Alum v Bendum [2014] PGDC 4; DC2065 (20 February 2014)

DC2065

PAPUA NEW GUINEA

[In the Civil Jurisdictions of the District Court held at Bulolo]

DC No 30 of 2013

Between:

PENIAS ALUM
(Complainant)

And;

PATRICK BENDUM
(Defendant)

Bulolo: C Inkisopo

2013: 7th & 28th November
2014: 20th February

District Courts Act Chapter 40: practice and procedure at District Court spelt out in and by Act – jurisdiction and powers of District Court & parameter of application of these powers demarcated by Act –

Mining Act, 1992; Alluvial Mining Lease (AML) – entitlements & rights of AML holder – area and boundary covered – right to mine on river beds of 5 meters down and not exceeding 20 meters on either side of land surface from river bed –

Summary Ejectment Act: - proceedings under Act intended to provide quick remedy to holders of title to premises – not available where title is in dispute or unclear -

Legislations:

1: District Courts Act Chapter 40
2: Mining Act, 1992
3: Summary Ejectment Act, Chapter 202

Cases cited:

Herman Gawi -vs- png Ready-Mixed Conrete (PNG)Pty Ltd [1984] PNGLR 74

Appearances:

1: Mr Penias Alum; Complainant for himself in person.
2: Mr Patrick Bendum; Defendant for himself in person.

Held:

1: The Claim that 'Pangu Gate' is located within the boundary of AML 582 is not made out and this Claim to restrain Defendant from carrying out clearances on portion of land Pangu Gate locates is denied and is hereby dismissed.

2: The Defendant is hereby restrained forthwith from issuing eviction notices or notices to quit to settlers squatting on or within the vicinity and area of 'Pangu Gate' as the Defendant does not have any legal right to the portion of land where Pangu Gate locates.
_________________________________________________________________

6th February 2014

JUDGMENT

C Inkisopo: The Complainant filed a Complaint before this Court dated 7th March 2013 claiming that the Defendant is without authority causing clearances and illegally issuing eviction notices to settlers living on and within the precincts of the portion of land located at the Bulolo Market Karanas Compound area known and referred to commonly as "Pangu Gate" that he claims is located in and within the boundary of his Alluvial Mining Lease; more particularly described and identified as AML 582.

2: The exact nature of the Complainant's claim is that; he is the lease holder of AML 582 by virtue of which he claims ownership of that portion of land Pangu Gate now locates.

3: He claims that the Defendant has no right nor does he have any authorization to issue eviction notices or to carry out clearances to put up improvements thereon in collaboration with Asians. He therefore seeks the order of this Court to restrain the Defendant from carrying out clearances on the said portion of land with the view to putting up improvements of potential business nature and also be restrained from issuing any eviction notices to settlers living in the vicinity of Pangu Gate and its immediate surrounds.

4: The Defendant denied this claim and strenuously disputed that the Pangu Gate and its immediate precincts are covered by the Complainant's AML 582. He therefore disputed strongly the Complainant's such claim outright.

5: In the initial stages of the hearing of this matter, the Defendant filed a Notice of Motion (NOM) seeking the immediate dismissal of the proceedings on grounds that the entire proceeding is res judicata; in that the same or similar matter between the parties had already been heard and determined by this Court once back in 2008 and that Complainant can not litigate on the same matter before this Court once again.

6: The Defendant's application was dismissed on 28th June, 2013 on the ground that the previous determination was made on the basis that the Complainant back then did not immediately possess a valid AML to produce before the Court then; whilst this time around, he now produces a valid AML which gives him the rights to take the sort of action he now takes to protect his AML rights and interests. The substantive matter of Orders for Restraint was fixed for hearing on 15th August, 2013 to commence at 9 o'clock in the morning.

7: The matter was fully heard and after further trial adjournments and reception of further documentary evidence, the Court formally concluded the hearing and adjourned to receive the parties' respective final submissions after which, the matter rescheduled for decision to a date to be fixed.

8: Given the fact that this case impacts upon the interests of the public having a wider implications not only on the interests of the concerned parties but many others in and around the Karanas Compound area of Bulolo, the Court undertook to deliver a written ruling for the benefit of everyone concerned; and this is that Ruling.

COMPLAINANT'S CASE

9: The Complainant claims that the portion of land where Pangu Gate currently stands is located within the immediate boundary area of his AML 582. Hence he says he is the owner of this portion of land (for it is part of his Alluvial Mining Lease No 582) and that the Defendant has therefore neither legal authority nor right to issue notices to settlers squatting on or within the precincts and the surrounds of that portion of land. He said that the Defendant also has neither right nor authority to carry out clearances and improvements to the said portion of land for purposes of putting up business improvement with and in collaboration with Asians for apparent commercial purposes.

10: In support of his claim, the Complainant produced before this Court a copy of an instrument issued from the Office of the Registrar of Mineral Tenements captioned 'Alluvial Mining Lease No 582' specially granted to one "Penias Alum" dated 6th May, 2010 under the hands of the then Minister for Mining, honourable Sir Dr Puka Temu.

11: Annexed to that instrument and forming part of the Alluvial Mining Lease Instrument No 582 appear the following formally printed endorsements;-

Schedule 1

"TO ACCOMPANY GRANT DOCUMENT FOR AML 582"

{And sets out what I understand to be a technical description of the area covered by AML 582; described as;-}

"The area of land over which the tenement has been applied for is bounded by;-

A line commencing at;

70 13' 09" S 1460 39' 21" E

Then to: 70 12' 59" S 1460 39' 24" E

Then to; 70 12' 55" S 1460 39' 28" E

Then to; 70 12 56" S 1460 39' 28" E

Then to; 70 12' 59" S 1460 39' 31" E

Then to; 70 12' 07" S 1460 39' 29" E

Then to; 70 13' 09" S 1460 39' 21" E

being the total point of commencement comprising a total land mass area of 5.0 hectares".

12: He filed additional documents during hearing including drawings that appeared to me to being maps and drawings. These maps and drawings do not clearly show or indicate with any certainty the identifying features of those maps and drawings or of places and areas bounded by the subject AML 582 to identify against; for an example, an existing fixed object or establishment or structure to contrast and measure against; if there is anything like that can help this Court in its arduous task of AML boundary identification.

13: Complainant did also produce and tendered into evidence a map drawn by a Mr Leonard Wawa of Bulolo University College who specializes in Forestry Surveying that I must admit, proved of no help to the Court; and in the absence of expert technical help from experts interpreting those technical signs and symbols of the map drawing for the Court's benefit, the same was akin to looking for a needle in a haystack. Even then, I am of the humble view that Forestry Surveying must be different to Mines and Minerals Surveying given that these are two characteristically different natural resources. The Complainant was himself the only witness for his case.

DEFENDANT'S CASE

13: The Defendant too was also the only witness to his case. He filed supporting affidavit evidence along with certain documentary materials made up of correspondences touching the land where Pangu Gate stands.

14: In his defense, the Defendant claimed that the portion of land where Pangu Gate stands or locates was formerly a mining lease held solely by PNG Forest Products Limited (PNGFPL) which was later relinquished to the State when it decided to cease its mining operations and venture into full time timber business except for the portion where the "crusher" once stood that it retained for its own purposes. He added that the entire area of the Karanas Compound land which includes Pangu Gate, the subject of this proceeding; is what he said to be Unallocated Government Land ("UGL" or "UAL").

15: Defendant acknowledged that the portion of land Pangu Gate stands is UGL that his late father, Mr Mathew Bendum who in his living days took steps to acquire a lease title over it. He tendered into evidence copies of correspondences the deceased, his late father entered into with PNGFPL and the Department of Lands and Physical Planning addressing that very issue.

16: There are evidence that the Company (PNGFPL) granted permission to the late Mathew Bendum and his interests to occupy only the Pangu Gate portion on a 'permissive occupancy' basis. The Company (PNGFPL) discreetly advised the late Mathew Bendum in letters, first dated 28th August, 1988 and second dated 25th May, 2005, explaining clearly that "permissive occupancy" was not the same thing as a lease and clearly explaining to him so; thereby allaying any false impression the late Mr Bendum may have of the grant as being something akin to a lease title; for such can only be granted by the State as the owner.

PANGU GATE

17: The Court is made to understand from evidence received; that "Pangu Gate" is a portion of land located at the Karanas Compound area lying along the Wau/Bulolo Highway that the late Mathew Bendum during his living days had, as the local member of Parliament for Bulolo, set up his electorate Office; and also as a staunch Pangu Party man, used that Office also as Pangu Party Office; hence that portion of the land subsequently got its name "Pangu Gate".

18: I also note that the Defendant; whilst not disputing that Complainant may be the holder of AML 582, rather he strenuously disputed that AML 582 covers the portion of land that Pangu Gate locates. He further took strong issue by stressing a point that has a legal connotation; that Pangu Gate locates more than 20 meters away from the nearest or the most closest point of the nearest river bed; here the Bulolo River and cited s 50(1) of the Mining Act, 1992 to make his point.

ASSESSMENT OF EVIDENCE

19: After hearing and assimilating all the evidence presented in this case by both parties, I have come to accept and appreciate the fact that the case and its outcome will have implications not only on the parties themselves but also on the general populace living in and around and doing businesses etc at the Karanas Compound area that includes the Bulolo market.

20: In its attempts to doing justice in the case, this Court must first assess the evidence presented before it and make findings of fact based entirely on what evidentiary materials the parties have provided and presented before it. This ruling will in the main come down on the basis of the respective evidence so provided and the case will be decided primarily on questions of fact.

21: The Complainant furnished before the Court as part of his supporting evidence official government instruments as his authority to support his claim. He referred to and tendered into evidence certain instruments granted to his late father under the provisions of the pre-independence Mining Ordinance of 1928 -1959 firstly as Hydraulic Claim (HC No 783) issued at Wau on 17th October, 1962 and registered as ALOM 2332 which encompassed as assets Dredge Sluicing Claim (DSC) Nos 869, 888 – 889 which back then were amalgamated and noted as having been bounded in the Complainant's then expired AML 035 previously held by him. It is noteworthy that the said expired AML 035 was specifically said to be for the area described as being at the right bank of Bulolo River near the Bulolo Dredges No 2 ship under land owner Alom of Pilimung Landowner.

22: The question of what is DSC and what it means and what it does or is meant to be and the extent of its application to shed light to this Court in its attempt to addressing the issue before it; have not been made any clearer, at least for this Court. I do recognize and appreciate the Complainant's inability to assist the Court in that regard as he told the Court that he left school early without completing it and therefore could not assist the Court as best as he would have liked to. Needless to say; this is his Complaint and as the old legal adage says; "He who asserts must prove!" - That is to say the onus of proving his case is on him; for this is a Court of law.

ISSUE FOR RESOLUTION

23: As AML 035 has expired and the Complainant granted a fresh valid Alluvial Mining Lease (AML 582), this Court will consider what area AML 582 encompasses and its application as well as the exact boundary AML 582 is supposed to encompass and cover. In my humble view, this is the crucial issue for this Court to consider and attempt to resolve.

24: From all of the evidence presented before this Court, the question of what exact area of land AML 582 covers and the exact boundary of its coverage is the focal issue that this Court sadly finds it to be far from established. It seems to me that; in the absence of clear evidence establishing that point and in the absence of evidence showing the contrary intent, I find myself compelled to assume that AML 582 is the renewed version grant of the Complainant's formerly expired AML 035. And because, the current AML 582 does not specify exactly and clearly the boundary of its coverage, and unless proven conclusively otherwise, I hold the firm views that AML 582 covers the same one area bounded by the Complainant's expired AML 035 namely; the east bank of the Bulolo River near the Bulolo Gold Dredges No 2 Ship. This view gains a firm support from the Complainant's own oral testimony in Court where he told the Court that his AML 582 covers the areas from Manam Compound to the AOG Church along the Wau/Bulolo Highway.

25: The Court also notes Complainant's evidence of Statutory Declarations of settlers attesting to and vouching for the Complainant as the owner of the land on which they reside and acknowledge paying him rental fees. While that may be the actual de facto situation, this Court acknowledges and appreciates those facts simply for just what they are; paying rentals to someone considered to be owner on face value without a firm proof of ownership. But this Court's task is to identify the exact area and boundary of the said AML 582 held by the Complainant considering the fact that AMLs are granted only for 5 hectares of land and on land surface not exceeding 20 metres from either side of any river bed by virtue of s 50 (1) and (2) of the Mining Act, 1992.

26: Accordingly, in my humble view, the fact that many residents in the area acknowledge the Complainant's 'ownership' and confirm paying him rental fees for their use of portions of the land in the area of itself does not show or prove conclusively nor does it mean that Pangu Gate must be located on or within the Complainant's AML 582.

27; AML 582 is the current valid alluvial mining lease the Complainant possesses that he claims; covers the area Pangu Gate locates that he now sues to assert his claim to its ownership by virtue of that AML 582.

28: In its efforts to resolving this matter, the Court is labouring to appreciate and understand the whole of the AML demarcation and to understanding and coming to have a better grasp and appreciation of the technical symbols, languages, words and figures used to describe the exact area and the boundary of land and the river bed bounded up in the AML 582 grant. I would have considered it of immense benefit and assistance to this Court in helping it resolve this case if the parties, particularly, the Complainant, had called expert relevant evidence from the Mining Office in Wau who could have helped by giving us helpful technical evidence particularly explaining to the Court the descriptions of the area that describe same by ascribing figures suffixed with degree signs, quotation marks etc. such as; 70 13' 09" S – 1460 39' 21" E that the Court had next to an impossible task trying to understand. Even then, no clear maps identifying the area or boundary bounded by AML 582 for easy assistance was ever presented to this Court. The evidence presented by the Complainant seemed to me to raise more questions than answers.

29: During oral evidence. The Complainant testified to the Court that his AML 582 extends from Manam Compound near the airport all the way down to Saksak Compound which I understood to mean the area in the vicinity of the Wau/Bulolo Highway and the Hidden Valley Mine access road turn-off. When pressed to be specific considering the fact that AMLs are only granted for no more than 5 hectares, the Complainant told the Court his AML 582 covers from Manam Compound to AOG Church.

28: This Court notes that the said Manam Compound and AOG Church are both located along the Wau/Bulolo Highway and are apparently located at distances of more than 20 meters away from the nearest river bed of Bulolo River. It is apparent to the Court that; if the Complainant's AML 582 is said to commence from Manam Compound extending down to the location of the AOG Church, then it clearly is located almost for a distance of a kilometer away from the location of Pangu Gate.

29: The Defendant advanced arguments in his defense to the claim that the sole original mining lease holder to the whole of the Karanas Compound land, PNGFPL granted to his late father permission to occupy the portion of land now called Pangu Gate on a 'permissive occupancy' basis when it (PNGFPL) surrendered it (mining lease) to the State to venture into timber business. The Company in keeping with its commitment to the Defendant's father transferred a portion of it to Bendum Holdings Pty Ltd and further gave its consent to the Department of Lands & Physical Planning to peg and survey the same for sub-division. The Court derives these facts from copies of correspondences between the Company, the Lands Department and the late Mr Mathew Bendum that were tendered into evidence as part of the defense case.

FINDINGS OF FACTS

30: On the basis of all the evidence presented before this Court by the parties in support of their respective cases, I make the following findings of fact;-

1: The Complainant is the holder of a valid alluvial mining lease AML 582 granted to him dated 6th May, 2010 issued under the hands of the then Minister for Mining, Sir Dr Puka Temu;

2: AML 582 is granted to be valid for a period of only 5 years for a depth only of 5 meters below the natural land surface and not more than 20 meters on either side of river bed;

3: The AML 582 (and other AMLs) is for mining on river beds and onto land surface extending not more than 20meters from either side of any river bed;

4: Apart from the apt descriptions of degrees South and degrees East; describing the boundary of the Alluvial Mining Lease, there is no clear identifying features like maps and/or drawings that would clearly show the exact area and boundary bounded by AML 582;

5: Portion of land where Pangu Gate locates is for a distance of more than 20 meters from the closest point of the river bed of Bulolo River;

6: The whole of the Karanas Compound including the portion of land Pangu Gate locates was formerly a mining lease held by PNGFPL which has since been surrendered to the State as it ventured into timber business;

7: The Karanas Compound land including the portion where Pangu Gate locates is now an unallocated government land ("UGL" or "UAL");

8: By virtue of being granted 'permissive occupancy" by the then holder of the mining lease (PNGFPL), the portion of land where Pangu Gate locates, and occupying same for years without objection by the State to such an occupancy, the Defendant is deemed to have acquired an equitable interest and right over the portion of land Pangu Gate locates.

9: The portion of land where Manam Compound and the location of the AOG Church are located at distances of more than 20 meters from the closest point of the river bed of Bulolo River and the distance to Karanas Compound where Pangu Gate locates is almost a kilometer away;

10: The previous pre-independent hydraulic claims (HC 783) and dredge sluicing claims (DSC 869, 888 – 889) granted to the Complainant's late father are superseded by the later grants of AMLs under the new Mining Act, 1992.

CONCLUSION

31: The rational conclusions that the Court is able to draw from the above findings are;

1: Pangu Gate is not shown to be located within the boundary of AML 582,

2: Defendant possesses only "permissive occupancy" to the portion of land where Pangu Gate locates which over period without objection had acquired level of an equitable interest or right in the subject property.

3: The portion of land Pangu Gate locates is unallocated government land ("UGL" or "UAL"),

32: With these conclusions, I note that the Complainant raised two but connected restraining order reliefs;-

1: To restrain the Defendant from issuing eviction notices to settlers, and

2: Next; to restrain the Defendant from making clearances to the area of land Pangu Gate locates to put up improvements to bring in Asians for business purposes.

THE LAW

33: The law is clear with regards to claims over entitlements and interests over land; one must possess a legal title to interests over land to take action to evict or take other action against others over land issues. In cases of evicting someone from a land or property, the law in this jurisdiction is settled. Recovery of property in such a case or circumstance is catered for under the Summary Ejectment Act Chapter 202 which is the only legal mechanism intended to provide a quick remedy to people who have titles to premises, land or properties; and that it is not available where title to land is in dispute or is unclear. See Herman Gawi -vs- png Ready-Mixed Concrete (PNG) Pty Ltd [1984] PNGLR 74

34: Here in our instant case, the Complainant is claiming that Defendant has no right to issue eviction notices to settlers living in the area and vicinity of Pangu Gate because; as he says, the portion of land on which Pangu Gate locates is within the boundary of his AML 582. I am firmly inclined to agree that the Defendant has no right to issue eviction notices; not because, and I repeat, not because of what the Complainant says and claims, but for a very fundamentally different reason.

35: The reason is; the Defendant has neither lease title nor legal ownership to the property in question to issue such notices to vacate or quit to those living in and around the area of Pangu Gate. Defendant possesses only what is found to be 'permissive occupancy' of Pangu Gate over which he is found to have acquired a level of an equitable interest. Given that status, the Defendant has no right whatsoever to issue notices to quit as the above case law makes it quite clear in the latter passages of the judgment of Kapi, DCJ; that "an equitable owner is not entitled to give notice to quit" Gawi -vs- png Ready-Mixed Concrete (Supra). It follows therefore that the Defendant is only a permitted occupant of the portion of land where Pangu Gate locates and by that fact; he is, as an equitable owner, not qualified to issue notices to quit and that he should accordingly be restrained from issuing further notices to quit to settlers of the area in question.

36: As regards the question of restraining Defendant from clearing the area near Pangu Gate with the view to putting up business and other improvements, the Complainant's evidence has not established to my satisfaction on the civil standard of proof that his AML 582 boundary covers the portion of land Pangu Gate locates. This Court therefore has no option but to decline this part of the relief the Complainant seeks.

Formal Court Order

The Court makes the following orders;

1: The Complainant has not made out his case to restrain the Defendant from carrying out clearances to areas of Pangu Gate to bring in Asians; and that this claim is denied and is hereby dismissed.

2: The Defendant has no right to issue eviction notices to settlers as he is only a permissive occupant and not the legal owner of the portion of land on which Pangu Gate locates.

3: As the issue of costs is a discretionary matter for the Court, each party shall bear his own costs of this proceeding.

Appearances

No lawyers in appearance for the Parties.