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Taleokon v Apakali [2011] PGNC 114; N4386 (19 September 2011)

N4386

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS NO 607 OF 2003

BETWEEN

JOSEPH LYAKI TALEOKON
Plaintiff

AND

GEOFFREY APAKALI
First Defendant

AND

FR PAUL PAKAU
Second Defendant

AND

JOHN KOPI
Third Defendant

AND

PETRUS KURINGI
Fourth Defendant

AND

KEPAKAN PAKAU
Fifth Defendant

Mount Hagen: Makail J,
2009: 12th June
2011: 19th September

PROPERTY LAW - Customary land - Conversion to freehold land - Decision of Land Titles Commission - Review of decision by Chief Land Titles Commissioner - Quashing of decision - Decision based on dispute as to customary landownership - Effect of - Land ceased to be freehold land and land remained customary land - Dispute as to customary landownership must be referred for determination under the Land Disputes Settlement Act, Ch 45 - Land Act 1996 - Section 133 - Land (Tenure Conversion) Act, 1963 - Sections 7 & 16, Land Titles Commission Act, 1962 - Section 34.

PROPERTY LAW- Declaration of customary land and customary landowners by Minister for Lands - Declaration made when land not government land - Want of jurisdiction - Proceeding commenced to assert right of ownership, occupation and usage - Abuse of process - Orders sought refused - Proceeding dismissed - Land Act, 1996 - Section 133 - Land (Tenure Conversion) Act, 1963 - Sections 7 & 16, Land Titles Commission Act, 1962 - Section 34.

Facts

The plaintiff commenced proceeding by originating summons seeking declaratory orders to assert his right of ownership, occupation and use of two portions of land described as portions 228 and 229 based on a declaration by the Minister for Lands under section 133 of the Land Act, 1996. He also sought a permanent injunction to restrain the defendants from interfering with his right of quite enjoyment of the lands.

He alleged the Chief Land Titles Commissioner reviewed a decision of the Land Titles Commission which converted the lands from customary lands to freehold lands and awarded them to the first and second defendants. The Chief Land Titles Commissioner quashed that decision and following that decision, he made representation to the Minister for Lands and was awarded ownership.

The defendants disputed his claim of ownership on the basis that the declaration by the Minster for Lands was flawed because as the lands were customary lands and that there was an ownership dispute between them, there was no determination on the ownership in his favour under the provisions of the Land Disputes Settlement Act, Ch 45. In the absence of such determination, there was no proper basis upon which the Court could accept and act on the declaration of the Minister to affirm the plaintiff's claim of ownership, occupation and use of the lands. They submitted the proceeding was an abuse of process and should be dismissed.

Held:

1. The decision of the Land Titles Commission to convert the lands from customary lands to freehold lands was quashed by the Chief Lands Titles Commissioner on review as there was a dispute in relation to their ownership. The effect of that is, the lands remained customary lands.

2. As there was a dispute in relation to ownership of the lands between the plaintiff and the first and second defendants, the dispute must be referred for determination pursuant to the provisions of the Land Disputes Settlement Act, Ch 45.

3. There was no or insufficient evidence establishing that the ownership dispute was determined in favour of the plaintiff pursuant to the provisions of the Land Disputes Settlement Act, Ch 45.

4. As there was no determination in favour of the plaintiff under the provisions of the Land Disputes Settlement Act, Ch 45, there was no proper basis upon which the Court could accept and act on the declaration of the Minister to affirm the plaintiff's claim of ownership, occupation and use of the lands.

5. The proceeding was an abuse of process and was dismissed.

Cases cited:

Richard Maribu -v- Lae District Land Court & Siomngaivion Clan (2001) N2064
Steven Ikru Kaman -v- Mangel Mukap & Ors (2009) N3669

Counsel:

Plaintiff in person
First & Second Defendants in persons

JUDGMENT

19th September, 2011

1. MAKAIL, J: This case is about a dispute over two portions of land described as portions 228 and 229, Milinch Wapenamanda of Sakales suburb of Wabag, Enga Province.

Brief Facts

2. Portions 228 and 229 were originally alienated lands. In 1984, they were de-alienated and returned to the first and second defendants as customary landowners. It is alleged following their de-alienation, in 2000, the plaintiff was declared customary landowner of these lands pursuant a declaration by the then Minister for Lands Honourable John Pundari pursuant to section 133 of the Land Act, 1996.

3. The first and second defendants disputed the plaintiff's ownership. They claimed there is a dispute over the plaintiff's right of ownership of the lands and the dispute should have been referred to the land dispute courts for determination under the Land Disputes Settlement Act, Ch 45. The third defendant did not show any interest in defending the case while leave was given to the plaintiff to remove the fourth defendant from proceeding.

4. In the originating summons filed on 22nd October 2003, the plaintiff sought declaratory orders to assert his right of ownership, occupation and use based on the declaration by Mr Pundari and an injunctive order to restrain the defendants from interfering with his right of enjoyment. The orders he seeks are in the following terms:

"1. An injunction against the five (5) Defendants, their agents, servants, associates or representatives, be (sic) permanently restrained from entering or setting foot upon the property described as Portion (sic) 228 and 229 Milinch Wapenamanda of Sakales surburb of Wabag town, Wabag, Enga Province.

2. A declaration that the Plaintiff is traditional landowner of previous Freehold Lease, Portion (sic) 228 and 229 of Sakales village, Wabag, Enga Province, as the said two (2) portion (sic).

3. A declaration that the five (5) Defendants or any other member of Yakale or Aipape tribe/clan has no right, title or licence to claim ownership to the said two (2) portion (sic) of land, as the title obtained by the First and Second Defendants were revoked by the Minster for Lands and gazetted (G. No 145) on 16th November 2000.

4. An order that the Five (5) Defendants, their agents, wantoks, assigress (sic), representatives or any other person on the said land (sic) deliver up possession of the said to (sic) portion (sic) of land can be evicted forthwith.

5. The Defendants pay the cost of this proceedings.

6. Such further or other orders as the court deems fit."

Parties' Evidence

5. According to the affidavit in support of the plaintiff sworn on 16th January 2004 and filed on 19th January 2004, a further affidavit of the plaintiff sworn on 19th June 2009 and filed on 24th June 2009 and the affidavit of the first defendant sworn and filed on 12th March 2008, much of the facts are not disputed. In 1976, the first defendant was a student in Australia and the second defendant was studying to be a priest at the Catholic Major Seminary at Bomana. The portions of land were allocated or given to them in exchange of customary land they gave to the State for the Wabag town extension and road access.

6. As they were away and did not develop the portions of land as required by the conditions of the leases, the State through the Minister for Lands issued a "notice to show cause" as to why the leases should not be forfeited. They applied to the Minister to free them from the conditions of the leases. The former Minister for Lands Honourable Bebes Korowaro published a notice No 20 of 24th March 1984 in the national gazette declaring the lands as customary lands and also declaring them as customary landowners of the lands pursuant to section 76 of the old Land Act, (Ch 185).

7. Upon that declaration, they returned the certificates of title of the leases to the Minister. After they returned from studies, they applied to the Land Titles Commission for freehold titles to be issued for the lands in order for them to use the lands to secure loans to develop them pursuant to the Land (Tenure Conversion) Act, 1962. On 02nd May 1987, the Land Titles Commission made conversion orders, converting the lands from customary lands to freehold lands and awarding them to the first and second defendants; the first defendant for portion 228 and the second defendant for portion 229.

8. The plaintiff was aggrieved by the decision of the Land Titles Commission and sought a review to the Chief Land Titles Commissioner, Mr Theodore Miriung pursuant to section 34 of the Land Titles Commission Act, 1962. On 30th October 1987, the Chief Land Titles Commissioner upheld the review and quashed the decision of the Land Titles Commission on the ground that the first and second defendants were not the original traditional owners of the lands.

9. On 19th July 1990, the plaintiff lodged an application for a freehold title for the lands. His application was supported by local witnesses from Impisanda village. In response to his application, the Land Titles Commission advised him that its decision of 02nd May 1987 was not quashed and it did not declare him as a traditional owner of the lands, nor did it quash the declaration made by the former Minister for Lands, Honourable Bebes Korowaro in the gazettal notice No 20 of 24th March 1984 under section 76 of the old Land Act (Ch 185). It further suggested if he wanted to register the lands in his name, he should do the following:

1. Get the first and second defendants to transfer their customary interest to him; or

2. Challenge the declaration made under section 76 of the old Land Act (Ch 185) by the former Minister Honourable Bebes Korowaro.

10. Following the advice from the Land Titles Commission, he approached the first and second defendants several times but each time, they refused. He then sought legal advice in relation to the second option. Following that, he went back to the village court and with the assistance of a Senior Magistrate at Wabag District Court and the Acting Assistant Registrar, a special court sitting at Keas village was convened to determine the customary ownership of the disputed portions of land. Local witnesses were called and confirmed that the plaintiff was the original traditional owner of these portions of land. The village court found in favour of the plaintiff. The village court decision was an oral one and later reduced into writing in the form of an advisory letter from the Senior District Court Magistrate dated 19th June 2000.

11. With it he made representation to then Minister for Lands Mr Pundari. Based on that letter, on 13th August 2000, Mr Pundari made a declaration pursuant to section 133 of the Land Act, 1996.

1. by publishing a corrigendum revoking the gazettal notice No. 20 of 24th March 1984 by former Minister Honourable Bebes Korowaro; and

2. by publishing a fresh gazettal notice G145 of 16th November 2000 declaring the plaintiff as the new owner of the portions of land.

Parties' Submissions

12. In submissions, the plaintiff submitted the declaration by Mr Pundari gave him right of ownership, entry and occupation of the lands as he has been declared the original traditional owner. He submitted the declaration by Mr Pundari was based on the decision of Keas village court which had jurisdiction to hear customary landownership dispute pursuant to sections 36 and 43 of the Village Courts Act, 1989 and decided the dispute in his favour.

13. The first and second defendants contended otherwise. They submitted the subsequent declaration by Mr Pundari was wrong and invalid because first, Mr Pundari did not have power to go on to declare the plaintiff as the original traditional owner of the lands. Secondly, they submitted the Keas village court did not make any order in favour of the plaintiff and the said decision, the plaintiff has produced, is a fake one.

14. In any case, they submitted the Keas village court had no power to determine a customary land ownership dispute and in this case had no power to determine and award the lands to the plaintiff. If the plaintiff disputed ownership, he should have referred it to the land dispute courts for decision under the Land Disputes Settlement Act. For all these reasons, they submitted there were flaws in the declaration of Mr Pundari of 13th August 2000 and the Court should refuse the orders sought by the plaintiff.

Assessment of the Law and Evidence

15. Having considered the evidence and submissions of the parties, I am not satisfied the plaintiff is entitled to the reliefs sought in the originating summons for two main reasons.

16. First, it is apparent there is confusion in relation to the effect of the decision of the Chief Land Titles Commissioner of 30th October 1987. Therefore, it must be clarified at the outset for the benefit of the parties. It must be noted and appreciated by the parties that, the lands were previously government lands and when the former Minister for Lands Mr Korowaro declared them to be customary land in 1984, they ceased to be government lands and returned to customary lands.

17. Then, they were converted to freehold lands by virtue of the decision of the Land Titles Commission in 1987 on the application of the first and second defendants. At this point, the lands were changed to freehold lands and that meant that, they were no longer government lands and the declaration by the former Minister Mr Korowaro in 1984 no longer applied.

18. As the lands were no longer government lands at the time the Chief Land Titles Commissioner overturned the decision of the Land Titles Commission, there was no need for the Minister, this time, Mr Pundari to make another declaration of customary land under section 133 of the Land Act, 1996. In other words, the land has always been a customary land and a declaration of customary land by the Minister for Lands under section 133 of the Land Act, 1996 would only come into play in cases where the State intends to return government land or trust land to customary land. Where the State returns government land or trust land to customary land, its ownership shall be determined in accordance with custom.

19. And this is where I think parties have confused themselves. In my view, section 133 of the Land Act, 1996 allows the State to return government land or trust land to customary land. Section 133 states:

"133. Declaration of customary land.

(1) The Minister may, by notice in the National Gazette, declare any government land or trust land to be customary land and thereupon the land shall for all purposes be deemed to be customary land.

(2) In relation to any land the subject of notice under sub section (1), the land shall, for the purpose of the determination of its ownership, be deemed always to have been customary land.

(3) ...................................."

20. Where the State intends to return government land or trust land to customary land, the Minister for Lands shall publish a notice in the national gazette declaring a government land or customary land to be customary land. However, it does not state the process by which the Minister may follow to declare a government land or trust land to be customary land.

21. Be that as it may, the decision by the Minister for Lands to return the disputed lands to customary lands was made long ago, in 1984, when the then Minister Mr Korowaro published the notice in the national gazette on 24th March 1984. As a result, the disputed lands as government lands returned to customary lands and therefore, there was no need for Mr Pundari to make another declaration in 2000, for them to be customary lands and also declare the plaintiff as customary landowner of them.

22. When he did, he created more confusion in relation to the status and ownership of the lands. In my view, he should have refrained from doing so because the lands were no longer "government lands" so as to give him jurisdiction to make the declaration. When he did, he acted beyond his jurisdiction, and in my view, it amounted to a serious flaw in the declaration.

23. Secondly, proceeding on the basis that the lands were no longer government lands, it is noted the first and second defendants applied to the Land Titles Commission to convert them to freehold lands. Their application was granted, but on review by the Chief Land Titles Commissioner, the conversion of the lands from customary lands to freehold lands was quashed. In my view, the decision of the Chief Land Titles Commissioner did not declare the plaintiff as customary landowner of the lands nor did it award him the ownership of the freehold lands (portions 228 and 229).

24. It only quashed the decision of the Land Titles Commission of 02nd May 1987 in relation to first, the conversion of the customary lands to freehold lands (portions 228 and 229) and secondly, the awarding of freehold lands (portions 228 and 229) to the first and second defendants respectively: see annexure "C1" and "C2" of the affidavit in support of the plaintiff sworn on 16th January 2004 and filed on 19th January 2004.

25. The effect of the decision is, the freehold lands (portions 228 and 229) ceased to be freehold lands and remained customary lands: see also sections 7 and 16 of the Land (Tenure Conversion) Act, 1963. In my view, where freehold land is returned to customary land by virtue of a decision of the Chief Land Titles Commissioner because of a dispute in relation to its customary ownership, the issue of ownership must first be determined before any further dealings with it. This is where the dispute is referred for determination under the provisions of the Land Disputes Settlement Act.

26. In my view, as there is a dispute in relation to the rightful owner of the lands, the dispute has to be referred for determination under the Land Disputes Settlement Act, Ch 45. The process begins with mediation and if it fails, the court process must begin to determine the rightful customary landowner of the lands: see the Land Disputes Settlement Act, Ch 45.

27. As noted from the evidence above, the plaintiff approached the first and second defendants several times to transfer the "customary interest" to him, but each time, they refused. He attempted the second option and a special court sitting at Keas village was convened to determine the customary ownership of the disputed lands. Local witnesses were called and confirmed that the plaintiff was the original traditional owner of the lands.

28. The village court found in favour of him. The village court decision was an oral one and later reduced into writing in the form of an advisory letter from the Senior District Court Magistrate dated 19th June 2000. With that letter, he presented it to Mr Pundari and based on that letter, Mr Pundari declared him customary landowner of the lands.

29. However, I am not satisfied the special village court sitting at Keas village is a mediation because there is no or insufficient evidence establishing that it is one. For example, the plaintiff did not state in his affidavits that the hearing was a mediation nor did the letter from the Senior District Court Magistrate at Wabag District Court dated 19th June 2000 state that the hearing was a mediation.

30. Further, there is no order from the Local Land Court endorsing any agreements reached between the parties at the hearing as required by sections 19 and 43 of the Land Disputes Settlement Act, Ch 45. For further discussions on the effect of sections 19 and 43 of the Land Disputes Settlement Act, Ch 45, see Richard Maribu -v- Lae District Land Court & Siomngaivion Clan (2001) N2064 and Steven Ikru Kaman -v- Mangel Mukap & Ors (2009) N3669.

31. Furthermore, there is no evidence of a Local Land Court decision or a District (Provincial) Land Court decision awarding the lands to the plaintiff. In the absence of such evidence and until a proper determination is made in relation to the customary ownership dispute of these lands between the parties under the Land Disputes Settlement Act, Ch 45, I am of the view there is no proper basis upon which the Court could accept and act on the declaration by Mr Pundari to affirm the plaintiff's claim of ownership, occupation and use of the lands.

32. In any case, I would still reject the plaintiff's submission that the Keas village court had jurisdiction to determine customary landownership disputes and decided in favour of the plaintiff pursuant to sections 36 and 43 of the Village Courts Act, 1989. This is because it is plain to me section 43 does not say village courts have jurisdiction over customary landownership disputes.

33. What it does say is that, village courts have jurisdiction to determine and make orders in relation to authorisation of use or occupation of a land in favour of one party to a dispute in cases where there is a dispute in relation to ownership of land by custom or the right to use the land by custom. It follows, any argument that the decision of Keas village court in awarding the lands to the plaintiff was within its jurisdiction must fail.

Conclusion

34. In conclusion, I am not satisfied the plaintiff is entitled to the reliefs because first, the declaration by Mr Pundari is flawed, in that, the lands had been declared customary lands by the then Minister Mr Korowaro in 1984. As they were customary lands, there was no need for Mr Pundari to make another declaration of customary land for them.

35. Secondly, as there is a dispute in relation to the ownership of the lands, the absence of a determination in favour of the plaintiff under the Land Disputes Settlement Act, Ch 45 is a fundamental flaw to the entire case as it goes to question the propriety of declaration made by Mr Pundari when he revoked the declaration by Mr Korowaro and declared the lands customary lands and the plaintiff as customary landowner of the lands.

Order

36. For these reasons, I am of the view the proceeding is an abuse of process. I refuse the orders sought by the plaintiff and dismiss the proceeding. I also order him to pay the first and second defendants' cost of the proceeding to be taxed if not agreed.

Orders accordingly.

_________________________________
Plaintiff in person
Defendants in person