N1046

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

APPLICATION OF RIMBO SUSU ON BEHALF OF HIMSELF AND OTHER FINSCHHAFEN LANDOWNERS

Mount Hagen
Woods J

14 January 1992
4 March 1992

CUSTOMARY LAND - Formalities for sale - Procedures to be adopted.

REAL PROPERTY - Lease and sale by custom - Determination by District Land Court magistrate following appeal from Local Land Court - National Court power of review.

Facts

This is an application by Finschhafen landowners for review of an order of the District Land Court. In 1978 the applicants negotiated a lease of land for a period of 9 years from members of the Jiga Melagamp clan for use and occupation of the subject land. In 1987, when the lease had expired, there were discussions for the sale of the land to the applicants. Other members of the clan objected to the negotiations by the signatories of the original lease.

The matter came before the Local Land Court under the Land Disputes Settlement Act; there was an appeal from that court to the District Land Court. The District Land Court found that when the original lease was negotiated, the Finschhafen group had failed to consult with all the members of the Melagamp clan who had an interest in the land. The District Land Court then ordered the Finschhafen group to vacate the land.

Issues

The principles for sale and purchase of customary land in the absence of specific legislation.

Held

1. The purported agreement to sell had been done contrary to custom; thus, the District Land Court was entitled to find that any such agreement was invalid. The application for certiorari was refused and it was held that the applicants have no interest in the subject land.

2. The court suggested means by which customary rules can be employed to protect the interests of all customary landowners interested in a piece of property which is proposed to be sold, and the procedure of sale.

Counsel

D L O'Connor, for the applicants.
P Dowa, for the respondent.

4 March 1992

WOODS J: This is an application by Rimbo Susu on behalf of himself and other Finschhafen landowners for a review of the order of the District Land Court at Mount Hagen on 21 April 1989.

The land concerned is some land adjoining the highway to the east of Mount Hagen called Magebe in the area of the Jiga Melagamp Clan.

In 1978 the applicant and others negotiated with a Yapa Kupul and other members of the Jiga Melagamp clan for the use and occupation by lease over the subject land. There was a document drawn up which, although called an Agreement for Sale and Purchase, was clearly by its terms a lease for 9 years. It is common ground that there was a lease agreement for 9 years from 1978 for the applicant and others to have the use and occupation of the land for that period.

In 1987, when the period of the lease had expired, there were some discussions for the sale of the land to the applicants. However it appears that other persons from the Jiga Melagamp clan were aware of these negotiations and objected to the negotiations by the persons who had signed the original lease.

The matter then came to the Local Land Court apparently under the Land Disputes Settlement Act, and there was an appeal from that court to the District Land Court. The District Land Court found that when the 9-year lease had run out a dispute had arisen over the new deal to renew the lease, in which the Finschhafen Group had failed to negotiate with all the members of the Melagamp Clan who had an interest in the land. The District Land Court then made orders for the Finschhafen group to vacate the land.

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 emphasises 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 recognises 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 a 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.

I am satisfied that the Local Land Court was entitled to find that there was a dispute in relation to interests in customary land and that the purported agreement to sell had been done contrary to custom. And, therefore, the District Land Court was entitled to find that any such agreement was invalid.

I, therefore, refuse the application for certiorari and find that the applicants have no interest in the subject land.

__________________

Lawyer for the applicants: O'Connor & Hasu.
Lawyer for the respondent: Henao Priestley.