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Abo v Sakar [2009] PGDC 18; DC867 (27 March 2009)

DC867

[IN THE DISTRICT COURT OF MADANG]
Civil Jurisdiction

Case Number DCC 424 OF 2007

BETWEEN:

ARTHUR ABO
ON BEHALF OF AWAR VILLAGERS
(Complainants)

AND:

NICK SAKAR & FRANCIS SAKAR
OF YEANDRAGEN CLAN OF BOGIA
(Defendants)

AND:

PAUL GUMI AND PETER YANU
OF GINEBEGEN CLAN OF BOGIA
(Defendants)

MADANG: ERNEST WILMOT (DCM)
2009: 27 March

CASES CITED: NON
LEGISLATION CITED:

RULING

This is a ruling on an application of Arthur Abo who appears for and on behalf of the Awar Villagers. The application filed on the 18 of March was heard on the 27 march 2009 at 230pm. The notice of motion or application of the defendant sought to restrain the defendants from claiming ownership of demanding payment of or having anything to do with the land known as Kondor Point. The application is supported by the affidavit of Arthur Abo

Facts

There is a land dispute over a lighthouse in Bogia. It is located and built at Beror in Bogia. National Maritime Safety Authority had been making payments of royalties to various people. A dispute arose over the ownership of the land. The dispute was raised by the defendants. Mediation took place on 18 June 2007 under Land disputes settlement act. The mediator Barnabas Koye, Philip Dunai and John maraguma. The mediation failed. The matter was referred to the local Land court and registered.

The Law:

Section 3 (1) of the Land Disputes and Settlements Act

Application.

(1) Subject to Subsection (2) and to Section 4, this Act applies to disputes as to interests in customary land, or as to the position of boundaries of any customary land.

Section 26 (a) of the Land Disputes and Settlements Act

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

Section 30 (2) (c-e) of the Land Disputes and Settlements Act

Temporary orders by Magistrates.

(b) prompt action is needed to preserve peace and order in the area, he may make a temporary order—

(c) authorizing the use or occupation of the land or part of the land in dispute by a party or parties to the dispute, or any other person for such purposes and subject to such conditions and restrictions as are specified in the order; or

(d) prohibiting the use or occupation of the land by any or all of the parties to the dispute; or

(e) restraining any of the parties to the dispute or any other person from interfering with the authorized use or occupation of the land by the party or person specified in an order under Paragraph (c),

pending an agreement between the parties or a decision of a Local Land Court.

Application

At the hearing of the application the complainant appears in person to move the application. Mr. Illiasa of Thomas More Illaisa Lawyers appeared for the defendants. It is unclear who in particular Mr. Illaisa appears for.

On making the application the applicant complainant relied on affidavit in support stating he was the duly elected chairman of Awar Plantation and the land owners association of Awar village Bogia. Having briefly schemed through the supporting affidavit it appears the complainant applicant is relying on a resolution of an Awar shareholders meeting dated 22 April 2005. The meeting sought to change the board of directors of Awar plantation. And per the minutes if this meeting it appears that the directors were changed, with the applicant being elected.

The application sought to restrain the defendants from making claim of the payments of royalties of the known land.

He clarified that in the royalties 10% of it was made available for the community. That he wanted the order to be lifted so his management could access these funds. However at the hearing of the application the applicant appears to be asking that defendants nick sakar and Francis sakar assist him by agreeing to release the royalties in exchange he would support their claim over the said land.

In response mar illaisa greatly assisted the court by giving a back ground of the case.

Mr. liaise submits that Exhibit ‘1’ of the affidavit in support of the application rightly shows that there is a dispute on foot. And where a dispute over customary land it is premature to seek order to allow payment. There is a dispute and it is unresolved.

Secondly it is an issue of jurisdiction. The matter has been registered with the local land court. It means that a dispute over a land lies. Therefore the district court cannot entertain this application it is an abuse of process. That further the local land court is the right corm. And the district court has no jurisdiction.

Held:

In essence I agree with counsel. The matter is before the local land court. It is registered awaiting the court to convene and hear the matter. I refer to Section 3 (1) of the land dispute settlement act which states: (1) ...... this Act applies to disputes as to interests in customary land, or as to the position of boundaries of any customary land.

In this there is a current dispute over Kondor Point. The matter has been registered with the local land court. This registration of this dispute makes this matter untouchable by the district court. The district may make temporary orders per section 30 Land Disputes settlements act. It can make 30(2)(b) prompt action is needed to preserve peace and order in the area, and may make a temporary order (30(2)(c,d &e) of the LDSA by authorizing the use or occupation of the land or part of the land in dispute by a party or parties to the dispute, or any other person for such purposes and subject to such conditions and restrictions as are specified in the order; or prohibiting the use or occupation of the land by any or all of the parties to the dispute; or restraining any of the parties to the dispute or any other person from interfering with the authorized use or occupation of the land by the party or person specified in an order under Paragraph (c), pending an agreement between the parties or a decision of a Local Land Court.

The local land court in this instant has the powers to hear this application. If I were to make orders for the applicant it would be premature as the dispute has not been resolved yet.

Further the order referred to in the affidavit of the applicant in annexure 2 does indicate the magistrate has belief that a dispute is current thereby ordering a stop payment to all parties in that proceedings.

There is one more question this court wished to answer. Does the applicant have standing to bring this matter? This court thinks not he is not a land owner he appears to be an elected leader made by the Awar Community, this does not give him standing.... Why he is not a new disputing party.... He does not make claim over dispute of boundary or land. His interest is purely commercial.

The community will benefit from the ten present allocations to the community; however as Mr. Ilasia rightly pointed a dispute is on foot. The interest of whoever the rightful owners is all payment must be halted till the dispute is resolves.

I order that this matter be dismissed on the ground that the district court sitting as a civil court has no jurisdiction to deal with this matter and the applicant are to pay cost of this application

________________________

Mr. Authur Abo in person for the Applicants / Complainants.
Mr.T. Ilaisa i for the Defendants.