Tau v Lohia [2005] PGDC 117; DC475 (21 October 2005)

DC475

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE]

CASE NO 9 OF 2004

BETWEEN

In The Matter Of Land Disputes
Settlement Act
(Ch No 45)

And

In The Matter Of Application for Temporary Order By
Ugava Tau of Gaire Village
Complainant

V

In The Matter Of Asi Lohia and Family
First Respondent

In The Matter Of Boga Henao Ali
Second Respondent

Port Moresby: Bidar, Pm
2005: 21st October

Land Dispute Settlement Act –
Application for Temporary Order Pending Determination Of Appeal By Provincial Land Court- Portion Of Land In Dispute Which Is Subject Of Appeal And Portion Of Land Not In Dispute Adjacent To Disputed Land- Whether Or Not Facts And
Circumstances Warrant Grant Of Application.

Counsel
Mr. Ugava Tau For Applicants
Mr. David Loi For Defendants

RULING

21st October 2005

BIDAR, PM: This is an application under S.30 of the Land Disputes Settlement Act (Ch. No. 45). The applicants are seeking the following Temporary restraining orders.

"1. That the respondents be restrained from occupying the land which is in dispute and pending determination of appeal No.9 of 2000.

2 The respondents be restrained from occupying the land which is undisputed and owned by applicants, which is adjacent to the land in dispute pending appeal.

3. These orders be granted pending the hearing and determination of the appeal.

4. Such other or further orders as the court deems appropriate.

From my reading of affidavits filed for and against this application as well as the submissions by both the applicant and the respondents, there is an appeal by applicant pending hearing and determination. The appeal bears File No. 9 of 2000. Whilst parties are waiting hearing and determination of this appeal, the applicant alleges that, the respondents interferes with his families right to use portion of land adjacent to disputed land, which is his and not in dispute.

Applicant also alleges that the respondent or at least some of them occupy land in dispute and which he lodged with the Provincial Land court.

Having considered whole of the evidence and submissions made by both the applicants and the Respondents, I am placed in a situation, where I do not have the benefit of the original Local Land court file, where His worship Late Boio Kidu, inspected the boundary made notes indicating boundary marks simply listening to applicant and respondents on what they say, without physical knowledge of location of portions of land and their boundaries, it is difficult visualize, what portion of land is in dispute and what is not.

Whilst at the same time, I am mindful that, this proceedings is not to determine what land is in dispute and what is not. The purpose of this proceeding is to determine whether or not there are facts and circumstances, which justify granting or refusal of orders the applicant seeks. If the court grants the orders applicant seeks, whether such orders would inconvenience or deprive those who are rightfully entitled to the use and occupation of the portion of land. Again if the court refuses the orders sought, what effect if any it has on the parties. For instances, possibility of breach of peace between the parties.

One thing court is aware is that, it is going to take sometime before the pending appeal is heard and determined by the Provincial Land Court.

In all the circumstances and based on the reasons given. I refuse the application filed by applicant on the 20th May 2005. It would have been proper to lodge an application before the Provincial Land Court before which the appeal is pending. As that court is perhaps provided with the appropriate documents and decision of the Local Land court which dealt with the dispute initially. I therefore dismiss the application and parties pay their own costs.