DC3004

PAPUA NEW GUINEA

[In the District Court of Justice sitting in its (Grade five) civil Jurisdiction]

CL no 16 of 2016

BETWEEN

WILLIAM LARIS 
Complainant

AND

CHANNEL TOMMY
 					 First Defendant

AND

CHRISTINE SEMOSO
Second Defendant

AND
MATILDA MALES 
Third Defendant

BUKA: B.TASIKUL
2016: 28TH APRIL

CIVIL LAW: 

COUNSEL:
Appearing for Complainant: In person
Appearing for defendant:  In person each

REASON FOR DECISION

1.	B.TASIKUL PM: This matter came before me by way of a Summon upon Complaint. The Complainant  is seeking from the court the following orders;
a.	That the defendants and their respective agents and servants are refrained from interfering in any way whatsoever, with the smooth enjoyment of the said customary land which he purchase;
b.	That the defendants and their respective agents and servants be refrained from further collecting any monthly land rentals from Likui Trading Limited as from the date of this order;
c.	That any outstanding land rentals still owed to the land owners shall now be paid directly to the complainant;
d.	Any other such orders as the court deems fit.

2.	The matter first came before me on the 05th April, 2016. The defendants failed to appear, despite being served with the summons. The matter was then adjourned to the 07th of April, 2016 for exparte hearing. On the 07th April, 2016 the first defendant Channel Tommy appeared whereas other defendants failed to appear the second time.

3.	I am satisfied that all the defendants were served with the summons, the court preceded exparte with the exception of the first defendant who was called to give evidence. 

4.	The complainant through his affidavit deposed that on the 22nd January, 2016 the defendants’ clan leader Joseph Mobisi sold to him this portion of customary land refer to as Block Land NB3 for K25, 000.00. He further deposed in paragraph 5 states that; As far as I am concerned I knew the defendants and Joseph Mobisi as their clan leader of Yakakaputa Land Group have agreed to and allows me to buy the said piece of customary land.

5.	He further deposed in paragraph 6 that all I want is the defendants and Joseph Mobisi to respect me as the new land owner of the said customary land and allow me to do any dealings with the current tenant who is Likui Trading Limited.

6.	 His witness Mr. Mobisi acknowledge the sale and testified that the reason why he sold this portion of land because their clan members did not respect their late clan leader Fedelis S. Kenu following disagreement of who was entitle to collect land rentals for this particular portion.

7.	His claim was supported by a letter he wrote to the Managing Director of Lukui Trading Limited which mark exhibit A.

8.	The only defendant who was present alluded that they were never been consulted before this particular portion of customary land was sold.

9.	It is not disputed that this particular customary portion of land refer to as Naboin 4 or NB4 was sold to the complainant William Laris the complainant  for K25,000.00 as a Statutory Declaration signed by Joseph Mobisi acknowledging it which he tendered as evidence which I mark  exhibit B.

10.	The parties in this proceeding are ordinary citizen and they are not represented by any lawyers. For this reasons it is up to this court to clarify some of the issues in law which the parties needs to understand.

11.	Any party seeking restraining orders in court should also file a substantive matter for determination as restraining orders are only temporary orders issued by the court to allow the parties to any dispute for the court to determine their substantive matter.

12.	In this present matter, involves a portion of a customary land. It is not disputed that this portion of land is owned by the Naboin clan of Ieta village. It is also not disputed that the complainant William Laris developed and paid K25, 000.00 to clan leader Joseph Mobisi for as payment of this portion of land.

13.	The complainant William Laris now claims that he is the owner of this portion of land. The issue is should I grant or refuse the orders sought by the complainant? 

14.	It is the general knowledge in law that customary lands are owned by a groups, clans or tribal grouping. It this case this portion of land is owned by the Naboin clan. The Land Dispute Settlement Act or the Land Act is silent on how a customary land can be sold. There are no provisions on this legislations regarding sale of customary land.

15.	However, in the case of Rimbo Susu [1992] PNGLR 37 his honor Justice Woods (as he was then) up held the decision of the Local Land Court and said;

The case raises the whole question as to how customary land may be bought and sold by custom. This matter came to the Land Court under the Land Disputes Settlement Act Ch 45. This act is specifically stated to be an act to provide for the settlement of disputes in relation to interests in land. Whilst initially one would conceive this as being to find who are the traditional owners of land and would involve rival claims, by custom presumably this could also extend to disputes where people have bought and sold customary land and there is now a dispute over the validity of that sale.
A problem is that there is no specific legislation to assist in the purchase by custom of customary land. The furthest the Land Disputes Settlement Act goes is to refer to agreements between parties to a dispute. Initially, a purchase by custom is not in itself an agreement between parties to a dispute.
The Land Act makes no reference to how customary land can be disposed of by custom; instead, it is more concerned with the acquisition of land by the State and then the subsequent dealings with State land. Part 1X has a special provision relating to customary land and s 73 emphasizes that if a traditional owner wishes to sell, lease, or dispose of customary land it must be done in accordance with custom.
So where does that leave us. Firstly, it suggests that there must be some customary rule which recognizes that sale is possible, so perhaps that should be recited in any agreement. Then for long-term certainty, perhaps there should be similar protections as when the State buys customary land, namely recognition of who are all the owners or persons who have some interest by custom in the land and the nature of their interests and how such interests can be traded. The vendors would have to recite and acknowledge publicly that they are the sole vendors or act on behalf of the named owners, who should presumably be listed somewhere in the document. It would almost be necessary for certainty to have a resolution of the ownership in the form of an agreement after appropriate publicity before the Local Court or Local Land Court, with the use of the appropriate land mediators for the area involved. Because of the importance placed on land by custom, one should always be very careful in any negotiation for sale, especially when people from a completely different area of the country are involved.
To merely produce a document which suggests an agreement between some purported landowners cannot be sufficient protection against other members of the original land owning group. To say that one man would have the power and authority to negotiate by himself without reference to other members of the clan the sale of some customary land by custom goes against the whole history of the dealings with and acquisition of land in Papua New Guinea.
16.	What the National court is saying is simply that customary land cannot be sold without the authority of the clan. There must be proper customary rules established to facilitate the sale of customary land.

17.	However, there are issues that need to be asked. For this present case has the clan chief has the authority to sell the land or does he need to consult other clan members? Mr. Mobisi told the court the sale was sanction by the late chief of the Naboin clan late Kenu. If the late Kenu sanction this sale then he must have has the authority to do so.

18.	There is no evidence before me in custom as to how customary land in this society can be sold to outsiders. The complainant as he states that this portion was given to him by the chief of the Naboin clan and he has developed it. Having bought this portion of land from the clan chief gave the complainant the expectation that he now has the right of ownership. His interest cannot be overlook.

19.	If the court does not grant the order the complainant is seeking, then it will bring inconvenience to the complainant as he has spent resources and expectation upon him. It my view that the balance of convenience must lays on the complainant.  

20.	 Since he has develop the land without resistance from the Naboin clan members than, his interest must also be consider. For this reason I will grant the orders sought by the complainant.

21.	Orders granted as follow;

i.	That the defendants, their agents or servants are refrained from interfering in anywhere what so ever, with the smooth enjoyment of the said customary land which the complainant have a current lease over it
ii.	The complainanttheir respective agents or servants refrained from further collecting any monthly payment of land rentals from Likui Trading Limited;
iii.	That any outstanding land rentals still owned shall be paid directly to the complainant.