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National Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
CIA NO 119 0F 2008
CECILIA BONNY
Appellant
V
DOROTHY AMINO
Respondent
Kimbe: Cannings J
2008: 5 December,
2009: 16 February
APPEAL
LAND – State Lease – registered proprietor died intestate – dispute over possession of title documents – dispute between daughter and daughter-in-law of deceased – appeal against District Court decision ordering possession in favour of daughter.
The registered proprietor of a State Lease died intestate. His son, who had been living on the land, continued to do so, with his wife. The son then died, and the son’s wife (the registered proprietor’s daughter-in-law) continued to live on the land. The registered proprietor’s daughter then claimed that she, being the registered proprietor’s only surviving child, had a better claim to the land than the daughter-in-law. The daughter commenced proceedings in the District Court and succeeded in obtaining an order that the daughter-in-law surrender the title documents for the land to her. The daughter-in-law appealed against the District Court decision.
Held:
(1) The question of who had the better right to the land, according to custom, had not been settled when the District Court exercised jurisdiction and it erred by deciding that the respondent had a better claim to the land than the appellant.
(2) The appropriate authority to take control of the land on an interim basis is the Public Curator, who is the statutory office-holder whose functions and powers under the Public Curator Act include taking possession of the property of any person who dies leaving property in the country without leaving a will.
(3) Obiter: the District Court exceeded its jurisdiction, per force of Section 21(4) (f) of the District Courts Act, as title to the land was bona fide in dispute.
(4) The District Court order was quashed and substitute orders made, aimed at getting the question of title to the disputed land resolved in a peaceful and orderly way by the Public Curator.
Cases cited
The following cases are cited in the judgment:
Lepanding Singut v Kelly Kinamun (2003) N2499
Otto Benal Magiten v Bernadette Beggie and Benedict Wahiginim Magiten (2005) N2908
Paul Wagun, Public Curator of PNG v Peter Pilembo (2008) N3487
Tony Yandu v Peter Waiyu (2005) N2894
Abbreviations
The following abbreviations appear in the judgment:
CIA – Civil Appeal
J – Justice
N – National Court judgment
OPIC – Oil Palm Industry Corporation
No – number
N – National Court judgment
v – versus
APPEAL
This was an appeal from an order of the District Court concerning land covered by a State Lease.
Counsel
J Yapao, for the appellant
J K Abraham, for the respondent
16 February, 2009
1. CANNINGS J: This is an appeal against a decision of the Kimbe District Court, constituted by Magistrate Mr T Dawai, ordering the appellant, Cecilia Bonny, to surrender title documents concerning a block of land to the respondent, Dorothy Amino.
2. The land in question is at Kavui, near Kimbe: Section 3, Block No 244. It is covered by a State Lease, an agricultural lease. It has over about 25 years been developed as an oil palm block. The registered proprietor is an Eastern Highlands man, Mr Bige Siwi, who died intestate (without leaving a will) in 1999.
3. Since he died, the question of who should take over the lease has become a big issue within the family:
4. Even though it is ten years since Mr Siwi died, he is still shown as the registered proprietor on the State Lease. After he died, Bonny kept the owner’s copy of the lease and all other documents concerning the block, and after Bonny died, Cecilia kept them. No formal, legal steps have been taken to get the name of the registered proprietor changed.
DISTRICT COURT PROCEEDINGS
5. Dorothy commenced proceedings against Cecilia in the District Court aimed at securing possession of those documents and she succeeded in obtaining an order on 20 July 2007 in these terms:
6. That is the order against which Cecilia has appealed.
GROUNDS OF APPEAL
7. An amended notice of appeal was filed which listed five grounds of appeal but some are overlapping and I think they are best distilled into two:
GROUND 1: DOCUMENTS SHOULD HAVE BEEN SURRENDERED TO THE PUBLIC CURATOR
8. When deciding that Dorothy was the person who was entitled to the documents, the District Court relied on Section 125 (transmission to person entitled by custom) of the Land Registration Act, which states:
Notwithstanding Section 118 or 119, where—
(a) a registered proprietor of an estate, interest or security dies intestate; and
(b) the estate, interest or security is transmitted to a person entitled to it by custom,
the Registrar shall, on production of a certificate in the approved form signed by the Custodian, register the person so entitled as proprietor of the estate, interest or security.
9. His Worship, Mr Dawai, interpreted this provision to mean that if a registered proprietor dies intestate, the person who is entitled by custom to have the land transmitted to them, is the person who has the right to possession of the land. His Worship pointed out that Dorothy is the registered proprietor’s sole surviving child, whereas Cecilia is only the registered proprietor’s daughter-in-law. Cecilia comes not from the Eastern Highlands (from where Dorothy and her father come) but from Chimbu. Therefore, his Worship held, Dorothy is entitled by custom to possess the land and she is entitled to the title documents.
10. Mr Abraham, for the respondent Dorothy, submitted that his Worship correctly invoked Section 125 of the Land Registration Act, to transmit the registered proprietor’s interest in the land to Dorothy. By the custom and practice of the Eastern Highlands Province, the distribution of land flows through the biological blood line. Only after the blood line is exhausted can the interests of in-laws be entertained.
11. Mr Yapao, for the appellant Cecilia, submitted that the learned magistrate misinterpreted Section 125. The correct view of the provision, Mr Yapao submitted, is that it only allows a person who is entitled to have land transmitted to him or her by custom to apply to become the registered proprietor. It does not give the District Court power to order one person to surrender the title documents to another.
12. I agree with and uphold Mr Yapao’s submission. Section 125 only applies after the question of transmission of land has been settled in accordance with custom. It has no application to the facts of the present case as the parties have been and remain in dispute over who is entitled, by custom, to take possession and ownership of the land, i.e. to whom the land should be transmitted.
13. I also uphold the next plank of Mr Yapao’s submission: that the appropriate authority to take control of the land on an interim basis is the Public Curator. The Public Curator is the statutory office-holder whose functions and powers under the Public Curator Act include taking possession of the property of any person who dies leaving property in the country without leaving a will (Lepanding Singut v Kelly Kinamun (2003) N2499; Paul Wagun, Public Curator of PNG v Peter Pilembo (2008) N3487).
14. Mr Abraham properly conceded in his submission that the Public Curator has a role to play under the Wills, Probate and Administration Act (Chapter 291). Division II.4 (distribution in accordance with custom) of that Act contains detailed provisions on how the estate of a person who dies intestate is to be distributed in accordance with custom. For example, Section 35E allows for certification of customary entitlements by a District Officer or other person who the Public Curator considers is competent to certify the persons entitled to the estate.
15. Mr Abraham nevertheless submitted that until the Public Curator takes possession of the estate, the person who should hold the title documents over the block and control the block is Dorothy. But this is, again, where I consider the submission is flawed: Dorothy has, at this stage, until the question of customary entitlement is resolved by a competent authority, no greater right to the land than Cecilia.
16. I therefore uphold the first ground of the appeal.
GROUND 2: THE DISTRICT COURT ERRED BY FAILING TO PROPERLY TAKE CUSTOM INTO ACCOUNT, IN PARTICULAR THE NEXT-OF-KIN PRINCIPLE
17. Mr Yapao submitted that the learned magistrate should have applied the common Highlands custom that says that once a woman gets married, she is said to have left her own family and becomes part of her husband’s family. Whatever her husband owns gets passed to her and her children. She never goes back to her biological parents and claims anything from them, unless her parents are agreeable to that. Applied to this case: when Cecilia married Bonny she left her Chimbu family. She became part of Bonny’s family, so she would get the land that was passed down from Mr Siwi to Bonny and then to her. Dorothy is a married woman, so when she got married she notionally left Mr Siwi’s family and lost the entitlement she might have otherwise had to Mr Siwi’s land.
18. I follow the logic in this argument and the fascinating anthropological currents underpinning it. But there is absolutely no evidence before the court to support it. I have no expertise in Highlands custom. Even if I did, or thought that I did, it would not be appropriate to apply it here. Perhaps there are local customs that have developed over the last thirty years or so in West New Britain as to how oil palm blocks are to be distributed when the registered proprietor dies intestate. Perhaps Sepik people have one custom and Highlanders have another and Tolais have another. I do not know. I doubt that there is such a thing as a common Highlands custom.
19. Custom can be relevant when resolving disputes such as the present one. Customary law is part of the underlying law, a source of law under Section 9 of the Constitution. However, before the court can consider adopting, applying and enforcing custom, it must be pleaded and proven and it must satisfy a number of criteria (Otto Benal Magiten v Bernadette Beggie and Benedict Wahiginim Magiten (2005) N2908). From what is before the court in this case, nobody can agree on what the applicable custom is, so it is pointless to speculate in the absence of evidence.
20. As I indicated earlier, there are procedures available under the Public Curator Act and the Wills, Probate and Administration Act for these sorts of issues to be sorted out by a proper authority, in a proper forum at a proper time. But not here and now.
21. I dismiss the second ground of appeal.
THE DISTRICT COURT’S JURISDICTION
22. Before concluding, there is one issue which both counsel alluded to, without firmly grappling with, which requires comment. It concerns the question of whether the District Court had jurisdiction to make the order that it did. The learned magistrate addressed the issue in his judgment by referring to Section 21(4)(f) of the District Courts Act, which states:
A [District] Court has no jurisdiction in the following cases: ...
when the title to land is bona fide in dispute.
23. Section 21 is the provision that sets out the nature and extent of the jurisdiction of the District Court in civil matters. It complements Section 20, which sets out the Court’s criminal jurisdiction.
24. His Worship pointed out that Dorothy was not suing Cecilia for ownership of the block and that her suit (her cause of action) was not related to title to the block. If the case was about title to the block the proper forum would be the National Court. I agree that Dorothy was not suing Cecilia for ownership of the block but, with respect, I cannot agree with his Worship that the District Court action is not related to the title to the block. It seems obvious that Dorothy is angling to become the registered proprietor and that part of her strategy is to get physical possession of the title documents. There is nothing wrong with that. Dorothy no doubt genuinely believes that she has the legal, moral and customary right to become recognised as the owner of her father’s land. Cecilia no doubt also believes that she is the one who is legally, morally and customarily entitled to the land. In these circumstances it seems overly artificial to describe the case in the District Court as a dispute over documents. It was, in reality, a dispute over title. The title to the land was and remains bona fide in dispute and it follows that the District Court had no jurisdiction (Tony Yandu v Peter Waiyu (2005) N2894).
25. If this issue had been squarely raised in the notice of appeal I would have ruled that the District Court erred by exceeding its jurisdiction.
CONCLUSION
26. I will uphold the appeal as I am satisfied under Section 230(2) of the District Courts Act that there has been a substantial miscarriage of justice. I will quash the District Court order under Section 230(1)(c) and make orders under Section 230(1)(f) of the District Courts Act aimed at getting the question of title to the disputed land resolved in a peaceful and orderly way.
27. I will order that the title documents be surrendered into the possession of an independent third party, the Assistant Registrar of the National Court in Kimbe. And I will direct that he forward the documents to the Public Curator. I will request the Public Curator to take possession of the estate of the late Bige Siwi and distribute it according to law.
28. In the interim, I will order OPIC to supervise distribution of the proceeds of the oil palm harvest on the block. I will allow both Cecilia and Dorothy and their families to live on the block provided that they respect each other’s rights of peaceful possession.
ORDER
(1) The appeal is upheld.
(2) The order of the Kimbe District Court of 20 July 2007 is quashed.
(3) The persons in possession of the original owner’s copy of the State Lease or any other title documents or documents of economic value concerning Section 3, Block No 244, Kavui, must within seven days of this order, surrender the documents into the possession of the Assistant Registrar of the National Court at Kimbe.
(4) The Assistant Registrar of the National Court at Kimbe shall within three days of receipt of the documents referred to in order No (3) serve them, together with copies of the judgment and order of the National Court, by hand or by registered mail, on the Public Curator.
(5) The Public Curator shall within seven days after receipt of the documents referred to in order No (4) notify the Court in writing of the steps he intends to take to take possession of the estate of the late Bige Siwi and to determine distribution of the property of the estate, in particular Section 3, Block No 244, Kavui, in accordance with law.
(6) The Assistant Registrar of the National Court at Kimbe shall forthwith serve on the Oil Palm Industry Corporation a copy of the judgment and order of the National Court.
(7) The Oil Palm Industry Corporation shall from the date of service of this order be responsible for supervising the management of Section 3, Block No 244, Kavui and the proceeds of the harvest from the block, as far as practicable on a 50/50 basis between the appellant and the respondent.
(8) The Oil Palm Industry Corporation shall within seven days after service of this order upon it, notify the Court in writing of the steps it intends to take to comply with Order No (7).
(9) The appellant and the respondent and their families shall, until further order of this Court, be entitled to live on Section 3, Block No 244, Kavui and to work and develop and share the proceeds of the block in accordance with the instructions of the Oil Palm Industry Corporation, provided that they respect each other’s rights of peaceful possession.
Orders accordingly.
______________________________
Paul Paraka Lawyers: Lawyers for the appellant
Jaminan Lawyers: Lawyers for the respondent
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