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Golpak v Malori, Kali, Siname and Niugini Lumber Merchants Pty Ltd [1993] PGLawRp 560; [1993] PNGLR 491 (20 October 1993)

PNG Law Reports 1993

[1993] PNGLR 491 - Victor Golpak v PA Kali Alois Malori, Simon Kali, Felix Siname, and Niugini Lumber Merchants Pty Ltd�

[1993] PNGLR 491

N1182

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

VICTOR GOLPAK

V

PATRICK ALONGREA KALI; ALOIS MALORI; SIMON KALI; FELIX SINAME; MUMORE PTY LTD; AND

NIUGINI LUMBER MERCHANTS PTY LTD

Rabaul

Doherty J

20 October 1993

REAL PROPERTY - Customary land - Right to make contract for use - Claims based on different succession systems.

CONSTITUTIONAL LAW - Jurisdiction of National Court - Constitution s 155 does not give the Court power to decide ownership of customary land - Jurisdiction of Local Land Court - Land Disputes Settlement Act.

Facts

The plaintiff claimed to have acquired land under the matrilineal system of inheritance, whilst the fifth and sixth defendants' claim was on the basis of a different succession system. The plaintiff sought declarations and mandatory injunctions relating to a contract for the use of the disputed land, entered into by the defendants. He claimed that the defendants had no customary title to the land and, therefore, could not make the contract.

Held

N1>1.������ Who acquired a right to the land in custom is a fundamental issue.

N1>2.������ Only a person with right has locus standi to challenge the contract, which is an "interest in land".

N1>3.������ Despite ss 155 and 166 of the Constitution, jurisdiction to determine issues of ownership and title of customary land is in the Local Land Court under the Land Disputes Settlement Act Ch 45. Until that is determined, the National Court cannot arbitrate.

Counsel

K Latu, for the plaintiff.

S Lupalrea, for the first - fourth defendants.

D Lidgett, for the fifth - sixth defendants.

20 October 1993

DOHERTY J: This is an application relating to a contract made by the first and second defendants with the fifth and sixth defendants over the use of land as a log pond. The plaintiff claims that the first four defendants had no right to make the contract. He says the land which is in issue is customary land, it is not alienated land; hence, Part IX of the Land Act (ss 73, 74) Ch 185 would apply to it, and contracts concerning that land would have to be between its traditional owners under custom. The Land Act refers to these as "native persons in a customary contract". If, however, it is not a customary type agreement, but one under the non-customary law, then it would be subject to the approval of the Minister for Lands.

The plaintiff seeks declarations and says that he is entitled to bring his claims in the National Court. Section 155 of the Constitution vests in the National Court power to deal with prerogative writs, such as declarations, injunctions or, in this case, mandatory injunctions. However, fundamental to any application for a declaration or other prerogative writ is the locus standi of the parties before the Court.

The plaintiff claims in this Court a right of action, stating that he acquired that right by virtue of the matrilineal system which is prevailing in this area and over the land in question. On the death of the last member of the Kapakukuna Clan in 1982, the matrilineal system of accession vested in him a right to apply to a Court for interest in the land.

The defendants reply by affidavit stating a different customary succession system, and say that they acquired a right over the land by virtue of being the children of the last occupier. Which system prevails, the matrilineal clan accession or direct inheritance from the father rather than through clan membership, is clearly disputed. It appears to me to be a fundamental issue in this case, because the right to make a contract over an interest in land is caught by s 2 interpretation section of the Land Disputes Settlement Act Ch 45, where land is defined to be customary land, and includes an interest therein. A contract for the use of land is "an interest in land".

Section 3 of the Land Disputes Settlement Act states that the act applies to disputes as to interests in customary land or as to the position of the boundaries. This dispute involves a power to make a contract and is an interest in the land. Section 4 provides that certain types of disputes will not be covered by the act if there has been a declaration exempting them. On the evidence before me, no such declaration has been made in relation to this land. Section 26 of the Land Disputes Settlement Act gives a Local Land Court general jurisdiction over, and in relation to, a dispute as to an interest in land where the land is wholly situated within the land court area. It further provides that it will settle any disputes under s 29 of the Land Disputes Settlement Act. That does not entirely apply here, but I consider that s 31 does apply. It states that all proceedings in a Local Court will be commenced by an application to a Magistrate of a Local Land Court or a Local Land Magistrate. Neither of these includes a judge of the National Court.

It seems to me that the spirit and the intent of the legislature in passing the Land Disputes Settlement Act was to prevent the National Court from arbitrating on the forms of succession and, hence, ownership or control of interests in customary land. I think, therefore, that it would be going against both the letter and the spirit of the legislation if I assume the powers to make declarations on what is an interest in land.

I, therefore, consider that this Court does not, at this time, have jurisdiction to arbitrate in this case. I must, therefore, refer it to the Local Land Court to determine who has the interest in the land.

If the Local Land Court determines that the plaintiff does have a right over the land by virtue of the matrilineal system described in his pleadings, then it is definitely open to this Court to make declarations as to whether non-citizens or non-customary owners or persons who are bodies corporate have a right to enter into a contract on customary land under the non-customary law.

I defer hearing this application to a determination of ownership of the land in issue.

Lawyer for the plaintiff: Kevin Latu & Lawyers.

Lawyer for the first - fourth defendants: Namaliu Lawyers.

Lawyer for the fifth - sixth defendants: Warner Shand.