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Kaman v Mukap [2009] PGNC 63; N3669 (6 March 2009)

N3669

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS NO 174 OF 2007

BETWEEN

STEVEN IKRU KAMAN
Plaintiff

AND

MANGEL MUKAP & SONS, MALE POKE, KAUGE KOMBRI & ORS, WAKIL BAGANJA & OTHER CLANSMEN OF KAMKANEM SUB -CLAN OF KONUMBKA TRIBE
Defendants

Mount Hagen: Makail J

2008: 22nd June & 2009: 06th March

REAL PROPERTY - Customary land dispute - Ownership and occupational rights - Mediation agreement - Unapproved mediation agreement - Whether agreement binding and enforceable - Land Disputes Settlement Act Ch No 45 - Sections 17, 18, 19, 20 & 43.

Cases cited:

Richard Maribu -v- Lae District Land Court & Siomngaivon Clan (2001) N2064
Telabe Babena -v- Gambolo Land Group Inc & Oil Search Limited: CIA No 160 of 2007 (Unnumbered & Unreported Judgment of 07th July 2008)
Francis Mavu -v- Mathias Moto & 4 Ors (2005) N2879

Counsel:

Ms V Palts, for the Plaintiff
No appearance for the Defendants

JUDGMENT

06th March 2009

1. MAKAIL J: By an Originating Summons filed on 26th March 2007, the Plaintiff seeks the following reliefs:

"1. A Declaration that the Plaintiff is the owner of or has a legitimate interest over the piece of customary land with improvements known as "Gunn" situated near the Minj Road Junction in the Western Highlands Province pursuant to the Minj Local Land Court decision of the 12th April 2000.

2. A Declaration that the Plaintiff is entitled to peaceful possession and enjoyment and effect further improvements over the piece of customary land with improvements known as "Gunn" situated near the Minj Road Junction in the Western Highlands Province pursuant to the Minj Local Land Court decision of the 12th April 2000.

3. The Defendants, their servants, agents, kins and family members and associates be permanently restrained from interfering, threatening or issuing compensation demands over the piece of customary land with improvements known as "Gunn" situated near the Minj Road Junction in the Western Highlands Province.

4. The Defendants pay the Plaintiffs costs of the proceedings.

5. Such further and other Orders that this Honourable Court deems fit".

2. The matter came before the Court at the National Court civil call over on 06th June 2008, and only counsel for the Plaintiff appeared. After conferring with counsel as to how best this matter could be disposed off, it was agreed that I issue the following directions which I did:

1. The Defendants shall file and serve any Affidavits in response on the Plaintiff by or before Friday 20th June 2008;

2. Both parties shall file and serve on each other written submissions by or before Friday 25th July 2008; and

3. Decision shall be reserved to a date for parties to be advised.

3. Except for the Plaintiff, none of these directions were compiled with by the Defendants. I also note with disappointment in passing that Simon Norum & Co Lawyers who had acted for the Defendants subsequently filed a Notice of Cessation to Act on 06th October 2008, even though they were required to comply with the Court’s directions. I do not wish to over bore myself with that and further delay my decision. Hence, this is my decision.

BRIEF FACTS

4. From the only Affidavit of the Plaintiff sworn on 13th March 2007 and filed on 26th March 2007, I accept the following as the brief facts giving rise to the proceeding; in 1981, the Plaintiff and two other individuals namely, Abba Peter and Joseph Tuwaim formed a company called Aba & Company Pty Ltd. The shareholders of the company were the Plaintiff, Abba and Joseph. The Plaintiff is from the Nokanem clan of the Konumbka tribe of Minj whilst Abba and Joseph are from Tolu in Banz of the Western Highlands Province.

5. On 20th November 1984, the company bought a piece of land, the subject of the proceeding from one of the Defendants, namely, Male Poke and another person, named Kune Banda. The land is called "Gunn" and is located next to Minj road junction, Western Highlands Province. The purchase price was K600.00. Sometimes later, the company was deregistered after it ran into debts with its loan repayment with the Bank. Abba and Joseph removed most of the assets of the company and went away. But the Plaintiff remained and continued to maintain and improve the land as it was also his customary land.

6. The Plaintiff set up a general retail store, a fast food outlet and a fuel service station on the land. Then the Defendants started disputing the Plaintiff’s occupation of the land and threatened him. They demanded further payment for the land. The demands and threats were persistent. The Plaintiff got fed up with the Defendants’ threats and demands and took the dispute to the land mediators.

7. On 11th December 1990, the parties appeared before the mediators at Minj District Office where the dispute was mediated. Although an agreement was reached amongst the parties for the Plaintiff to retain the land, the Defendant, Male Poke disagreed with the purchase price of K600.00 for the land and the mediators decided that the dispute over the purchase price should be referred to the "Local Land Court" for resolution.

8. The hearing before the "Local Land Court" did not take place until December 1999 but again a decision was not reached until 12th April 2000. But it should be noted here that instead of a hearing before the "Local Land Court", it was another mediation. This was the second mediation and it was agreed at that mediation that the land be divided between the Plaintiff and the Defendants. The Plaintiff would retain part of the land which had the improvements whilst the Defendants would have the other parts which had no improvements. The agreement was reduced into writing in a document called Record of Mediation. Soon after the mediation, the Plaintiff returned to the part of the land where he had put up improvements and carried on business. But again the Defendants returned and stopped him from carrying on business. They continued with their threats and demands. As a result, he commenced this proceeding to assert his right of ownership and occupation of the land.

9. On 20th April 2007, the Plaintiff applied and obtained an ex parte interim injunction to restrain the Defendants from threatening, assaulting and/or interfering in any way whatsoever including demanding compensation from him until the dispute is determined by the Court. This interim injunction subsists to date.

ISSUES

10. I think before I decide whether the Plaintiff has a right to remain on the land, I must decide whether or not the mediation agreement reached between the parties on 12th April 2000 is binding and therefore enforceable against the Defendants. If so, what are the remedies available to the Plaintiff seeking to enforce the mediation agreement?

REASONS FOR DECISION

11. The issues raised in this proceeding call for a closer examination of the provisions of the Land Disputes Settlement Act Ch No 45 ("LDS Act"). I will refer to the relevant provisions as we go along.

12. In the present case, there is evidence before me in the form of a Sale and Purchase Agreement dated 20th November 1984 and a Map of the land to suggest that the subject land is a customary land. See Annexures "B" and "C" to the Affidavit of the Plaintiff respectively for copies of these documents. Hence, I proceed on the basis that it is customary land. I make this clear at the outset because in order for parties to invoke the provisions of the LDS Act, the land must be a customary one. See section 1 of the LDS Act.

13. In this case, there was an agreement reached between the parties at the mediation on 12th April 2000. The agreement is that, the land would be divided between the Plaintiff and the Defendants. The Plaintiff shall retain part of the land on which he had put up improvements whilst the Defendants would have the other parts where there are no improvements. I refer to Annexure "F" to the Affidavit of the Plaintiff for a copy of the Record of Mediation dated 12th April 2000.

14. So the question is, is the mediation agreement reached between the parties on 12th April 2000 binding and therefore enforceable against the Defendants? Section 19(5) of the LDS Act states that an agreement reached between parties at mediation must be approved by the Local Land Court and by subsection (6) of that section, an approved mediation agreement has the effect of an order of the Local Land Court.

15. In my research, I have been able to find the case of Richard Maribu -v- Lae District Land Court & Siomngaivon Clan (2001) N2064, which was an application for judicial review of the decision of the First Respondent to award a customary land to the Second Respondent. His Honour Injia J, (as he then was) who presided over this case commented on the application and effect of sections 19(6) and 43 of the LDS Act in the following way:

"It is clear from S.19(6) and S.43 that an approved mediation agreement is binding on the disputing parties in respect of the land in dispute. It is also binding on persons not parties to the mediation agreement in respect of the land covered in the approved mediation agreement: Section 43(2). An approved mediation agreement confers exclusive interest or title to either party or both as agreed, and at the same time extinguishes the interests or rights of non-disputants over the same land. The effect of an unapproved mediation agreement is different. It may be used by either party as evidence in any legal proceeding to show a party's interest in the land in dispute, and it is not binding on the parties or a person who is not a party to the agreement. And so because the medication agreement in the present case was not approved by the Local Land Court, there was no mediation agreement which was binding on the parties or on any other person claiming interest over the same land". (Underlining is mine).

16. I agree entirely with His Honour’s views. They correctly represent the law and in my determination of the issues raised in this proceeding, I find no reason to depart from them. In fact I made similar observations when I was asked to decide an appeal from a decision of a District Court setting aside a temporary order for stay issued by the same District Court under section 30(1)(a) of the LDS Act in the case of Telabe Babena -v- Gambolo Land Group Inc & Oil Search Limited: CIA No 160 of 2007 (Unnumbered & Unreported Judgment of 07th July 2008). There, I made these observations in the context of how a dispute may be instituted under the provisions of the LDS Act after I cited mediation as one of the modes by which a party to a customary land ownership dispute may invoke while the other two modes are under sections 30 (Temporary orders by magistrates) and 31 (Applications) of the LDS Act respectively in the following way at p 23 of the judgment:

"Then by section 18 of the Land Disputes Settlement Act, if an agreement is reached between the parties to a dispute as to the whole or part of the dispute, the Land Mediator shall interalia record that an agreement has been reached and record the terms of the agreement. Then, by section 19 of the Land Disputes Settlement Act the parties to the agreement may apply to a Local Land Court to have the agreement approved and if approved it has the effect of an order of the Local Land Court".

17. In another case of Francis Mavu -v- Mathias Moto & 3 Ors (2005) N2879, His Honour Cannings J, dealt with a slightly different factual situation, but also a customary land ownership dispute matter. It also involved the application and effect of a mediation agreement, this time an approved one under the LDS Act. In that case, the Plaintiff claimed to be the leader and agent of Evusovul clan whose interest in the said customary land was registered in 1994 under the LDS Act. Two other clans had a dispute with the Plaintiff’s clan in 1994 about ownership of the land. The dispute was mediated by land mediators, and an agreement was reached and approved by the Local Land Court. The Plaintiff claimed that the Third Defendant had been logging the subject land for 10 years without paying royalties to him and his Evusovul clan. Furthermore, he and his clan were entitled to all the royalties.

18. The First and Second Defendants, representatives of neighbouring clans namely Nakise clan and Otho clan respectively, disagreed, saying that the Plaintiff had not been denied any royalties he was entitled to. They argued that royalties had only been paid for the last 2 years and that, in any event, the Plaintiff was not an authorised clan agent, had no authority to receive royalties on behalf of his clan and that any royalties paid had to be shared amongst the three clans, in accordance with the 1994 agreement. The logging company, the Third Defendant, did not want to be involved in the dispute. The provincial forest officer, the Fourth Defendant, who is responsible for distribution of royalties paid to the Forest Authority by the Third Defendant did not favour any side of the dispute. The Plaintiff filed proceedings in the National Court seeking a declaration that he and his clan were entitled to all future royalties arising from logging on the subject land.

19. His Honour held inter alia that first, the agreement between the Evusovul, Nakise and Otho clans of 31st May 1994, regarding the said land, as approved by the Local Land Court order of 14th October 1994, was made in accordance with the LDS Act and was valid, enforceable and legally binding on the parties. Secondly, the agreement and order were evidence that customary ownership of the said land and entitlement to timber royalties and all other resource payments in respect of the said land were to be equally divided and distributed amongst the Evusovul, Nakise and Otho clans. In reaching that decision, His Honour said this at pp 16 & 17 of the judgment:

"I consider that the agreement recorded on 31st May 1994 suffers from being poorly drafted and rather vague, but not to the extent that it is invalid or unenforceable. The agreement was mediated and its terms recorded in a way that is compliant with the Land Disputes Settlement Act. An application under Section 19(1) was made for approval of the agreement. The Local Land Court at Kimbe, upon being satisfied of the matters prescribed by Section 19(2), approved the agreement under Section 19(5). On 14th October 1994 it took effect as an order of the Local Land Court. There has been no application for variation of the order (that cannot be done until 14th October 2006, anyway). There has been no appeal to the Provincial Land Court (that had to be done by 14th January 1995). The agreement of 31st May 1994 is therefore valid, enforceable and legally binding.

To be precise, the agreement has, since 14th October 1994, taken effect as an order of the Local Land Court. Therefore per force of Section 43, the agreement is:

·conclusive evidence, as between the parties to the agreement and all persons claiming through them, that the interests in Gimomi-Lapo specified in the agreement 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; and 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 agreement, over Gimomi-Lapo".

20. I find this case almost the same as the Francis Mavu’s case (supra). But the factual differences are first, in Francis Mavu’s case (supra), the interest in the land is connected to the royalties that landowners were entitled to receive from the land as a result of a forestry logging project on that land whilst in the present case, the Plaintiff has a general retail store, a fast food outlet and fuel service station on the land where he derives income. Secondly, in Francis Mavu’s case (supra), the mediation agreement was approved by the Local Land Court whereas in this case, it appears that the mediation agreement was not approved by the Local Land Court. But otherwise, I find that there is a dispute over the ownership of land in both cases even though the disputes in each case have been mediated and agreement reached between the parties.

21. Returning to the present case, the dispute centers around the terms of the agreement reached between the Plaintiff and the Defendants at the mediation of 12th April 2000. But there is no dispute that the mediation was carried out by authorised land mediators appointed under Part III (Mediation of land disputes) of the LDS Act, in particular, section 15(1) which provides for the powers and functions of land mediators as follows:

"The primary function of a Land Mediator is to assist in the attainment of peace and harmony in the Land Mediation Division or Divisions for which he is appointed by mediating in, and endeavouring to obtain the just and amicable settlement of, disputes".

22. There is also no dispute that on 11th December 1990, parties appeared before the mediators at Minj District Office where the dispute was first mediated. This was done in accordance with section 17(1)&(2) (Mediation) which I set out in full below:

"(1) Where he is of opinion that -

(a) a dispute exists as to interests in land situated wholly or partly within the area of the Land Mediation Division or Divisions for which he is appointed; and

(b) mediation as a means of settling the dispute may be successful,

a Land Mediator may mediate the dispute if no other Land Mediator has been appointed, or has commenced, to mediate the dispute

(2) Subject to Subsections (4), (8) and (10), a Land Mediator shall mediate a dispute in any Land Mediation Area when requested to do so, orally or in writing, by -

(a) a party to the dispute; or

(b) a Village Court or Village Magistrate; or

(c) a Local Land Court or a Local Land Magistrate; or

(d) [Repealed].

(e) a Magistrate of a District Court; or

(f) a Provincial Land Court; or

(g) a Provincial Administrator, a Deputy Provincial Administrator, a District Officer (Lands) or an officer in charge of a Subdistrict, Patrol Post or Base Camp.

(3) Where any of the persons or bodies referred to in Subsection (2)(b) to (g) (inclusive) requests that a dispute be mediated he or it shall, as soon as practicable, forward the request to the Local Land Magistrate located nearest to the land, and the Magistrate shall decide which Land Mediator shall mediate the dispute and forward the request to him.

(4) A request under Subsection (2) shall be made to a Land Mediator for the Land Mediation Division within which the land in dispute is wholly or partly situated unless the Local Land Magistrate located nearest to the land is of the opinion that special circumstances exist that make it more appropriate for a Land Mediator from another Land Mediation Division to mediate the dispute.

(5) Without limiting the generality of Subsection (4), the matters that may be taken into account in determining whether special circumstances exist include the following: -

(a) that the parties to the dispute prefer a Land Mediator from another Land Mediation Division;

(b) that the Land Mediator appointed for the Land Mediation Division is personally interested or involved in the dispute;

(c) that no Land Mediator appointed for the Division is available;

(d) that the nature of the dispute is such that in all the circumstances it would be preferable to have the dispute mediated by a Land Mediator from another Land Mediation Division.

(6) This section does not prevent two or more Land Mediators being requested to mediate jointly a dispute if there exist special reasons for doing so.

(7) Where a Land Mediator -

(a) decides to mediate a dispute under Subsection (1); or

(b) is requested to mediate a dispute under Subsection (2),

he shall, as soon as practicable, inform the Local Land Magistrate located nearest to the land in dispute.

(8) Subject to Subsection (6), where a Local Land Magistrate is aware that a dispute has been referred for mediation to two or more Land Mediators individually, he shall, where there is no agreement between the mediators themselves as to who will mediate the dispute, request one of the Mediators to mediate the dispute and the other Mediator or Mediators not to mediate the dispute.

(9) After mediation of a dispute has commenced under this Act -

(a) the Land Mediator mediating the dispute; or

(b) the parties to the dispute or any of them,

may apply to a Local Land Magistrate for an order requesting another Land Mediator to continue the mediation.

(10) A Local Land Magistrate who has received an application under Subsection (9) may, where he is of the opinion that any of the special circumstances specified in Subsection (5) exist, request another Land Mediator to continue the mediation".

23. From the Record of Mediation of 11th December 1990, marked as Annexure "E" to the Affidavit of the Plaintiff, the land mediators were Kindin, Kisip, Tegim and Pena. Although an agreement was reached amongst the parties for the Plaintiff to retain the land, one of the Defendants, namely Male Poke disagreed with the purchase price of K600.00 for the land and the mediators decided that the dispute over the purchase price should be referred to the "Local Land Court" for resolution. The terms of the agreement reads:

"Agreement reached: DURING THE MEDIATION THE WITNESSES INDICATE THAT THE RIGHTFUL OWNER WAS MUKAP MANGE, WHICH SHOWS THAT THE LAND WILL BE GIVEN TO STEVEN IKRU. BUT THE MEDIATORS REFER THE LAND DISPUTE TO LOCAL LAND COURT BECAUSE OF THE K600.00 LAND PURCHASE AGREEMENT BETWEEN STEVEN AND MALE". (Underlining is mine).

24. It seems to me that according to the agreement, the land mediators referred the land dispute to the "Local Land Court" because there was still a disagreement between the Plaintiff and the Defendants over the purchase price. It is unclear from this agreement whether the mediators referred the land ownership dispute including the disagreement as to the purchase price of the land to the "Local Land Court" for decision. Hence, I do not know if the "Local Land Court" was asked to make a decision for the parties in respect of the purchase price only or also the land ownership dispute too. It is also unclear from the agreement if the "Local Land Court" was asked to decide whether the amount of K600.00 was adequate and confirm the amount or decide a new amount of the purchase price.

25. Further, it is unclear from the evidence of the Plaintiff if the "Local Land Court" did decide the amount of the purchase price and if it did, when. There is no evidence to confirm these facts to enable me to make appropriate findings of fact. In the absence of any evidence of a "Local Land Court" decision to show that it did decide and awarded the ownership of the land to the Plaintiff and/or affirmed or varied the purchase price of the land, I am led to conclude that there was no "Local Land Court" decision in relation to these matters.

26. On the other hand, what is clear from the evidence is that the land ownership dispute including the purchase price ended up before another group of land mediators and this is the mediation the Plaintiff and the first lot of land mediators incorrectly referred to as the one before the "Local Land Court". This is the second mediation which did not take place until December 1999 and a decision was not reached until 12th April 2000.

27. The new land mediators were Kisip Tsinga, Kilip Koine, Kolnge Koni and Kolpe Arganis. And it seems to me that the second mediation was done in accordance with section 17(6),(7),(9)&(10) of the LDS Act. It was a referral case to another land mediator or mediators to determine the question of ownership and also purchase price of the land rather than a hearing made pursuant to an application by the first lot of land mediators to resolve these same questions before the "Local Land Court" under section 31 of the LDS Act. I say this because as I have found above, there is no evidence of a "Local Land Court" decision resolving these questions placed before me to find otherwise.

28. And so at the second mediation, it was agreed that the land be divided between the Plaintiff and the Defendants. The Plaintiff would retain part of the land which had the improvements whilst the Defendants would have the other that had no improvements. The agreement was reduced into writing in a document called Record of Mediation. The relevant parts read as follows:

"Agreement reached: IT WAS RESOLVED THAT THE LAND CAN BE SPLIT BETWEEN THE PARTIES WITH THE IMPROVED PART GIVEN TO STEVEN KAMAN AND THE UNIMPROVED PART GIVEN TO MALE POKE.

THIS WAS SUGGESTED BASED ON PREVIOUS MEDIATION OF WHICH BOTH PARTIES ARE AWARE OF".

29. As the parties did reach an agreement, the new land mediators recorded the terms of the agreement in writing. It appears that the land mediators also forwarded it to the Local Land Court at Minj as it has the common seal of the Minj Local Land Court impressed on it. This was done in accordance with section 18(1) (Agreements) which states as follows:

"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".

30. And upon receiving the agreement, the Local Land Court is required by section 19 of the LDS Act to satisfy itself that the terms of the agreement are fully understood by the parties, that a substantial majority of the persons comprising the party concur with the terms of the agreement and that the agreement is not in breach of any law or contrary to natural justice or public policy, it may approve the agreement. The agreement then has effect as an order of the Local Land Court.

31. In this respect there is no evidence that the second mediation agreement was approved by the Local Land Court nor is there evidence of an application by the parties to the Local Land Court for approval in accordance with section 19(1) (Approval of agreements) of the LDS Act which states as follows:

"(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".

32. There is also no evidence of the Local Land Court upon receiving the application for approval made inquiries into the agreement reached between the parties as required by section 19(2) of the LDS Act. Further, there is no evidence of an order of the Minj Local Land Court to show that the agreement reached between the parties was endorsed by the Local Land Court. The only evidence is the Record of Mediation marked as Annexure "F" to the Affidavit of the Plaintiff which bears the common seal of the Minj Local Land Court. It means that the Local Land Court did receive the agreement but I do not think it also means the Local Land Court did approve the agreement.

33. For in order for the agreement to be approved by the Local Land Court, there must be evidence of a Court order to establish so. In the absence of an order from the Minj Local Land Court, I am left to conclude that the agreement was not approved by the Minj Local Land Court. This means that the agreement reached between the parties on 12th April 2000 is an unapproved one. For these reasons, I find that the mediation agreement was not approved by the Minj Local Land Court.

34. Proceeding on this premise, I am of the view that the unapproved mediation agreement of 12th April 2000 is not binding and therefore enforceable against the Defendants. This is because according to section 20 of the LDS Act, the agreement is only evidence of the interests of the parties to the agreement in the land in dispute as at 14th April 2000 but the agreement or any admission or concession made by a Defendant in arriving at the agreement, is not binding on them, their heirs, successors or assigns.
It reads as follows:

"20. Effect of agreements.

Until approved under Section 19 -

(a) an agreement is, in any legal proceedings, evidence of the interests of the parties to the agreement in the land in dispute as at the date of the agreement; but

(b) the agreement or any admission or concession made by a party in arriving at the agreement, is not binding on a party, his heirs, successors or assigns".

35. Secondly, as there is no order from Minj Local Land Court endorsing the agreement, it is not binding on the Defendants. This is because section 43(1) (Effect of orders) of the LDS Act, states that an order of a Local Land Court, as between the parties and all persons claiming through them, is conclusive evidence of the interest or interests in the land the subject of the dispute as specified in the order and 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. It states:

"(1) 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.

(2) 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.

(3) An order under Subsection (1) has effect, subject to Section 59, from the date on which it is made. The primary function of a Land Mediator is to assist in the attainment of peace and harmony in the Land Mediation Division or Divisions for which he is appointed by mediating in, and endeavouring to obtain the just and amicable settlement of, disputes".

36. And by section 43(2), an order of the Local Land Court is not a bar to any claim of right by any person over the land or part of the land the subject of the order. As there is no evidence of an order from Minj Local Land Court, there is no bar to the Defendants’ claim of ownership and occupational rights as well.

37. Accordingly, I am of the view that the unapproved agreement is not binding on the Defendants. Therefore it is unenforceable against the Defendants in this proceeding. As in the words of His Honour Injia J, (as he then was), in Richard Maribu’s case (supra), "[An unapproved mediation agreement] ......... may be used by either party as evidence in any legal proceeding to show a party's interest in the land in dispute, and it is not binding on the parties or a person who is not a party to the agreement. And so because the mediation agreement in the present case was not approved by the Local Land Court, there was no mediation agreement which was binding on the parties or on any other person claiming interest over the same land".

CONCLUSION

38. In the circumstances, I conclude that the Plaintiff is not entitled to the reliefs sought in the Originating Summons for there is no basis upon which the Court can declare the Plaintiff’s claim of ownership and occupation of the land. What should be done hereafter is for the parties to return to the Local Land Court at Minj for the Court to make a decision on the question of the Plaintiff’s ownership and occupation rights. I leave that to the parties, in particular the Plaintiff to pursue.

ORDERS

39. Accordingly, it is the judgment of the Court that:

1. The proceeding is dismissed forthwith.

2. The ex parte interim injunction of 20th April 2007 is dismissed forthwith.

3. Each party bears their own costs of the proceeding.

4. Time for entry of these Orders be abridged to the date of settlement by the Registrar which shall take place forthwith.

_________________________________________________
Sino & Co Lawyers: Lawyers for the Plaintiff
No appearance for the Defendants