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Oseu v Oza [2023] PGDC 1; DC9047 (21 February 2023)

DC9047

PAPUA NEW GUINEA.
CIVIL JURISDICTION.

DC NO: 102/2022.

IN THE MATTER BETWEEN:

NICKSON OSEU
Complainant/Applicant.

AND:

1. BALDWIN OZA
2. JAIRUS GIREI.

Defendant/Respondents.

Popondetta: Michael W. Apie’e

2023: February 07^th to 21^st.

CIVIL PROCEEDINGS.
-Application to Restrain the Defendant Respondents from the Registration of Customary Land Parcels into Incorporated Land Group (ILG) Registration prior to Land Dispute being heard and Customary Land Ownership being determined between The Parties.
-Registrar of Incorporated Land Groups within Land Department be restrained from Issuance of ILG Certificate to the Defendants and their Jega Hasoramei Land Group.
-Defendant Baldwin Oza appears or the Defendants and claims that third Persons namely Mr. Luke Bany Sirote and Mr. Cyprian Puruta who he claims were the Land Owners that ceded or handed these Lands subjected to the Complaint to the Defendants group.

EVIDENCE-
Complainant Applicant relied on his Originating Documents as well as affidavits filed in support to move Verbal Motion on the 07/02/23 seeking Orders of Restraint against the defendants dated 07/02/23.
Defendant Reply with a short statement claiming that his Jega Hasoramei group was favoured by the ‘True Land Owners of the Disputed Lands named above and as such the Complainant ought to seek Land Mediation against them and not the Defendants group.

The Parties called no other witnesses.

Cases Cited:
Victor Golpak –v- Patrick Alongrea Kali & 5 OR’s [1993] PNGLR 491
Wabia v BP Exploration Operating Co Ltd [1998] PGNC 18; N1697 (26 March 1998)
Zati clan and Sedema Kerua Clan v. Konoma ILG LLC NO: 28/2021 on 01/03/22 DC9032

References:

District Court Act.
Land Disputes Settlement Act

Representation:
Complainant appears for himself.
Defendants appear for themselves.

JUDGEMENT ON TRIAL.
Background.

1. The Complainant filed this Action CI No: 102 of 2022 on the 19/11/22 following on from a District Court Order delivered by this Court on the 29/08/22 relation to the case of DC NO: 309/2009 between the Parties then, wherein I arrived at the following findings that;
   
   1. The Applicant then (Nickson Oseu’s) reliance on certain Land Court Adjudication by Late Former Magistrate Mr. Max Haembo was misguided in that, the Orders Late Mr. Haembo issued in favour of the Applicants Fore-bearers Mr. Gibson Oseu as opposed to the Defendants Fore-bearer Late Mr. Randal Girei was unacceptable to my Court therefore deemed un-enforceable by my court because the Orders issued by Late Mr. Haembo were not based off of a Proper Land Mediation Process or Land Court.
      
   2. I Ordered for Proper Land Mediation to be conducted between the Parties by Sohe District Land Mediations Divisions with a view to resolving the Customary Land Ownership of ‘Popota Land’.
      
   3. The Judgement being thus handed down and Appropriate Ordered Entered, the matter was closed.
      

Complainants case.

2. However, in his action of 19/11/22, the Complainant/Applicant comes back to Court to seek Orders to Restrain the Defendants from Registering the Disputed Popota Land and also other Land Parcels into their Jega Hasoramei Incorporated Land Group (ILG) Registration with the Registrar of Incorporated Land Groups in the Lands Department.
   
3. He claims the Defendants have failed to attend the Land Mediation Meetings and Appointment Dates set by Land Mediators within Sohe District, and instead have pressed on with the intention to Register their ILG.
   
4. The essence of the Complainants case is that;
   
   1. The Defendants have failed to comply with the District Court Orders to attend Land Mediation over the Initially Referred Popota Aka Land.
      
   2. The Complainant also in this case added other Land Parcels into the ‘Intend Land Dispute’ namely, Baturu, Sahama, Magure Aka, Gasivo Tehembasi, Boetari Aka and Simbeasusu
      
   3. The Complainant claims that the Defendants failure to attend the Scheduled Land Mediations Dates set by Sohe District Land Mediators Messrs. John Haenare and Remingius Manji amounts to a failure to comply with a Lawful Court Order issued on the 29/08/22 and ought to be subjected to appropriate penalties.
      
   4. The Complainant seeks the following primary Orders and that is;
      
      1. Restrain the Director of Incorporated Land Groups from issuing ILG Certificate to the Jega Hasoramei Land Group pending Land Mediations to be carried out in the aforementioned Lands.
         
      2. Restrain the Defendants and any engaged Developers from working on or endeavoring to Develop the said Land Parcels pending Land Mediation to be carried out on these Lands.
         
      100. Order the Defendants to return back to Land Mediations over the said Lands under the auspices of the Sohe District Land Mediation Division.
           

Defendants Case.

5. The Defendants case as Presented by Mr. Baldwin Oza is very brief and in a quarter page statement he presented to court and read, he simply stated that, His, ‘Jega Hasoramei Clan group are merely third parties to this dispute as they were ceded or allowed these Disputed Land(s) by the Actual Land Owners namely Mr. Luke Bany Sirote and Mr. Cyprian Puruta and if the Complainant wished to challenge for the Traditional Land title he ought to take that up against these two men and not with Jega Hasoramei clan or Group!’
   

Observations.

6. The Court make the following Observations;
   1. Traditional Land Ownership is by Law and Practice in Papua New Guinea only determinable though Mediation Processes carried out under the Auspices of Land Mediations and Land Courts as prescribed under the Land Disputes Settlement Act.
      
   2. This Notion had been emphasized and established by cases like Victor Golpak –v- Patrick Alongrea Kali & 5 OR’s wherein it was held by Doherty J as she then was and also in the Case of Wabia v BP Exploration Operating Co Ltd, as per Late Sevua J, that the Local Land Court Alone is the sole Authority to deliberate on customary Ownership of Customary Lands and no other Court has that jurisdiction. Not even the District Court as in this case!
      
   3. In the Prior related case between the Parties on the 29/08/22 relation to the case of DC NO: 309/2009 the Land the Subject of the dispute between the Parties was the Popota Aka Land for which Land Mediations was directed by the Court then.
      
   4. The Land Mediations in that case is still not heard but the Defendants have moved to have their Land Interests over the Subject land being Certified via ILG and their Application, though Objected to, remains pending, or alternately, ILG Certificate might actually have been issued issued.
      
   5. In the Current Action the Complainant has included the Lands mention in Paragraph 4.ii above, and I would think the same consideration should apply for all these Lands hereon.
      
   6. Given that a dispute has been raised in respect of a Land Parcel intended to be included on the ILG Certificate I will observe as follows;
      
      1. Incorporated Land Groups, are derived and sustained in Law under the Land Group Incorporation (LGIA) Act Chapter 147 of the Revised Laws of Papua New Guinea.
         
      2. The Purpose for the LGIA in Section one of that Act Reads;
   1. PURPOSES OF THIS ACT.

The purposes of this Act are to encourage–

(a) greater participation by local people in the national economy by the use of the land; and

(b) better use of such land; and

(c) greater certainty of title; and

(d) the better and more effectual settlement of certain disputes, by–

(e) the legal recognition of the corporate status of certain customary and similar groups, and the conferring on them, as corporations, of power to acquire, hold, dispose of and manage land, and of ancillary powers; and

(f) the encouragement of the self-resolution of disputes within such groups.

100. Land Courts, that is the Local Land Court and the Provincial Land Court have their authority and genesis from the Land Disputes Settlement Act (LDSA).
     

4. The LDSA is purposed as follows under section 1;

1. PURPOSE OF THIS ACT.

The purpose of this Act is to provide a just, efficient and effective machinery for the settlement of disputes in relation to interests in customary land by–

(a) encouraging self-reliance through the involvement of the people in the settlement of their own disputes; and

(b) the use of the principles underlying traditional dispute settlement processes.

5. Aligning these purposes side by side, it is clear that the LDSA is Related to the determination of Customary Ownership of Lands in Papua New Guinea, whilst the LGIA relates to the Registration of such determined Customary lands into Incorporated Land Groups for the Purpose enabling economic and commercial mobility and viability.
   
6. Therefore, when it comes to determination of Customary Ownership of Lands in Papua New Guinea, the Process under the LDSA will take Precedence over any and all other Legislations including the LGIA.
   
7. On the same token, when it comes to Customary Land Disputes, the Local Land Court (LLC), and by process of Appeal, the Provincial Land Court (PLC) only have Jurisdiction ahead of all other courts, including the Supreme Court of Papua New Guinea.
   
8. The Settlement Committee(s) allowed for under the LGIA is for Disputes that arise within the Group itself, BUT for Disputes Arising from Persons outside such ILGs relating to Lands within the ILG, the LDSA takes precedence.
   
9. The Registration of Incorporated Land groups on the other hand is Premised on the assumption that the Ones seeking ILG registration has undeniable or strong Customary Ownership claims to the Land submitted for inclusion in their ILG Land Parcels.
   
10. The 21 days or so of grace period for objections is to enable any lingering Objection to be raised after Publication of the ILG Application in gazette in the Print media.
    
11. If no Objection is raised, then the matter of the Application proceeds to Certification and Issuance of ILG Certificate.
    

50. If Objections are raised and found to be substantial, then most likely, the Certification Process is put on hold and the Applicants and objectors referred to the Land courts to resolve their claims.
    

13. In this case however, I have noted a Copy of the ILG Certificated issued by a Mr. Augustine Kapanombo Registrar of ILGs in favour of Jega Hasoramei Group, but over what lands this Certificate is issued is not clear on face value.
    

7. As was the crux of my adjudication and ruling in the Case of Zati clan and Sedema Kerua Clan v. Konoma ILG LLC NO: 28/2021 on 01/03/22, Konoma ILG was certified when I made a Ruling for Land Mediations to be Carried out to fully determine the Customary Land Ownership Status of the various Parties, and in the meantime the court wrote to the Director of ILG’s to put on hold of set aside the Registration of Konoma ILG until the Land Issues Were Resolved through mediation or the Land Courts.
   
8. On that basis I make the following further Observations;
   1. The Defendants have no Customary Land Ownership Claims over this Land Popota Aka, nor the Other Lands mentioned in Paragraph 4. ii. Above.
      
   2. Rather they claim that they were Ceded or Granted or Bequeathed these Lands by other persons namely Luke Bany Sirote and Cyprian Puruta and that any intended Land Mediations by the Complainant ought to be directed at the said named persons and not with them.
      
9. Be that as it may, the Mobility of the Disputed Lands is the primary Concern of this Application by the Complainants, as in the event that Land Mediations and Land Courts, if it comes to that, were in favour of the Complainants but the Land is already swallowed up in whatever endeavors the Defendants put it to, then the Land becomes immobilized and recovery of the same might be troublesome or the status of the Lands might have changed greatly defeating the purpose the Complainants might intend for such Lands.
   
10. It is therefore the Ultimately Adjudication of this Court that the Application by the Complainant is in Order and ought to be granted to secure the Status and Integrity of Lands in dispute until such time as when the Customary Ownership of these Lands are fully Mediated and determines and endorsed by the Land Courts.
    
11. In the final Analysis, the Court finds and Rules as follows that;
    

ORDERS.

1. The Application by the Complainant/Applicant to Restrain the Defendants from seeking to Register the following Lands namely Popota Aka, Baturu, Sahama, Magure Aka, Gasivo Tehembasi, Boetari Aka and Simbeasusu as part and parcel of their Jega Hasoramei Incorporated Land Group is approved and the Defendant Accordingly Ordered not to Include these Lands in their ILG Applications Land Claims.
   
2. The Matter of the Land Mediations in the said Lands namely Popota Aka, Baturu, Sahama, Magure Aka, Gasivo Tehembasi, Boetari Aka and Simbeasusu is hereby referred back to Sohe District Administration s and Lands Division for Full Mediation to be carried out between the Complainants and the Defendants and any other Person or persons that might have a Land claim to the said Lands forthwith.
   
3. The Director of Incorporated Land Groups is also ordered to Amend and Set aside the said Lands namely Popota Aka, Baturu, Sahama, Magure Aka, Gasivo Tehembasi, Boetari Aka and Simbeasusu Lands as part and Parcel of the Jega Hasoramei ILG Customary Land Claims for the Purpose of the Registration of Jega Hasoramei ILG, until the Customary Land Ownership of these Lands if finalized through Land Mediations and or Land Court determinations.
   
4. No orders will be made on costs.

Mr. Nickson Oseu for himself as the Applicant /Complainants
Mr. Baldwin Oza for the Defendants.