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Nielik Clan v Tintalgo Clan [2010] PGLLC 1; DC1041 (28 September 2010)

DC1041

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE
SITTING IN its LOCAL LAND COURT JURISDICTION]

LLC-01 Of 2010

BETWEEN

Nielik Clan
Applicant

AND

Tinetalgo Clan
Respondent

LIHIR: B.TASIKUL: LOCAL LAND COURT MAGISTRATE

2010: 28th September

CIVIL- Land Dispute Settlement Act- applications for enforcement of the decision of Local Land Court Orders. Local or Provincial Land Courts does not have jurisdiction to enforce its orders. Any orders must be enforced in the District Court. Land Mediators are not judicial Officers. Enforcement of LLC or PLC decisions are criminal in nature.

Cases Cited
Hila Agalu V Peter Eno (2005) N2904

References
District Court Act
Land Dispute Settlement Act ss.
Magisterial Services Act

REASON FOR DECISION

1. This matter came before me on the 28th of September 2010 which I struck out the matter on the basis that the notice of motion filed by the applicant was improper as I was of the view that a proper means to enforced any previous decision by the Local or Provincial Land Court is through the issuing of a information and Summon Upon Information.
   
2. To really understand the facts of the matter I wish to restate here as follows.
   
3. On the 7th of May 2003 the Local Land Court awarded the customary ownership of the customary land known to the parties as Naitam to the Nielik Clan. This is the order as I quote;
   
   1. That Customary Ownership title to the whole portion of land known as Naitam on Lihir Island is awarded to the Nielik Clans.
      
   2. The boundaries shall remain the traditional boundaries known to the parties and other clans.
      
   100. The current occupants of the Naitam land are to vacate the land within a reasonable time.
        
   4. The Nielik clan are to pay compensation for coconut trees belonging to one Toenunun the father of the claimants (Tinetalgo) including other properties which cannot be removed from the land.
      
4. Since the date of the order till to date the other losing party have not vacate the said land, despite numerous letters and notice were sent to them by Veronica Bassani who is the spokes woman of the Nielik Clan.
   
5. On the 31st August 2010 the applicant through her Lawyer filed a Notice of Motion seeking to enforce the order of the Local Land Court. The orders that she was seeking under the motion was;
   
   1. A finding subject to further orders that;
      
      • (i) A dispute regarding ownership of customary land exists between the parties herein in respect of customary land known as Naitam in Suen village, Lihir
        
      • (ii) By order 3 and 4 of the Orders of the Local Land Court dated 7th May 2003, the respondent and its members were ordered to vacate the said land within reasonable time and for the Nielik to pay compensation for coconut trees and other permanent improvement on the subject land.
        
      • (iii) The respondent has since the 7th of May failed to vacate the subject land to date; it is seven years and three months.
        
   2. The parties in the proceeding are to attend the LLC at which date and time the Court will issue directions in relation to orders no 3 and 4 of the Orders of the LLC dated 7th May 2003, including the appointment of an independent property Valuer to value the improvements made by the Tinetalgo on the property, the period of time of within which Nielik should make payments for such assessed amount to the Tinetalgo and the period of time which Tinetalgo should provide vacant possession to Nielik
      
   100. Any other Order or such further orders the Court deems appropriate.
        
6. I refused to entertain the matter and have the matter struck out of the view that it was not appropriate to enforced orders of Local or Provincial Land Court through such motion. A proper cause of action was to file information and summon upon information and enforced it through the District Court.
   
7. The question that needs to be answered is how can the Local or Provincial Land Court enforced its orders if there are any breaches.
   
8. The Land Dispute Settlement Act is silent as to how its Orders can be enforced if there are any breaches. Part VI of the Act provides for the offences. Section 64 clearly spells out that any person who failed to comply with the orders of both the Local and Provincial Land Court can be charged.
   
9. Therefore it is now clearly a Criminal offence. It now brings the question of how would this criminal offence be brought be before the Court and in which Court has the jurisdiction to determined the matter.
   
10. In the matter of Hila Agalu V Peter Eno (2005) N2904 his honour InjiaDJ (as he was then) clearly spells out the distinction between the powers and function of Magistrates when dealing with Land and District Court matters. The following were his remarks;
    

It is clear from the above provisions that the District Court has no jurisdiction to deal with customary land ownership issues which is the exclusive jurisdiction of the Land Courts (Local Land Court and Provincial Land Court). The only matter common to both Courts is that they are presided over by Local Court or District Court Magistrates who are appointed by the Minister for Justice to sit in those Courts. This in turn may be one of the main causes which creates confusion because the Magistrate is wearing two caps so to speak. The jurisdiction and procedure of the Land Courts and the District Courts should not be mixed up. The two courts must be separately administered. They should have their own Clerks, records, forms, Worksheets, etc. For instance, I have seen Magistrate's worksheets used to record proceedings in the Land Courts mixed up with worksheets containing recording of proceedings taking place in the District Court. I have seen also court documents showing proceedings taking place in the District Court and the Magistrate declaring himself in the Court order as sitting or making an order as a Land Court Magistrate. For clarity purposes, separate worksheets should be devised by the Magisterial Services, to reflect the clear demarcation of jurisdiction and procedures of the two Courts. Also, Magistrates need to clarify at the outset with the parties and be clear in their own mind in which capacity or Court they are presiding and apply the correct procedure prescribed by the respective statutes.

11. I totally agreed with his honour as District Courts have no jurisdiction to determine issue of ownership in customary land which is the prerogative on the Local Land Court. However, in this present matter the issue is not the ownership, this issue has been deal with by the Local Land Court.
    
12. The issue here is how does a grievance parties enforced the order of the Local or Provincial Land Court if the other party fail to comply with the orders. Does the Local Land Court or the Provincial Land Court have the jurisdiction to enforce its orders under s. 64 of Land Dispute Settlement Act?
    
13. The Land Dispute Settlement Act and the District Court Act are two different pieces of legislation. However, the magistrates who exercise the powers under this legislation are the same magistrates.
    
14. Section 23 of the Land Dispute Settlement Act provided for the constitution of the Local Land Court, which includes two or more land mediators. Whereas the District Court Act only allows a Magistrate to sit as a District Court. The District Magistrate is appointed

by the Judicial Legal Service Commissions and their judicial powers and function are provided for under s9 of the Magisterial Service Act 1975.

15. Therefore District Court Magistrates have judicial powers conferred to them to exercise any matters under various legislations. Therefore, if any matters regarding the enforcement of Local Land Court decisions are brought before a Local Land Court for enforcement, the question is what judicial powers the Land Mediators has to issue orders of any breaches. This is because any breaches under s.64 of the Land Dispute Settlement Act are now a criminal matter as they carry penalty of imprisonment.
    
16. Land Mediators are appointed by the Provincial Land Dispute Committee (s.7 of LDSA). Their powers and functions are only limited to assist in the attainment of peace and harmony. (s15) Because the Local Land Court comprises of a District Court Magistrate and two land mediators any decision they made would be ultra vires. This is because land mediators are not judicial officers.
    
17. The only option available is to enforce any Local or Provincial Land Court breaches through the District Court. This can be done either through laying of complaint through the police or through private prosecution by laying of an information s.29 of the District Court Act.
    
18. This now brings me to my view that it is only proper that any breaches of a Local or Provincial Land Court decision must be brought before the District Court and not the Local or Provincial Land Court. The only way is through an information and Summon upon Information and not through a notice of motion.
    
19. For the above reason I will have this matter struck out.