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Kembu v Vuho [2011] PGNC 217; N3988 (8 April 2011)

N3988

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS NO 107 OF 2011

BETWEEN:

JOHN KEMBU
Plaintiff

AND:

FRED TANGOLE VUHO – representing the Lahomoruma Clan
First Defendant

AND:

JOE BEN GORU
Second Defendant

Kimbe: Kawi, J
2011: 8th April

REAL PROPERTY – customary land – Agreement recognising and vesting ownership of customary land – Agreement registered as an Order of the Local Land Court under Section 19(6) of the Land Dispute Settlement Act.

Declaration sought to give effect to customary land ownership – Recognizing and giving effect to Local Land Court Order is tantamount to deciding ownership of customary land.

BRIEF FACTS

The plaintiff and first defendant entered into an Agreement over the usage of certain hot springs in the Talasea area of West New Britain for geo-thermal purposes. The Agreement was registered as a Local Land Court Order under Section 19(6) of the Land Dispute Settlement Act. The Agreement recognized and vested ownership of customary land in the plaintiff. The plaintiff sought declarations to give effect to his standing as the principal landowner.

HELD:

(1) A Declaration giving effect to an Agreement for usage of customary land is tantamount to deciding ownership of customary land and defining interests in customary land.

(2) An Agreement for the use of the hot springs for geothermal purposes is an Agreement over an interest in land: Victor Golpak –v– Patrick Alongkarea Kali [1993] PNGLR 491 applied.

(3) Jurisdiction to determine ownership of customary lands and the degree of interests in traditional land is vested in the Local Land Court and not the National Court.

(4) Accordingly the National Court lacks jurisdiction to make the declarations sought.

Cases cited:

Victor Golpak –v– Patrick Alongkarea Kali [1993] PNGLR 491

Counsel
Mr G Linge, for the plaintiff
Mr Fred Tangole Vohu, Second defendant in Person
No appearance by the third defendant

8 April, 2011

1. KAWI J: The plaintiff files an originating summons dated 10th March 2011 in which he seeks the following declaratory Orders:

1. A declaration that the Memorandum of Agreement between the second plaintiff and the first defendant on the 27th November 2009 and approved by the Local Land Court is a valid and effectual order of the Local Land Court pursuant to Section 19(6) of the Land Dispute Settlement Act.
   
2. An order that the parties to the Memorandum of Agreement (MOA) and the Second defendant herein and all persons claiming interests in the Hariki and Rabili hot springs in Talasea and surroundings are to be governed by the terms of the Memorandum of Agreement (MOA).
   
3. An order that the Second defendant is restrained from organising and facilitating discussions outside of or counter to the terms of the Memorandum of Agreement (MOA).
   
4. An order that all discussions, negotiations and submissions made on behalf of landowners pertaining to interests in and development of the Hariki and Rabili hot springs are to be conducted under the framework of the Memorandum of Agreement (MOA).
   

2. The first defendant, Mr John Kembu deposed to an affidavit dated 8th March 2011 which was relied upon in moving for these declaratory orders. Annexed to Mr Kembu's affidavit is a Memorandum of Agreement dated 24th November 2009. The Memorandum of Agreement was signed by Mr Joe Tangole, representing the Pahanunu clan of Talasea, Mr Sylvester Wakore and Mr Fred Tangole Vohu representing the Lohomaruma clan.

3. The Memorandum of Agreement agreed over the ownership of the land on which the Hariki and Rabili hot springs are located. Under the terms of the Agreement all parties publicly agreed and declared that the Pahanunu clan are the principal landowners of the land on which the Hariki and Rabili Hot springs are located. The agreement was then submitted and registered as an order of the Local Land Court pursuant to Section 19(6) of the Land Dispute Settlement Act.

4. The declaration and orders sought by the plaintiff are intended to give effect to and ensure compliance with the terms of the Memorandum of Agreement. It is also aimed at recognising the Pahanunu clan as the principal landowner clan as well as ensuring that any counter moves to frustrate the ownership of the hot springs are ordered and made to work under the framework of the Memorandum of Agreement.

5. In my view recognising and giving effect to the Local Land Court order is tantamount to deciding ownership of customary land and defining the degree interests in customary land. A contract for the use of the hot springs for geothermal purposes is a contract over an interest in land. And this is caught by Section 2 of the interpretation section of the Land Dispute Settlement Act. This legislation defines land to be customary land and includes interests therein. An Agreement for the usage of the hot springs, Hariki and Rabili is an Agreement defining "an interest in land".

6. As the declarations and orders sought are intended to give effect to and force compliance with the terms of the Memorandum of Agreement on the usage of the traditional land ownership of the Hariki and Rabili hot springs, I consider that the National Court is being asked to make the declarations which will in turn strengthen one party's claim to the ownership of the Hariki and Rabili hot springs over other potential claimants.

7. Section 26 of the Land Dispute Settlement Act gives a Local Land Court general jurisdiction over, and in relation to, a dispute as to an interest in land where the land is wholly situated within the Local Land Court area.

8. Doherty J in Victor Golpak –v– Patrick Along Karea Kali [1993] PNGLR 491 made this pertinent comments which I find are very relevant for this case. I adopt Her Honour's comments:

"It seems to me that the spirit and intent of the legislature in passing the Land Dispute Settlement Act was to prevent the National Court from arbitrating on the forms of succession and hence, ownership or control of interests in customary land. I think therefore that it would be going against both the letter and spirit of the legislation if I assume the powers to make declarations on what is an interests in land."

9. I consider that the National Court lacks jurisdiction to make declarations relating to the traditional ownership of land. Even then the National Court lacks jurisdiction to inquire into the degree of interests in a customary land or forms of traditional accession to traditional land.

10. The first defendant who allegedly signed the Memorandum of Agreement appears to be confused about the terms of the MOA. He appears to be disputing the terms of the very MOA which he himself signed. The Second defendant, appear to be leading a splinter group outside the framework of the MOA over the usage of the hot springs for geo-thermal purposes. The letter to the Prime Minister which is annexed to the affidavit of the plaintiff shows this. In all it appears that there is a disagreement and therefore a dispute over the ownership and degree of interests in the hot springs.

11. The plaintiff seeks an order to compel the defendants to conduct all negotiations within the frame work of the MOA. The court can only do this once issues relating to ownership and defining the degree of interests in land are arbitrated and sorted out by the Local Land Court.

12. The letter to the Prime Minister dated 12th November 2010 evidence an intention that not all parties within the landowning clans are desirous of working within the framework of the MOA.

13. The under current underlying all this is that ownership of the Rabili and Hariki hot springs are in issue as well as the degree of interests in the two hot springs.

14. Consequently the National Court has no authority or jurisdiction to make the declarations and orders sought. That jurisdiction is clearly vested in the Local Land Court by virtue of Section 26 of the Land Dispute Settlement Act. The court further orders that this entire claim is hereby dismissed with costs to the defendants.

__________________________________________________________________

Linge & Associates: Lawyer for the plaintiff
Lawyer for the Defendant: First Defendant in person