Polomon v Pononoh [2007] PGLLC 6; DC578 (23 May 2007)

DC578

PAPUA NEW GUINEA
[IN THE LOCAL LAND COURT OF JUSTICE]

LLC 01 OF 2007

BETWEEN

AARON POLOMON
First Applicant

SAMSON POLIHEN
Second Applicant

AND

PONINGIOU PONONOH
First Respondent

YANG THOMAS
Second Respondent

HERMAN MANA
Third Respondent

POKIKAU POIHUI
Fourth Respondent

POLION SAILAS
Fifth Respondent

POLAPUN POKULOU
Sixth Respondent

BENNY STEVEN
Seventh Respondent

JOE ABRAHAM
Eighth Respondent

POSEH KANAU
Ninth Respondent

Lorengau: G. Madu
2007: 23 May 2007

G. Madu :This is an application by way of notice of motion by the applicant seeking the following orders:-

1. That the first and second respondents, their wives, fathers, uncles or any other person or persons acting for or in the interest of the first and second respondents be restrained from withdrawing the proceeds of an ANZ Bank cheque No. 96316911200007, drawn at ANZ Bank Lae on the 8th February, 2007 to the bearer Lundret Pit Royalty Payment for the amount of K54, 774.92 and deposited to the Bank of South Pacific account No. 1001236837.

2. That the third respondent or any employees of the Bank of South Pacific Lorengau Branch be restrained from entertaining any transaction on account No. 10011236832 in the name of Yopan Lundret Gravel Pit.

3. That the fourth respondent Manager or any employees of the ANZ Bank, Lae Branch be restrained from entertaining any transaction or ANZ Bank cheque No. 96316911200007, drawn by TSC Contractor on the 8th of February, 2007 to the bearer Lundret Gravel Pit for the amount of K54,774.92.

4. And that the order to stay in full force until the land dispute over the Lundret Gravel Pit is heard and determined by the Local Land Court which shall take place forthwith.

The brief facts are that the Youpon land dispute over the ownership between Pokun Clan and Poyap Clan was heard by the Local Land Court in 1983.

On 5 August 1983, the Local Land Court awarded the ownership to Pokun’s family.
Soon after the decision, the Poyap Clan appealed against the Local Land Court decision on 13 September 1983.

On 22 May 1987, the District Land Court heard the appeal and quash the decision of the Local Land Court and remitted the dispute to the Local Land Court for re-hearing.

Whilst the Local Land Court hearing was pending, the Pokun Clan and Poyap Clan entered into an agreement of extracting gravel.

The agreement was entered by members of Pokun Clan represented by Aaron Polomon and Samson Pikot and by members of Poyap Clan represented by Joshua Pononoh, Kanau, Napuihan and Benny Poynou and Manus Provincial Government and Department of Works.

The TSC Contractors (PNG) Ltd, through the Permit Holder Department of Works to extract gravel from Yopan land.

The applicants contention is that since the Local Land Court had not re-convened to hear the dispute over the Yopan, the payment made to the respondents was improper as the ownership issue has not been determined.

The issues for the Court to determined are:-

1. Whether the Local Land Court decision is effective or the parties where the Local Land Court did not recover as directed by the appeal Court.

2. Under prevailing situation, should the royalties be paid to the respondent?

On the first issue, the respondent argued that since the District Land Court made its decision, and the decision would have taken effect within 3 months to 12 months and not beyond 12 months.

The applicant contents that the Pokun Clan did not within a 3-12 months raise any issue on re-convening the Local Land Court hearing since 1987.

The case had been outstanding for 20 years. The applicant further argued that since Pokun Clan or the Local Land Court did not raise the matter, the applicant asked the Court to apply section 60 of the Land Dispute Settlement Act to make a declaration that the decision of the District Land Court is final.

The respondents having interpreted a decision of the appellant Court is of the view that Yopan Land is owned by Pokuop Clan and that the royalties should be paid to them.

The decision of the District Land Court which is enforced under the Land Dispute Settlement Act by provision of section 45 is established as Provincial Land Court.

The Provincial Land Court has the jurisdiction to hear and determine the appeals from a decision of Local Land Court.

In the case of Yopan Land, the appeal was heard on 22 May 1987 and the Court up held the appeal and quash the decision of the Local Land Court.

The Court then referred the dispute to be re-heard by the Local Land Court. In perusing the files, that is the current status of this case.

I do appreciate the respondent’s interpretation of section 60 of the Land Dispute Settlement Act however he got himself confused as the section provides for appeal period within which appeal is laid.

The Appeal Court decided to up hold the appeal because the Local Land Court did not thoroughly consider the evidence or failed to observe natural justice and on that basis it decides to quash the decision of the Local Land Court.

However there is also another important point and that is the Appeal Court gave direction to the Local Land Court for re- hearing.

So it would not be proper for the applicant to say that the Court declared them as the owner of Yopan Land.

The Appeal Court remitted the matter back to Local Land Court for re-hearing. Under s 59 (2) of the Land Dispute Settlement Act, the Appeal Court is required to give proper instruction as to the manner in which the matter remitted is to be dealt with.

I have the benefit of looking through the file and I could not sight any specific order. The only conclusion I make is that this case has been left in abeyance and it is now up to the wisdom of the Local Land Court to recommence the hearing.

However due to its importance and sensitivity, the Local Land Court should make a definite decision when it should recommence.

On the issue of whether the royalty payments should be paid.

In my view, in the first place the royalty payment should not have been made, as the Local Land Court decision was already appealed and the District Land Court remitted the case for re-hearing in the Local Land Court.

Since the issue of ownership of Yopan is not been determined, the payment of royalties should be suspended and paid into the Trust Account until the ownership is determined.

Accordingly, the Court orders for royalty payments be paid to the Trust Account to be operated by Department of Works.

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Applicants: In Person
Respondents: In Person