Francis Mavu on his own Behalf and on Behalf of Evusovul Clan of Ru Village v Mathias Moto and Thomas Ringbung of Nakise Clan of Ru Village, Eremas Paliu and Savulu Palu of Otho Clan of Lavege Village, Stettin Bay Lumber Company Ltd, Peter Ramute, Kimbe Provincial Forest Officer and Kimbe Provincial Forest Office (2005) N2879

• Jurisdiction: Papua New Guinea
• Judge: Cannings J
• Judgment Date: 25 August 2005
• Court: National Court
• Citation: (2005) N2879
• Year: 2005
• Judgement Number: N2879

Full Title: Francis Mavu on his own Behalf and on Behalf of Evusovul Clan of Ru Village v Mathias Moto and Thomas Ringbung of Nakise Clan of Ru Village, Eremas Paliu and Savulu Palu of Otho Clan of Lavege Village, Stettin Bay Lumber Company Ltd, Peter Ramute, Kimbe Provincial Forest Officer and Kimbe Provincial Forest Office (2005) N2879

National Court: Cannings J

Judgment Delivered: 25 August 2005

N2879

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

OS NO 590 OF 2004

FRANCIS MAVU ON HIS OWN BEHALF AND ON BEHALF OF

EVUSOVUL CLAN OF RU VILLAGE

Plaintiff

V

MATHIAS MOTO AND THOMAS RINGBUNG OF

NAKISE CLAN OF RU VILLAGE

First Defendant

EREMAS PALIU AND SAVULU PALU OF

OTHO CLAN OF LAVEGE VILLAGE

Second Defendant

STETTIN BAY LUMBER COMPANY LTD

Third Defendant

PETER RAMUTE, KIMBE PROVINCIAL FOREST OFFICER,

KIMBE PROVINCIAL FOREST OFFICE

Fourth Defendant

KIMBE : CANNINGS J

26 MAY, 7, 24 JUNE, 8, 21 JULY, 25 AUGUST 2005

JUDGMENT

Land – dispute as to receipt of royalties according to customary ownership of land – forestry – timber rights purchase area – Land Disputes Settlement Act – mediation and agreement – approval of agreement by Local Land Court – effect of approval – dispute about interpretation and application of agreement and order – declarations sought.

Judgments and orders – jurisdiction of National Court – inherent power of National Court to make orders necessary to do justice in the circumstances of a particular case.

The plaintiff claimed to be the leader and agent of a clan whose interest in a piece of customary land was registered in 1994 under the Lands Disputes Settlement Act. Two other clans had a dispute with the plaintiff’s clan in 1994 about ownership of the land. The dispute was mediated by land mediators, and an agreement was reached and approved by the Local Land Court. The plaintiff claimed that the third defendant had been logging the subject land for ten years without paying royalties to the plaintiff. Furthermore, he and his clan were entitled to all royalties. The first and second defendants, representatives of neighbouring clans, disagreed, saying that the plaintiff had not been denied any royalties he was entitled to. They argued that royalties had only been paid for the last two years and that, in any event, the plaintiff was not an authorised clan agent, had no authority to receive royalties on behalf of his clan and that any royalties paid had to be shared amongst the three clans, in accordance with the 1994 agreement. The logging company, the third defendant, did not want to be involved in the dispute. The provincial forest officer, the fourth defendant, distributes royalties paid to the Forest Authority by the third defendant. The fourth defendant did not favour any side of the dispute. The plaintiff filed proceedings in the National Court seeking a declaration that he and his clan are entitled to all future royalties arising from logging on the subject land.

Held:

(1) The agreement between the Evusovul, Nakise and Otho clans of 31 May 1994, regarding Gimomi-Lapo, as approved by the Local Land Court order of 14 October 1994, was made in accordance with the Land Disputes Settlement Act (Chapter No 45) and is valid, enforceable and legally binding.

(2) The agreement and order are evidence that customary ownership of Gimomi-Lapo and entitlement to timber royalties and all other resource payments in respect of Gimomi-Lapo are equally divided and distributable amongst the Evusovul, Nakise and Otho clans.

(3) The agreement and order do not purport to appoint clan agents for any of the three clans.

(4) Further orders of the Court will be necessary to clarify the individual members of each clan who will be authorised to manage timber royalties and other resource payments on behalf of each clan.

Abbreviations

The following abbreviations are used in the judgment:

PNG – Papua New Guinea

TRP – Timber Rights Purchase

SUMMONS

This was an originating summons in which the plaintiff sought a declaration about his entitlement to timber royalties.

Counsel

T Waisi for the plaintiff

G Linge for the 1st and 2nd defendants

No appearance by the 3rd and 4th defendants

CANNINGS J:

INTRODUCTION

This case is about a dispute over customary land and who are the right clans and individuals to receive timber royalties. The land is called ‘Gimomi-Lapo’. It is a large tract of land in the Hoskins District of West New Britain Province. It is a designated timber rights purchase area under the Forestry Act.

The plaintiff claims to be the leader and agent of a clan whose interest in the land was registered in 1994 under the Lands Disputes Settlement Act. He claims that the third defendant has been logging the subject land for ten years, without paying any royalties to his clan under the Forestry Act. Furthermore, he and his clan are entitled to all royalties.

The first and second defendants, representatives of neighbouring clans, disagree, saying that the plaintiff is not entitled to any royalties. They say that royalties have only been paid for the last two years and, in any event, the plaintiff is not an authorised clan agent, has no authority to receive royalties on behalf of his clan and that any royalties have to be shared amongst three clans, not paid to just one.

PARTIES

The parties to the dispute are:

· the plaintiff, Francis Mavu, who claims to be the leader of Evusovul clan, of Ru village;

· the first defendants, Mathias Moto and Thomas Ringbung, who claim to be clan leaders of Nakise clan, also of Ru village;

· the second defendants, Eremas Paliu and Savulu Palu, who claim to be clan leaders of Otho clan, of Lavege village;

· the third defendant, Stettin Bay Lumber Company Limited, the company conducting timber operations on Gimomi-Lapo;

· the fourth defendant, Peter Ramute, the West New Britain Provincial Forest Officer, an officer of the National Forest Service.

The third and fourth defendants are adopting neutral positions. It appears that the third defendant just wants to conduct its operations without disruption and satisfy its obligation to pay royalties at fixed intervals, calculated according to the volume of timber harvested. It pays the amount calculated to the fourth defendant, who then distributes it to the landowners. The fourth defendant is obliged to ensure that the royalties are paid to the right clans; but other than that, I gather that the fourth defendant is not supporting any particular clan or individual.

The dispute is really only between the plaintiff, on the one hand, and the first and second defendants, on the other hand. The dispute is about two things. First, which clans are entitled to receive royalties? Secondly, which individuals are entitled to represent or act as agents for each clan? The plaintiff says that his clan – Evusovul – is the only one that should be receiving the royalties; and that he is the authorised agent for his clan. The first and second defendants say that the royalties should be shared amongst three clans – Evusovul, Nakise and Otho; and that the plaintiff is not authorised to act for any of them. The dispute centres on interpretation of an agreement between the three clans registered in 1994 under the Land Disputes Settlement Act.

COURT PROCEEDINGS

The plaintiff commenced these proceedings on 20 October 2004 by filing an originating summons, seeking the following:

1 a declaration that the mediation agreement of 31 May 1994 is valid and enforceable;

2 a declaration that the plaintiff is a party to the agreement;

3 an order that the plaintiff and his clan – Evusovul – are to receive all royalties for Gimomi-Lapo.

On 21 October 2004 the National Court (Mogish J) ordered the fourth defendant to pay future royalties for Gimomi-Lapo into the National Court Trust Account, pending trial. That order has apparently been complied with. The plaintiff’s lawyer, Mr Waisi, maintains that K173,110.01 has been deposited into the account.

On 26 May 2005 the parties appeared before me to argue the case. Further appearances were made on 7and 24 June and 8 and 21 July 2005.

EVIDENCE

Four documents were formally tendered in evidence, as shown in the table below. Column 1 gives the exhibit number, column 2 describes the exhibit and column 3 summarises its evidentiary content.

TABLE 1: SUMMARY OF EXHIBITS

Exhibit Description Content

A Affidavit: States that he is the clan leader and representative of
Francis Mavu, Evusovul clan and that his clan owns Gimomi-Lapo –
plaintiff, the third defendant, Stettin Bay Lumber Company Ltd,
19.10.04 moved into the area to harvest timber in 1994 –
mediation between the plaintiff and the first and second
defendants took place in 1994 – agreement was reached
that they would all receive timber royalties – however
his clan has missed out completely. A number of
documents are annexed to this affidavit.

B Affidavit: States that he is the clan leader of Otho clan and that
Eremas Paliu, three clans – Evusovul, Nakise and Otho – are the
rightful owners of Gimomi-Lapo – the plaintiff is not a
joint-second clan leader or agent for Evusovul. A number of
defendant, documents are annexed to this affidavit.
16.03.05

C Affidavit: States that he is the clan leader and clan agent of Nakise
Mathias Moto, clan – the plaintiff is not a clan leader or landowner for
Gimomi-La...