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Pepokai v Pulpalane [2021] PGNC 24; N8771 (5 March 2021)

N8771
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS NO 67 OF 2009

BETWEEN
WANI PEPOKAI
Plaintiff

AND
YOANES PULPALANE
First Defendant

AND
LORMA CONSTRUCTIONS LIMITED
Second Defendant

AND
ROBERT TELA as Manager Department of Works-Wabag
Third Defendant

AND
DAVID KARAPEN as Deputy Clerk of Wabag District Court
Fourth Defendant

AND
JEFFERS WIA as Presiding Magistrate- District Court Wabag
Fifth Defendant

AND
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Sixth Defendant

Wabag: Makail, J
2021: 2^nd & 5^th March

JUDICIAL REVIEW – Review of series of District Court orders/decisions– Settlement order made by Village Court – Orders/decisions made in relation to ownership of customary land – Extraction of gravel from customary land for rehabilitation of highland highway – Dispute over ownership of land – Jurisdiction of – District Court acting in excess of its power – Customary landownership dispute fall within jurisdiction of Land Courts – Village Court lacked jurisdiction to made Settlement Order over customary landownership dispute –Village Court Act, 1989 – Section 43 – Land Disputes Settlement Act, Ch 45 – Sections3, 11, 15, 17, 18, 19, 26, 53 & 54

Cases cited:

Nil

Counsel:

Mr.L. Toke, for Plaintiff
No appearance, for First Defendant
Mr. C. Talipan, for Second Defendant
Ms. N. Balen, for Third, Fifth & Sixth Defendants

JUDGMENT

5^th March, 2021

1. MAKAIL J: This is an application for judicial review of a series of orders/decisions by the Fifth Defendant which are identified as:

1.1. Order/Decision of 14^th April 2008 which restrained the Second Defendant and Third Defendant from making payment of money to the First Defendant and any other persons in relation to the customary land known as Tapurin Gravel Pit No. 2 until the legitimate landowners are established by the Village Court,

1.2. Order/Decision of 24^th April 2008 which affirmed a Village Court Settlement Order No A53246 as exclusive evidence of the Plaintiff’s right as “sole legitimate owner of the piece of land known as TAPURIN GRAVEL PIT No. 02” and directed all payments due for the subject land to be made to the Plaintiff,

1.3. Order/Decision of 10^th September 2008 which dismissed an application to set-aside the Village Court and District Court orders and confirmed the orders,

1.4. Order/Decision of 22^nd September 2008 which dismissed an appeal by the First Defendant and others with costs, and

1.5. Order/Decision of 9^th January 2009 which set-aside the order/decision of the District Court of 14^th April 2008 and referred the matter back to the Village Court and further restrained the Second Defendant and Third Defendant from making any payment ‘until the rightful ownership is determined by the Village Court”.
2. These orders/decisions were a result of the Second Defendant’s extraction of gravel from Tapurin Gravel Pit No.2 land to rehabilitate the Wabag/Porgera section of the highlands highway at the request of the Third and Sixth Defendants. No payment has been made because there is a dispute as to the recognised customary landowner of this land between the Plaintiff and First Defendant.

3. The Plaintiff referred to a Settlement Order No A53246 issued by the Village Court Magistrate under the Village Court Act 1989 at a hearing on 22^nd April 2008 which purportedly settled the dispute over the right of ownership of the land and payment of money for the gravel extraction in favour of him. He then contended that had the First Defendant who was present at the settlement, accepted the Settlement Order, they would have not been going in and out of the District Court to undo it. Further, in one of the hearings at the District Court which resulted in the order/decision of 9^th January 2009, he was not given notice and did not attend. As a result, he was denied natural justice. Finally, he alleged that the Fifth Defendant had an existing relationship with the Third Defendant through his son who works with the Third Defendant and had a conflict of interest. Thus, the propriety of these series of orders/decisions are questionable.

4. The Third, Fifth and Sixth Defendants questioned the veracity of the Settlement Order on the basis that there is no independent witness such as the Village Court Magistrate who made the order to verify if such an order was made by the Village Court. The Second Defendant took a neutral position on the ground that it is a nominal Defendant having no view as to who should be recognised as the landowner to receive monetary benefits derived from the extraction of gravel from the disputed land. However, in the absence of any evidence to refute the evidence of the Plaintiff, it is the finding of the Court that the Settlement Order is proof of the Village Court order. The real question is, did the Village Court have jurisdiction to make the Settlement Order? The answer lies in Section 43 of the Village Court Act, 1989. It states:

“43. Disputes in respect of land.

A Village Court that has jurisdiction over an area in which there is situated any land that is the subject of a dispute as to—

(a) its ownership by custom; or

(b) the right by custom to its use,

may, on the application of a party to the dispute, make an order—

(c) authorizing the use or occupation of the land by one of the parties to the dispute for such purposes and subject to such conditions as are set out in the order; and

(d) where appropriate, prohibiting the use or occupation of the land referred to in Paragraph (c) except in accordance with an order referred to in that paragraph; and

(e) restraining the other party to the dispute from interfering with the authorized use or occupation,

or for any other purpose, pending a decision by the Local Land Court or the Provincial Land Court”.(Emphasis added).

5. Section 43 does not confer jurisdiction on the Village Court to determine a dispute in relation to ownership of customary land but allows or prohibits a party to the dispute from using or occupying the land and restraining the other party to the dispute from interfering with the authorised use or occupation of the land or for any other purpose, pending a decision by the Local Land Court or the Provincial Land Court. The term “pending” connotes that it is temporary.

6. In other words, the Village Court is empowered to make a temporary order to allow one of the disputing parties to use or occupy the disputed land or prohibit one party from using or occupying the disputed land or restrain one of the parties to the dispute from interfering with the use or occupation of the disputed land. That jurisdiction does not include a determination as to the disputing parties’ entitlement to monetary benefits derived from the disputed land. As to the determination of ownership of the disputed land, it falls within the jurisdiction of the Land Disputes Settlement Authorities under the Land Disputes Settlement Act,Ch 45.

7. As the monetary benefits derived from the extraction of gravel are directedly from the disputed land, neither the District Court nor Village Court has jurisdiction to determine the dispute in relation to who owns the disputed land and entitled to the monetary benefits derived from it. It follows that the orders/decisions of the District Court under review were made in excess of the District Court’s jurisdiction and must be quashed.

8. It also follows it was not necessary for the Village Court to make the Settlement Order. Neither does the Settlement Order constitute an Agreement under Sections 18 and 19 of the Land Disputes Settlement Act, Ch 45. Moreover, the Village Court lacked jurisdiction to make the Settlement Order. Thus, even if it is not strictly being reviewed in this proceeding, it must be emphasised that it is the root cause of the parties’ frequent appearances in the District Court to have it terminated but to no avail. As the Court is exercising its supervisory jurisdiction over actions, orders and decisions of interior tribunals such as the District Court and Village Court, the Settlement Order being the root cause of the entire dispute must be declared void and quashed. In so doing, it will pave the way for the Plaintiff and First Defendant including any persons who claim to own the disputed land to register their claim and follow the process under the provisions of the Land Disputes Settlement Act, Ch 45.

9. Very briefly, a dispute over ownership of customary land where monetary benefits are due such as in this case would fall under Section 3 (Application) of the Land Disputes Settlement Act, Ch 45, it being recognised as “......disputes as to interests in customary land......”. The first stage would be a mediation under Section 17 (Mediation) by Land Mediators who are appointed under Section 11 (Appointment of Land Mediators) and whose powers and functions are set out in Section 15 (Powers and functions of Land Mediators). Under Section 18 (Agreements) the Land Mediator, inter-alia, records that an agreement has been reached, records the terms of the agreement and forward a copy of the record to the Local Land Court. Under Section 19 (Approval of agreements), parties to the agreement may apply to the Local Land Court to have the agreement approved and if approved, it has the effect of an order of the Local Land Court.

10. Where no agreement is reached, the dispute can be brought to the Local Land Court for a judicial determination. This is the second stage of the process. Section 26 (General jurisdiction of Local Land Courts) confers jurisdiction on the Local Land Court over and in relation to, inter-alia,“a dispute as to an interest in land”. Finally, there is an appeal avenue for an aggrieved party to utilise. Section 53 (Jurisdiction) confers jurisdiction on the Provincial Land Court to hear and determine appeals from decision of a Local Land Court. Under Section 54 (Appeal against decision of Local Land Court), an appeal must be filed within three months after the date of decision of the Local Land Court.

11. This is the correct process for resolving a customary landownership dispute established by statute. The monetary benefits due are dependent on the resolution of the ownership dispute. Once it is resolved, it will pave the way for release of funds. As the First Defendant had not utilised this process under the Land Disputes Settlement Act, Ch 45, it is appropriate and in his best interest that he be compelled to comply with it. An order to that effect will be in order. As for the Plaintiff, he is at liberty to register his claim.

12. As to costs, except for the Second Defendant, as each party failed to correctly identify the dispute as falling within the jurisdiction of the Land Disputes Settlement Authorities under the Land Disputes Settlement Act,Ch 45 it is fair and proper that each party bear its own costs of the proceeding. As for the Second Defendant, as a nominal Defendant, it will also bear its own costs of the proceeding.

Order

13. The formal orders of the Court are:

13.1. The application for judicial review is upheld.

13.2. An order in the nature of certiorari to quash forthwith the following:

(a) Order/Decision of 14^th April 2008 which restrained the Second Defendant and Third Defendant from making payment of money to the First Defendant and any other persons in relation to the customary land known as Tapurin Gravel Pit No. 2 until the legitimate landowners are established by the Village Court,

(b) Order/Decision of 24^th April 2008 which affirmed a Village Court Settlement Order No A53246 as exclusive evidence of the Plaintiff’s right as “sole legitimate owner of the piece of land known as TAPURIN GRAVEL PIT No. 02” and directed all payments due for the subject land to be made to the Plaintiff,

(c) Order/Decision of 10^th September 2008 which dismissed an application to set-aside the Village Court and District Court orders and confirmed the orders,

(d) Order/Decision of 22^nd September 2008 which dismissed an appeal by the First Defendant and others with costs, and

(e) Order/Decision of 9^th January 2009 which set-aside the order/decision of the District Court of 14^th April 2008 and referred the matter back to the Village Court and further restrained the Second Defendant and Third Defendant from making any payment ‘until the rightful ownership is determined by the Village Court”.

13.3. An order in the nature of declarationthat the Village Court Settlement Order A53246 is null and void and of no effect.

13.4. An order in the nature of certiorari to quash the Village Court Settlement Order A53246 forthwith.

13.5. An order in the nature of mandamus to compel the First Defendant including any person who claims ownership of the disputed land of Tapurin Gravel Pit No. 2 land to register their claim and comply with the process under the provisions of the Land Disputes Settlement Act, Ch 45.

13.6. Each party shall bear its own costs of the proceeding.

Judgment and ordersaccordingly.

________________________________________________________________

Public Solicitor: Lawyers for Plaintiff
Kortal Lawyers & Associates: Lawyers for Second Defendant
Solicitor General: Lawyers for Third, Fifth & Sixth Defendants