DC 3066
PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE
SITTING ITS LOCAL LAND COURT JUSRISDICTION]
LLC 01of 2018
BETWEEN
 CORNELIUS NOHU AND ALPHONSE NOHU
Applicant 

AND
PAUL GATANA
Respondent 

       BUKA:   B.TASIKUL Chairperson

 2018:  15th February
    

CIVIL-

Cases Cited

References

Counsel. Mr. Tamusio of Tamusio and Associate. Lawyers
      Mr. Paisat of Daniels Lawyers

JUDGEMENT

1.	BY THE COURT: This is an application for variation under s.44 of the Land DisputeSettlement Act. The applicants through their  lawyer filed a notice of motion supported by their  affidavits seeking the following orders:

i.	That the decision and orders granted by the Buka Local Land Court on the 12th August, 1994 be revisited, review and varied pursued to section 44 of the Land Disputes Settlement Act, Chapter 45 of the Revised Law

ii.	That the decision and order of the Buka Provincial Land Court confirming the findings of the Buka Local Land dated the 30th of March 1995, be revisited, reviewed and varied pursuant to section 44 of the Land Dispute Settlement Act, chp 45.

iii.	That the decision and the order of the Buka National Court dated the 25th of July and 7th of October 1995 confirming the decisions of the lower courts are also revisited, reviewed and varied pursuant to s. 44 of the Land Dispute Settlement Act.

iv.	That the decision to award land ownership title to the respondent and his Nakaripa Clan of Malakua by the Buka Local Land Court be declared null and void as documentary evidence obtained by the applicant from the Lands Department does confirms that Hagen Land the subject of this proceeding actually was owned by the ancestors of the Nakaripa Clan of Hagen to whom the applicants are the direct descendants

v.	That the Respondent and his Nakaripa Clan of Malakua have no legal land title documents to prove otherwise that they are the true and original land owners of Hangan land. 

vi.	That the respective Courts should have taken judicial notice of the document pertaining to the surrender of lease-Tsonmona Portion 274 to Mr Siraku, the land owner of Hangan village and they should have taken steps to enquire further from the Lands Department to ascertain the ownership of Hangan Land.

vii.	That the ownership of Hangan customary land was pre-determine by Patrol Officer Michael Vaughan Neal on the 14th October,1995 and its ownership was well settled and vested to Nakaripa clan of Hangan village

viii.	That in the event, that this Honourable Court does varies the decision of the Buka Local Land Court dated the 12th of August,1994, then the effect will be that, the decisions of the other Local Land Courts over Kubu Kukul and Malakua customary Lands are to a very large extent may well have to be varied accordingly as well.

ix.	Therefore, this honourable Court has a duty to order a similar revisiting of those decisions at its own volition or if the interested parties shall make an appropriate application in order to maintain consistency, at a later date.

x.	Such other orders as this Honourable Court deems fit and appropriated in the circumstances.

2.	The application is support by Cornelius Nohu and Alphones Nohu, s affidavits filed on the 22nd November, 2017, respectively. I do not wish to dwell into the details of the evidence that is contained in their affidavits. The reason is basically because this is only a preliminarily application to determine whether this court has the jurisdiction to grant orders that are sought in this application.

3.	Mr Tamusio of TR Tamusio & Associates  Lawyers filed a written submission which he submit that as I quote, the appeal by late Raphael Latu was determined by the Buka Provincial Land Court on the 30th of March,1995 confirming the decision of the Buka Local Land Court. The matter was further pursued before Buka National Court by way of a leave to seek Judicial Review and the said court in its ruling on the 25th July 1995 refused to grant leave to the appellant and dismissed the matter.

4.	Mr Tamusio further advances his submission to the relevant documentary evidence that was obtained from the Department of Lands over this particular portion of land. He submitted that the Buka Local Land Court was misconceived right from the beginning in the absence of all the documentary evidence. He refers me to the case of Matia Land which came before me. I will discuss this further as I proceed with my judgment.

5.	The counsel submitted that this court has the jurisdiction to review a decision after 12 years. He submitted that the court have wider jurisdiction to revisit, review and varied any decision upon availability of new documentary evidence under s.44 of the Act.

6.	Mr Paisat appearing for the Respondent did not provide any written submission however, make a short oral submission. He submitted that the orders sought are ultra vires .s.44 of the Land Dispute Settlement Act does not apply in this circumstance. Section 44 must be read in conjunction with s.60 of the Act. He submitted that the court has no jurisdiction.

7.	I asked both Lawyers to cite any similar cases in the pass or case law in the higher court that may have deal with this particular section or issue. Unfortunately, none of them cited any. 

8.	The Land Dispute Settlement Act provides a mechanism process for the settlement of disputes arises from customary land dispute. It also established the procedures, the process and the institutions in addressing customary land disputes. The Act establishes the apparatus for land dispute resolution, which comprises three stages;

i.	Mediation;
ii.	Judicial cum mediation at the Local Land Court; and
iii.	Appellant process at the Provincial Land Court.

9.	S.29 gives the power to mediate in the Local Land Court. S.21 provides for the establishment of the Local Land Court and S.45 provides for the establishment of the Provincial Land Court. S. 54 provides avenue for an aggrieved party to appeal any decision from the Local Land Court to the Provincial Land Court. A Provincial Land Court decision is final and is not subject to appeal.(s.60)

10.	However, a party may seek Judicial Review to the National Court pursuant to s.155(3) of the Constitution which the National Court in Siamon Riri v Simon Usai Unreported Judgment (1995) N1377 held that s.60 is not bar to constitutional relief. 

11.	Let me now proceed to s.44 of the Act. S44 Variation of Orders reads;

(1) Notwithstanding Section 43, a party may apply to a Local Land Court for a variation of an order of that Court if he can show that circumstances have changed so that the enforcement of the order is causing hardship.
(2) Where an application is made to a Local Land Court under Subsection (1), the Court shall cause a copy of the application to be served on any other interested persons and Section 71 applies as though the copy of the application were a notice within the meaning of that section.
(3) An application under Subsection (1)–
(a) may not be made within 12 years after the date of the order; and
(b) may be made only by a party who was originally a party to the dispute or by a party claiming through such a party.
(4) In considering whether to vary the order, the Court shall take into account–
(a) the past and present use and occupation of the land the subject of the order; and
(b) the past and present use and occupation of the area surrounding the land; and
(c) the relative numbers of people holding interests in and using and occupying the land and the area surrounding the land; and
(d) any other matters that it thinks relevant.
(5) The Court may vary the order only if it is satisfied that in all the circumstances it is just to vary it, and that the party applying will suffer hardship if the order is not varied.
(6) Where a Local Land Court decides to vary an order under this section, it may include in the variation any provision that it may include in an order made under Section 39.

12.	 So basically S.44 from my opinion is saying that a party to the original dispute  after twelve (12) years may apply for a variation of the Court decision if any of the parties faces hardship or any circumstance that may have affected  them when the order were made. Both counsels have not advanced any argument on what circumstance and hardship this provision is referring to. They have not assisted the court, which now leave the court to its own interpretation.

13.	 Mr. Tamusio in his written submission have tried referring me to the vital documentary evidence and other relevant evidence that was before  the Local Land Court in 1994  failed to considered and  take judicial notice off. I noted where Mr. Tamusio was coming from.

14.	 Having said that let me through this analogy clarify in simplicity my view of s.44. For example if Party A was awarded the ownership of a large portion of land and Party B was given the right of usages, but only a very small portion. After the decision some year’s later Party B population’s increases and no more space available for them to make gardens andetc., because of the limited land as ordered by the court.  Than under this circumstance Party B may apply to the Court for a variation of the court decision to accommodate their hardship due to limited land space available. Party B may apply to the court to vary the court order to extend further the boundary so that more land space is available for them to use for gardening and etc. That does not change the decision of the court but, only to vary the order by extending the boundary to accommodate the increasing population of Party B .That may be one of the examples under this circumstance. 

15.	In this present case before me the applicants are seeking an order from this court  torevisit  the decision of Buka Local Land Court dated  12th August,1994 which awarded the ownership of the land Malakua to Paul Gatana of the Nakaripa Clan  to be varied it as there was a judicial error by the Local Land Court. 

16.	If there was any judicial error by the Local Land Court then, it must follow the process of appeal. A variation under s.44 cannot apply in this circumstance. This court does not have the jurisdiction under this circumstance. The procedure of appeal which they have exhausted is the only way.

17.	Let me now refer to the case of Matia Land which came before me. This case was an application for a temporary order under s.30 of the Land DisputeSettlement Act. Yes in my judgment I acknowledge and express my opinion to s.44 of the Act. However, the back ground and the circumstance to the Matia case may not be relevant to this present case. 

18.	May, I mention herein that the applicants failed in their application to clarify what are the specify orders of variation, and what are the circumstances warrant a variation. This court does not have the jurisdiction to vary an order and award the ownership to another party because the original Local land court failed to take judicial notice or failed to consider their evidence. S.44 of the Land Dispute Settlement Act does not apply in this circumstance. As I have mention above in the analogy this is one of the circumstances, an application under s. 44 may be considered. I there find this application must fail as this court does not have the jurisdiction.

Mr. Tamusio for the Applicant
Mr. Paisat for the Respondent