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National Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
WS NO 333 OF 2008
MOSES VUA
AS REPRESENTATIVE OF EVOSOVUL CLAN
First Plaintiff
MATHIAS MOTO
AS REPRESENTATIVE OF NAKISE CLAN OF RU VILLAGE
Second Plaintiff
EREMAS PALIU
AS REPRESENTATIVE OF OTHO CLAN OF LAVEGE VILLAGE
Third Plaintiff
v.
FRANCIS MAVU
First Defendant
ALFRED MAVU
Second Defendant
Kimbe: Cannings J
2008: 29 July, 14 August, 16 October
LAND – dispute as to receipt of royalties according to customary ownership of land – forestry – timber rights purchase areas
JUDGMENTS AND ORDERS – interpretation of previous order of National Court
The plaintiffs claimed that the defendants were receiving timber royalties from land that belonged to the plaintiffs' clans. To support their claim they relied on a previous National Court order which, they say, confirmed that the plaintiffs' clans were the customary owners of the disputed land. The defendants countered by arguing that the disputed land was not covered by the previous National Court order and that, in any event, that order was based on a Local Land Court order, which was based on a mediation agreement infected by fraud and corruption. Furthermore the defendants argued that subsequent to the National Court order on which the plaintiffs rely, there had been two Local Land Court orders that confirmed that the defendants owned all the land and were entitled to timber royalties.
Held:
(1) The plaintiffs could not prove that they owned the disputed land and therefore could not prove that the defendants were improperly receiving timber royalties.
(2) The defendants could not prove that there was any good reason to set aside or vary the previous National Court order, which confirmed that the plaintiffs' clans were the customary owners of a discrete area of land, designated as a timber rights purchase area under the Forestry Act 1991. Nor could the defendants prove that the recent Local Land Court decisions on which they relied had any effect on the question of customary ownership or entitlement to timber royalties.
(3) Orders and declarations made accordingly.
Cases cited
The following cases are cited in the judgment:
Francis Mavu v Mathias Moto and Others (2005) N2879
Fred Giram Dogmai v Job Sogasog CIA No 97 of 2006, 20.02.08
Golpak v Kali [1993] PNGLR 491
Lavu v Thompson & NBPOL WS No 780 of 2005, 26.07.07
Moses Vua v Francis Mavu (2008) N3294
Richard Maribu v Lae District Land Court & Siomngaivon Clan (2001) N2064
Roderick Tovo Bibilo v Gerard Balbagara (2008) N3291
Ronny Wabia v BP Exploration Co Ltd [1998] PNGLR 8
Siaman Riri v Simion Nusai (1995) N1375
Soso Tomu v The State (2002) N2190
STATEMENT OF CLAIM
This was a claim for royalties allegedly unlawfully received by the defendants.
Counsel
G Linge, for the plaintiffs
M Titus, for the first defendant
J Abraham, for the second defendant
16th October, 2008
1. CANNINGS J: All the parties in this case say that they are the owners of customary land in the Hoskins area of West New Britain. They are in dispute about ownership of a portion of land on which logging operations are being conducted. The land is part of a timber rights purchase area called AWM (Ainbul Weipo Melei) and has recently been generating timber royalties.
2. The plaintiffs Moses Vua and Mathias Moto claim that they and their clans are the true customary owners of that land – which I will call 'the disputed land' – and that their clans should be receiving the royalties. Instead the defendants Francis Mavu and Alfred Mavu who are not the true owners have been receiving royalties, which amounted to about K125,000.00 in 2007.
3. The defendants refute these claims. They say that they are the true owners of the disputed land, that they are entitled to the royalties and that the plaintiffs' claims are false and fraudulent. The defendants further argue that the plaintiffs do not own any of the land in the vicinity of the disputed land and that the plaintiffs are the ones who have been improperly receiving royalties in recent times. The main issues are:
WHO OWNS THE DISPUTED LAND?
4. The plaintiffs say that the issue of ownership has already been decided by the National Court in a previous case, OS No 590 of 2004, by orders made on 25 August and 8 September 2005. I was the presiding Judge in that case and the judgment has been published as Francis Mavu v Mathias Moto and Others (2005) N2879. The area of customary land at the centre of the case was called 'Gimomi Lapo'.
5. Gimomi Lapo is also the name given to a TRP area adjacent to the AWM TRP. The plaintiffs say, however, that the area of customary land called Gimomi Lapo covers more than just the land included within the Gimomi Lapo TRP. It extends into the AWM TRP. They say that when I declared in 2005 that they owned Gimomi Lapo, the effect was that they owned not only the land covered by the Gimomi Lapo TRP, but also some land outside it that extends into the AWM TRP. They point out that the two TRPs fall within a larger area of customary land called 'Manseng'. The general nature of the plaintiffs' claims is depicted in the following diagram.
| MANSENG LAND | ||
| GIMOMI-LAPO CUSTOMARY LAND GIMOMI-LAPO TRP | Disputed land | AWM TRP |
6. The disputed land is the shaded area. It represents the part of the customary land known as Gimomi Lapo that the plaintiffs say extends beyond the Gimomi Lapo TRP and into the AWM TRP. The diagram is not drawn to scale as the plaintiffs have not described in detail or quantified the disputed land. Nor have they adduced in evidence a map showing the disputed land. The only map adduced is a hand-drawn one annexed to an affidavit by the second defendant, Alfred Mavu; which I cannot regard as objective, reliable or accurate. The only evidence adduced by the plaintiffs to assist the court in demarcating the disputed land is the oral testimony of the second plaintiff, Mathias Moto. That evidence, however, was only about landmarks and boundaries, such as the Kapiura River. It was rather vague and it lacked corroboration, which is a feature of all the evidence that was put before the court, by both sides. The vagueness of the evidence is a significant obstacle to the plaintiffs proving their case. Another obstacle is presented by the terms of the judgment and orders made in OS No 590 of 2004. On the one hand the wording of the orders I made on 25 August and 8 September 2005 support the plaintiffs' submission that the orders applied to the customary land known as Gimomi Lapo, and not just the Gimomi Lapo TRP. The 25 August order stated, amongst other things:
The agreement between the Evusovul, Nakise and Otho clans of 31 May 2004, regrading Gimomi-Lapo, as approved by the Local Land Court order of 14 October 1994, is valid, enforceable and legally binding.
The agreement and orders are evidence that customary ownership of Gimomi-Lapo and entitlement to timber royalties and all other resource payments in respect of Gimomi-Lapo are equally divided and distributable amongst the Evusovul, Nakise and Otho clans.
7. The 8 September order, which dealt with the issue of clan agents, stated:
Clan agents for the purposes of receiving royalty payments in respect of Gimomi-Lapo are appointed as follows:
(a) Evusovul clan: Moses Vua, Gerard Sou and Paul Philip;
(b) Nakise clan: Mathias Moto, Emmanuel Seuli and Philip Save;
(c) Otho clan: Eremas Paliu, Kirai Liu and Eremas Albert.
8. The orders thus refer to Gimomi-Lapo generally, not the Gimomi-Lapo TRP.
9. On the other hand when the orders are put in the context of the judgment which led to them a different picture emerges. In the opening paragraph I stated:
This case is about a dispute over customary land and who are the right clans and individuals to receive timber royalties. The land is called 'Gimomi-Lapo'. It is a large tract of land in the Hoskins district of West New Britain Province. It is a designated timber rights purchase area under the Forestry Act.
10. That passage supports the defendants' proposition that the orders only related to the Gimomi-Lapo TRP. I pointed out this ambiguity in a recent case involving much the same parties in which the defendants, the Mavu brothers, repelled contempt proceedings commenced by the plaintiffs' group over alleged breach of the 2005 orders, Moses Vua v Francis Mavu (2008) N3294. I concluded that it could not be said with certainty without further inquiry which interpretation of the court orders was the correct one. The orders were not clear and unambiguous. Therefore the contempt proceedings were dismissed.
11. I have now had the opportunity, through the commencement of the present proceedings, to make further inquiry into the exact meaning and effect of the 2005 orders. Having considered the submissions of Mr Linge for the plaintiffs I am not convinced that the 2005 orders apply to land beyond the confines of the Gimomi Lapo TRP. OS No 590 of 2004 was a case about the Gimomi Lapo TRP and who owned it and who should be authorised to act as clan agents for the purpose of receiving timber royalties generated by the Gimomi Lapo TRP. The orders must be interpreted and applied accordingly.
12. That means that the question of ownership of the disputed land was not resolved by OS No 590 of 2004. It is and must remain, in these proceedings, an unanswered question as the National Court has no original jurisdiction to determine the question of ownership of customary land. The question of who actually owns the disputed land can only be resolved in the first instance by land mediators and the Local Land Court, using the procedures under the Land Disputes Settlement Act. This is a fundamental principle of land law in PNG. It has been applied in many cases, such as Golpak v Kali [1993] PNGLR 491, Siaman Riri v Simion Nusai (1995) N1375, Ronny Wabia v BP Exploration Co Ltd [1998] PNGLR 8 and Soso Tomu v The State (2002) N2190. Recently, I applied a related principle – that the National Court has no jurisdiction to determine disputes about whether land is or is not customary land – in Lavu v Thompson & NBPOL, WS No 780 of 2005, 26.07.07. The result is that the plaintiffs have failed to prove their case. They have failed to prove that they own the disputed land.
13. As to who does own it, I cannot say, for the reasons just explained. I have no jurisdiction to decide the question. The defendants have not adduced any convincing evidence that the issue of ownership of the disputed land has been subject to any authoritative determination. And the defendants have certainly not convinced me that they own the disputed land.
WHO OWNS THE LAND IN THE VICINITY OF THE DISPUTED LAND?
14. By talking about 'land in the vicinity' of the disputed land, I am referring to two portions of land:
15. As for the first portion, I repeat that the National Court has no jurisdiction to determine that question. There is insufficient evidence before the court for me to declare, on the basis of orders of a Local or Provincial Land Court, who owns this land.
16. As for the Gimomi Lapo TRP, the defendants argue that they own it, and that I should make declarations to that effect, notwithstanding the orders I made in OS No 590 of 2004 that declared that the plaintiffs' clans own it. Mr Titus, for the defendants, put two propositions in support of that argument.
17. First, he urged me to find, on the basis of uncontested affidavit evidence, that the land mediation process in 1994 (that led to the Local and Provincial Land Court orders on which the 2005 National Court orders were based) was infected by fraud and corruption; and therefore it was unsafe and unsatisfactory to maintain the 2005 orders.
18. Secondly, he submitted that there was evidence that the Local Land Court at Kimbe had made orders in two recent cases – LLC Nos 12 and 18 of 2006, on 12 November and 20 August 2007, respectively – which have the effect of awarding ownership of the land covered by the Gimomi Lapo and AWM TRPs, to the defendants.
19. I reject both those propositions. First, the evidence of fraud and corruption – that is said to have occurred 14 years ago – is unconvincing and vague. Such allegations, if they were to be raised in court, should have been raised at least three years ago when OS No 590 of 2004 was heard. But, really, the allegations should have been aired 14 years ago. There is no evidence that the allegations were ever made officially to any court or to the police or any independent authority. I dismiss them as wild and baseless.
20. As for the recent Local Land Court orders, they cannot have the effect of overriding or qualifying what the National Court decided and ordered, finally, in 2005, regarding ownership of the Gimomi Lapo TRP land. The 2005 orders have not been overturned or varied by the Supreme Court or by subsequent orders of the National Court. Those orders remain in full force and effect unless they are set aside or varied by a Court in the National Judicial System with authority to do so. A Local Land Court has no authority to do so. None of the plaintiffs were a party to the Local Land Court proceedings. Therefore, under the Land Disputes Settlement Act, Section 43(1), the Local Land Court's orders do not apply to them (Richard Maribu v Lae District Land Court & Siomngaivon Clan (2001) N2064, Fred Giram Dogmai v Job Sogasog CIA No 97 of 2006, 20.02.08, Roderick Tovo Bibilo v Gerard Balbagara (2008) N3291). Furthermore, there was evidence in this case from Vincent Gala, one of the land mediators, that throws into serious doubt the propriety and legality of the proceedings leading up to the Local Land Court orders.
21. I conclude that the land covered by the Gimomi Lapo TRP remains the property of the three clans declared in 2005 to be the customary owners of the land in three equal shares, ie the plaintiffs' clans.
WHO IS ENTITLED TO THE ROYALTIES?
22. As for royalties generated by the Gimomi-Lapo TRP, it is clear that the plaintiffs' clans, as the customary landowners, are entitled to the royalties in accordance with the orders in OS No 590 of 2004.
23. As for royalties generated by the AWM TRP, it is unclear who should be receiving them. The plaintiffs have not proven that they own any part of the land covered by the AWM TRP. But nor have the defendants. In these circumstances the fairest thing to do is to put a freeze on receipt of these royalties and allow all parties – including others who have not been involved in this case – to come to the court to prove that they own all or part of this land, and should be receiving the royalties.
COSTS
24. The plaintiffs have failed to prove their case and, in the ordinary course of events, costs would follow the event and they would have an award of costs made against them. However, the defendants have, in effect, made cross-claims in this case that have been unsuccessful. There is no clear winner, so I will order that both sides bear their own costs.
ORDERS AND DECLARATIONS
(1) The plaintiffs' clans shall continue to be recognised as customary owners of the land covered by the Gimomi Lapo TRP area and shall continue to be paid royalties in respect of the Gimomi Lapo TRP, in accordance with the orders of the National Court in OS No 590 of 2004 of 25 August and 8 September 2005.
(2) The defendants are not customary owners of the land covered by the Gimomi Lapo TRP area and have no entitlement to royalties in respect of the Gimomi Lapo TRP.
(3) All royalties generated by the AWM TRP shall, until further order of the National Court, be paid into the National Court Registrar's Trust Account.
(4) The orders of the Local Land Court at Kimbe in LLC Nos 12 and 18 of 2006, on 12 November and 20 August 2007, respectively, cease to have effect until further order of the National Court.
(5) The parties shall bear their own costs of these proceedings.
Orders accordingly.
______________________________________________
Linge & Associates: Lawyers for the Plaintiff
Titus Lawyers: Lawyers for the first Defendant
Jaminan Lawyers: Lawyers for the Second Defendant
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