circumstances of this particular case, the law and the case precedents on the issues raised and alluded to above, I find the following;
“I make the following as formal orders of the Kimbe Provincial Land Court;
5. The findings and orders above paved the way for the current matter to be remitted back to the Local Land Court to order for mediation. Back tracking the records on the Local Land Court file specifically the Records of Mediation dated 02nd of November 2020 co – signed by Mediators Emmanuel Nuli, Tobias Kolokolo, and Linus Mataio, Land Mediation meetings were held on the 24th of May, 2019, 26th of October 2020 and 28th of October, 2020. On record the Deputy Chief Magistrate Lands, Mark Selefkariu including the Land Court Clerk at the Kimbe District Court were involved in the inspection of the said land and its boundaries including witnesses from other clans namely, Ben Michael of Gualu Clan, Simon Mangai of Mongamonga Clan, James Robin of Gilo Clan, and Joe Bola of Kamasapulo sub-Clan including the Appellant and Respondents. I further noted from the records there was no Agreement reached.
6. As a direct result of the failure to reach an agreement on the 02nd of November, 2020 the dispute was referred to the Kimbe Local Land Court by Mediators, Emmanuel Nuli, Tobias Kolokolo and Linus Mataio of the Talasia/Bali/Vitu Land Mediation Division for hearing.
7. The referral to the Local Land Court was based on the following reasons as per the notation on the signed Referral Form dated 02nd November, 2020;
8. I concluded from these notations by the Land Mediators the mediation was not successful and a formal referral was done on the 02nd of November, 2020 in order for the matter to be heard and ownership to be determined by the Kimbe Local Land Court.
9. I further noted from the records in the Local Land Court file No. 03 of 2020 a letter written by one Mr. Leo Ganza, the West New Britain Provincial Coordinator Land Mediation Services on the 03rd of November, 2020 addressed to the Presiding Magistrate, District Land Court, Kimbe, West New Britain Province with reference titled RE: “REFRRED CASES FOR LOCAL LAND VINCENT DAU TARAWA WAWA CLAN VS JOHN MONDO SAIKO CLAN TARAPA VILLAGE WEST KOVE.”
10. I also noted on the 3rd paragraph of Mr. Leo Ganza’s letter of the 03rd of November, 2020 in which he stated, “Their finding during the course of the mediation was final and successful on mediation record 26th – 28th of October 2020.” And he went on to recommend in his letter to the Presiding Magistrate in paragraph 4 stating, “Finally, after reading through the Mediation Field Visit reports, I recommend the court should favor the report with its decision to Tarawa Wawa Clan Leader, Mr. Vincent Dau as the owner of the disputed land to deal with any new development in the future based on the support of many witnesses evidence provided by the Tarawa Wawa Clan to the mediation panel” and he went on to conclude by saying, “Kindly appreciate your good court decision”
11. I am of the view the letter by Mr. Leo Ganza; Provincial Coordinator Land Mediation Services have directly influenced the filing of the purported Application for Approval of Agreement dated the 15th of December, 2020 and formally endorsed by the Local Land Court on the 17th of December, 2020 a direct contradiction to the Mediation Report filed by the Land Mediators. I wish to put on record and sound a warning to the West New Britain Provincial Land Mediation Secretariat; that it refrains from writing directly to any presiding magistrate with recommendations regarding any customary land disputes which could influence the independence of the court.
12. For the records I have perused and given considerations to all the affidavits, submissions and other documents filed herein; however some may not be relevant to the issues before this court for now.
Deliberations
13. Firstly I will deal with the first issue on whether or not the Approval of Agreement dated 15th of December 2020 was entered into in compliance with the requirements of Sections 18 and 19 of the Land Dispute Settlement Act?
14. I agree with counsel for the Appellant the law pertaining to the endorsement of Approval of Mediation Agreement is well settled in this jurisdiction.
15. Section 18 stipulates; (1) If an agreement is reached between the parties to a dispute as to the whole or part of the dispute, the Land Mediator shall–
(a) record that an agreement has been reached; and
(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.
(2) Where the terms of an agreement include agreement as to the location of a boundary, the Land Mediator shall–
(a) as far as practicable, walk the boundary with the parties; and
(b) unless he thinks it impracticable to do so, direct the parties–
(i) to inform him of all prominent natural features located on the boundary; or
(ii) to mark the boundary in such manner and with such marks as he thinks appropriate; and
(c) record the boundary in such manner as he thinks will enable it to be readily identified; and
(d) record the names of not less than three witnesses who are prepared to testify to the position of the boundary as determined in the
agreement.
(3) A Local Land Court to which a record is forwarded under Subsection (1) shall forward copies of the record–
(a) to the Provincial Land Court for the province in which the land is wholly or partly situated; and
(b) on request, to any Local-level Government in whose area the land in dispute is wholly or partly situated; and
(c) on request, to the parties to the dispute or any of them.
16. Section 19 of the Land Dispute Settlement Act stipulates; APPROVAL OF AGREEMENTS.
(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–
(a) the terms of the agreement are fully understood by the parties; and
(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
(c) the agreement is not in breach of any law, or contrary to natural justice or public policy.
(3) Where the Court is not satisfied as to any matter specified in Subsection (2), it may–
(a) mediate between the parties in order to reach a satisfactory agreement; or
(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.
17. As per my reading of Sections 18 and 19 of the Land Dispute Settlement Act it calls for mandatory compliance by Land Mediators and Local Land Court Magistrates pertaining to Agreements and Approval of Agreements.
18. I am of the view in any Application for Approval of Agreement before the Local Land Court all disputing parties named in the dispute and who entered into an agreement or some agreements pertaining to interests in customary land must be present during the hearing of the Application for Approval of Agreement. And that the court including mediators must ensure to clearly explain the terms and conditions if any and its effects prior to and after it is being endorsed and translated into a Local Land Court order.
19. In the matter before me and on the face of the records the Appellant John Mondo was not physically present in court for the Application for Approval of Agreement on the 17th of December, 2020. The copy of the Agreement before the Court does not have the signature of the Appellant which clearly indicates he was not present and he was not a party to the Agreement. I agree with counsel for the Appellant it is clear from the record the Respondents, Vincent Dau and Steven Moses who signed the Form 10 Agreement are members of the same clan. The Local Land Court including the Land Mediators and Respondents erred and breached the strict and mandatory requirements under Sections 18 and 19 of the LDSA; as per affirmed by the views in the matters of John Mondo v- Steven Moses & Vincent Dau (2019) DC4025 and Lou v- Soni (2020) PGPLC 1: DC4058
20. I am also of the view that the Local Land Court conducted its hearing in a manner contrary to the principles of natural justice.as per the view in; Gaigo on behalf of Laurina Clan & Ors v. The State [1979] PNGLR 202. The Appellant was not accorded the right to be heard when endorsing the Application for Approval of Agreement on the 17th of December, 2020; and in the circumstances of the case no court doing justice between the parties would have made the decision appealed against.
Ruling One (1)
21. I therefore invoke my powers pursuant to Section 59 of the Land Dispute Settlement Act of 1975 in that;
(1). The Appellant’s Appeal is upheld
(2). The Approval of Agreement (Form 10) endorsed by the Kimbe Local Land Court on the 17th of December, 2020 is quashed
(3). The Dispute is remitted back to the Kimbe Local Land Court for re-hearing of the common boundary of customary lands between Saikou Clan, Tarawa Clan, Auwitno Clan, Palua Clan, Nutanavua Clan, Taipader Clan and Kuma Clan
(4) The matter is to be set before another Local Land Court Magistrate.
(5). Parties to bear their own costs.
22. I will now deal with the Notice of Motion filed and dated 21st of May 2021 on behalf of Applicants, Francis Mara and Joe Aka of the Nutanavua Clan and Augitno clan of Inland Kaliai of Kove – Kaliai LLG, Kandrian Glouster District, West New Britain Province respectively.
23. The Applicants in their motion are seeking the Court for the following orders;
1. Pursuant to section 50 (2) (a), (c ), (d) and (e) of the Land Dispute Settlement Act 1975, leave be granted to two (2) interested parties/applicants to be joined as parties to this appeal proceeding, namely,
1]. Augitno 1 Land Group Incorporated and Augitno 2 Land Group Incorporated
2]. Francis Mara for and on behalf of members of the Nutanavua Clan.
24. In support of the application counsel for the Applicants filed submissions on behalf of the Augitno Clan and Nutanavua Clan seeking the court to include them as parties to the substantive dispute over customary ownership of Tarawa Wawa land the subject of the dispute. They submit they have sufficient interests in the land boundary of Tarawa Wawa land.
25. Counsel for the Applicants submits in the affidavits of Pius Saurio and Francis Mara in support of their application filed on 21st of May, 2021, the following evidence show and prove that the Augitno clan and Nutanavua Clan have sufficient interests in the land boundary. In that the Augitno clan through their registered land groups signed Consent Forms with PNG Forest Authority and Logging contractor Cakara Alam PNG Limited and it is based on this consent forms that the Logging Contractor started logging operations in the Gaho Malasa FMA Logging Project in the year 2018.
26. Counsel for the Applicants further submits that on or about the month of August 2020 the Applicants after conducting a file search at the Kimbe District Court Registry, they discovered Augitno clan land were included in the sketch maps used by both Tarawa Wawa clan and Saikou Clan in the Land Court matter LLC. No 06 of 2019; in the matter between John Mondo and Vincent Dau.
27. I have perused all of the Applicants’ supporting affidavits and annexures and find it overwhelming; yes the Applicants have sufficient interests in the matter, it may also include any other clans who are not named in this proceeding. On the contrary, I have also perused and gave considerations to the submissions by Respondent Steven Moses on behalf of himself and his Tarawa Wawa clan and I find no objections to this application by the Augitno Clan and Nutanavua Clan. I am of the view the Respondents despite not expressing it in their affidavits and submission they are fully aware of the Applicants interests.
28. In conclusion, I am of the view in this instant where parties to a dispute shares a common boundary or where there is a likelihood a decision of the Local Land Court could affect them; they all should be included initially through the mediation process in order to avoid any such applications at this stage of the proceedings.
Ruling Two (2)
29. I therefore find in favour of the Applicants and I grant them leave to join as disputants to the pending substantive customary land dispute before the Kimbe Local Land Court between the Tarawa Wawa Clan and the Saikou Clan.
Orders
(1). The Appellant’s Appeal is upheld.
(2). The Approval of Agreement (Form 10) endorsed by the Kimbe Local Land Court on the 17th of December, 2020 is quashed
(3). The Dispute is remitted back to the Kimbe Local Land Court for re-hearing of the common boundary of customary lands between Saikou Clan, Tarawa Clan, Auwitno Clan, Palua Clan, Nutanavua Clan, Taipader Clan and Kuma Clan
(4) That the Augitno Clan and Nutanavua Clan to be included as disputants to the pending substantive customary land dispute before the Kimbe Local Land Court between the Tarawa Wawa Clan and the Saikou Clan.
(5) The matter is to be set before another Local Land Court Magistrate at a later date to be fixed by the Land Court Clerk at Kimbe District Court.
(5). Parties to bear their own costs.
........................
Mr. Alex Maribu of Valorem Attorneys, Section 67, Allotment 10, Boroko Drive, P.O. Box 7173 BOROKO, National Capital District.
Ms. Alma Waviha of Waviha Lawyers, Inside Zilu Scientific Limited Building, Section 48, Allotment 07, Bayside Road, P. O. Box 417, KIMBE, West New Britain Province.
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