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Edom v Agun [2015] PGNC 177; N6076 (25 September 2015)

N6076

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS NO 972 OF 2011

MANUB EDOM FOR HIMSELF AND ON BEHALF OF HIS FAMILY MEMBERS AND RELATIVES OF UMIN VILLAGE
Plaintiff

V

WANOR AGUN
Defendant

Madang: Cannings J
2014:2nd December,
2015: 20th March, 25th September

CUSTOMARY LAND – enforcement of order of Local Land Court – usufructuary rights – whether plaintiff entitled to use customary land – whether injunction should be granted restraining defendant from interfering with plaintiff's enjoyment of land.

The plaintiff sought declarations that he was the lawful occupier of a piece of customary land, of which the defendant claimed ownership, and that the defendant had no lawful interest in the land, and a permanent injunction to restrain the defendant and his family from harassing, intimidating and threatening him. Both the plaintiff and the defendant claimed interests in the land pursuant to a 1983 decision of the Local Land Court.

Held:

(1) The National Court had jurisdiction to determine this matter as the Court was not required to determine the question of ownership of customary land but rather to interpret and apply a decision of the Local Land Court.

(2) The dispute about ownership and occupation of land that led to the 1983 Local Land Court decision was between the plaintiff's father and the defendant's father (both deceased). The decision was that the defendant's father owned the land, but the plaintiff's father was allowed to continue using it, by living on it and growing crops, as he had done in the past.

(3) As a patrilineal system of transmission of interests in customary land applied in the area, the plaintiff and the defendant, being the direct descendants of the parties involved in the 1983 dispute, have the same interests in the land as their fathers did, as declared by the Local Land Court.

(4) Accordingly, it was declared that the defendant was the owner of the land, but that the plaintiff was entitled to continue occupying it and using it by growing crops on it, in the same manner and to the same extent that his father had been; and it was ordered, in the form of a permanent injunction, that the defendant and his family are restrained from harassing, intimidating and threatening him and his family in regard to their occupation and use of the land.

Cases cited

The following cases are cited in the judgment:

Doriga Mahuru v Hon Lucas Dekena (2013) N5305
Galem Falide v Registrar of Titles (2012) N4775
Joe Koroma v Mineral Resources Authority (2009) N3926
Manub Edom v Wanor Agun (2013) N5225
Roderick Tovo Bibilo v Gerard Balbagara (2008) N3291
The State v Lohia Sisia [1987] PNGLR 102)

ORIGINATING SUMMONS

This was a trial in which the plaintiff sought declarations and orders as to the nature and extent of his interest in a piece of customary land.

Counsel

J Morog, for the plaintiff
T M Ilaisa, for the defendant

25th December, 2015

1. CANNINGS J: The plaintiff, Manub Edom, seeks declarations and orders regarding a piece of customary land at Umin Village in the Amele area of Madang Province. He and his family have lived on the land, known as "Bamgail", for more than 30 years. The plaintiff does not claim to be the owner of the land but asserts an equitable interest in it. He claims usufructuary rights over the land. He claims that he has the right to occupy and use it in the same way that his late father, Edom Saho, did. He has commenced proceedings against the man who claims ownership of the land, the defendant, Wanor Agun. The plaintiff says that the defendant has caused a lot of problems for him and his family over the years. The plaintiff seeks declarations that he is the lawful occupier of Bamgail and that the defendant has no lawful interest in the land. He also seeks a permanent injunction to restrain the defendant and his family from harassing, intimidating and threatening him and his family.
   
2. The defendant opposes all relief sought by the plaintiff. The defendant's position is that the plaintiff and his family are trespassers: they do not own the land, nor do they have any right to occupy it. The defendant says he is the true owner of the land and he does not agree to the plaintiff living on it or using it.
   
3. In support of their positions, both parties rely on a decision of the Local Land Court of 14th January 1983, which concerned a dispute between the plaintiff's father and the defendant's descendants about two pieces of land: Bamgail and another piece of customary land called "Gobile". The critical part of the decision is order No 6, which stated:
   

Edom Saho is to use Bamgail land as in the past and only can use Gobile to harvest what he has in that land such as coconut, betel nut etc. If and when he wants to cut bush material from Gobile he has to ask permission from Galu and Lave first. NO NEW CASH CROPS TO BE STARTED ON GOBILE by Edom or his brothers.

ISSUES

1. Does the National Court have jurisdiction to deal with this case?
   
2. Is the plaintiff entitled to occupy and use the land?
   
3. Does the defendant have any interest in the land?
   
4. Should a permanent injunction be granted against the defendant?
   
1. DOES THE NATIONAL COURT HAVE JURISDICTION TO DEAL WITH THE CASE?
   
4. Neither party raised this as an issue. But it is something that needs to be mentioned as it is well established that as a general rule the National Court does not have original jurisdiction concerning questions of ownership or control of customary land (The State v Lohia Sisia [1987] PNGLR 102). However, as I have said in a number of cases (Roderick Tovo Bibilo v Gerard Balbagara (2008) N3291, Galem Falide v Registrar of Titles (2012) N4775, Doriga Mahuru v Hon Lucas Dekena (2013) N5305) a distinction must be drawn between two sorts of land cases:
   
   • those in which there is a dispute about whether land is customary land or competing claims to ownership of customary land;
     
   • those in which the dispute centres on interpretation or application of previous court decisions or judicial or quasi-judicial determinations as to the status of land or its customary ownership.
     
5. Only in the first category does the National Court lack jurisdiction. Cases falling in that category must be dealt with by statutory bodies and courts such as the Land Titles Commission, the Local Land Court and the Provincial Land Court. The National Court retains jurisdiction if the case falls into the second category. It does not lose jurisdiction simply because the proceedings happen to relate to ownership of customary land (Joe Koroma v Mineral Resources Authority (2009) N3926).
   
6. The present case falls into the second category as the Court has not been called upon to make an original determination of who has what interests in Bamgail. The Court is only required to interpret and apply a previous judicial decision, the 1983 decision of the Local Land Court. Therefore the Court has jurisdiction.
   
2. IS THE PLAINTIFF ENTITLED TO OCCUPY AND USE THE LAND?
   
7. Yes. I uphold the submission of Mr Morog for the plaintiff that the plaintiff's deceased father, Edom Saho, acquired an equitable interest in Bamgail, in the form of usufructuary rights over it, by virtue of the 1983 Local Land Court decision, which relevantly stated:
   

Edom Saho is to use Bamgail land as in the past.

8. The restrictions that the decision imposed on the plaintiff's father as to his occupation and use of land only applied in relation to Gobile, namely:
   

Edom Saho ... can use Gobile to harvest what he has in that land such as coconut, betel nut etc. If and when he wants to cut bush material from Gobile he has to ask permission from Galu and Lave first. NO NEW CASH CROPS TO BE STARTED ON GOBILE by Edom or his brothers. [Capital letters used in original decision.]

9. I also uphold Mr Morog's submission that under the patrilineal system of land ownership that applies in Madang Province, the existence of which is not disputed by the defendant, the plaintiff's father's interests in the land were passed on to the plaintiff upon his father's death.
   
10. I reject the counter-argument of Mr Ilaisa, for the defendant, that only the plaintiff's father, not the plaintiff, acquired interests in the land under the 1983 Local Land Court decision. As I indicated in an earlier case involving the same parties, Manub Edom v Wanor Agun (2013) N5225, (in which the plaintiff successfully appealed against a decision of the District Court convicting him of an offence under Section 64 of the Land Disputes Settlement Act for failing to comply with the 1983 decision of the Local Land Court), the only reasonable and fair way to apply the Local Land Court decision is to regard the respective interests in the two pieces of land that were declared by the Local Land Court, as having been passed on to the direct male descendants of the parties involved. If the opposite approach were taken and the decision were regarded as applying only to the parties involved, neither the plaintiff nor the defendant would be regarded as having any interest at all in the land.
    
3. DOES THE DEFENDANT HAVE ANY INTEREST IN THE LAND?
   
11. Yes. I reject Mr Morog's submission that the defendant has no interest in the land. I agree that it is not entirely clear from the names of the parties to the case that resulted in the 1983 Local Land Court decision that the defendant's father was involved. However, there is sufficient evidence in the affidavits of both parties that the subject of the 1983 case was a dispute between the father of the plaintiff and the father of the defendant. The effect of the decision was that the defendant's father (now deceased) was declared to be the owner of Bamgail. It follows that the defendant is now the owner of the land.
    

4 SHOULD A PERMANENT INJUNCTION BE GRANTED AGAINST THE DEFENDANT?

12. Yes. I am satisfied that there is sufficient evidence to show that the defendant and his family have been causing problems for the plaintiff. They have not been respecting the plaintiff's interest in Bamgail. An injunction is desirable and necessary to protect the plaintiff's equitable interest in the land.
    

CONCLUSION

13. The plaintiff has succeeded in showing that he has a valid equitable interest in the land Bamgail, which entitles him to remain on the land and to use it as his late father did. He has failed to show that the defendant has no interest in the land. Declarations and orders will be made accordingly. As the plaintiff has not succeeded entirely the parties will bear their own costs.
    

ORDER

(1) It is declared, in respect of the land known as "Bamgail", in the area of Umin village, Madang Province, pursuant to the decision of the Local Land Court of 14th January 1983, that:

(a) the land is owned by the defendant, but that

(b) the plaintiff is entitled to continue occupying it and using it by growing crops on it, in the same manner and to the same extent that his father has done in the past.

(2) It is ordered by way of a permanent injunction that the defendant and his family are restrained from harassing, intimidating and threatening the plaintiff and his family in regard to their occupation and use of Bamgail.

(3) The parties will bear their own costs.

Judgment accordingly.
________________________________________________________________
Public Solicitor : Lawyer for the plaintiff
Thomas More Ilaisa : Lawyers Lawyers for the defendant