N10026
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS NO 319 OF 2021

MODOAS TOMIDEL
Plaintiff

V

MALAGU LALU
First Defendant

WALTER DADAU
Second Defendant

MINCENT WALTER
Third Defendant

PETER SALIP
Fourth Defendant

GOTE ODDO
Fifth Defendant

NUSMAI PIPOI
Sixth Defendant

Madang: Cannings J
2022: 19th May, 20th, 21st June, 17th November

LAND – CUSTOMARY LAND – jurisdiction of National Court – previous Land Court and District Court proceedings regarding land – previous determination of Land Titles Commission – previous National Court proceedings – dispute as to ownership of customary land – Land Disputes Settlement Act – whether National Court has jurisdiction.

Facts

The plaintiff claimed that he and his clan are the owners of three portions of customary land. He sought an injunction to permanently restrain the six defendants from holding themselves out as owners or lawful users of the land or purporting to represent the interests of the plaintiff’s clan in any customary land, and declarations that the defendants have no legal or equitable interest in the land. He also sought a declaration that a judgment of the District Court in 2002 (20 years prior to the present trial) is null and void, due to it resulting from misleading and false evidence given to the District Court by one of the defendants in the present proceedings. The six defendants argued against all the relief sought by the plaintiff, but took different positions as to who was the true customary owner of the disputed land. The first defendant argued that his clan was the true owner. The fifth defendant argued that his clan was the true owner. The remaining defendants acknowledged that they were not the owners, but claimed that they were entitled, due to prior customary arrangements, to use the land. The question arose whether the National Court had jurisdiction to determine the dispute, given the general principle that it has no jurisdiction to determine ownership of customary land. 

Held:

(1)	The National Court has no jurisdiction to hear direct evidence and make a primary determination of customary land ownership. However, if, as in this case, its proceedings are confined to interpretation and application of previous decisions of a Court or Land Titles Commission or other lawful authority, it has jurisdiction.

(2)	Examination of previous Court and Commission decisions revealed that a dispute between the plaintiff’s clan and the fifth defendant’s clan was in 1965 determined by the Land Titles Commission in favour of the fifth defendant’s clan.

(3)	There was no evidence that subsequent Court and Commission decisions pertaining to the land or other land in the vicinity of the subject land have set aside or nullified the effect of the 1965 decision of the Land Titles Commission.

(4)	The 2002 District Court decision regarding the subject land, which included findings that the subject land had been transferred to the first defendant’s clan, was not the decision of a land court with authority to make any decision on customary land ownership. That decision could not and did not set aside or nullify the effect of the 1965 decision of the Land Titles Commission in favour of the fifth defendant’s clan.

(5)	There was an order of the National Court made in other proceedings commenced by the plaintiff in 2018 that referred a dispute pertaining to the subject land to the Provincial Land Disputes Settlement Committee. However, there was no evidence that that Committee resolved the dispute or made any determination that set aside or nullified the effect of the 1965 decision of the Land Titles Commission.

(6)	The 1965 decision of the Land Titles Commission remains in force. Accordingly, all relief sought by the plaintiff was refused, and it was declared, for the avoidance of doubt, that the owner of the subject land is the fifth defendant’s clan, which gives them the right to determine who is allowed to live on the land and use the land and how it can be used. 

Cases Cited:

The following cases are cited in the judgment. 

Doriga Mahuru v Hon Lucas Dekena (2013) N5305
Elia Ah & Bio Clan of Wafen Village v Adaug Dawon & Galolo Clan of Waguk Village (2013) N5091
Galem Falide v Registrar of Titles (2012) N4775
Golpak v Alongkarea Kali [1993] PNGLR 8
Joe Koroma v Mineral Resources Authority (2009) N3926
Lavu v Thompson & NBPOL (2007) N5018
Malagu Lalu v Bedemai Biu & Peter Salip, DCC 419 & 420 of 2000, 18.09.02, unreported
Modoas Tomidel v Gote Oddo & Maror Lendo, OS No 167 of 1998, 20.04.99, unreported
Modoas Tomidel v Officer in Charge of Madang Police, OS No 7 of 1993, 15.09.93, unreported
Roderick Tovo Bibilo v Gerard Balbagara (2008) N3291
Ronny Wabia v BP Exploration Operating Co Ltd [1998] PNGLR 8
The State v Lohia Sisia [1987] PNGLR 102
Thomas Taiya Ambi v Exxon Mobil Ltd (2012) N4844

Counsel:

M Tomidel, the Plaintiff, in Person
M Lalu, the First Defendant, in Person
W Dadau, the Second Defendant, in Person
M Walter, the Third Defendant, in Person
P Salip, the Fourth Defendant, in Person
D B Uyeg, for the Fifth Defendant, with leave of Court
N Pipoi, the sixth Defendant, in Person

17th November, 2022

1.	CANNINGS J: The plaintiff, Modoas Tomidel, claims that he and his tribe, the Wagug Tribe of Wagug village, are the owners of three portions of customary land in the vicinity of Wagug and Bilbil villages, Madang District. Madang Province. 

2.	The land is called Aniareg (aka Aniheri), Met (aka Dudmet) and Wanaleg (aka Wagilig). In this judgment, I will refer to it as “the subject land”.

RELIEF SOUGHT BY PLAINTIFF

3.	The plaintiff seeks:

•	an injunction to permanently restrain the six defendants from holding themselves out as owners or lawful users of the subject land and purporting to represent the interests of the plaintiff’s tribe in the land; 

•	a declaration that the defendants have no legal or equitable interest in the land; and

•	a declaration that a judgment of the District Court in 2002 (20 years prior to the present trial), which included a finding that the subject land is owned by the first defendant’s clan, is null and void, due to it resulting from misleading and false evidence given to the District Court by the first defendant. 

DEFENDANTS

4.	The six defendants are:

•	Malagu Lalu, first defendant, of Gapan (Maragaon) Clan of Bilbil village;

•	Walter Dadau, second defendant, of Gapan Clan of Bilbil village; 

•	Mincent Walter, third defendant, of Gapan Clan of Bilbil village;

•	Peter Salip, fourth defendant, of Dugus Clan of Bilbil village; 

•	Gote Oddo, fifth defendant, of Maideb Clan of Wagug Tribe, Wagug village; and 

•	Nusmai Pipoi, sixth defendant, of Murpat (aka Dugus Lat) Clan of Bilbil village. 

5.	They all argue that the plaintiff should be refused the relief he seeks. But they take different positions as to who is the true customary owner of the subject land. 

6.	The first defendant, Malagu Lalu, argues that his clan is the true owner. He relies on the 2002 District Court decision (which the plaintiff says should be set aside) in support of his claim to ownership. In that case, Malagu Lalu v Bedemai Biu & Peter Salip, DCC 419 & 420 of 2000, 18.09.02, unreported, the presiding Magistrate, his Worship Mr Selefkariu, made a finding of fact, for the purposes of determining an action in trespass brought by Malagu Lalu against Bedemai Biu and Peter Salip (the fourth defendant), that the subject land was owned by Malagu Lalu’s clan, Gapan Clan. His Worship found that historically the land was owned by the Wagug Tribe (note that both the plaintiff and the fifth defendant say they are connected to this tribe), but that it was transferred in accordance with custom to Gapan Clan. 

7.	The fifth defendant, Gote Otto, argues that his clan, Maideb Clan, is the true owner. He relies on a decision of the Land Titles Commission, constituted by Commissioner J B Page, dated 4 June 1965, that resolved a dispute between his clan and another clan, the Oiyahu Clan, which was led by the plaintiff’s father, Tomidel Modoas, in favour of Maideb Clan. The fifth defendant also points to proceedings in the National Court several years ago, OS No 216 of 2016, in which the plaintiff claimed ownership of the land. He argues that in those proceedings, the plaintiff’s claim was unsuccessful. The fifth defendant says that the plaintiff is trying to mislead the Court by claiming to represent Wagug Tribe. He says that Wagug Tribe consists of various clans and that the plaintiff only represents his clan, Oiyahu Clan, whereas he, the fifth defendant, only represents his clan, Maideb Clan.  

8.	The remaining defendants (the second, third, fourth and sixth defendants) acknowledge that they are not the owners of the subject land but claim that they are entitled due to prior customary arrangements to use it. They agree to a large extent with the plaintiff that the 2002 District Court case of Malagu Lalu v Bedemai Biu & Peter Salip was wrongly decided due to alleged fabrication of evidence by the first defendant, Malagu Lalu. 

ISSUES 

9.	The primary issue is whether all or any of the relief sought by the plaintiff should be granted. But to determine that issue, I need to address the question of who the true owner of the subject land is. The plaintiff says his tribe is the true owner. The first defendant says his clan is the true owner. The fifth defendant says his clan is the true owner. Who is correct? Are any of them, correct? Can I, sitting as a Judge of the National Court (which is not a land court and lacks the power of the Land Titles Commission) determine the question of who the true owner of the subject land is? 

10.	The issues will be addressed in this way:

1.	Does the National Court have jurisdiction to decide who the true owner of the subject land is?

2.	Who is the true owner of the subject land? 

3.	Should the plaintiff be granted all or any of the relief he seeks?

4.	What order should the Court make? 

1	DOES THE NATIONAL COURT HAVE JURISDICTION TO DECIDE WHO THE TRUE OWNER OF THE SUBJECT LAND IS?

11.	The National Court must be cautious when dealing with customary land. In The State v Lohia Sisia [1987] PNGLR 102 the Supreme Court ruled that the National Court has no jurisdiction to hear or determine disputes about whether land is customary land or about competing claims to ownership of customary land. That principle has been applied in numerous later cases, eg Golpak v Alongkarea Kali [1993] PNGLR 8, Ronny Wabia v BP Exploration Operating Co Ltd [1998] PNGLR 8, Lavu v Thompson & NBPOL (2007) N5018, Thomas Taiya Ambi v Exxon Mobil Ltd (2012) N4844. 

12.	However, as I have explained in cases such as Roderick Tovo Bibilo v Gerard Balbagara (2008) N3291, Galem Falide v Registrar of Titles (2012) N4775, Elia Ah & Bio Clan of Wafen Village v Adaug Dawon & Galolo Clan of Waguk Village (2013) N5091 and 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; and 

•	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.

13.	Only in the first category does the National Court lack jurisdiction. Cases in that category fall within the jurisdiction of the Land Titles Commission, a Local Land Court or a 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 in some way to ownership of customary land (Joe Koroma v Mineral Resources Authority (2009) N3926).

14.	The present case falls into the second category. Evidence has been presented about who are the legitimate customary owners of the subject land. However, that evidence is based on previous Court or Land Titles Commission decisions, and I am not determining such questions at first instance. 

15.	I am focussed on interpreting and giving effect to previous decisions of Courts or the Land Titles Commission that have already determined the question of customary land ownership. I am complying with the duty of all persons, bodies and institutions, including the National Court, arising from s 155(6) of the Constitution, to comply with and to put into effect all decisions of the National Judicial System – and by implication all decisions of all courts and other lawful authorities including the Land Titles Commission that have specific power and authority to determine questions of ownership of customary land. 

16.	I am satisfied that the National Court has jurisdiction to address and determine the question of customary land ownership in this case. 

2 WHO IS THE OWNER OF THE SUBJECT LAND? 

17.	The parties have given evidence of numerous decisions of Madang District Court, Madang Local Land Court and Madang Provincial Land Court relating in some way to the subject land. These include the decision of Mr Selefkariu in the 2002 District Court case of Malagu Lalu v Bedemai Biu & Peter Salip, which the plaintiff and most of the defendants take issue with. 

18.	They have also given evidence of two decisions of the National Court: the decision of Hinchliffe J in Modoas Tomidel v Officer in Charge of Madang Police, OS No 7 of 1993, 15.09.93, unreported and the decision of Kirriwom J in Modoas Tomidel v Gote Oddo & Maror Lendo, OS No 167 of 1998, 20.04.99, unreported, both of which relate to the subject land. 

19.	There is evidence of a decision of the Acting Chief Commissioner of the Land Titles Commission, Mr R W Cruickshank, dated 1 April 1974, that involves the subject land. There is also the decision of Commissioner J B Page, of the Land Titles Commission, of 4 June 1965, on which the fifth defendant pins his clan’s claim of ownership.

20.	Copies of some of those decisions are in evidence. I have examined them and assessed their relevance. Some are simply referred to in other decisions or in the affidavit evidence of the parties. I have placed little weight on those decisions. 

21.	Of all the decisions that are actually in evidence, in the sense that there is a copy of the decision in evidence, the one that stands out as the most relevant, by a large margin, as it directly addresses the question of ownership of the subject land and it involves two of the parties in the present case, and their direct ancestors, is the decision of Commissioner J B Page of the Land Titles Commission of 4 June 1965. 

22.	I am satisfied that that decision resolved the dispute between the plaintiff’s clan, which was then led by the plaintiff’s father, Tomidel Modoas, and the fifth defendant’s clan, in favour of Maideb Clan.

23.	There is no evidence that subsequent Court and Commission decisions pertaining to the subject land or other land in the vicinity have set aside or nullified the effect of that decision.

24.	The 2002 District Court case of Malagu Lalu v Bedemai Biu & Peter Salip, which included findings that the subject land had been transferred to the first defendant’s clan, was not the decision of a land court with authority to make a final decision as to customary land ownership. The decision could not and did not set aside or nullify the effect of the 1965 decision of the Land Titles Commission in favour of the fifth defendant’s clan.

25.	There was an order of the National Court made in other proceedings commenced by the plaintiff in 2018, which referred a dispute pertaining to the subject land, to the Provincial Land Disputes Settlement Committee. However, there is no evidence that that Committee has resolved the dispute or made any determination that set aside or nullified the effect of the 1965 decision of the Land Titles Commission in favour of the fifth defendant’s clan.

26.	The 1965 decision of the Land Titles Commission remains in force. Based on that decision, I find that the owner of the subject land is the fifth defendant’s clan, Maideb Clan. 

3	SHOULD THE PLAINTIFF BE GRANTED ALL OR ANY OF THE RELIEF HE SEEKS?

27.	The answer is no. The plaintiff’s clan is not the owner of the subject land. The true owner is the fifth defendant’s clan, Maideb Clan. 

28.	As for the plaintiff’s submission that the findings made about customary land ownership in the 2002 District Court case of Malagu Lalu v Bedemai Biu & Peter Salip should be set aside, because of evidence fabricated by the first defendant, Malagu Lalu, I reject it outright. Even though four of the defendants seem to agree with the plaintiff, this is a court of law and decisions of the Court are not made by the votes of the parties. 

29.	The decision of Mr Selefkariu was made 20 years ago. You cannot come to Court after that length of time and argue that a Court made a bad decision. You have to appeal or seek review in a short space of time. You have to comply with the law on time limits for appealing. So I have not seriously considered the plaintiff’s evidence regarding the 2002 District Court case; and I have not seriously considered the evidence of those defendants who seemed to support the plaintiff’s arguments about that case. 

4	WHAT ORDER SHOULD THE COURT MAKE? 

30.	The order will be in two parts. First, there is the formal part, to refuse all relief sought by the plaintiff. Secondly, the less straightforward part, in which I draw on s 155(4) of the Constitution, which states:

Both the Supreme Court and the National Court have an inherent power to make, in such circumstances as seem to them proper, orders in the nature of prerogative writs and such other orders as are necessary to do justice in the circumstances of a particular case.

31.	I invoke the inherent power of the National Court, in circumstances that seem to me to be proper, to make an order necessary to do justice – to put the issue beyond doubt and avoid confusion over the legal rights and obligations of all the parties in this case and to create certainty – in the circumstances of this particular case, to declare that the fifth defendant’s clan is the owner of the subject land; and I will declare what rights this gives that clan.

32.	If any other parties are aggrieved by my order, they can appeal to the Supreme Court. They must appeal within 40 days. Otherwise, they should not complain. They should live with the order and their wantoks and get on with their lives in peace and harmony and enjoy the beauty and wealth of the land on which they and their forebears have lived since time immemorial. 

ORDER

(1)	All relief sought by the plaintiff is refused. 

(2)	It is declared pursuant to s 155(4) of the Constitution, for the avoidance of doubt, that the owner of the subject land – three portions of customary land in the vicinity of Wagug and Bilbil villages, Madang District, Madang Province, called Aniareg (aka Aniheri), Met (aka Dudmet) and Wanaleg (aka Wagilig) – is the fifth defendant’s clan, Maideb Clan of Wagug Tribe, Wagug village, which gives them the right to determine who is allowed to live on the land, and who is allowed to use the land and how it can be used. 

(3)	The parties shall bear their own costs of the proceedings. 
____________________________