N3945

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CIA NO 97 0F 2006

FRED GIRAM DOGMAI
Appellant

V

JOB SOGASOG
Respondent

Madang: Cannings J
2007: 18 October;
2008: 20 February

APPEAL

LAND – dispute over customary land compulsorily acquired by the State – entitlement to occupation fees or compensation – interpretation of previous decisions of Land Court and District Court

Customary land was compulsorily acquired by the State to enable the Waterboard to build a water treatment plant. The Waterboard intends to pay compensation or occupation fees to the customary owners of the land but is unsure who the money should be paid to as there is an ongoing dispute between clans as to who the true owners are. The issue has been the subject of Land Court and District Court hearings and orders over a period of almost 20 years. In 2003 the District Court made an order, restraining the appellant from claiming any payments from the Waterboard. This is the appeal against that order.

Held:

(1)	The Local Land Court decided in 1989 that the appellant’s clan was the customary owner of the land on which the Waterboard facility is located.

(2)	No orders of any court since then have disturbed that decision, so it continues to have full force and effect by virtue of Section 43(1) (effect of orders) of the Land Disputes Settlement Act.

(3)	There was no proper basis for the District Court order restraining the appellant from claiming payments from the Waterboard.

(4)	The appeal was therefore allowed, the order quashed and a declaration made, clarifying that the appellant’s clan are the customary landowners.

Cases cited

The following cases are cited in the judgment:

Mavu v Moto and Others (2005) N2879
Richard Maribu v Lae District Land Court & Siomngaivon Clan (2001) N2064

APPEAL

This was an appeal from a decision of the District Court restraining the appellant from claiming payments from a governmental body.

Representation

F G Dogmai, the appellant, in person
J Sogasog, the respondent, in person

20 February, 2008

1. CANNINGS J: There is a piece of land just outside Madang town, near Beon Jail, on which the PNG Waterboard has established a water treatment plant and built some staff houses. It is a critical part of the local public infrastructure as it is the source of the town’s main water supply. The land is about one hectare in area. It was customary land until it was compulsorily acquired by the State in 1979. It forms part of a larger area of land called "Asua".

2. Two clans from Furan village have been arguing for years about who the true customary owners of the land were, before it became State land. They are:

•	the Moro clan, represented by the appellant, Fred Giram Dogmai; and

•	the Kareglefu clan, represented by the respondent, Job Sogasog.

3. At stake is entitlement to compensation. The Waterboard and the Department of Lands and Physical Planning apparently accept that compensation still needs to be paid, but it has not been paid because of the ongoing dispute over customary ownership.

4. The issue has been the subject of Land Court and District Court hearings and orders over a period of almost 20 years. Most recently, on 3 October 2003, the District Court, constituted by Mr I Kurei, made an order restraining Mr Dogmai from claiming any form of payments from the Waterboard. Mr Dogmai has appealed against that order and this is the ruling on the appeal.

GROUNDS OF APPEAL

5. Mr Dogmai relies on two grounds. First, he says he was not served any court documents and he was not aware of the proceedings in 2003. Secondly, he says that he and his clan are the true owners of the land so they are entitled to compensation and should not be restrained from claiming it.

6. I dismiss the first ground of appeal because, having heard from the respondent, Mr Sogasog, I am satisfied that reasonable attempts were made to serve the documents on Mr Dogmai, eg through his relatives; and I find it difficult to believe that Mr Dogmai did not know about the District Court proceedings.

7. It is the second ground of appeal that requires detailed attention.

WAS THE APPELLANT’S CLAN THE CUSTOMARY LANDOWNER? 

8. Mr Dogmai argues that his clan was awarded the land by the Local Land Court in 1989 and that decision remains intact.

9. Mr Sogasog, on the other hand, argues that his clan won an appeal against that decision in 1991 and the matter was sent for rehearing. The matter has not been reheard so the question of customary ownership still has to be resolved; and that is why the District Court made the right decision in 2003, to restrain Mr Dogmai from seeking compensation.

10. Mr Dogmai has correctly pointed out that the Local Land Court decided on 13 September 1989 to award the land to his clan. The Court was constituted by Local Land Court Magistrate Mr N G Calep and land mediators J Maoi and K Kaut. The parties were Moro clan and Kareglefu clan and Mr Dogmai and Mr Sogasog gave evidence. The Court’s decision, made under the Land Disputes Settlement Act 1975, was:

The land Asua part or hill where the water supply is awarded to Moro clan. [sic]

11. The Kareglefu clan appealed against that decision to the District Land Court, which, on 27 June 1990, allowed the appeal in part (by calling for new evidence) but ordered that the decision of 13 September 1989 "still stands".

12. Next, the Kareglefu clan appealed against the 1990 decision to the Provincial Land Court constituted by Mr P Akuram which, on 28 March 1991, made an order in the following terms:

The matter be referred to the Local Land Court for hearing of the dispute covering the Asua land which was alleged to be bought by [Mr] Solum or sold to Solum by Kareglefu clan.

That the hearing should cover the area as described in the sketch plan dated 18.03.91 and not any other area nor should it cover only Waterboard occupied land.

13. Mr Akuram gave his reasons for making that decision in a six-page judgment. His Worship pointed out that when the Land Court made its 1990 decision it had directed that Mr Solum of the Habidol clan of Opu village be called to give evidence on the allegation that the Kareglefu clan had sold part of the land to him many years before; and this evidence was relevant to the submission, made by the Kareglefu clan, that the Moro clan did not and had not ever owned the land. However, Mr Akuram also pointed out – and this is critical for the purposes of this appeal – that the direction to call Mr Solum was only relevant to the question of ownership of that part of Asua that did not include the Waterboard land. The question of customary ownership of the land on which the Waterboard facility is located was resolved by the 1989 decision, his Worship ruled.

14. I can see that the part of his Worship’s order that says "nor should it cover only Waterboard occupied land" is ambiguous. It can be read as saying that the new hearing should cover all of Asua and not only where the Waterboard is. However, when the order is read in the context of the written judgment, the opposite interpretation is the correct one and the one obviously intended by his Worship: the new hearing should not cover the land that is occupied by the Waterboard, as the question of customary ownership of that part of Asua, which will determine which clan should get compensation from the Waterboard, was resolved by the decision of 13 September 1989 in favour of the Moro clan.

15. In 1997, Mr Sogasog took the matter back to the District Court, in Complaint No 30 of 1997, and obtained an order restraining Mr Dogmai from conducting any activities on "the disputed land" (which was not identified).

16. In 2000 he took the matter back to the Local Land Court and on this occasion succeeded in obtaining what was expressed as a temporary order restraining Mr Dogmai and his family "carrying out any form of activities on this land, Asua".

17. In 2003 he again went to the District Court, in Complaint No 102 of 2003, his grievance being that Mr Dogmai was continuing to seek compensation from the Waterboard while a rehearing by the Local Land Court of the Asua dispute was pending. The case was mentioned on two occasions, on 29 July and 11 September 2003, before the hearing of 3 October 2003, which led to the following order:

1	Defendant Fred Giram Dogmai is hereby restrained from requesting and claiming any form of payment from PNG Waterboard, Madang branch, for the land in dispute known as "Asua".

2	False pretence is a criminal matter. The matter be pursued through criminal investigation.

3	For the interest of justice and fairness, PNG Waterboard, Madang branch, is hereby directed not to release any form of payment to Fred Giram Dogmai. And if there is any payment due, then it be consolidated in a trust account kept by PNG Waterboard until such time as dispute over land known as "Asua" is resolved.

18. It is that order that has given rise to the present appeal.

19. Having examined the complex history of this dispute and considered the oral submissions from Mr Dogmai and Mr Sogasog I am satisfied that the Local Land Court clearly decided in 1989 that Mr Dogmai’s clan was the customary owner of the land on which the Waterboard facility is located. I am also satisfied that no orders of any court since then have disturbed that decision. It continues to have full force and effect, by virtue of Section 43(1) (effect of orders) of the Land Disputes Settlement Act, which states:

Subject to Section 44, an order of a Local Land Court made under this Part is, as between the parties and all persons claiming through them, conclusive evidence that the interest or interests in the land the subject of the dispute that is or are specified in the order may be exercised by the person or group of persons named in the order as being the person or group of persons vested with the interest or interests.

20. Section 44 (variation of orders) allows a party to the original dispute to apply, after 12 years, to the Local Land Court for variation of an order if it can be shown that circumstances have changed so that enforcement of the order is causing hardship. In the present case, no application for variation has been made, so the 13 September 1989 decision continues to have effect, at least as far as it sets out the respective interests of the parties to the dispute (Richard Maribu v Lae District Land Court & Siomngaivon Clan (2001) N2064; Mavu v Moto and Others (2005) N2879).

21. The matter has become confusing because of the District Land Court’s direction in 1990 to call for fresh evidence on the issue of whether Mr Sogasog’s clan sold part of Asua to Mr Solum at some stage in the distant past. However, Mr Akuram’s decision in 1991 clarified that that evidence was only relevant to the part of Asua on which the Waterboard facility is not located.

22. I think that Mr Sogasog and his clan have genuinely misunderstood what was decided by the courts in 1990 and 1991. A similar misunderstanding appears to have permeated the decision making of the courts in 1997, 2000 and most recently in 2003 and this has led to a series of orders being made against Mr Dogmai.

23. I am satisfied that there was no proper basis for the District Court order of 3 October 2003 restraining the appellant from claiming payments from the Waterboard. That order will be quashed and I will make a declaration to clarify that Mr Dogmai’s clan are the customary landowners of the part of Asua on which the Waterboard facility is located.

SHOULD THE APPEAL BE UPHELD?

24. There has been a substantial miscarriage of justice so I will, under Section 230(2) of the District Courts Act, allow the appeal. I will under Section 230(1)(c) of the District Courts Act quash the order of 3 October 2003.

WHAT ABOUT THE OTHER PARTS OF ASUA?

25. I emphasise that this appeal only concerns the Waterboard land, which is only a small part (approximately one hectare) of Asua (approximately 20 hectares). The question of what happens with the rest of Asua still needs to be resolved. Perhaps there should be a complete rehearing of that issue; or perhaps there should only be fresh evidence on the issue of whether the land was sold to Mr Solum, as directed by the Land Court in 1990. It is in everybody’s interests that this long running dispute be resolved quickly and I think the best way to do that is for me to formally refer the matter to the Provincial Land Disputes Settlement Committee. I will recommend that it inquire into the matter and ensure that all questions of customary ownership are resolved in accordance with the Land Disputes Settlement Act by the end of this year.

COSTS

26. As each side has represented themselves, it is appropriate that they bear their own costs.

ORDER

27. I will make the following order:

(1)	The appeal is allowed.

(2)	The order of the Madang District Court of 3 October 2003 in Complaint No 102 of 2003, is quashed.

(3)	It is declared, for the avoidance of doubt, that the appellant’s clan, Moro clan, shall be regarded, for purposes of entitlement to compensation, occupation fees, ex gratia amounts or other money or benefits awarded in connection with the Waterboard’s occupation and use of the land, as the customary owners of the land. 

(4)	The issue of customary ownership of the part of the land "Asua" not occupied by the Waterboard is referred to the Madang Provincial Land Disputes Settlement Committee, with a recommendation that it inquire into the matter and ensure that all questions of customary ownership are resolved in accordance with the Land Disputes Settlement Act by 31 December 2008.

(5)	The parties will bear their own costs.

_____________________
Lawyers for the appellant: Nil
Lawyers for the respondent: Nil