N3291

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS NO 200 OF 2006

RODERICK TOVO BIBILO representing La Bale clan
Plaintiff

V

GERARD BALBAGARA representing Okoromo clan
First Defendant

BOAS MAULOSO representing Kabulubulu Le Bamusi clan
Second Defendant

PAUL KOASIRO representing Gararua clan
Third Defendant

KUA KOASIRO representing Kabulubulu Le Bulea clan
Fourth Defendant

MAIKO MELEDI representing Rosarosa clan
Fifth Defendant

Kimbe: Cannings J
2007: 12, 13, 20, 26 July,
10, 23 August
2008: 25 March

JUDGMENT

LAND – customary ownership – forestry – dispute about receipt of timber royalties – timber rights purchase agreement entered into with colonial administration – cancellation agreement – Local Land Court order – dispute about interpretation and application of agreements and order – declarations sought.

A number of clans have had a dispute over customary ownership of land, which is now generating timber royalties. A 40-year timber rights purchase agreement regarding the land was entered into with the colonial administration in 1968. Four clans, including the plaintiff’s clan, were party to that agreement. In 1986, those same clans entered into a cancellation agreement, which purported to remove their interest in the land and recognise the first defendant’s clan as the landowners. In 1995 the Local Land Court decided that the first defendant’s clan owned the land. In 2004 the Forestry Authority allowed logging on the land and royalties were paid to the first defendant’s clan, not to the plaintiff’s clan. The plaintiff commenced court proceedings with the aim of restoring legal recognition of his clan’s interest in the land so they can obtain a share of the timber royalties.

Held:

(1)	The 1968 agreement was a valid and enforceable agreement made under the forestry law of the day and operates for 40 years.

(2)	The 1986 agreement did not nullify the 1968 agreement as it was only a statement of intention and not self-executing. Furthermore the circumstances in which it was signed are uncertain and unsatisfactory, making it unenforceable.

(3)	The 1995 Local Land Court decision has no effect on the 1968 agreement as none of the parties to the 1968 agreement were parties to the Local Land Court proceedings.

(4)	The clans entitled to timber royalties are the four who are party to the 1968 agreement. No other clans, including the first defendant’s clan, have an entitlement. This is the situation until the date of expiry of the agreement, 26 November 2008.

(5)	As to what happens after 26 November 2008, the matter is referred to the Provincial Land Disputes Settlement Committee, so the land may be declared a Land Mediation Area under Part III of the Land Disputes Settlement Act and proceedings under that Act expedited so that customary ownership and related issues are resolved by 26 November 2008.

Cases cited:

Fred Giram Dogmai v Job Sogasog CIA No 97 of 2006, 20.02.08
Lavu v Thompson & NBPOL, WS No 780 of 2005, 26.07.07
Mavu v Moto and Others (2005) N2879
Richard Maribu v Lae District Land Court & Siomngaivon Clan (2001) N2064
The State v Lohia Sisia [1987] PNGLR 102 

Glossary

The following people and places are referred to in the judgment.

People

Abilimosi clan – one of four clans party to 1968 TRP
Abulubulu clan – one of four clans party to 1968 TRP
Anna Puli – plaintiff’s mother – Tovo Tolagu’s niece – plaintiff’s witness No 2
Augustine Saike – land mediator re 1986 agreement – 1st defendant’s witness No 2
Avusi Da’e – Paul Koasiro’s mother – signatory to 1968 TRP, Gararua clan 
Boas Mauloso – 2nd defendant, Kabulubulu Le Bamusi clan 
Bubu Landowners Association – group of people from Bubu claiming land ownership 
Cletus Patewan – Gerard Balbagara’s son – 1st defendant’s witness No 4
Gararua clan – one of four clans party to 1968 TRP
Gerard Balbagara – 1st defendant, Okoromo clan – 1st defendant’s witness No 1
Gerard Gaivapia – aka Gerard Balbagara
Jack Reed – government officer who facilitated signing of 1968 TRP 
Joe Voku – Local Land Court Magistrate – presided at 1995 hearing
Joe Wanpis – vice-chairman, Bubu Landowners Association
John Maleko – Rai Rosa’s husband
Kabulubulu clan – 2nd and 4th defendants’ major clan
Kabulubulu Le Bamusi clan – 2nd defendant’s clan
Kabulubulu Le Bulea clan – 4th defendant’s clan
Kormo clan – other name for 1st defendant’s clan 
Kua Koasiro – 4th defendant, Kabulubulu Le Bulea clan
La Bale clan – one of four clans party to 1968 TRP – the plaintiff’s clan
Laubalil Amlau – forestry officer – 1st defendant’s witness No 5
Maiko Meledi – 5th defendant – representing Rosarosa clan
Malisa Malili – signatory to 1968 TRP – Abilimosi clan
Okoromo clan – 1st defendant’s clan – aka Kormo clan
Paul Koasiro – 3rd defendant, Gararua clan – 3rd defendant’s witness No 1
Penias Togeau – land mediator re Land Court proceedings – 1st defendant’s witness No 3
Peter Connell – forestry officer who suggested cancellation agreement be signed 
Rai Rosa – Tovo Tolagu’s niece – John Maleko’s niece – sister of Anna Puli
Richard Allmark – government officer, facilitated 1968 TRP
Robin Moken – district officer, Bakada, 1986
Roderick Tovo Bibilo – plaintiff, La Bale clan – plaintiff’s witness No 1
Rosarosa clan – 5th defendant’s clan 
Rovou Lapou – chairman, Bubu Landowners Association
S Vulu – Land Mediator – assisted Local Land Court in 1995 proceedings
Siola Leleulu – signatory to 1968 TRP – Abulubulu clan
Tovo Tolagu – signatory to 1968 TRP – plaintiff’s grandfather

Places

Bakada – place of forestry office, Bialla area 
Bialla – major town in Nakanai area, WNB
Bubu – village in Bialla area – Paul Koasiro’s village 
Gigifuna – village in Gula Gula area – Gerard Balbagara’s village 
Gigipuna – same as Gigifuna 
Gula Gula – the land in question
Hoskins – area within WNB
Karapi – village in Hoskins area – plaintiff’s place of residence
Kimbe – provincial capital, WNB
Mengen – area within Pomio district, East New Britain
Mt Bamusi – volcano inland from Gula Gula 
Nakanai – area at north-eastern end of WNB – mountain range 
Pomio – district within East New Britain 
Soi – village in Bialla area
Sovula – village in Bialla area
Ubili – community centre, Ulamona 
Ulamona – village in Bialla area

Counsel

G Linge, for the plaintiff
B Tanewan, for the 1st defendant
P Koasiro, the 3rd defendant, in person
No appearance for other parties

ORIGINATING SUMMONS

This was an originating summons in which the plaintiff sought a declaration about his clan’s entitlement to timber royalties.

1. CANNINGS J: This case concerns a dispute over ownership of customary land and who are the right clans to receive timber royalties. The land is called ‘Gula Gula’. It is a large tract of forest, 3,360 hectares (about 8,300 acres), in the Bialla area of West New Britain Province.

GRIEVANCES OF THE PLAINTIFF AND THE LA BALE CLAN

2. The plaintiff, Roderick Bibilo, represents a clan, La Bale, whose interest in Gula Gula was recognised many years ago when it, and three others, entered into a TRP agreement with the colonial administration. The agreement was signed on 26 November 1968 and was due to last for 40 years, until 26 November 2008.

3. Gula Gula did not generate any significant timber royalties until quite recently, in 2004, when logging recommenced after a lapse of many years. The La Bale clan has not received any of the royalties. 

4. Two significant things have happened since 1968 resulting in La Bale no longer being recognised by the PNG Forestry Authority as customary owners.

5. First, a document which has come to be called a ‘cancellation agreement’ was signed on 10 January 1986. It arguably nullifies the interests in Gula Gula of the four clans who signed the 1968 agreement. 

6. Secondly, in 1995 the Local Land Court made a declaration as to customary ownership of Gula Gula, which did not recognise La Bale.

7. Mr Bibilo has brought the current court proceedings with the aim of obtaining a declaration from the court restoring legal recognition of the La Bale clan’s interest in the land. He says that both the 1986 cancellation agreement and the 1995 Local Land Court decision should not be given effect. It is the original 1968 agreement which should, at least until 26 November 2008, govern which clans are entitled to receive royalties from Gula Gula.

THE DEFENDANTS’ POSITION

8. There are five defendants, representing a number of other clans claiming an interest in Gula Gula, but only two – the first and the third – have taken an active part in the case.

9. The first defendant, Gerard Balbagara, represents the Kormo (also known as Okoromo) clan. This clan was the major beneficiary of the 1986 cancellation agreement and the 1995 Local Land Court decision and has been receiving the bulk of the royalties since 2004. Mr Balbagara opposes the relief sought by Mr Bibilo. He says that both the cancellation agreement and the Local Land Court decision should be enforced.

10. The third defendant is Paul Koasiro, representing the Gararua clan. Though joined as a defendant Mr Koasiro could well have been a co-plaintiff as his clan was one of the four who were party to the 1968 agreement but removed by the 1986 agreement and not recognised in the 1995 Local Land Court decision. Mr Koasiro’s position is that the Local Land Court erred by deciding that the Kormo clan is the major customary owner of Gula Gula.

11. The other defendants are:

•	Boas Mauloso of the Kabulubulu Le Bamusi clan, second defendant;
•	Kua Koasiro of the Kabulubulu Le Bulea clan, fourth defendant; and
•	Maiko Meledi of the Rosarosa clan, fifth defendant.

12. Those individuals and clans have formed a group called the Bubu Landowners Association, which has also been claiming and apparently receiving royalties from Gula Gula. Bubu is a coastal village near Gula Gula, where the third defendant, Paul Koasiro, lives. His clan, Gararua, is also sometimes regarded as part of the Bubu Landowners Association; though it appears that Mr Koasiro and his clan want to be regarded for the purposes of this case as an individual entity, separate from the other clans.

THE PNG FOREST AUTHORITY

13. It is the governmental body tasked by the Forestry Act with distributing timber royalties to landowners. It has been distributing royalties recently as per the 1986 cancellation agreement and the 1995 Local Land Court decision. That was until I made an order in December 2006 that royalties go into the National Court Trust Account pending finalisation of this case. The PNGFA has not been joined as a party though one of its officers gave evidence about how the 1986 agreement came into being and it is abiding by the Local Land Court decision.

THE ISSUES

14. They boil down to these:

1	Is the 1968 agreement a valid and enforceable agreement?

2	Did the 1986 cancellation agreement nullify the 1968 agreement?

3	Did the 1995 Local Land Court decision have any effect on the 1968 agreement?

4	Depending on the answers to the above, what orders or declarations should the court make?

FIRST ISSUE: IS THE 1968 AGREEMENT A VALID AND ENFORCEABLE AGREEMENT?

15. This issue cannot be finally resolved until after a consideration of the 1986 cancellation agreement and the 1995 Local Land Court decision. But it is necessary to focus on the 1968 agreement at the outset and determine its legal status. If it was not, at least from the beginning, a valid and enforceable agreement, the plaintiff’s case will go nowhere.

The document

16. It is 11 pages in length and headed "Transfer of Timber Rights by Owners to the Administration". It transfers to the Administration of the Territory of Papua and New Guinea the timber rights over Gula Gula for a period of 40 years commencing on 26 November 1968, in return for a sum of $8,825.00. The agreement was made under the Forestry Ordinance 1936-1951 of the Territory of New Guinea. It states, amongst other things:

We declare that we are the co-owners and sole agents of all the other co-owners and have full right to sell the timber rights and that no one else is an owner or has any right to such timber and land.

17. The agreement was signed by four people on behalf of their clans:

•	Avusi Da’e – Gararua clan,
•	Malisa Malili – Abilimosi clan,
•	Silola Leleulu – Abulubulu clan, and
•	Tovo Tolagu – La Bale clan.

18. All signatories are now deceased. 

19. As to the four clans:

•	The Gararua clan is represented in the present case by the third defendant, Mr Koasiro. The signatory Avusi Da’e, is Mr Koasiro’s mother.

•	The Abilimosi clan is not a party in the present case.

•	The Abulubulu clan is, I presume, and find as a fact, the same as the Kabulubulu clan, represented in the present case by the second and fourth defendants – Le Bamusi and Le Bulea – which, I presume, and find as a fact, are sub-clans of the Kabulubulu clan.

•	The La Bale clan is represented in the present case by the plaintiff, Mr Bibilo. The signatory Tovo Tolagu is Mr Bibilo’s grandfather.

Legal status of the agreement

20. I conclude, subject to consideration of the effect of the 1986 cancellation agreement and the 1995 Local Land Court decision, that it was valid and enforceable at its commencement and continues to operate as a basis for payment of timber royalties generated by timber operations on Gula Gula until 26 November 2008.

21. Though it was entered into under legislation long since repealed it continues to have force and effect under Part X (savings and transitional) of the Forestry Act 1991. 

22. Section 137(1)(b) is the key provision. It states that timber rights purchase agreements granted under the repealed forestry laws "continue … to have full force and effect for the term for which they were granted or entered into or until they sooner expire or are revoked according to law".

SECOND ISSUE: DID THE 1986 CANCELLATION AGREEMENT NULLIFY THE 1968 AGREEMENT?

The document

23. It is headed "STATEMENT OF AGREEMENT CANCELLATION" and consists of two paragraphs:

We the undersigned declare that we acted as agents for people purporting to be owners of the timber area known as Gula Gula in the Bialla District of WNBP and that we sold the timber rights to the State for 40 years under an Agreement dated 26/11/68 in return for a payment of $8,825.00.

We now declare that we did not represent the true landowners, who are the Kormo clan of Gigipuna village and we hereby authorise the State to commence cancellation procedures on the above agreement and to negotiate a new agreement with the rightful owners.

24. It was dated 10 January 1986 and witnessed by District Officer, Robin Moken, and Forestry Officer, Laubalil Amlau. The names of the four signatories to the 1968 agreement are typed but there is only one full signature, next to the name ‘AVUSI DA’E – GARARUA CLAN’. But she did not sign. It was her son, Paul Koasiro (the third defendant) who signed. The other names just have the inscription "HIS ‘X’ MARK" next to them.

Interpretation of document

25. On its terms, it is not a cancellation agreement. It is simply a statement that the signatories are agreeable to the 1968 agreement being cancelled and a new agreement being entered into with the "true landowners", the Kormo clan of Gigifuna (the first defendant’s clan). This is evident from the words: "we hereby authorise the State to commence cancellation procedures".

26. In arriving at that interpretation – which is the only one reasonably available from the words of the document – I have taken full account of the evidence before the court that forestry officers such as special projects officer, Peter Connell, were expressing concern in the early 1980s that errors may have been made by the colonial administration when the 1968 agreement was signed. Inadequate research might have been done, resulting in the land being claimed by the coastal people – the four clans party to the 1968 agreement – when there were inland people, in particular Mr Balbagara’s clan, the Kormo, who had a better claim to the land. Forestry officers gained the impression that the original clans had agreed to forfeit their rights.

27. As a result of those concerns a walkabout mediation was carried out before 1986. One of the land mediators was Augustine Saike, who gave evidence in this case. His view is that when the government officer, Jack Reed, made arrangements for the 1968 agreement he only consulted the coastal people without finding out about the inland people. There was, by the 1980s, a general understanding on the part of the coastal people that they did not own Gula Gula; and that is why the 1986 agreement was signed, he said.

28. To like effect was the evidence of the first defendant, Mr Balbagara, who said he was present for the signing of both the 1968 and 1986 agreements. The coastal people agreed, he said, by 1986, that they did not own the land, that the 1968 agreement was a mistake and that they should revoke it by signing the cancellation agreement.

29. Mr Tanewan, counsel for the Kormo clan, also relied on evidence from a forestry officer, Laubalil Amlau, who witnessed the signing of the 1986 agreement at Ubili community centre, Ulamona. Mr Amlau said it was generally agreed that the signatories to the 1968 agreement were the wrong ones, so the 1986 agreement was signed on the understanding that it was legally binding on all parties. It was understood by the forestry authorities to be an enforceable agreement.

30. Mr Tanewan submitted that the 1986 agreement was entered into in good faith and represented a meeting of minds as to the future of Gula Gula. Twenty years passed before anybody suggested that it was not enforceable. Its legal effect was therefore to cancel the 1968 agreement. 

31. I am unpersuaded by that submission as there was nothing done after the signing of the 1986 agreement to give it effect. It remained a statement of intention only. It was not a self-executing document. It does not matter if it represented a meeting of minds (a view hotly contested by the third defendant) or that no one has complained about it for 20 years. It must be interpreted and applied on its terms.

32. A letter from Mr Connell to the WNB Provincial Forests Officer, dated 5 May 1980 (an uncontested piece of documentary evidence) confirms that the 1986 agreement was envisaged to be the first step in a process that would lead to the Department of Justice drafting a "proper cancellation agreement", which would be signed by the original signatories or other clan leaders. Then a completely new TRP would be signed by the Kormo clan. However, there has never been a "proper" – ie self-executing – cancellation agreement prepared, let alone signed by the original signatories, their agents or descendants. There has never been a new TRP prepared to replace the 1968 agreement. Neither the 1986 agreement nor any other agreement has nullified it.

Circumstances of signing

33. As to the circumstances in which the 1986 agreement was signed, I have considered not only the evidence outlined above, which supports the contention that there were good reasons for its signing and that the signing was a big event in the local community, but also the evidence of Mr Koasiro, of the Gararua clan. Mr Koasiro is a defendant in this case but as I said earlier he is better regarded as a co-plaintiff. He strongly opposes the contention that the Kormo clan are the legitimate customary landowners of Gula Gula.

34. Mr Koasiro gave evidence that the Kormo are ethnically from the Pomio district of East New Britain. They are not actually Nakanai people. They are ‘migrants’, he labels them, who have only been living at Gula Gula since a volcanic eruption of Mt Bamusi in the 1870s. Their village, Gigifuna, is best regarded as a ‘care centre’, Mr Koasiro suggested. The Kormo have been allowed to settle on Gula Gula because of the hospitality displayed by the true customary owners, including his clan, Gararua.

35. As to the 1986 agreement, Mr Koasiro said it was true that he signed it. But he shouldn’t have, he said. He was a young boy, aged 15 or 16, and he did not know what he was signing. He was told to sign it by the authorities. He was not given a copy of it afterwards. When he went home and told his mother (Avusi Da’e, a signatory to the 1968 agreement, who died in 2003) she was very cross with him for giving away their land. If anyone was to sign it, she should have. But she was living at Bubu, which is on the coast between Bialla and Barema, and the signing took place at Gigifuna (not at Ulamona, as claimed by Mr Amlau), which is more than 10 km inland and too far for her to walk. Mr Koasiro said that the only signatory to the 1968 agreement present at Gigifuna was Togo Tolagu of the La Bale clan (Mr Bibilo’s grandfather, who died in 1991). But he did not see Mr Tolagu sign the 1986 document. He does not know who marked "X" next to the names of Mr Tolagu and the other two signatories of the 1968 agreement, Malisa Malili and Siola Leleulu. 

36. In view of my conclusion on the legal status of the 1986 agreement, I do not have to make a firm finding on the circumstances in which it was signed, ie whether there was genuine consensus amongst the clans and they understood what they were signing or, on the other hand, whether the right people did not sign it and those who did had no idea what they were signing. 

37. It is sufficient to say that I found Mr Koasiro to be a credible witness and an impressive representative of his clan. I conclude that the circumstances in which the document was signed are uncertain and unsatisfactory.

Conclusion re 1986 agreement

38. It does not nullify the 1968 agreement, the main reason being that it is a statement of intention and not a self-executing legal document. Furthermore, the circumstances in which it was signed – where it was signed, who signed it, whether they knew what they were signing and had any lawful authority to do so – are uncertain and unsatisfactory. If I had concluded that the document, on its terms, was capable of being self-executing, I would have still decided that it was unenforceable.

THIRD ISSUE: DID THE 1995 LOCAL LAND COURT DECISION HAVE ANY EFFECT ON THE 1968 AGREEMENT?

39. The Local Land Court announced its decision at Bialla on 22 September 1995. The dispute regarding the land Gula Gula was recorded as being between "the Gula Gula people (Bubu village)" and "Gerard (of the Okoromo Group)". The court was constituted by Magistrate Mr Joe Voku and land mediators Messrs Penias Togeau and S Vulu. The only written record of the proceedings in evidence is one and a half pages of findings, signed by Mr Voku, which, after describing various landmarks and boundaries, concluded:

The area South belongs to the inland people (Okoromo) and the area North belongs to the coastal people (Gula Gula people).

40. No mention was made of the 1968 or 1986 agreements and no indication given that the decision was intended to affect distribution of timber royalties.

Abuse of process and excess of jurisdiction 

41. Mr Tanewan submitted that it amounted to an abuse of process for the plaintiff to be challenging the 1995 decision. More than ten years have passed and it is too late to disrupt the decision. Furthermore, the National Court has no jurisdiction regarding customary land disputes, which must be determined by the Land Titles Commission or the Local Land Court under the Land Disputes Settlement Act Chapter No 45.

42. I see no merit in the submission that Mr Bibilo is guilty of a delay of ten years in challenging the Local Land Court decision. This case is best regarded as an action to enforce the 1968 agreement, rather than a challenge to the 1995 Local Land Court decision. This Court’s primary focus has been on the meaning and effect of the Local Land Court decision rather than hearing a challenge to its correctness. The need to enforce the 1968 agreement, and the dispute that is now before the court, only arose in 2004 when logging recommenced and timber royalties were paid to Mr Balbagara’s clan. There was no undue delay between those events and commencement of the court proceedings. 

43. As to the jurisdiction argument, Mr Tanewan is right to suggest that the National Court must tread warily when dealing with customary land. In The State v Lohia Sisia [1987] PNGLR 102 the Supreme Court ruled the National Court has no jurisdiction to hear or determine disputes about whether land is customary land. That principle has been applied in numerous other cases. In a recent Kimbe case, Lavu v Thompson & NBPOL, WS No 780 of 2005, 26.07.07, the plaintiff clans were claiming K500 million damages against NBPOL for trespassing on their land, Kumbango. I concluded that I could not hear the claim as there was a dispute about whether Kumbango is customary land, and the National Court cannot decide such disputes.

44. However, I do not see I am in danger in this case of offending against those principles or exceeding the jurisdiction of the National Court. I am not making a determination whether Gula Gula is customary land. Everyone accepts that it is customary land. Nor am I determining who the true customary owners are (even though some of the parties want me to make such a determination). I am simply interpreting and applying two legal documents (the 1968 and 1986 agreements) and a Local Land Court decision. I am making a determination of how they relate to each other and what the legal effect of each legal process is. The court is not exceeding its jurisdiction.

45. I reject the submission that this court’s consideration of the 1995 decision leads to an abuse of process or amounts to an excess of jurisdiction.

Circumstances in which 1995 decision was made

46. Mr Togeau was a witness before the National Court. He said that he investigated customary ownership of the land from July to September 1995. He publicised the proceedings widely, including putting tok saves on Radio West New Britain. The dispute was mainly between the Okoromo clan (aka Kormo) and people from Bubu village. He is satisfied that the correct decision was made in accordance with the available evidence, based on a proper mediation process, which involved many people including Mr Koasiro of the Gararua clan. He said that the Abilimosi clan (one of the signatories to the 1968 agreement) filed an appeal after the decision but withdrew it. That was the only appeal so, in his view, the decision remains in force.

47. The first defendant, Mr Balbagara, also gave evidence about the Local Land Court proceedings. All clans who signed the 1968 agreement were involved, he said.

48. That claim was contested by Mr Bibilo, who said that the La Bale clan was not given notice of the proceedings. Likewise Mr Koasiro said that though he and the Gararua clan participated in Mr Togeau’s walkabout mediation he did not agree with the findings; and though he was present at the Bialla Courthouse he stayed outside when proceedings were going on.

Finding of fact

49. Having considered the conflicting evidence, I cannot accept Mr Balbagara’s claim that all clans who signed the 1968 agreement were involved in the Local Land Court proceedings. I find as a fact – and this is a significant fact as it helps determine the legal effect of the 1995 decision – that none of the parties to the 1968 agreement were parties to the dispute resolved by the Local Land Court.

Legal effect of the decision

50. It was made under the Land Disputes Settlement Act and therefore Section 43(1) (effect of orders) applies. It states:

Subject to Section 44, an order of a Local Land Court made under this Part is, as between the parties and all persons claiming through them, conclusive evidence that the interest or interests in the land the subject of the dispute that is or are specified in the order may be exercised by the person or group of persons named in the order as being the person or group of persons vested with the interest or interests.

51. That means that the Local Land Court’s order only sets out the respective interests of the parties to the dispute (Richard Maribu v Lae District Land Court & Siomngaivon Clan (2001) N2064; Fred Giram Dogmai v Job Sogasog CIA No 97 of 2006, 20.02.08.) If non-parties wish to claim an interest, their interests are protected by Section 43(2), which states:

An order under Subsection (1) is not a bar to any claim of right by any person to exercise any interest other than the interest, as set out in the order, over the land or part of the land the subject of the order.

52. Section 44 (variation of orders) allows a party to apply to the Local Land Court for variation of an order if it can be shown that circumstances have changed so that enforcement of the order is causing hardship.

53. There is a right of appeal from an order of a Local Land Court given by Part V (provincial land courts). Section 54 (appeal against decision of Local Land Court) states that a person aggrieved by a decision of the Local Land Court may appeal within three months to the Provincial Land Court. (Mavu v Moto and Others (2005) N2879.)

54. In this case there has been no variation of the 1995 decision and no appeal against it has been heard or determined. It only operates, by virtue of Section 43(1), to determine the respective interests of the parties to the dispute and persons claiming through them. The decision cannot determine the interests of individuals or clans who were not party to the dispute. If such people have a prior, competing interest in the land, than that interest must prevail over the interests recognised by the Local Land Court decision.

55. Here, none of the clans who were party to the 1968 agreement were parties to the Local Land Court proceedings. Their interests in the land, formally recognised by the 1968 agreement and continuing to exist despite the 1986 agreement, cannot be extinguished or overtaken by the Local Land Court decision.

56. I therefore conclude that the 1995 Local Land Court decision does not have any effect on the 1968 agreement.

FOURTH ISSUE: WHAT ORDERS SHOULD THE COURT MAKE?

57. I will make orders that will ensure that the 1968 TRP agreement continues to have effect until its date of expiry, 26 November 2008. The only clans entitled to receive royalties generated by logging on Gula Gula up to that date are those who are a party to the 1968 agreement.

58. As to what happens after 26 November 2008, the best way to determine that is for Gula Gula to be declared a Land Mediation Area under Part III of the Land Disputes Settlement Act. In that way, a fresh mediation can take place; which, this time, must involve all parties claiming an interest in Gula Gula. It is important that the mediation start with a clean slate and to that end I will quash the 1995 decision of the Local Land Court and formally refer the question of customary ownership of Gula Gula to the West New Britain Provincial Land Disputes Settlement Committee.

RESOLUTION OF ISSUES

59. To sum up, I have resolved the four issues identified at the beginning of the judgment as follows:

(1)	Yes, the 1968 agreement is still valid and enforceable.

(2)	No, the 1986 cancellation agreement did not nullify the 1968 agreement.

(3)	No, the 1995 Local Land Court decision does not affect the 1968 agreement. 

(4)	Orders will be made that give effect to the 1968 agreement.

COSTS

60. Costs normally ‘follow the event’, ie the party that loses a case has to pay the costs of the winning party. But this is always a matter of discretion. In view of the nature of this dispute and the circumstances of the case, I will order that all parties bear their own costs.

ORDERS

(1)	The 1968 TRP agreement regarding Gula Gula continues to have legal effect until the date of expiry, 26 November 2008 and all timber royalties generated by logging on Gula Gula until that date shall be paid in equal shares to the four clans party to that agreement and to no other clans or persons:

(a)	Gararua clan,
(b)	Abilimosi clan,
(c)	Abulubulu clan, and
(d)	La Bale clan.

(2)	The order of the National Court of 21 December 2006 is dissolved and all monies held in the National Court Registrar’s Trust Account in respect of that order shall be paid in equal shares to the above four clans.

(3)	The decision of the Local Land Court at Bialla of 22 September 1995 is quashed and no longer has any legal effect.

(4)	This matter is referred to the West New Britain Provincial Land Disputes Settlement Committee, with a recommendation that Gula Gula be declared a Land Mediation Area under Part III of the Land Disputes Settlement Act and that proceedings under that Act be expedited so that the question of customary ownership and related issues are resolved by 26 November 2008.

(5)	The parties shall bear their own costs.

Orders accordingly.
____________________________

Linge & Associates: Lawyers for the Plaintiff
Public Solicitor: Lawyer for the First Defendant
Lawyers for the Second Defendant: unrepresented
Lawyers for the Third Defendant: self-represented
Lawyers for the Fourth Defendant: unrepresented
Lawyers for the Fifth Defendant: unrepresented