Baevana Incorporated Land Group v Baina Agro Forestry Project [2008] PGDC 78; DC824 (18 February 2008)

DC824

PAPUPA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE]
Civil Jurisdiction

DC. N0. 1630 OF 2007

BAEVANA INCORPORATED LAND GROUP
Complainant

V

BAINA AGRO FORESTRY PROJECT
1st Defendant

JOE BAGARO
2nd Defendant

NASYL 98 LTD
3rd Defendant

SHERRINGTON LTD
4th Defendant

MARK MARTIN
5th Defendants

JOHN MONGO
6th Defendant

NATIONAL FOREST AUTHORITY
7th Defendant

Port Moresby: Pupaka, PM

2008: 12th February

Mr. G. Gore for the Complainant
No appearance by all Defendants

18th February 2008

PUPAKA, PM: This is a claim by the complainant against the defendants on the bases of the latter’s individual or collective fault in not ensuring that the complainant was duly paid for trees felled on customary land and the logs thereof harvested which were then used for building bridges during the construction of an access road linking certain logging (TRP) areas being worked on by the 4th defendant.

More particularly the complainant seeks judgment against the defendants in the sum of K6, 175.73. This is said to be the sum assessed as money due for the volume of trees felled and logs harvested and used for bridge construction. In fact a cheque for this exact sum was drawn for payment for the trees. However it is said the cheque was paid to two ‘wrong’ individuals by the 4th defendant. These duo of ‘wrong’ individuals, though identified to be a brother and sister team, have not been named or sued in this proceeding.

Extra Issues

It seems necessary for me to state for the record that there are two extra but pivotal issues that have manifested themselves for mention here in the current circumstances. I say mention only because the resolution of these extra issues is not overly necessary.

First of all it is contended for the complainant that the two persons (the brother and sister) were paid money that was meant for the complainant. It is said these two persons are not the traditional land owners of the land from which the trees were felled. The real landowners are said to be the complainant and its members.

For some reason these two, who perhaps may have represented themselves as the real land owners to the defendants, have not been named or sued in these proceedings. Presumably they are still alive and fully capacitated. Just why they have not been named is not an issue herein so it shall remain a non issue under these ex parte hearing circumstances. However one would think, in the event that the defendants do seek, in future, to exonerate themselves on the bases that they did nothing wrong such as to be liable to the complainant, the latter may face some difficulty. These two persons did get something that did not belong to them. They may have misappropriated the complainant money. Therefore the complainant really should have included the two in this suit as well. I shall say no more than that on that.

Secondly there has been no meaningful effort on the part of the defendants to defend this case. The party that stands to be affected more than the others by any outcome in this matter is the 4th defendant. It apparently filed documents, including a notice of motion and affidavit in support, to obtain certain relief in the past so it is at least aware of this suit. Yet it, and the other defendants have failed to defend this proceeding. Of course that is the reason why this matter has had to be heard ex parte.

Nevertheless I note that the 4th defendant raised an issue in passing that was also put forward later by this Court for the complainant’s consideration. As it seemed than, it again seems to be at issue as to whether the complainant and its members are entitled to be beneficiaries in the payment for the harvested logs. Earlier in this proceeding the Court actually queried as to whether there were any customary land ownership or usage issues raised or are pending, and whether or not any such issue were or had been raised or registered for formal resolution. The complainant’s lawyer swiftly said there were none and that answer was accepted at face value. It is on the bases of the presumption that there is no dispute over the ownership and use of the subject customary land that this Court has accepted jurisdiction over the claim posed in this suit.

Therefore it does mean that, if it transpires later that this alleged payment to ‘wrong persons’ was done as a result of uncertainty or misunderstanding or as a result of a dispute or a conflict in relation to ownership and use of customary land and or on the bases of a dispute as to who was a entitled person, this entire proceeding, including any order or decision of this Court, would be void able in the first instance. It is trite that void able orders are liable to be set aside at the behest of an affected party.

Customary land ownership or usage issues belong only to the Land Courts; properly constituted and convened as such. It is not proper and certainly not lawful for land disputes to be litigated before courts other than the Land Court, albeit by default, as it were.

Available Evidence

That said, for the purposes of this ex parte hearing the complainant was directed to file affidavit evidence. In compliance it has filed just one affidavit. It is the affidavit of one Mathew Aiga Kere sworn on 11th February 2008. Counsel for the complainant has asked this Court to consider this one affidavit. There are no other evidence.

The deponent is the Chairman of the complainant. The Chairman, after repeating the pleadings, briefly asserted that the 4th defendant, being the entity obligated by contract to make payment, was duly directed by the 5th defendant and others to make payment. Consequently the 4th defendant did raise the correct payment. However it ignored express directions from the responsible people and effected payment upon the ‘wrong persons’ as afore said.

Mathew Aiga Kere therefore says the 4th defendant was negligent in the discharge of its duties in that, being the entity obligated and tasked to make payments to the actual landowners for the felled trees, it failed to pay the correct landowners and instead paid ‘wrong’ persons as afore said. Mathew Aiga Kere also says the complainant has suffered losses. Therefore he says the 4th defendant is liable, on the bases of its negligence, to the complainant for the latter’s losses.

On the materials before me there is not one shred of evidence implicating any of the other named defendants. Therefore, without much ado, these other defendants shall be found not liable.

Conclusion

In the end there shall be judgment entered for the complainant against the 4th defendant, Sherrington Limited, in the sum of K6, 175.73. There shall be interest on that sum at the statutory 8 % from the date of summons to the date of settlement.

The complainant shall have its costs, the same to be taxed if not agreed to between the parties.

_________________________________________

Mr. Gore for the Complainant
No appearance for the Defendants