Anton Lavu, Authorised Representative of Laulimi And Honde Clan Leaders and Members of Morokea-Ruango Village, Talasea District, West New Britain Province v Nicholas Mark Thompson, Managing Director, New Britain Palm Oil Limited and New Britain Palm Oil Limited (2007) N5018

• Jurisdiction: Papua New Guinea
• Court: National Court
• Date: 26 July 2007
• Citation: (2007) N5018
• Docket Number: WS NO 780 OF 2005
• Year: 2007

Full Title: WS NO 780 OF 2005; Anton Lavu, Authorised Representative of Laulimi And Honde Clan Leaders and Members of Morokea-Ruango Village, Talasea District, West New Britain Province v Nicholas Mark Thompson, Managing Director, New Britain Palm Oil Limited and New Britain Palm Oil Limited (2007) N5018

National Court: Cannings J

Judgment Delivered: 26 July 2007

LAND—customary land—State Leases—whether National Court has jurisdiction to determine a claim that land the subject of a State Lease is, in fact and law, customary land—Land Titles Commission Act, s15.

The plaintiff, representing clans who are the traditional owners of land that is the subject of a State Lease, commenced proceedings against the occupiers of the land, seeking a declaration that the clans own the land and can take possession of it, and damages. The defendants argued that the pleadings raise questions of customary ownership of land, which are within the exclusive jurisdiction of the Land Titles Commission, therefore the National Court has no jurisdiction and the proceedings should be dismissed.

Held:

(1) The plaintiff’s cause of action is trespass and is premised on the proposition that the clans represented by the plaintiff are the customary owners of the land.

(2) The clans’ rights of ownership and possession of the land are disputed by the defendants, on the ground that the land is the property of the State and the subject of a State Lease in favour of the second defendant.

(3) Such a dispute falls outside the jurisdiction of the National Court as it has by virtue of Section 15 of the Land Titles Commission Act no original jurisdiction to determine whether land is customary land.

(4) The proceedings were therefore stayed and the plaintiff was given 21 days to notify the court and the parties of the steps he is taking to have the question of customary ownership resolved by the appropriate authorities; failing which the proceedings will be dismissed.

Cases cited

The following cases are cited in the judgment:

Golpak v Kali [1993] PNGLR 491

Joe Kala v NBPOL WS No 879 of 2005, 16.02.07

Madaha Resena v The State [1990] PNGLR 22

Madaha Resena v The State [1991] PNGLR 174

Re Fisherman’s Island [1979] PNGLR 202

Ronny Wabia v BP Exploration Co Ltd [1998] PNGLR 8

Safe Lavao v The State [1978] PNGLR 15

Siaman Riri v Simion Nusai (1995) N1375

Sioti Bauf and Lavoi Nodai v Poliamba Pty Ltd [1990] PNGLR 278

Soso Tumu v The State [2002] PNGLR 250

The Administration v Blasius Tirupia (Re Vunapaladig and Japalik Land) [1971-72] PNGLR 229

The State v Lohia Sisia [1987] PNGLR 102

Vitus Sukuramu v NBPOL WS No 1175 of 2003, 16.02.07

NOTICE OF MOTION

This was a motion for a dismissal or stay of proceedings.

1. CANNINGS J: The plaintiff, Anton Lavu, represents two clans who are the traditional owners of 2070 hectares of land near Kimbe on which the second defendant, New Britain Palm Oil Limited, has established a large oil palm operation. The land is called Kumbango. NBPOL is the registered proprietor of a 99-year State Lease over Kumbango, which commenced in 1972. In 2005 Mr Lavu filed a writ against NBPOL and its managing director, the first defendant, Nick Thompson. He seeks:

• a declaration that the two clans, Honde and Laulimi, are the rightful owners according to custom and are...