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

• Jurisdiction: Papua New Guinea
• Citation: [1991] PNGLR 357
• Date: 09 September 1991
• Court: National Court
• Year: 1991

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

1 Real property—ownership of land—disputed customary interest—determination by District Land Court magistrate following appeal from local Land Court—National Court power of review—principles to be applied in determining ownership of land

2 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 (Ch45).

3 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 (Ch45).

4 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 (Ch45).

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 (Ch45) 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.

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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...