The Application of Ambra Nii on behalf of Himself and Other Members of the Toisap Clan [1991] PNGLR 357

• Jurisdiction: Papua New Guinea
• Judge: Woods J
• Judgment Date: 09 September 1991
• Citation: [1991] PNGLR 357
• Court: National Court
• Year: 1991
• Judgement Number: N1007

Full Title: The Application of Ambra Nii on behalf of Himself and Other Members of the Toisap Clan [1991] PNGLR 357

National Court: Woods J

Judgment Delivered: 9 September 1991

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

APPLICATION OF AMBRA NII ON BEHALF OF HIMSELF

AND OTHER MEMBERS OF THE TOISAP CLAN

Mount Hagen

Woods J

18 July 1991

9 September 1991

REAL PROPERTY — Ownership of land — Disputed customary interest — Appeal — From District Land Court — Power of National Court — Where clear disregard of substantial justice — Land Disputes Settlement Act (Ch No 45).

REAL PROPERTY — Ownership of land — Disputed customary interest — Principles to be applied — Land mediators — Role of — Substantial justice in accordance with Act — Land Disputes Settlement Act (Ch No 45).

PREROGATIVE WRITS — Certiorari — Grounds for — Clear disregard of substantial justice — District Land Court on appeal from Local Land Court — Purpose of Act to be protected — Land Disputes Settlement Act (Ch No 45).

Held

In so far as the National Court has power to review decisions of district land courts and local land courts made under the Land Disputes Settlement Act (Ch No 45) in respect of ownership of customary land, the power is to be exercised with care in a manner which does not defeat the purpose of the Act "to do substantial justice between all persons interested, in accordance with this Act and any relevant custom"; accordingly, the National Court should interfere only where there is a clear disregard of substantial justice.

Discussion of the principles to be applied in determining the customary ownership of land under the Land Disputes Settlement Act and the role to be played by land mediators and the local land courts.

Certiorari

This was an application for a writ of certiorari directed to a decision of a District Land Court which had quashed orders made by a Local Land Court in respect of the ownership of certain land.

Counsel

D L O'Connor, for the applicant.

Respondent's representative in person.

Cur adv vult

9 September 1991

WOODS J: This is an application for a writ of certiorari to remove into the National Court and quash orders made by the Mt Hagen District Land Court in its appellate jurisdiction made on 29 October 1987 and 9 January 1989. The District Land Court had quashed certain orders made by the local land court in connection with land called Baning near Kudjip in the Western Highlands and the District Land Court made further orders as to the vesting of blocks 1, 2 and 3 of Baning land to the Gupamp people. Certain orders covered the use and occupation of the land by the Toisaps. The names of the clans have been variously spelt as Toisap and Toisamp and Tosamp and Gupamg and Gupam and Gupamka. For the purposes of this decision I will use the spelling Toisap and Gupamp.

This matter first came before the Local Land Court at Minj which heard the claim between the Toisap Clan and the Gupamp Clan for the customary ownership of the Baning land and the hearing was between July and September 1986. The land comprises about 10 hectares and in the decision handed down on 2 September 1986 the Local Land Court divided the land and gave each party a portion. The uncultivated area towards the bottom was declared to belong to the Gupamp clan and cultivated area to the Toisap clan.

From the Local Land Court decision, the Toisap clan appealed; however following the hearing of the appeal before the District Land Court the District Land Court declared that all the land belonged to the Gupamp clan.

The matter came before the Local Land Court under the Land Disputes Settlement Act (Ch No 45). The purpose of this Act is to provide machinery to settle disputes in relation to interests in customary land. Local land courts are comprised of a local land magistrate and a number of land mediators, mediators being people from the area in which the land the subject of the dispute is located. So presumably the land courts are comprised of people who would have a closer feeling and relationship to the land in the area and therefore would be better at solving such disputes rather than having these disputes decided by outsiders who may not understand some of the ramifications of local customs and attitudes. The Act provides for an appeal from the local land court to a district land court but after the district land court there is no right of appeal. However under the Constitution, s 155, the National Court has an overriding power to make such orders as in the interest of justice are necessary and such orders would inlude reviewing matters that have come before the land courts set up under the Land Disputes Settlement Act. But whilst under its power set out in the Constitution the National Court can overview the decisions of the local and district land courts, because the whole intent of the Land Disputes Settlement Act was to try and have this dispute settled by people from the area who would have a better knowledge of people and customs in the area, the National Court, in so far as it has the power to review such decisions, must exercise this power very carefully and should not defeat the purpose of the Act. So whilst the Act specifically says in s 35 (1) (d) that the local land court "shall endeavour to do substantial justice between all persons interested, in accordance with this Act and any relevant custom", this policy should of course be followed by the National Court and the National Court should only interfere if there is a clear disregard of substantial justice.

The evidence before the local land court from the Toisap clan was that originally they did not own this land but they testified that the Baning land was given to them by people from the Wakiam clan in connection with some bride price problem. Thus the evidence of the Toisap clan suggests that the Baning land was not...