N7284

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CIA NO. 38 OF 2017

BETWEEN:
JOSEPH BONGA, ISIMEL TOKIO &
HENRY BOKAI
Appellants

AND:
JACKLYN MAMAT &
TANIA MAMAT
Respondents

Kokopo: Anis J
2018: 9th May & 6th June

DISTRICT COURT APPEAL – original complaint, summons upon complaint and notice of motion all filed together on the same date - motion sought substantive relief – whether hearing interlocutory or substantive - customary land – findings made on ownership of land – jurisdiction of the District Court to make findings over customary land discussed

Facts

On 16 January 2017, the District Court issued permanent restraining orders against the appellants.  This was after the respondents had complained that the appellants had resided on and had sold blocks of land over a demarcated customary land which they (the respondents) claimed was theirs.  

Held

1.	The District Court proceeding, despite indications that it may very well have been heard under an interlocutory process, proceeded as a substantive hearing whereby the Court substantially dealt with the matter.

2.	There was no evidence put before the District Court which said that the customary land concerned was disputed yet His Worship proceeded on and made a finding as to the ownership of the customary land in question, and in so doing, His Worship erred in law in that he had no jurisdiction to make such a finding in the first place.

3.	Substantial miscarriage of justice was established in this case.

4.	The appeal was upheld.

Cases cited

John Yula Andma v. Timothy A Morasa (2016) N5224
Hila Agalu v. Peter Heno (2005) N2904
Yomi Siwi v. Lincy Mathew (2006) N3048

Counsel:

Mr E Paisat, for the Appellant
Ms N Rainol, for the Respondents

JUDGMENT

6th June, 2018

1.	ANIS J:	The appellants appealed against a decision of the District Court made on 16 January 2017.  The appeal was heard on 9 May 2018.  I reserved my ruling thereafter so I will rule on it now.

APPEALED DECISION

2.	The appealed Court Order is as follows:

(i)	Court orders that the three (3) Defendants are permanently restrained and refrained from selling any portion of land call BITAVARVANGALIAI No. 1, located at Takurbar Village, Kokopo, ENBP.
(ii)	Court orders that the three (3) Defendants are permanently restrained and refrained from entering into any business or personal dealing with any other person(s) to the Customary land known as BITAVARVANGALIAI No. 1.
(iii)	Court orders and directs the three (3) Defendants that if they had received any payment for portion of land from BITAVARVANGALIAI No. 1, Customary land, then those cost payments be transferred to the two (2) Applicants/Complainants forthwith.
(iv)	Cost of K1000.00 for these proceedings be met by the three (3) Defendants; and
(v)	Orders made accordingly.

GROUNDS OF APPEAL

3.	The appellants state 3 grounds of appeal.  Grounds 1 and 2 are related.  The appellants firstly say that the District Court does not have any powers to issue permanent restraining orders.  Secondly, the appellants say that the decision of the District Court has affected the issue of customary land ownership which it says should be within the jurisdiction of the Local Land Court.

ISSUES

4.	At the hearing, the following issues were identified.  Firstly, whether the hearing of 16 January 2017 was substantive or interlocutory.  Secondly, whether the District Court had jurisdiction to make a finding on ownership of a customary land.  And thirdly, whether the permanent restraining orders have infringed upon the parties’ rights to challenge the ownership issue under the provisions of the Land Dispute Settlement Act Chapter No. 45.

MOTION HEARING?

5.	The Court’s decision is located at page 32 of the Appeal Book (AB).  His Worship dealt with the notice of motion, which was filed on 9 November 2016 (motion).  This is reflected in his final decision which is the subject of the appeal.  In fact, His Worship dealt with the motion starting from its first return date on 21 November 2016 right up to the final decision of the Court on 16 January 2017.  In my view, His Worship dealt with the motion as if it was an actual trial or hearing.  Can he do that?  In the case John Yula Andma v. Timothy A Morasa (2016) N5224, Justice Cannings I thought summarised well the two (2) general propositions when one is trying to understand the District Court procedures.  His Honour stated and I quote:

5.	Before dealing with these submissions there are two general propositions to note. First, the District Courts Act sets out a procedural code for dealing with civil cases. It cannot be presumed that the same rules of practice and procedure that apply in the National Court apply in the District Court. The District Court procedure is much simpler than in the National Court.
…..
6.	The second general proposition is that the District Court is subject to an overriding duty to hear and determine complaints in accordance with the principles of natural justice, the minimum requirement of which is under Section 59(2) (principles of natural justice) of the Constitution to act fairly and in principle to be seen to act fairly (Bernard Steven Philipae v Atio Igaso (2011) N4366). Giving all parties to a court case proper notice of the hearing is a fundamental component of any court’s duty to observe natural justice or procedural fairness. Anybody joined as a party to a civil court case has a right to be dealt with fairly in open court under Sections 37(11) and (12) (protection of the law) of the Constitution

6.	I adopt and apply the propositions as my own herein.  Despite the fact that His Worship had dealt with the motion to reach his decision, it is obvious from reading the judgment or by considering the District Court depositions in the AB, that His Worship had actually conducted a full hearing of the matter.  The motion was adjourned on various occasions to allow the appellants to file their defence and evidence.  The appellants had about 2 months to do so.  Court file depositions and His Worship’s decision reveal blatant disregard of the Court’s orders or directions by the appellants and their lawyers.

7.	I am satisfied that due process was observed by His Worship.  I am satisfied that the appellants were given sufficient opportunities by His Worship to file their defence and evidence but that they have failed to do so.  Based on the AB, the matter was adjourned on at least two occasions to enable counsel to file his notice of appearance as well as the notice of intention to defend and defence of his clients.  It seems, based on the AB that counsel or the appellants had failed to do these things.  The matter was then set down for hearing, it was heard and the decision was made on 16 January 2017.

8.	In the end, the matter, although it had proceeded by way of a notice of motion, was eventually conducted as a trial or hearing.  So my ruling on the issue is that the final hearing was not conducted as a normal motion hearing but rather it was heard as a trial or a hearing.

CUSTOMARY LAND

9.	I refer to the appealed decision.  At paragraph 17 and 18, His Worship said and I quote:

17.  The Court took into consideration as well as the Demarcation record filed as affidavit and annexured as “A” by the Applicants.  This Court will rule that the Demarcation record is conclusive evidence that the land in issue “BITAVARVANGALIA No.1” is customary land and JACK TOMAMAT is the legal owner of it.  Since he is deceased, this Court will accept the fact that the two (2) Applicants are now the rightful inheritors of their deceased father’s land.

18.  Having said that, I will rule that Jacklyn Mamat and Tania Mamat are the true owners of “BITAVARVANGALIA No.1”land located at Takubar Village, Kokopo, East New Britain Province and therefore grant them the Orders sought in the following:......

10.	His Worship in this case has made a finding on ownership of the customary land in question.  Can he do that, I ask myself.  The answer is, “no”.  Sections 21 and 22 of the DC Act do not give the District Court jurisdiction to determine or make a finding on ownership of customary land.  The Local Land Court, the Provincial Land Court and the Lands Title Commission, pursuant to the Land Disputes Settlement Act Chapter No. 45 and the Land Titles Commission Act 1962, have exclusive jurisdictions for that purpose, that is, determining or making findings on ownership of customary land.  See cases:  Hila Agalu v. Peter Heno (2005) N2904; Yomi Siwi v. Lincy Mathew (2006) N3048.  His Worship has therefore and in my view made a fundamental error of law.

11.	Given the finding, I conclude that this is a case where a substantial miscarriage of justice has occurred against the appellants herein.  Subsection (2) of section 230 of the DC Act states and I quote, “An appeal shall be allowed only if it appears to the National Court that there has been a substantial miscarriage of justice”.  I therefore find that the District Court’s order of 16 January 2017, which restrains the appellants, must be set aside.  I also do not find or see any rational purpose for the matter to be referred back to the District Court.  It is obvious now that the parties have differing views over the customary land in question.  The correct forum would therefore not be the District Court but rather the Local Land Court.  As such, I will order the dismissal of the District Court proceeding in its entirety.  And for avoidance of doubt, I will also make an order that nullifies any enforcement orders that have followed after the District Court Order of 16 January 2017.

12.	It is not necessary to consider the other issues.

SUMMARY

13.	In regard to the first issue, whether the hearing of 16 January 2017 was substantive or interlocutory, I would answer that the hearing was substantive.  In regard to the second issue, whether the District Court had jurisdiction to make a finding on ownership of a customary land, my answer is “no”.

COST

14.	Cost is discretionary.  I will order that the cost of the appeal be paid by the respondents on a party/party basis which may be taxed if not agreed.

THE ORDERS OF THE COURT

15.     I make the following orders:

1.	The appeal is upheld.
2.	The Court Order of 16 January 2017 is quashed.
3.	Proceeding CV No. 326 of 2016 is dismissed in its entirety.
4.	Any subsequent or consequential orders made by the District Court thereafter to its Order of 16 January 2017, are null and void.
5.	The respondents shall pay the appellants’ cost of the appeal on a party/party basis which may be taxed if not agreed.
6.	Time for entry of these orders is abridged to the date of settlement by the Registrar of the National Court which shall take place forthwith.

The Court orders accordingly.

________________________________________________________________
Daniels & Associate Lawyers:	Lawyers for the Appellants
NatPhil & Associates Lawyers:	Lawyers for the Respondents