Sahale v Kerakera Lololo Clan [2021] PGDC 162; DC7016 (17 November 2021)

DC7016

PAPUA NEW GUINEA

[IN THE DISTRICT COURT OF JUSTICE

SITTING ITS PROVINCIAL LAND COURT JUSRISDICTION]

PLC No: 01 of 2009

BETWEEN

HERMAN SAHALE Representing BUALAI Clan, KEVEMUKI Clan and BOBISO Clan

Appellants

AND

KERAKERA LOLOLO Clan

Respondent

Kimbe: B Tanewan
2021: 17^th November
    

CIVIL – Land dispute on issue of ownership - Appeal from Local Land Court -Supreme Court on Appeal from National Court on Review – matter remitted to Provincial Land Court By Supreme Court.

PRACTICE & PROCEDURE – Application to dismiss for want of prosecution under Order 4 Rule 36 of National Court Rules and Order 9 Rule 15 of National Court Listings Rules – National Court Rules only apply to Proceedings commence by Writ or Originating Summons – National Court Rules not applicable - Matter instituted under the Land Disputes Settlement Act.

PRACTICE & PROCEDURE – Application to dismiss for Want of Prosecution-No evidence of intentional or malicious conduct – No evidence of inordinate and inexcusable delay- No evidence if such delay may give rise to a substantial risk that it may not be possible to have a fair hearing – application misconceived-application premature - application dismissed- In the interest of justice - matter relisted for hearing before Provincial Land Court for hearing before a Magistrate to be agreed to by all parties – Giving effect to the Supreme Court Orders.

Cases Cited
Freddy Kave v Fred Yakasa (2014) N5692
Stanley Miam v. Joe Dai (2009) N3699
General Accident Fire & Life Assurance Corp Ltd v Ilimo Farm Products Pty Ltd [1990] PNGLR 331
John Niale v Sepik Coffee Producers Ltd & Ors (2004) N2637;
David Kabomyap Allolim v Biul Kirokim (2018) SC1735
Kai Ulo & 2 Ors v. The State [1981] PNGLR 148 and Burns Philp (New Guinea) Limited v. Maxine George [1983] PNGLR 55
Sahale v Karogo[2021] SC2129

References
Land Disputes Settlement Act
National Court Rules
National Court Listings Rules

Counsel
Doko Kari, for the Appellants

Jerry Siki, for the Respondents

25^th October, 2021

B. Tanewan: This is the ruling on an application by way of a Notice of Motion filed by the Respondent through his lawyers on 20^th October, 2021 seeking to dismiss the entire proceedings for want of prosecution. The Respondent’s application is in the following;

“Pursuant to Order 4 Rule 36 of the National Court Rules and Order 10 Rule 9A 15 (2)(a),b and (c ) of the National Court Listings Rules,2005, the entire proceedings be dismissed for failure to comply with the Supreme Court Orders of 9^th July, 2021 and for want of prosecution generally.”

Background

These proceedings were commenced back in 2009 at the Local Land Court through the process under the Land Disputes Settlement Act. The Kimbe Local Land Court made a decision on 24^th March 2009 giving ownership rights to the Respondent, now the applicants, Kerakera Lololo clan as principal landowners over the land known as Portion 524, Milinch of Banga of Hoskins area, which the Moramora Technical College is now situated.

An appeal against the above decision was filed in 2010 and determined by the Provincial Land Court on 20^th November, 2010, which made a decision to allow the Appeal, quashed the Local Land Court decision of 2009 and referred the matter back to the Local Land Court for re-hearing.

The Respondent, Kerakera Lololo clan then filed for Judicial Review on 19^th October, 2011 and subsequently on 27^th November, 2019 the National Court made its decision declaring that the Provincial Land Court in the Appeal conducted its proceedings in a manner contrary to the principles of natural justice and quashed the Provincial Land Court decision and consequently restored the Local Land Court order of 5^th March, 2009.

On 24^th December, 2020 the Appellants appealed the National Court decision of 27^th November, 2019 to the Supreme Court of Justice in the proceedings styled as SCM No: 59 of 2019; Herman Sahale & Ors v. Francis Karogo & 2 Ors. Upon hearing the Appeal the Supreme Court made the following orders;

“1. The Appeal against grounds (a) (b) and (c) is dismissed.

2. The appeal against ground (d) is upheld.

3. The appeal in PLC 10/2009 is remitted to the provincial Land Court for hearing before a different Magistrate, to commence within the next three months, on the following conditions:

(a) The Magistrate appointed shall be agreed to by parties;
(b) The Magistrate will deliver a written decision.

4. Parties shall bear their own costs of appeal.”

Based on the above Supreme Court orders, the Respondent file this application alleging failure by the Appellants to enforce or comply with the Supreme Court orders to prosecute their appeal within the three months as ordered by the Supreme Court.

Evidence

The Applicants relied on the Affidavit of Search of Alex Supan sworn on 18^th October, 2021 and filed on 20^th October, 2021 and the Affidavit In support of Francis Karogo sworn on 18^th October, 2021 and filed on 20^th October, 2021.

Applicants’ Submission

The Applicant handed a written submission in Court and the crux of their submission is that the Appellants have failed to comply with the Supreme Court orders particularly order number three (3) in not recommencing the Provincial Land Court hearing within the next three months from the date of the Supreme Court orders. Mr Siki further submitted that the delay is now 3 months 17 days and it was intentional and thus amounts to an inordinate delay. He further submit that the delay is prejudicial and an injustice to his clients if the matter is allowed to continue.

The Applicants submitted that Order 4 Rule 36 of the National Court Rules and Order 10 Rule 9A 15 (2)(a), b and (c) of the National Court Listings Rules,2005 are applicable and should be applied in this case.

Mr. Siki referred the Court to some National Court cases setting out the principles used in deciding the issue of want of prosecution. The applicant further argued that even though, the Land Disputes Settlement Act does not have such provisions for want of prosecution applications, the Court has the power to invoke the National Court Rules.

Respondents’ Submission

The Respondents in their reply through Mr. Kari of the Office of the Public Solicitor submitted that the application is misconceived firstly, for the reason that the Provincial Land Court derives its powers from the Land Disputes Settlement Act and thus National Court Rules do not apply. He further submitted that the delay in not inordinate and intentional on the respondents’ part and the matter should proceed to proper hearing to be fair to everyone involved.

The Law

Jurisdictional Basis for the Application

The application for dismissal is made under two (2) different provisions. The first provision being relied on is Order 4, Rule 36 of the National Court Rules and the second provision is, Order 10, Rule 9A 15 (2)(a),b and (c ) of the National Court Listings Rules, (2005)

Order4 Rule 36

Order 4, Rule 36 of the National Court Rules reads:

“(1) Where a plaintiff makes default in complying with any other or directions as to the conduct of the proceedings, or does not prosecute the proceedings with due dispatch, the Court may stay or dismiss the proceedings.

(2) Sub-rule (1) applies with necessary modifications, in relation to a cross-claimant as it applies in relation to a Plaintiff”

Order 10, Rule 9 A (15)

Order 10, Rule 9 A (15) of the National Court Rules (Consolidated 1983- 2011)

Rule 9A (15) reads:

“(1) The Court may summarily determine a matter:

a. on applications by a party; or

b. on its own initiative; or

c. upon referral by the Registrar under (3) below

(2) The Court may summarily dispose of a matter in the following situation:

1. for want of prosecution since filing the proceedings or since the last activity on the files; or
2. for a failure to appear at any of the listings or directions hearing by a party of his lawyer; or

100. for non- compliance of any order or directions previously made or issued by the Court at any of the listing processes.

4. under any grounds set out in Order 12 Rules 40 and Order 8 Rules 27 of the National Court Rules.
5. on any competency ground relating to non-compliance with the National Court Rules or any other relevant rules of Court.

(3) Where the Registrar refers a matter for summary determination, the following procedure shall be followed:

1. A notice in the form in schedule “D” is issued by the Registrar which gives notice to the parties of his intention to refer the matter to the judge for summary determination on the ground(s) stated in the letter. The letter will also give the parties thirty (30) days to respond and fix a return date and time for the matter to come before the judge. In appropriate cases, the Registrar may publish the notice letter in the media.
2. If the Registrar receives a response, either in writing or in verbal, he must place on the file the written response or a note of the verbal response and advise the parties to appear in Court on the date fixed.

c. Upon expiry of 30 days, the Registrar shall forward the file to the judge,

4. The judge may determine the proceedings summarily based on the response received and any further representations made by the parties in Court or give such directions as may seem necessary for the future conduct of the proceedings.
5. If the parties are unrepresented, the Registrar shall draft the consent order, enter it and forward sealed copies to the parties.

f. The file is closed and forwarded to Archives for storage.”

In considering the above provision, I am inclined to adopt the ruling in the National Court case of Freddy Kave v Fred Yakasa (2014) N5692, in which Justice Murray correctly identified where this rule can be used . Murray J made a distinction between proceedings commence by Writ of Summons and proceedings commenced by Originating Summons and stated that Order 4 Rule 36 applies only to proceedings commenced by Originating Summons and not proceedings commenced by Writ of Summon when her Honour stated;

“Order 4, Rule 36, which is titled, “Want of prosecution” provides 2 bases upon which a Court may dismiss the proceedings. The first being, a situation where the Plaintiff makes default in complying with any order or direction as to the conduct of the proceeding and second being a situation where a Plaintiff has not prosecuted the proceeding with due dispatch.

On the face of it, this rule would seem an appropriate rule for an application for dismissal as sought by the Defendants in the present case. However, on a closer examination of this rule, this rule is under Division 4 of Order 4 of the National Court Rules which is titled, Originating Summons.

In my view, the application of Order 4, Rule 36 is only applicable to proceedings commenced by Originating Summons, whilst a Defendant bringing an application for dismissal in proceedings commenced by Writ of Summons, has recourse under Order 10, Rule 5 (“ Want of Prosecution”) and or Order 10, Rule 9 A (15) of the National Court Rules (Consolidated 1983- 2011).

In the present case, the applicants are seeking an order to dismiss the proceedings, which is commenced neither by Writ of Summons nor Originating Summons but by the process provided for under the Land Disputes Settlement Act. Being so, I find Order 4, Rule 36 is not an appropriate provision for this Court to invoke in determining the Respondent’s application, and would not consider it under this provision.

Further, in considering the whether the matter can be dismissed for want of prosecution, there are numerous cases identifying grounds in which a matter can be dismissed for want of prosecution.

In General Accident Fire & Life Assurance Corp Ltd v Ilimo Farm Products Pty Ltd [1990] PNGLR 331 it is suggested that the Court's discretionary power be exercised in favour of dismissing an appeal for want of prosecution if there has been (1) intentional or malicious or (2) inordinate and inexcusable delay and (3) if such delay may give rise to a substantial risk that it may not be possible to have a fair hearing. (Underlining mine)
In the Supreme Court case of National Development Bank Ltd v Noka Builders Ltd (2020) SC1953, the Supreme Court comprising of Hartshorn , Shepherd and Koeget JJ said;

“The principles governing a dismissal of a proceeding for want of prosecution are well established. Such an application may be granted if:

1. the plaintiff's default is intentional or is allowing for an inordinate and inexcusable delay in a prosecution of his claim;

2. there is no reasonable explanation given by the plaintiff for the delay;

3. the delay has caused injustice or prejudice to the defendant;

4. the conduct of the parties and their lawyers’ warrants;

5. it is in the interests of justice.": Sweden Tani v. MVIL (2010) N3984 at [17].
The Supreme Court in an Appeal from the National Court review of the decision of the Provincial Land Court in David Kabomyap Allolim v Biul Kirokim (2018) SC1735 stated that;

“The discretion to dismiss an appeal for want of prosecution can be exercised under two circumstances;

(i) Where a party or the court on its own motion gives sufficient notice to the plaintiff or appellant that its case would be dismissed for want of prosecution, and if on the appointed date, the party fails to turn up for hearing, the appeal or proceedings may be summarily dismissed for want of prosecution;

(ii) Where both parties are present and a case for dismissal for want of prosecution is made or moved, the burden shifts to the appellant to satisfactorily explain the cause for the delay and demonstrate readiness in the proceedings to proceed without further delay.”

In the matter of Stanley Miam v Joe Dai (2009) N3699 David J stated that other factors that the Court may also consider in dealing with an application to dismiss for want of prosecution are;

“that the court should also look at the conduct of the parties and their lawyers: John Niale v Sepik Coffee Producers Ltd & Ors (2004) N2637;

·the duty of the court to give paramount consideration to the dispensation of justice under s 158 (2) of the Constitution: Ahmadiyya Muslim Mission v Bank of South Pacific Ltd (2005) N2845.

The power to dismiss for want of prosecution is discretionary and that discretion is to be exercised having regard to all the circumstances of a case: see Kai Ulo & 2 Ors v. The State [1981] PNGLR 148 and Burns Philp (New Guinea) Limited v. Maxine George [1983] PNGLR 55

Relevant Considerations

The current proceedings being commenced through the process under the Land Disputes Settlement Act, I find that there are no provisions for ‘want of prosecution’ applications in the Land Court process. I cannot find any case precedents on the issue of want of prosecution in the Provincial Land Court. The case precedents cited by the Applicant through his lawyers are matters either commenced by Writ of Summons nor Originating Summons and cannot be applied in a matter commenced under the Lands Disputes Settlement Act.

For the Applicants to say that in absence of any rules or provisions under the Land Disputes Settlement Act on want of prosecution, the Provincial Land Court can use the National Court Rules, I disagree and cannot accept that submission, as the Provincial Land Court is a creature of Statute and is bound by the specific procedures and processes under the enabling Act, which is the Land Disputes Settlement Act.

Further, I find that there is no evidence of intentional or malicious action by the Appellants in failing to comply with the Supreme Court orders of 9^th July 2021. I also find that the delay of 3 months 17 days is not inordinate and inexcusable delay on the part of the Appellants but it is the Court system and such a delay cannot give rise to a substantial risk of not having a fair hearing, in fact and in the light of the Supreme Court orders, I am of the view that, dismissing the appeal at this point will render the entire proceedings impossible to have a fair hearing.

Having said so, I now turn to the Supreme Court orders in the light of these proceedings and in my view the main reason that the Supreme Court has remitted the dispute to the Provincial Land Court hinges on the Principles of Natural Justice on a “fair hearing” and the Provincial Land Court is duty bound to facilitate that by giving paramount consideration to the dispensation of justice.

In arriving at the order giving rise to this application, the Supreme Court in the matter Sahale v Karogo[2021] SC2129, comprising Manuhu, Anis and Berrigan, JJ said;

Accordingly, it is our respectful view that in restoring the Local Land Court decision, the learned trial judge failed to consider that the prejudice to the Appellant and the clans he represents was grave, resulting in the complete loss of an opportunity to challenge the substantive merits of the decision of the Local Land Court in accordance with their appeal, which was properly before the Provincial Land Court, through no fault of their own, but the failure of the magistrate to provide reasons, and to avoid an apprehension of bias. Any appellant in those circumstances would be entitled to feel justifiably aggrieved at being denied the opportunity to have their appeal heard.

In the circumstances, we find that the learned trial judge erred in failing to consider a material consideration and uphold this ground of the appeal.

It now remains for this court to determine what an appropriate order is

For the reasons stated above, it is our view that only appropriate remedy in the interests of justice is to remit the matter back to the Provincial Land Court for it to be heard and determined in accordance with the Land Dispute Settlements Act.

In making this order we note that more that more than 10 years have passed since the Local land Court decision was made. A review of the material reveals, however, that the dispute associated with this land is much older than that.

The ownership of customary land is often very contentious. The Land Dispute Settlements Act provides the machinery for the resolution of such matters in accordance with the principles of traditional dispute resolution. It is in the interests of justice that the substantive issues in dispute be resolved once and for all in accordance with those processes. For the same reason that the Appellant should not benefit from the failings of the Provincial Land Court magistrate to apply them, neither should the First Respondent. It is important that all concerned have confidence in the ultimate decision.(underlining mine)

Therefore, to dismiss the Appeal at this point would mean that the decision of the Local Land Court of 2009 will stand thus and thus it may amount to a failure to very reason for the Supreme Court in remitting this matter to the Provincial Land Court.

This consideration involves the issue of “where the interest of justice lies”. It is not disputed that all parties may have a claim of ownership over the land in dispute but that claim must be properly allowed to be proven through the proper, accountable and transparent process under the Land Disputes Settlement Act.

Conclusion

In light of the discussions above, it is clear that the application by the Respondent is misconceived and premature and should be dismissed accordingly and matter is allowed to proceed to hearing before the Provincial Land Court for proper hearing in accordance with the Supreme Court decision of 9^th July, 2021.

Lawyer for the Appellant – Jerry Siki Lawyers

Lawyer for the Respondent – Public Solicitor