N1182

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

OS. 25/93

VICTOR GOLPAK
Plaintiff

-v-

PATRICK ALONGREA KALI
(First Defendant)

ALOIS MALORI
(Second Defendant)

SIMON KALI
(Third Defendant)

FELIX SINAME
(Fourth Defendant)

MUMORE PTY LTD
(Fifth Defendant)

AND

NIUGINI LUMBER MERCHANTS PTY LTD
(Sixth Defendant)

Rabaul: Doherty, J
1993: 20 October

Jurisdiction of National Court S 155 Constitution does not include power to decide ownership of customary land. 

Plaintiff sought declarations and mandatory injunctions relating to a contract for use of customary land by the 5th and 6th Defendants on the basis that the Defendants had no customary title to the land and therefore could not make the contract.

HELD: 

It was a fundamental issue who had acquired a right to the land in custom. Only a person with right had locus standi to challenge the contract. The contract was an "interest in land" and title and accession to title was in issue. Despite S 155 and 166Constitution jurisdiction to determine issues of ownership and title of customary land was in the Local Land Court under the land Dispute Settlement Act Ch 45. Until that was determined the National Court could not arbitrate.

Mr. K. Latu for the Plaintiff
Mr. S. Lupalrea for the 1,2,3,4 Defendants
Mr. D. Lidgett for the 5th & 6th Defendants

ORDER

DOHERTY, J.: This is an application relating to a contract made by the 1st and 2nd defendants with the 5th and 6th Defendants over the use of some land as a log pond. The Plaintiff claim the 1 - 4th defendants had no right to make the contract. The land which is being used is customary. It is not alienated land. Hence S 73, 74 etc of the Land Act would apply to it and contracts concerning that land would have to be between its traditional owners under custom and others, what the Land Act refers to as "Native Persons in a Customary contract" or, if is not a customary type of agreement then it would have to be subject to the approval of the Minister for Lands.

The Plaintiff seeks declarations and says that it is entitled to seek those declarations in the National Court. Section 155 of the Constitution vests in the National Court powers to deal with prerogative Writs such as declarations injunctions or, in this case, mandatory injunctions.

However, fundamental to any application for declarations or other prerogative Writs is the locus standi of the parties before the Court. 

The Plaintiff claims in this Court a right of action stating that he has acquired that right by virtue of the matrilineal system which is prevailing in this area and over the land in question. On the death of the last member of the Kapakukuna Clan in 1982, the matrilineal system of accession vested in him a right to apply to a Court for any interest in the land. 

The defendant reply by affidavit stating a different customary accession system and says that they have acquired a right over the land by virtue of being the children of the last occupier. Which system prevails i.e. the matrilineal clan accession or direct inheritance from the father rather than through clan membership is clearly disputed. It appears to me to be a fundamental issue in this case because the right to make a contract over an interest in land, is caught by S 2(d) of the Interpretation Section of the Land Dispute Settlement Act Ch. where land is define to be customary land and includes an interest in land. A contract for use of land is "an interest in land." 

Section 3 of the Land Dispute Settlement Act states that the Act applies to disputes as to interests in customary land or as to the position of the boundaries. This dispute involves a power to make a contract and is an interest in the land. Section 4 provides that certain types of disputes will not be covered by the Act if there has been a declaration accepting them recognised by the Land Dispute Settlement Act. On the evidence before me, no such declaration has been made in relation to this land. Section 26 of the Land Dispute Settlement Act gives a Local Land Court jurisdiction over and in relation to a dispute as to an interest in land where the land is wholly situated within the Land Court area. It further provides that it will settle any disputes under S 29 of the Land Dispute Settlement Act. That does not entirely apply here but I consider that S 31 does apply which states that all proceedings in a Local Land Court will be commenced by an application to a Magistrate of a Local Land Court or a Local Land Court Magistrate neither of which includes a Judge or the National Court.

It seems to me that the spirit and the intent of the Legislature in writing the Land Dispute Settlement Act was to prevent the National Court from arbitrating on the forms of accession and hence ownership or control on interests in customary land and I think therefore that it would be going against both the letter and the spirit of the Legislation if I took upon me the powers to make declarations on what is an interest in land. 

I therefore consider that this Court does not, at this time, have jurisdiction to arbitrate in this case and I must therefore refer it to the Local Land Court to determine who has the interest in the land.

If the Local Land Court determines the Plaintiff does have a right over the land by virtue of the matrilineal system described in the Plaintiff's pleadings, then it is definitely open to this Court to make declarations as to whether non citizens or non customary owners or persons who are bodies co-operate have a right to form a contract on customary land under the Land Act Ch.

I therefore defer this application to a determination as to who has the locus standi to apply to this Court.

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Lawyer for the Plaintiff: Kevin Latu & Lawyers
Lawyer for the 1-4th Defendants: Namaliu Lawyers
Lawyer for the 5-6th Defendants: Warner Shand