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Agalu v Eno [2005] PGNC 54; N2904 (31 August 2005)

N2904


PAPUA NEW GUINEA


[IN THE NATIONAL COURT OF JUSTICE]


APP. NO. 250 OF 2003


Between:


HILA AGALU, KEKE GAVERA,
ROSEMARY KONIO RUMA & BOE ARUA
-Appellants/Applicants-


And:


PETER ENO, DIA ENO, SISIA ENO & DIKA ENO
-Respondents/Defendants-


Waigani: Injia, DCJ
2005: July 25th, August 31st


Inferior Courts– District Court – Local Land Court and Provincial Land Court – Magistrate’s jurisdiction – District Court or Magistrate of a District Court has no jurisdiction to deal with disputes over ownership of customary land and benefits to be derived from customary land which is the exclusive jurisdiction of Local Land court and Provincial Land Court – District Courts Act (Ch. No. 40) ss. 1, 5, 16, 18, 21 and 22; Land Dispute Settlement Act (Ch. 45) ss. 1, 22, 24, 26, 27, 31, 35, 38, 40, 41, 42, 46, 47, 50, 52 and 53.


Cases cited:
No cases cited in the judgment.


K Iduhu for the Appellant
Respondents in person


31 August, 2005


INJIA, DCJ: This is an appeal against the decision of the Port Moresby District Court made on 6 October 2003. The Court found that the Respondents had "controlling and distribution" rights over the customary land known as "Biriaga" situated on the Burns Peak, NCD and occupied by Pacific Communications and Protect Security under a rental arrangement with customary landowners. The Court ordered rental payments be paid to the Respondents.


There are four (4) detailed grounds of appeal set out in the Amended Notice of Appeal, but according to Mr Iduhu for the Respondents, they raise two main issues and these are:


  1. Whether s.22 of the District Court Act, under which the order was made, vests power in the District Court to determine ownership of interest in customary land.
  2. Whether the District Court erred in law by determining an issue regarding an interest in customary land when such provision was vested in the Local Land Court by the Land Dispute Settlement Act.

The facts of the case as I ascertain from the Court depositions are as follows. As early as 1963, Biriaga land was subject of ownership dispute between certain customary landowners before the National Land Commission (NLC). On 2 April 1963, the NLC found that the customary landowners of the land were "the descendants of "HILA HENI NO. 1 and HILA HENI NO. 2 of the Apau Idibana Iduhu" ("Clan") and that "the usufructuary rights to land known as BIRIAGA" with the power of control is vested in SISIA HILA for those descendants." The Biriaga land was surveyed and clearly mapped out by NLC and it is contained in the NLC decision document.


Dispute between the parties to these proceedings re-surfaced in 1996 or thereabouts, some 6 years after the two companies occupied the land and set up telecommunications facilities and rental payments began to flow. The dispute ended up in the Land Courts established under the Land Dispute Settlement Act. On 21 July 1999, the Local Land Court at Port Moresby received an application filed by the Appellants seeking order for rental payments to be made to them. The Appellants sought orders "that our claim be heard regarding Compensation/Leave payment by Wormald Security for the last 6 years." On 16 November 1999, Mr Boio Kidu a Magistrate presiding in the Local Land Court, issued an order restraining further rental payments until "the situation was finalized in Court."


In December 1999, the Respondents filed a Motion in the "District Court" at Port Moresby seeking to set aside the interim orders made by the Local Land Court on 16 November 1999. On 24 December 1999, His Worship Mr. Rei Vagi, who described himself as a "Land Court Magistrate", but sitting in the "District Court", set aside the Local Land Court order of 16 November 1999. His Worship further ordered Protect Security "to release to Buruka Vai (Respondent), the outstanding lease rental payments for the use of the portion belonging to her within the Land known as Biriaga". Sometime after December 1999, Buruka Vai passed away.


In May 2003, the estate of the late Buruka Vai, who are the Respondents, filed an application in the "District Court" for orders restraining the payment of rental monies to the Appellants. On 23 May 2003, the "District Court" granted the orders in what appears to be on an interim basis.


On 22 September 2003, the Respondents filed a further application in the "District Court" seeking to be declared the rightful person to distribute the rental payments. After hearing both parties on 6 October 2003, the "District Court" made a decision and gave a written judgment. This decision is the subject of this appeal. The "District Court" order states:


"That payments for the land in question be made to the applicants Peter Eno and his brothers and sisters who have controlling and distribution rights."


In arriving at its decision, the "District Court" had before it and considered the NLC decision document. It also considered a Statutory Declaration of the Chairman of Hanuabada Village Court, Mr Gini Uru which deposed to the fact that the dispute came before the Hanuabada Village Court and the "District Court" made a decision. The Village Court decision was that Buruka Vai was given the right to collect the payment because the two way-radio tower was constructed on "Buruka Vai’s (Inugo) piece of land not the whole family".


The main issue before me is whether the "District Court" or a "Magistrate sitting in a District Court", had jurisdiction to hear an interlocutory application in relation to the substantive matter which was before the Local Land Court.


The Local Land Court on the one hand and the District Court on the other hand, are established under two different statutes. The Local Land Court (and the Provincial Land Court) is established under the Land Dispute Settlement Act (Ch. No. 45) and the District Court is established under the District Courts Act (Ch. No. 40). Their jurisdiction over subject matter and procedures for dealing with the matters within their respective jurisdictions are distinct and separate and they are prescribed by their own respective statutes.


There appears to be some confusion amongst some Magistrates on the two Courts and parties appearing before them. This may be due to the practice of appointing Local and District Court Magistrates to preside in the Land Courts. It is not without significance, therefore to re-state the obvious – to set out the relevant process of the respective status, as to jurisdiction, procedure and Constitution of the two Courts. This is to demonstrate the clear demarcation in establishment of constitution, jurisdiction and procedure of the two Courts.


In relation to the District Courts, Section 1. of the District Courts Act defines "Court" to mean "a District Court" and a "Magistrate" to mean "a person appointed under the Magisterial Service Act (Ch. 43)" and includes Principal Magistrate, a Deputy Chief Magistrate, a District Court Magistrate and a Reserve Magistrate. Section 5 says "Magistrates have and may exercise jurisdictions the several powers and authorities conferred on them by this or any other Act." Section 16 says "A Court may be constituted by one or more Magistrates." Section 18 provides for appointment of Clerks of District Courts by the Judicial and Legal Services Commission.


Part III Division 2 (Jurisdictions of District Courts)(Sections 20 – 27) provides for jurisdiction. The key provision which relates to civil cases is s.21(1) – (5). Resolution of disputes over customary land is not included in s.21(1). It provides:


"21. Civil jurisdiction


(1) Subject to this Act, in addition to any jurisdiction conferred by any other law, a Court has jurisdiction in all personal actions at law or in equity where the amount of the claim or the amount or value of the subject matter of the claim does not exceed—
(2) [Repealed]

(3) Subsections (1) shall not be taken to limit the jurisdiction of Courts in cases where, by any law, money, irrespective of amount, may be recovered before a Court.

(4) A Court has no jurisdiction in the following cases:--
(5) Subject to this section, a Court has jurisdiction when—

in the area for which the Court is constituted."


Part IV (Commencement of Proceedings) of the Act provides for general procedure for instituting proceedings or complaints in matters within its jurisdiction. Part VIII (Proceedings in Connection with Complaints) deals with procedures for hearing of Complaints. Part IX deals with judgments/decisions on Complaints. Part XI deals with Appeals from decision of District Court to National Court. Part XIII deals with award of costs.


The Land Dispute Settlement Act (Ch. No. 45) in s.1 defines a "Local Land Court" to mean a Local Land Court established under Section 21 and a "Provincial Land Court" to mean "a Provincial Land Court" established under Section 45. Section 21 says the Minister may by Notice in the National Gazette, establish a Local Land Court in area for a province specified in the Notice. Section 45 makes similar provision for Provincial Land Courts.


Also, s.1 defines "Local Land Court Magistrate" to mean "a Magistrate of a Local Land Court appointed under s.22" and "Provincial Land Court Magistrate" to mean a "Provincial Land Magistrate appointed under s.46. Section 22 says the Minister "may appoint a Magistrate of a Local Court." Section 46 make similar provisions in respect of Provincial Land Court Magistrates.


Section 23 provides for constitution of Local Land Courts by a Local Land Court Magistrate. S.47 provides for Provincial Land Court to be "constituted by a Provincial Land Magistrate."


Section 24 provides for appointment of Clerks of Local Land Courts. Section 48 provides for appointment of Clerks of the Provincial Land Court.


Part IV Division 2 (General Jurisdiction of Local Land Courts) provides for jurisdiction of Local Land Courts. Sections 26 and 27 are the main provisions and they provide as follows:-


"26. General jurisdiction of Local Land Courts


Subject to Section 3 and 4 and to this Part, a Local Land Court has jurisdiction over and in relation to-


(a) a dispute as to an interest in land where the land in dispute is situated wholly or partly within the province for which the Court is established; and
(b) the approval of agreements under Section 19p and
(c) a dispute to which Section 29 applies; and
(d) any other action or decision that it may be required to take under this Act.

"27. Limitations of jurisdiction


(1) Where a dispute relates to land either wholly or partly in a Land Mediation Area, a Local Land Court has no jurisdiction over the dispute, unless a Land Mediator has certified that he has acted in relation to the dispute and that-

(2) Where a dispute relates to land that is not situated either wholly or partly in a Land Mediation Area, a Local Land Court has no jurisdiction in relation to the dispute unless a Magistrate of a District Court, after having satisfied himself that, if there is a customary dispute settlement authority the dispute has been considered by it, has first certified that—
(3) An application to a Magistrate of a District Court for a certification as to the matters referred to in Subsection (2) may be made by—
(4) A Local Land Court shall not proceed to hear and determine a dispute, other than an application under Section 44, unless it has first satisfied itself that no previous order has been made in relation to the land by—

Part IV, Division 3 provides for "the Ancillary Jurisdiction of Local Land Courts".


Section 48 provides for a Provincial Land Courts to have their own Clerks.


Part IV Division 5 (s.31 – 38) (Practice and Procedures of Local Land Courts). The main Sections are ss.31, 35 and 38 and they provide as follows: -


"31. Applications


(1) Subject to this Act, all proceedings in a Local Land Court shall be commenced by an application made to—
(2) An application may be made by—
(3) An application—
(4) . . . [Repealed]

(5) On the making of an application, the Local Land Court shall cause notice of the application to be given in accordance with Section 71.

"35. Practice and procedure of Local Land Courts


(1) A Local Land Court—
(2) Where a Local Land Court informs itself on any questions in accordance with Subsection (1)(c), it shall—
(3) Notwithstanding Subsections (1) and (2), where a Local Land Court proceeds to hear and determine a dispute under Section 29(1)(a)(ii) it is bound, as far as is practicable, by the same rules of law, evidence, practice and procedure as those by which the Village Court having jurisdiction in the matter would be bound.

"38. Records and returns of cases


(1) As far as practicable, a Local Land Court shall keep, or cause to be kept, a record of the proceedings in a form approved by the Minister.

(2) The record of proceedings shall include minutes of any evidence or information given in the proceedings before the Court.

(3) The reasons for the decision of the Court shall be recorded by the Local Land Magistrate on the record.

(4) The record of proceedings shall be certified by the Local Land Magistrate presiding at the hearing, and when so certified is prima facie evidence of the matters set out in it.

(5) The Local Land Magistrate shall forward a copy of the record of each proceedings to the Provincial Land Court.

(6) Nothing in this or any other Act prevents the conduct of proceedings, keeping of records or taking of minutes in Pisin, Hiri Motu or a vernacular language understood by all the parties.

Part IV, Division 6 (Orders, etc) (ss.39 – 44) provides for orders which may be made by a Local Land Court on the hearing of a matter, their effect and even provides for variation of the orders. Sections 39, 40, 41 and 42 are relevant and they provides:


"39. Orders generally.


(1) On the completion of a hearing under this Part, the Local Land Court shall make an order in accordance with this section.

(2) In making an order under Subsection (1), a Court shall, subject to Section 68, apply the customs of the area concerned, and in particular shall consider the customs of the area in so far as they relate to—

"(3) Subject to Subsection (2), the customary interest in relation to land that a Court may take into consideration include customs as to—

(a) the exclusive use or possession of land; and
(b) the disposal of land or an interest in land; and
(c) the use or possession of land for limited purposes; and
(d) the growing or harvesting of garden crops or tree crops; and
(e) the exclusive use or possession of trees or improvements on land; and
(f) the use or possession of trees for limited purposes; and
(g) the fishing, farming or grazing of animals; and
(h) the hunting or gathering of animals or vegetable matter; and
(i) the collecting or mining of earths and minerals permitted by law; and
(j) passages or landing places.

(4) An interest referred to in Subsection (3) may be—
(5) Without limiting the generality of the preceding provisions of this section but subject to Subsection (6), an order under Subsection (1) may include provisions that—

or any other provision that the Court thinks appropriate.


(6) Notwithstanding Subsection (5), an order shall not include—

"40. Orders relating to return of former interests


Notwithstanding this Act, if a Local Land Court is satisfied in relation to an application under this Part that—

(a) one of the parties to the dispute is short of land and another party has an abundant supply of land; and

(b) the party that is short of land has within 100 years before the making of the application held an interest or interests in the land or part of the land of the other party; and

(c) the return of all or part of the interest or interests in the land referred to in Paragraph (b), or the grant of some other equivalent interest or interests by the other party, will lead to a peaceful and effective settlement of the dispute; and
(d) the party deprived of land will still have an abundant supply of land after the return or grant of the interest or interests has been made,

the Court may order that—

(e) all or part of the interest or interests previously held by the one party be returned to it by the other party, or the last-mentioned party grant to the first-mentioned party some other equivalent interest or interests in its land; and
(f) such compensation or customary tribute be paid or feast given as in its opinion is just,

subject to such conditions and limitations as the Court determines.


"41. Reasons for and terms of orders to be explained to parties


(1) As soon as practicable after the conclusion of a hearing, the Local Land Court shall—

in the presence of the parties to the dispute.


(2) On making an order under this Part, other than a temporary order under Section 30, the Court shall give notice of the terms of the order in such form as it thinks fit, in accordance with Section 71.

"42. Visit to land after order


(1) On making an order under this Part, other than a temporary order under Section 30, a Local Land court shall—

(2) Where the order includes provision as to the position of a boundary to the land in dispute, the Court shall—

(a) as far as practicable, walk the boundary with the parties; and


Part V (Provincial Land Courts) Division 2 (Practice and Procedure of Provincial Land Courts)(ss.50 – 60) provides for Practice and Procedure of Provincial Land Courts. The Provincial Land Court, deals with appeals from the Local Land Court. The main Sections are ss.50, 52 and 53 and they provide:


"50. Practice, procedure and powers of Provincial Land Courts


(1) Subject to this Part, the practice and procedure of a Provincial Land Court are as prescribed.

(2) Subject to this Part and the regulations, a Provincial land Court—
(3) Where a Provincial Land Court informs itself on any question in accordance with Subsection (2)(d), it shall—
(4) A Provincial Land Court may, where in its opinion it is necessary to do so, inspect the land in dispute before or during a hearing.

"52. Records


(1) A Provincial land Court shall keep, or cause to be kept, a record of its proceedings in a form approved by the Minister.

(2) The reasons for the decision of the Court shall be recorded by the Court on the record.

(3) The record of proceedings shall be certified by the Court, and when so certified is prima facie evidence of the matters set out in it.

"53. Jurisdiction


Subject to this Part, a Provincial land Court has jurisdiction to hear and determine appeals from a decision of a Local Land Court where the land in dispute is situated wholly or partly within the area of the Provincial Land Court.


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.


In the present case, the application filed by the Appellants on 21 July 1999 was filed in the Local Land Court. On 16 November 1996, an interim order was made by that Local Land Court, pending the determination of the substantive application. When the substantive application was pending before the Local Land Court, in December 1999, the Respondents filed their Motion in the District Court to set aside the interim orders issued by the Local Land Court. Consequently, the "District Court" set aside the interim order made by the Local Land Court. Thereafter, subsequent proceedings were conducted in the "District Court", whilst the Appellant’s substantive application was still pending determination in the Local Land Court. The decision the subject of this appeal was one such decision made by the "District Court". There is a fundamental flaw in these proceedings. The "District Court" clearly lacked jurisdiction to deal with the Respondent’s application filed in May 2003 and 22 September 2003. Those applications should have been filed and heard by the Local Land Court.


Also the decision of His Worship Rei Vagi, dated 24 December 1999, is confusing. Whilst the worksheet is entitled in the "District Court, he described himself as a Land Court Magistrate in the Court Order. It is not clear if he was appointed a Local Land Court Magistrate or a Provincial Land Court Magistrate. This ambiguity is critical. Assuming that he was a District Court Magistrate, I am satisfied that he lacked jurisdiction to deal with the matter which was before the Local Land Court, when he was sitting in the "District Court" as shown in the Court record. In any case, the Motion filed by the Respondents before the "District Court" was filed in the wrong Court. Therefore, the "District Court" lacked jurisdiction to deal with the Motion.


In the present case, the "District Court" Magistrate acknowledged that the substantive matter was pending before the Local Land Court when he said:


"This provision (s.22 of the District Court Act) allows for remedies to be granted whether absolute or conditional in matters which are currently in Court. In this case there is a substantive matter not yet finalized in the Land Court and this application is seeking for interim remedies."


It is not clear from the judgment what the Magistrate meant by the substantive matter before the "Land Court", but if one goes by the record I have set out above, then the Magistrate must be referring to the Appellants’ application filed in 1999 in which Magistrate Kidu made interim orders pending finalization of the Appellants’ application. Section 22 of the District Court Act does not confer jurisdiction on the "District Court" to deal with customary land ownership and related matters. It is an ancillary provision, which must be read subject to the jurisdiction provision in s.21 of the Act. In s.21, the "District Court" is not given jurisdiction to deal with issues of customary land ownership and usage rights. The Land Courts have exclusive jurisdiction on those matters.


In my view, proceedings before the "District Court" subsequent to 16 December 1999, including the proceedings before the "District Court" the subject of this appeal were conducted in the "District Court", without jurisdiction. However, those proceedings prior to the present one are not the subject of this appeal so I will confine my decision to the present proceedings. I will quash the decision of the "District Court" the subject of this appeal for that reason. Consequently, the very same application will now be referred to the Local Land Court for a proper hearing. As for any rental monies payable or owing, appropriate application should be made before that Court.


My decision on the issue of jurisdiction determines this appeal. Having reached this conclusion, it is not necessary to consider other specific issues raised by the Appellants as to the construction of s.22 of the District Court Act. It is also not necessary to consider the Respondent’s arguments on the effect of the decision of NLC and the Hanuabada Village Court. The same arguments can be made before the Local Land Court when it hears the Appellants’ application filed on 27 July 1999 and the Respondent’s applications filed on 22 September 2003. The various declaratory and other orders for payment of rental monies sought by the Appellant can be moved in the Local Land Court.


I make the following orders:


  1. The Appeal is allowed.
  2. The decision of the District Court at Port Moresby made on 6 October 2003 is quashed.
  3. The Respondents application filed on 22 September 2003, is referred to the Local Land Court for hearing, as soon as practicable.
  4. The other orders sought by the Appellant in the Amended Notice of Appeal are refused.
  5. I will hear parties on the question of costs.

___________________________________________________________


Lawyer for the Appellants : Henao & Co. Lawyers
Respondents in person

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