Kukubak v Hamel [2007] PGDC 70; DC597 (13 July 2007)

DC597

PAPUA NEW GUINEA
[DISTRICT COURT OF JUSTICE
SITTING IN ITS CRIMINAL JURISDICTION]

DCCr 57 - 62 OF 2007

BETWEEN

CONSTABLE MICHAEL KUKUBAK
Informant

AND

WILFRED HAMAL
First Defendant

AND

NOEL HOGEIN
Second Defendant

AND

PETER HAGALI
Third Defendant

AND

LATU HOGEN
Fourth Defendant

AND

PETER HAMAL
Fifth Defendant

Buka: B Tasikul
2007: 13 July

Case Cited
State -v- Paul Kundi [1976] PNGLR 96

Reference
Land Dispute Settlement Act
District Court Act

Counsel
Mr Reuben Kuen, for the Informant
Mr Edward Latu, for Defendants

RULING ON NO CASE SUBMISSION

1. B TASIKUL: This is an application by Mr Latu of Latu Lawyers represented the defendants who were charged under s 64 of Land Dispute Settlement Act for failing to comply with an order of the Local Land Court issued on the 28 November 1984.

2. The Local Land Court awarded the disputed land known to the parties as Munapol to a Hillary Kotsin (now deceased) of the Naboen clan. The original dispute was between three (3) parties namely Hillary Kotsin, Albert Token and Titus Pius.

3. Since the order was handed down on 28 November 1984, the relatives of the losing parties have on several occasions breached or failed to comply with the Local Land Court order which is now subject to this proceeding.

4. Since the prosecution has now closed its case, Mr Latu of Latu Lawyers has decided to make a no case submission based on the issues in his submission which was submitted before me.

5. Mr Latu argued that the complainant in this matter Mr Benjamin Muruna being not a party to the original proceeding does not have the right to enforce any order in this proceeding - (Locus Standi). He further submitted that, if Mr Muruna was to take over the ownership of Munapol, he should by way of application by motion apply to the court.

6. The other issue raised by the defence was that the matter is statute barred as the judgment is twelve (12) years old.

7. The issues raised by the counsel are questions of law which I will touch on later. However, firstly, the principle in relation to this type of application is settled in our jurisdiction in the case of: State -v- Paul Kundi [1976] PNGLR 96. The test which was adopted was whether the evidence so far adduced by the prosecution supported essential elements of the offence.

8. The prosecution’s two (2) witnesses have presented evidence before me that the defendants since the order of the Local Land Court was handed down on the 28 November 1984, on numerous occasions continued to harvest logs on the land Munapol which is in breach of the Local Land Court Order. Therefore, I am satisfied that there is sufficient evidence against each of the defendants.

9. Because the defence counsel has raised this very important question of law, it is essentially important to address this issue as it may significantly affects my findings on the evidence.

10. Mr Latu in his submission raised the question of locus standi by Mr Muruna. He submitted that the complainant was not a party to the original Local Land Court proceeding. Therefore he is not qualified to take charge of any enforcement proceeding unless by authority from the court if granted by way of motion.

11. The defendants were charged under s 64 of the Land Dispute Settlement Act. They were charged and prosecuted by police through the normal criminal procedure under s 29 of the District Court Act. This proceeding is a criminal proceeding, even though the offence was committed under the Land Dispute Settlement Act. The law allows any citizen to prosecute offences privately or through the agent of the state which is the police. The complainant opted the police to prosecute the case.

12. The original Local Land Court proceeding in 1984 was between Hillary Kotsin, Albert Token and Titus Pius. The court awarded the decision to Hillary Kotsin of the Naboen clan. Mr Kotsin is now a deceased in which Benjamin Muruna is the surviving descendant of the late Kotsin.

13. The ownership of customary land in Bougainville is communually owned. The Land Dispute Settlement Act, states that "a party to a dispute includes a customary kinship group, or a customary descent group."

14. Mr Benjamin Muruna is a member of the Naboen clan, a descent grouping of the late Hillary Kotsin. I therefore, hold the view that he has the authority as the descending member of the Naboen clan to enforce any proceeding against any persons who breaches the order of the Local Land Court dated 28 November 1984.

15. I will now turn to the second issue of time barred. The decision of the Local Land Court was handed on 28 November 1984 which is almost twenty three (23) years old.

16. Mr Kueng for the prosecution submitted that the Fraud and Limitation Act, only applies to civil matters and not criminal matters. The present matter is a criminal matter and therefore can not fall within the Act.

17. While I hold the same view as Mr Kueng, it is also my opinion that where an order of a court has been issued, that order can be enforceable at any time. There is no time limitation of the order unless it has been fully complied with.

18. The Fraud and Limitation Act, governed substantive matters that comes before the courts for the very first time. For the present case it does not fall within this category.

19. I therefore find that, the complainant still has the right to enforce the order of the Local Land Court dated 28 November 1984.

20. I therefore hold that my findings of the defendants still stands that they have a case to answer respectively.

Prosecutor
Latu Lawyers