DC5059

PAPUA NEW GUINEA
[In the Local Land Court of Mt Hagen]
LLC   7       of 2021

In the Matter of the Land Disputes Settlement Act
AND:
In the Matter of a Dispute over the Customary Ownership of KEIA KUNDMUL, NOTRE DAME
BETWEEN:
STEVEN POLTY 

AND:
ROLGOP POLTY & ELDI POLTY

Mt Hagen	:  L. MESMIN 
  2021		:  23rd February 

LOCAL LAND COURT- Land Dispute Settlement Act 1975 – s.30 Application for Temporary Order – court has no jurisdiction – s.26 and 27 not complied with –requirement for mediation not met – form 8 Referral and form 10 application discussed – application dismissed for an abuse of court process - dispute be referred to the Mt Hagen customary lands office for registration.

Cases Cited
Wabia v. BP Exploration Operating Co. Ltd [1998] PNGLR 8 

References
Land Dispute Settlement Act 1975
Land Dispute Settlement Regulations 1975
 
Counsel
Steven Polty Applicant in Person
Eldi Polty & Rolgop Polty Respondents in Person 

REASONS FOR DECISION
1.	L.MESMIN, a/PM – The parties are disputing over the ownership of Keia Kundmul – Notre Dame, a portion of customary land at Mul District, Western Highlands Province. 

2. This application is made pursuant to s.30 of the Land Dispute Settlement Act (from here-on referred to as the Act) seeking Temporary orders.

3. A formal application was made by way of form 12 of the Act by Mr. Paul Peng, a District Lands Officer, submitting to the court a request for a Temporary order for the following reason:

4. “The applicant urgently requests for a temporary order to stop two of his uncles from interfering with a Digicel Tower put on his land so that the ownership issue be heard quickly to determine rightful customary owner.”

ISSUE
5. Does this Court have Jurisdiction to hear this application at this stage?
If the answer is NO then the matter ends here. If the answer is YES, then the next issue must be addressed.

6. I am inclined to think that the next issue here is not ownership per se.  This is because this is a dispute between members of the same family so I am convinced, even though the parties never mentioned their clan names or tribe names, that the land is vested in their same tribe and/or clan. Therefore the issue is – which of the parties has a higher right to control the land?  And to that end what would the right of control entail? 

LAW
7. The applicable law in the resolution of customary land disputes is the Land Dispute Settlement Act Ch. 45 itself and local custom.  In exercising its jurisdiction the Court is directed by the Act to endeavor to do substantial justice between the disputing parties in accordance with the Act and custom (see ss. 35(3) (d), 68, 69).

8. Section 26 & 27 state:
26. GENERAL JURISDICTION OF LOCAL LAND COURTS.
Subject to Section 3 and 4 and to this Part, a Local Land Court has jurisdiction over and in relation to–
(a) a dispute as to an interest in land where the land in dispute is situated wholly or partly within the province for which the Court is established; and
(b) the approval of agreements under Section 19; and
(c) a dispute to which Section 29 applies; and
(d) any other action or decision that it may be required to take under this Act.

27. LIMITATIONS OF JURISDICTION.
(1) Where a dispute relates to land either wholly or partly in a Land Mediation Area, a Local Land Court has no jurisdiction over the dispute, unless a Land Mediator has certified that he has acted in relation to the dispute and that–
(a) an agreement for which approval is sought under Section 19 is the agreement reached between the parties seeking approval; or
(b) an agreement was reached between the parties by mediation, but the agreement is no longer acceptable to any or all of the parties to the dispute; or
(c) the parties have, in his opinion, made reasonable efforts to reach agreement but have been unable to do so; or
(d) the party applying to the Court has made reasonable efforts to reach agreement but has failed to do so because of some default on the part of the other party; or
(e) in his opinion–
(i) there is no reasonable likelihood of agreement being reached through mediation; and
(ii) there is good reason for the dispute to be dealt with without delay.

9. Sections 26 &27(1) clearly indicate that the Local Land Court cannot invoke its powers to entertain any dispute that arises out of customary land unless the mediation process at the customary level is exhausted first.

APPLICANTS CLAIM
10. In support of this application the complainant, Steven Polty, states that he is currently in the employ of Digicel PNG Ltd – Mt Hagen and has been with them for 11 years. He emphatically claims that the disputed customary land upon which the tower stands is his land. He states that also on this portion of land is his house, food crops and trees and he has never received any complaints until the tower was erected in 2015. In that year, he states that the two Respondents raised an issue as to who the rightful owners were and that, that particular disputed issue has never been resolved or determined.

11. I note that the Applicant never told the Court the name of his specific tribe of clan.
 
RESPONSE TO CLAIM

12.The Respondents, Rolgop Polty and Eldi Polty, on the other hand, argue that, the disputed customary land upon which the tower stands is theirs by customary right and not their late bothers land, Paul Polty, who is the father of Steven Polty. They submit that Steven Polty never at any stage sought their approval when he negotiated with Digicel PNG Ltd to erect a tower on their customary land. They state that their late brother and his family, including the Applicant, were away in other provinces for over 20 years and it was within that time of the Applicants absence that the Respondents fenced their land to demarcate their boundaries which include the portion that is in dispute. They further stated that when the Applicants family returned, the Respondents, told them to settle on another portion of land and not the one that is subject to this application. 

13. Eldi Polty again clarified that the Applicant is only a son of their family and both himself and Rolgop Polty are the fathers and therefore have a higher claim to ownership over Keia Kundmul. He says that the house that is on that land is a security house that was built by Digicel PNG Ltd and is not the Applicants house as he states. They agree that Steven Polty has made gardens and planted trees there but they also have their gardens in that area as well.  I note also that the Respondents never told the Court the name of their specific tribe of clan.

14. All parties submitted that this case was already registered in 2015 as DC Nos. 12 & 27 of 2015 and came before Mrs Betty Jacobs, sitting as a District Court Magistrate who heard both cases together and referred the matter back to the parties to meet with Digicel PNG Ltd and come to some understanding over the use of that land and the sharing of benefits derived out of the use of that land. An agreement was reached by all parties concerned and it was drawn up to that effect and signed by Golgop and Eldi Polty and Steven Polty on 15th April 2015 and witnessed by John Munnull Jr. 

15. It was understood and agreed that the sharing of benefits under that agreement were subject to the outcome of the customary land ownership dispute issue being properly determined. 

ASSESSMENT
16. At the very outset, this application is made before me in the absence of the mediators who had carriage of the matter at the customary level. The complainant/applicant informed court that they had an application for a temporary order to move today. 

17. There were no mediators present and parties were asked who the mediators were but could not tell the court clearly who they were and further there was no proper documentation on file stating any mediators names.  They were told that mediators who had been appointed by the Provincial Land Dispute Committee and ad-hoc mediators were an essential part of the land dispute resolution process as they formed part of the court when it convened on a matter. 

18. Section 23 of the Act provides for this position in law:
23. CONSTITUTION OF LOCAL LAND COURTS.
(1) A Local Land Court shall be constituted by a Local Land Magistrate, who shall be Chairman, and–
(a) subject to Subsection (2), an even number of Land Mediators (not being more than four); or
(b) where the Court is constituted for the purpose of a dispute in an area other than a Land Mediation Area, an even number of persons (not being more than four) who are normally resident in the area in which the land the subject of the dispute is located,
appointed by the Local Land Magistrate in respect of each dispute before the Court.
(2) In relation to a dispute, the Land Mediators referred to in Subsection (1)(a) shall–
(a) where he is available, include the Land Mediator who attempted to mediate the dispute, unless the Local Land Magistrate, for a special reason, excludes him; and
(b) where practicable, include all or some of the Land Mediators for the Land Mediation Division in which the land the subject of the dispute is wholly or partly situated.
(3) A decision of a Local Land Court shall be by majority vote, and where there is an equality of votes on any matter before the Court, the Local Land Magistrate has a casting, as well as a deliberative, vote.

19. I was inclined to terminate these proceedings by way of a ruling at this stage but chose to proceed to hearing the application so as to ascertain if indeed mediation had occurred prior to registration in the LLC as required by law.

The Process from Mediation to Local Land Court 
20. Parties were informed that the process for a matter to be heard in the local land court was also expounded on in detail so parties understood and the court thought it necessary to document this process.

21. Section 15 of the Act gives the primary functions of land mediators which is to assist in the attainment of peace and harmony by mediating in, and attempting to obtain the just and amicable settlement of, disputes relating to customary land. 

22. Section 17(2) of the Act states that land mediators must mediate where he or she has been requested to by a Local Land Court magistrate or a magistrate sitting in the Provincial Land Court and in most cases the mediator who is appointed by the Provincial Land Dispute Committee will be from the land mediation division where the dispute arose out of. Mediators appointed under Section 11 of the Act, exercise all powers and functions within their respective Mediation Divisions as called upon by this law.

23. The Act does not set out expressly any specific procedures but the objective that must be achieved is to reach a clear and voluntary settlement of the dispute and thereby achieve the overall objective of the Act. 

24. I am mindful of that fact that parties have not mentioned nor is there any documentary evidence on file that shows that this matter has been registered with the Customary Lands Office here in Mt Hagen thereby triggering the mediation process to begin. If they had registered this matter and mediation was conducted, then it would have removed a common issue that arises in Local Land Court cases where parties that were not notified of the dispute earlier, would come forward to indicate their interest in the dispute after it has been settled. Through the mediation process all parties with an interest in the dispute have an opportunity to be engaged and involved in the initial stages where possible thereby enhancing the prospect of a successful mediation and not being challenged at a later date. 

25. Every opportunity must be given to enhance the prospect of the mediation succeeding by way of settlement. In line with that thinking, in a situation where a mediation has not reached a settlement, then other opportunities to mediate be given to increase the likelihood of a successful mediation. 

26. Therefore only after exhausting 2 to 3 opportunities at mediation over a dispute and where an agreement has not been reached, can the mediators be satisfied of an unsuccessful mediation and have the matter referred to the Local Land Court to have their dispute adjudicated. 

Process To Initiate Local Land Court Process
27. Mediators have at their disposal a number of forms under the Act but for our purpose I will only make reference three (3) of them:
(i)	Form 7 – Record of Mediation
(ii)	Form 8 – Dispute Referred to Local Land Court
(iii)	Form 10 – Application for Approval of Agreement

28. The customary mediation process ends in two ways;
1.	Failed Mediation 
Where there is no resolution to the dispute after three (3) attempts to mediate, the Mediator(s) shall submit a referral to the Local Land Court for hearing; and
2.	Successful Mediation 
Where mediation is successful, the Mediator records the detailed Terms of Agreement and submits an application to the Local Land Court to approve the Terms as an Order of the Court.

29. The referral under Form 8 or the application under Form 10 signify the termination of the mediation process. 

30. Where further mediation is not possible and an agreement can no longer exist, the dispute is to be heard in the Local Land Court.

31. A Local Land Court magistrate and its mediators who sit as part of the Local Land Court are not empowered to entertain any application unless there is evidence that mediation has been conducted at the customary level and the dispute is properly registered in the Local Land Court registry and given a registration number. 

32. The criteria for registration of a Local Land Court matter being a matter from Referral upon Failed Mediation under form 8, are that the following information and articles must be presented before the Land Court Clerk;

1.	Form 8 referral to LLC, containing
a.	Parties to Dispute
b.	Name of Disputed Land
2.	Form 7 Record of Mediation
3.	Nature of Dispute
4.	Sketch Map of Disputed Land with clearly identifiable markers
5.	Filing Fee Receipt
6.	Dispute Register Number from Customary Lands Office or Village Court Officer

33. A Form 8 referral is made by the Mediators and so both Form 7 and Form 8 must be signed by the same Mediators who had carriage of the case at the customary mediation stage.

34. Where an agreement is reached at customary mediation stage, an application for approval of agreement under form 10 is made and the following documents must be presented before registration is done:

1.	Form 10 application for approval of agreement to LLC, containing
a.	Parties to Dispute
b.	Name of Disputed Land
c.	Terms of the agreement
2.	Form 7 Record of Mediation
3.	Nature of Dispute
4.	Sketch Map of Disputed Land with clearly identifiable markers
5.	Filing Fee Receipt
6.	Dispute Register Number from Customary Lands Office or Village Court Officer

35. Upon the file meeting the Criteria for Registration, it is registered and allocated a Local Land Court Registration Number. The Land Court Clerk then consults the Local Land Magistrate to allocate a date of Mention. A Form 16 Notice of Hearing is then issued and served to Disputing parties or their representatives.

36. All Registration articles including related notice forms are then filed together in the prescribed Land Court file cover.

37. A Form 16 Notice of Hearing is then issued and served to the following;
•	Disputing parties or their representatives
•	The concerned Local Level Government for consideration at its immediate next sitting
•	The local Village Court(s) within the bounds of which the disputed land or a part of it is
•	Publication via radio or appropriate information broadcast service covering the disputed area
•	Other agents and via means described in Section 71 of the Act

38. For our purposes this matter was registered in the Mt Hagen Local Land Court without complying with these requirements. 

39. There is no evidence on file that:
1.	The dispute was ever registered at the Customary Lands Office as there is no registration number; 
2.	Mediation was ever conducted at the customary level – no form 7, form 8 or form 10;
3.	Any mediators had ever conducted a mediation on this dispute at the customary level.

40. Given these preliminary findings I am at a loss as to how it was registered in the LLC jurisdiction in the first place. 

41. I remind myself at this juncture that the courts have powers and a duty to protect itself and its processes from vexatious suits so as not to abuse court process and bring it into disrepute.  In Wabia v. BP Exploration Operating Co. Ltd [1998] PNGLR 8 it enunciated this principle stating, “the court has a duty to protect its process by ensuring vexatious litigants do not abuse the court’s process by instituting frivolous or vexatious suits. If proceedings are considered an abuse of court process, the Court has a duty to protect its dignity and integrity, and can use its inherent powers to dismiss such frivolity, vexation or abuse.”

FINDINGS
42. I find that there appears to be a dispute relating to ownership of customary land that needs to be registered at the customary lands office, should the Applicant insist on having it mediated.

43. I find that the Applicant did not exhaust the customary mediation process that is required by s.27(1) of the Act before coming to the Local Land Court.

44. I find that there is no substantive matter on foot by way of a form 8 referral for failed mediation or a form 10 application for approval of agreement, upon which the application for a temporary order can stand.

45. I further find that the application seeking a temporary order pursuant to section 30 of the Land Dispute Settlement Act 1975 is premature and is not properly before this court. 

46. Given the above findings I am therefore not satisfied that this court has the jurisdiction to hear the matter pursuant to s. 27(1) Land Disputes Settlement Act. 

47. So to answer the question, does this court have the jurisdiction to hear this matter at this stage? The answer is, No. on that basis, this matter ends here and I will not proceed to deal with the other issues.

48. I therefore order that the application be dismissed for an abuse of court process and the dispute be referred to the Mt Hagen customary lands office for registration for mediation to begin.

Steven Polty Applicant in Person
Eldi Polty & Rolgop Polty Respondents in Person