DC     
PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE
SITTING IN IT’S LOCAL LAND COURT JURISDICTION]
LLC  24 of 2019
BETWEEN
SOLOMON MEGARAKA, JOE IRANA AND OTHERS OF THE TUTUBU VILLAGE, DOMARA VILLAGE AND MERANI VILLAGE
Applicants

AND
LAUSI DUMA, ALPHONSE SUMANU, MILAN KOVE, ISOA SIU, THOMAS KOVE KAMUNA AND DOMARA FOUR CLANS
Respondents

Moreguina:  L Wawun-Kuvi			

2020:  28 July, 16 November 2020
        

LOCAL LAND COURT- Jurisdiction- Power of the Local Land Court to hear a matter referred by the National Land Commission where there has already been an award?

Cases Cited
Gabi V Nate [2006] PGNC 178; N4020 (30 November  2006) 

Legislation
Land Dispute Settlement Act
National Land Registration Act
Land Titles Commission Act 
16 November 2020 
L Wawun Kuvi, Local Land Court Magistrate: 
1.	Land is more than a place. For our people in the village who live in harmony with the land and who toil the land for survival, it is so much more. It is more than a rock, a tree, a mountain, a river, or a sea. It is our ancestor, it is our future, it is our identity, our family and our culture. It is who we are. The spirits of our ancestors become it, are it and guard it. Blood continues to be shed as we sit here today applying colonist laws of land ownership. Without land we dissipate to nothing; with land but seeing it as nothing more than a money making opportunity, we become nothing more than a pack of stray mongrels shedding blood over a bone. 
2.	For people who have no cultural ties to land it is nothing more than commodity which is bought and sold. An asset to make profit from, a way to make a living off or simply a home. They have no relationship to it. This is what land acquisition has done to the indigenous people of the land.
3.	History says that the peoples of the land in which Moreguina Township is built were mighty warriors, head hunters. They were a proud people whose warriors proved themselves worthy to a bride by cutting of the finger of their first kill and presenting it to their beloved.
4.	Gone are those days for the children of Moreguina are now left squabbling of monetary settlement whilst their land is no longer their land.
5.	This is the case today. This is the case in which everyone has come to hear whether they are in the right place or they should go elsewhere in search of fortunes hoped.
6.	That is what this case is really about.
7.	There is no dispute that the Land is alienated land having been acquired by the Crown on 28 January 1908.
8.	The conflict between the parties arose because of settlement payments offered by the State through the machinery of the National Lands Commission.
History
9.	One would not fully graph the present matter without first reviewing how it meandered its way to the Local Land Court. Meander is the only description I can find that amply describes how a clearly defined process formed tributaries and sent parties into a sink hole. 
10.	The Land in dispute is the Moreguina Government Station and Community Centre, located in Abau District, Central Province.
11.	The National Court case of Gabi V Nate [2006] PGNC 178; N4020 (30 November 2006) provides a road map of events prior to the matter being remitted to the Local Land Court.
12.	The case involved the challenge by the State on excess compensation payments made by the then Chief Commissioner to customary landowners of now alienated land.
13.	The case of Manobo Community School and Moreguina Government Station was one of the cases that the State alleged that the award was in excess. The case is referred to in the judgement by Injia J as case 22, the file reference being OS 668 of 2004 - The State –v- Milan Kove & Ors.
14.	Justice Injia joined all the cases together in Gabi v Nate stating that the issues were the same. For those that had some separate issues he addressed them separately in his judgement.
15.	The decision in Gabi v Nate is very clear. His Honour at paragraph 60-66 discussed the issue of duplication of awards and re judicata. He stated that the NLC lacked power or jurisdiction under the Act to review or revisit its earlier award. His Honour stated at paragraph 62:
“62. In my view, NLC is not given any power under the Act to revisit its earlier award. Once an award is made, it is final unless set aside by a Court of competent jurisdiction either on appeal under s.46 or upon a successful application for judicial review in the National Court.”[Emphasis mine]
16.	His Honour found that (1) the principle of res judicata applied to NLC decisions and (2) that the awards replacing awards over the same land was res judicata and should not have been made.
17.	He gave the benefit to the initial awardees and found that the conflicting issues of customary land ownership were adequately addressed by the NLC.
18.	He then addressed individual issues peculiar to each case.
19.	His Honour at paragraph 124 to 128 address issues peculiar to case 22 or OS 668 of 2004 - The State –v- Milan Kove & Ors relating to Manabo Community Centre and Moreguina Township.
20.	On 8 December 1988, Mori-Bouguina-Moreguina Government Station and Manako Community Centre Land was declared National Land by notice in the National Gazette.
21.	On 28 July 1999, the third respondent logged their claim.
22.	 On 12 October 1999, NLC awarded K921, 000.00. When the matter went to the National Court another group Ukandi Clan represented by Aiado Darei and Alphonse Sumam claimed interests in the land and were joined as second plaintiffs. 
23.	 It was argued that there were 8 conflicting claims and the matter should have been referred to the Local Land Court for resolution under the Land Disputes Settlement Act.
24.	His Honour stated at paragraph 125, in referring to his earlier decision in paragraph 66 that the conflicting issues were adequately addressed by the NLC. The effect of which is that the award given to the third respondent and NLC was obligated under law to pay the award. 
25.	The Court in essence held that the matter was to be reverted back to the NLC to award the third respondent but in compliance with the amount prescribed by law.
26.	 Following the decision in Gabi v Nate in 2006, a peculiar set of events transpired resulting in the matter reaching the Local Land Court. 
27.	What actually transpired in National Land Titles Commission is unclear however on 2 August 2018, the National Lands Commission referred the matter to the Local Land Court pursuant to s 43 (1) (a) of the National Land Registration Act.
28.	On 29 August 2019, Solomon Megaraka filed an fresh application for Local Land Court hearing.
29.	On 15 November 2019, Willie Kove Kamuna filed a fresh application for Local Land Court hearing.
30.	The case has been adjourned before a number of Local Land Court Magistrates until it reached this Court on 28 July 2020.
31.	On 28 July 2020, I discussed with the two appointed mediators as to the course of action to be taken and we were in agreement that the matter be determined on jurisdiction. Having perused the file, it became apparent that the issue is one of law. The application of law and the jurisdiction of the Court rest solely on the Magistrate. There is no determination of ownership.
32.	I now proceed to determining the issue of jurisdiction.
Jurisdiction of the Local Land Court
33.	The only way that the Local Land Court is permitted to proceed to rehear a matter that was before the National Lands Commission ‘NLC’ is by virtue of section 43 of the National Land Registration Act 1977.
What is the difference if any between the Land Titles Commission ‘LTC’, National Land Commission ‘NLC’ and the Provincial and Local Land Court?
34.	The National Land Registration Act creates the statutory body National Land Commission.
35.	The Land Titles Commission Act 1962 creates the Land Titles Commission. 
36.	The Provincial and Local Land Courts are created by the Land Dispute Settlement Act (Chapter 45).
37.	The National Land Commission purpose amongst others is to provide for a compensation mechanism for customary land that was acquired for public purpose or simply by the State.
38.	The Land Titles Commission conducts investigation into whether a claim to usage and or ownership is customary land or not.  
39.	The Provincial and Local Land Courts are established to provide a just, efficient and effective machinery for the  settlement of disputes over customary land
40.	At first glance it may appear that the functions of the three bodies are inconsistent. However on closer reading it becomes apparent that the three legislations are complementary.
41.	The Land Titles Commission Act 1962 affords powers to the Local Court to make determinations under the Act as well. 
42.	The Local Courts must not be confused with the Local Land Courts. They are separate entities. The Local Court’s (Repealed) Act 2000 repealed the Local Courts. This effectively means that section 15 of the Land Titles Commission Act 1962 has no effect. 
43.	In any event Section 66(3) of the Land Disputes Settlement Act (Chapter 45) makes it clear that where there is established a Local Land Court, Local Courts have no jurisdiction.
44.	Furthermore, section 66 of the LDSA provides that the Land Titles Commission does not have jurisdiction where there is a Local Land Court established for an area.
45.	It now appears that as of 18 November 2019 following the gazettal of Provincial and Local Land Court areas, the Land Titles Commission has jurisdiction in most if not all of Papua New Guinea.
46.	Section 66 (1) (b) of LDSA makes it clear that once a Local Land Court is established the Land Titles Commission must inform the Provincial Land Court of all matters before it, that have not been determined.
47.	Section 27 (4) provides that the Local Land Court shall not conduct a hearing where there has already be an order made by a Provincial Land Court, a Local Land Court or the Land Titles Commission.
48.	It is clear from this varying section so far that:
1.	The National Land Commission’s makes awards after determination has been done by either the Land Titles Commission or the Local Land Court.
2.	The Land Titles Commission is not permitted to conduct hearings in an area where there is established a Local Land Court.
3.	When a Local Land Court has been established, the Land Titles Commission must inform the Provincial Land Court of all outstanding matters. This is mandatory. To continue to sit would be ultra vires or outside of the law.
4.	The Local Land Court has no power to hear a matter that has already been decided by a Provincial Land Court, Local Land Court or the Land Titles Commission.
49.	 Part VII of the National Land Registration Act which creates the NLC or National Lands Commission sets out express directions in relation to the powers of the Local Land Court and the Land Titles Commission ‘LTC’ as they relate to National Land.
50.	National Land, as in the present case, is land that was once customary land but was acquired by the State through the process created under s 9 and 13 of the NLR Act.
51.	It is important at this juncture to look at the process under section 9 and 13 of the Act. It is relevant as the Land subject of this proceeding was declared National Land on 8 December 1988.
How does Land become National Land?
52.	In relation to Land acquired before Independence:
1.	Where Land was obtained by a by a pre-Independence Administration and it is required for a public purpose, the Minister will issue a Notice in the National Gazette and through all other modes of communication necessary to ensure that all parties receive the Notice, giving his intention that the Land will be declared National Land.  
2.	The Notice will specify the Land and its description, specify the estate acquired, a dispute if there is one, and inform any parties that have any challenged, to lodge their challenge within 60 days of the date of the publication of the Notice. 
3.	A person who is aggrieved or disputes the notice, has 60 days to convey his grievance to the Minister. The 60 days is calculated from the date of publication but it conditional on the Minister ensuring that the notice has been broadcasted using all modes specified under section 52 of the Act.
4.	The Minister will ensure that the Notice of Intention was published using all mode of communication under section 52 of the Act. Following which if any will determine any grievances raised and from there proceed to declare that Land as National Land. This is done 3 months from the date of publication of the Notice of intention to declare land as National Land.
5.	There is no right of appeal of review after the declaration is made and the decision cannot be called into question in any legal proceedings.
6.	There is no compensation for a declaration that land is National Land.
7.	A person who is aggrieved is permitted to make a claim for settlement payment before the National Land Commission.  That claim must be made within time.
53.	The process for Land acquired on or after Independence is the same as post acquisition. The only difference is that there is no provision for appeal or review or claim.
What is the process under Part VII of the National Land Registration Act?
54.	Section 47 and 48 provides the process and procedures for matters before the Land Titles Commission under the Land Titles Commissions Act.
55.	Section 49 deals with the process for matters that are before mediation, Local Land Court or Provincial Land Court under the Land Dispute Settlement Act.
56.	The process is basically the same and where they differ I will make clear.
57.	When a declaration is made under s 9 that Land is National Land, the LTC or Land Titles Commission , the Land Mediators, the Local Land Court and the Provincial Land Court have no jurisdiction over that Land.
58.	The LTC or Land Titles Commission. or the Provincial Land Magistrate  as the case may be must notify the National Lands Commission or NLC of all claims past and pending relating to the Land.
59.	Where proceedings started before the Land Titles Commission or before a Land Mediator, Local Land Court or Provincial Land Court prior to the declaration, those proceedings are transferred to the National Lands Commission for hearing of the claim following the process under Part VI.
60.	Where there is an appeal pending before the National Court from a Land Titles Commission decision at the time of declaration, the National Court shall determine the appeal.
61.	Where there was an application for review to the Chief Commissioner of the Land Titles Commission at the time of declaration, the National Lands Commission shall determine the review.
62.	The Registrar shall not register the Land as National Land until the appeal is determined or the review has been completed.
What is the effect of Gabi v Nate?
63.	 Justice Injia was clear in Gabi v Nate, the awards were already done by NLC. NLC being a creature of statue has no power to revisit or rehear an award.
64.	His Honour accepted that an award was already made and remitted the matter only for the State to make payments in accordance with law.
65.	The Acting Chief Commissioner had no powers to refer the matter back to the Local Land Court for determination of conflict.
66.	The parties should have appealed the decision of Justice Injia in Gabi v Nate.
67.	The Local Land Court has no powers to hear this matter. The consequential effect is that any applications made by parties during the course of this matter have no basis.
68.	The Application for fresh hearing under the Land Dispute Settlement Act by Solomon Megaraka and Willie Kove Kamuna filed on 29 August 2019 is an abuse of process not only because the Local Land Court has no power but also because the matter came by referral from the Land Titles Commission. It is not a fresh matter.
What is the effect of the declaration by the Minister in 1988 over the subject land as it relates to the Local Land Court presently?
69.	The Local Land Court has no power to deal with this matter. This is a matter that falls solely within the powers of the National Land Commission and any decision of the Commission should be taken up at the National Court. 
70.	Obviously as seen in Gabi v Nate the Commission already made an award.
71.	I find that the matter was wrongly referred to the Local Land Court.
Where should parties be?
72.	It is quite unfortunate that this matter was allowed to be on the list for so long without a determination as to jurisdiction.
73.	It is incumbent as Magistrates for the sole reason if nothing else that as creatures of statue to make a determination of jurisdiction before directing parties to file documents for or in preparation for hearing.
74.	This is especially so in Local Land Court matters because lawyers are not permitted. And further in light of cases where the State declared the Land to be National Land or there is an NLC or LTC determination.
75.	There is no right of Appeal from the decision of the National Land Commission. However considering that it is a quasi-judicial body, the process of Judicial Review is available. 
76.	In my humble view, at this juncture only the National Court can settle whether the award should be made or not.
77.	The National Land Commission has failed the parties by not complying with the Orders of the National Court to award and proceeded to revert the matter to a court that has no power to deal with the case.
78.	I say in passing that, the initial award was K921, 000.00. However, the National Court has made it clear that that was above and beyond what the law says should have been the award. It must be made abundantly clear to everyone present that there really is no money to be made or gained. Considering that the money is clan money, at the end of the day, the cost so far since the matter went before the National Land Commission has exceeded what may be the final award tenfold or even more. Everyone’s dreams and hopes for this case is nothing more than El Dorado’s gold.
Orders:
79.	The Orders of the Court are as follows:
1.	The matter remitted by the National Lands Commission on 2 August 2018 for hearing on conflicting issues is dismissed for want of jurisdiction.
2.	The Application for fresh hearing under the Land Dispute Settlement Act by Solomon Megaraka filed on 29 August 2019 is dismissed for abuse of process.
3.	The Application by Willie Kove Kamuna filed on 15 November 2019 is dismissed for abuse of process.
Lawyer for the Applicants Self Represented 
Lawyer for the Respondents Self Represented