Sapar v Yong [2005] PGPLC 1; DC438 (8 July 2005)

DC438

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE]

CASE NO 02 OF 2004

In the Matter of a Dispute over Ownership of Customary Land Known as Narasulu/Kaiwilisi/Amalon/Wara Lipan/Sokolo

BETWEEN

Simon Sapar
for and on Behalf of Taite Clan of Paiawa Village
Appellants

V

Henry Yong
for and on Behalf of Makalfe Clan of Chinapelli Village
First Respondents

Ignas Kior
for and on Behalf of Eleken Clan of Paiawa Village
Second Respondents

DECISION ON APPEAL

8th July, 2005.

KORONAI, PLCM: The appellants are from Taite Clan of Paiawa Village, while the first respondents are from Makalte Clan of Chinapelli Village and second respondents are from Eleken Clan of Paiawa Village and are situated in the Aitape Central Mediation Division of Aitape District of Sandaun Province.

HISTORY

A successful mediation of a dispute involving the appellants and respondents over ownership of customary land known as NARASULU also known as KAIWILISI/AMALON/WARA LIPAN/SOKOLO was reached between the parties on 3rd of August, 1995 and an agreement was reached. This mediation was presided over by Bonny Kare and Mathew Nakombo, NEUTRAL MEDIATORS OF Aitape West Coast Mediation Division and the appellants were represented by Simon Sapar while the respondents by Henry Yong. The terms of their agreement were:-

1. Giraun Narasulu emi bilong Ignas Kior wantaim Eleken Klen, Paiawa.

2. Simon Sapar wantaim lain Taite Klen bai ino moa iko insait long yusim o pulim na taitim toktok kros long en.

3. Komon tumbuna Bilo bilong sait Taite/Eleken em stap long wara Lipan. Taite sanap long West na Eleken I sanap long East Narasulu.

Then on the same date (03/08/95), an application for approval of this agreement was made by the two mediators, to the Aitape Local Land Court, for its approval. The Aitape Local Land Court did nothing about it until 19th of November, 2002, when the Aitape District Court used this agreement as a basis for its order in awarding royalty payments of two thirds to Francis Yong and one third to Ignas Kior, the respondents. The appellants successfully appealed against this decision before His Worship Jack August, the PLCM then, on 6th of June, 2003 and who made the following orders:-

1. That the decision of 19th November, 2002 be quashed as the Presiding Magistrate acted outside his powers pursuant to Section 46 of the Land Disputes Settlement Act (only Principal Magistrate maybe appointed as Provincial Land Magistrate).

2. That the agreement reached between Francis Yong, Ignas Kior and Simon Sapar on 3rd August, 1995 maybe appealed against.

3. That an extension of time to appeal the decision of 3rd August, 1995 is hereby granted to Simon Sapar pursuant to Section 54 (2) and Section 50 (c) of the LDS Act.

4. That any payments from Global Construction in the form of Royalty or compensation shall be withheld and paid into the National Court Registrar’s Trust Account No. 8202-10005-83618 until the Appeal is heard or the ownership issue is finalized through the Land Disputes Settlement process.

Dated the 6th day of June, 2003.

Following the above-named orders, the appellants filed their Notice of Appeal on the 25th of May, 2004 and which showed that they were appealing the decision by Mr. August of 6th June, 2003 and not against this mediated agreement of 3rd August, 1995, as was their basis of their original appeal. Their grounds of appeal are as follows:-

1. The Land had been incorporated under Taite Land Group Incorporation Act Chapter 147 in 1994.

2. Wara Lipan Land had been declared under my name on 11th April, 2002 for Global Construction Ltd to put the crusher for crushing boulders.

3. The one sided agreement for 2nd and 3rd August, 1995 was disqualified null and void on 6th June, 2003 by the Senior Magistrate, Mr. Jack August.

4. The agreement for Wara Lipan crusher was made between Global Construction Ltd and me as a landowner on 6th April, 2002.

5. The total salary paid to Taite Clan Landowners was K14, 232.54 to prove my appeal.

Before lodging their current Notice of Appeal, the appellants incorporated their Taite Land Group, on the 24th of August, 1994, under Section 5 of Land Groups Incorporation Act Chapter 147. The first respondents did the same and theirs is known as Makalte No. 1 Land Group Inc, on the 11th of November, 1996. Both these land groups included this portion of customary land in dispute amongst them, into their respective Land Groups.

ISSUE

Whether this appeal is competent for this Court to hear and determine it.

THE LAW

The Provisions of Land Disputes Settlement Act Chapter 45 and District Courts Act Chapter 40 apply in respect of this issue.

Facts show that the appellant’s original appeal was against this mediated decision of 3rd August, 1995, which was successful and they were given an extended time, under Section 54 (2) to file their notice of appeal under

Section 55 of Land Disputes Settlement Act (LDSA). Both approaches, in my view are incorrect. A party disputing an agreement will result in an agreement not reached during mediation and it should’ve been referred to the Aitape Local Land Court for hearing, either by the parties, i.e. appellants or respondents or the Land Mediators, under Section 31 (a) or (c ) of LDSA. The appellants cannot appeal against this mediated agreement, under Provisions of Division 3 of LDSA, to the Provincial Land Court as it is not a decision of the Aitape Local Land Court, which approved their agreement under Section 19 (6) of LDSA, making it it’s order. Therefore their current appeal against this mediated agreement of 3rd August, 1995 has no basis in law. The Provincial Land Court then on 6th of February, 2003, had no jurisdiction, as the facts show, to make an order granting the appellants an extension of time to lodge an appeal against this mediated agreement of 3rd August, 1995. In fact Section 54 (2) prevents the Provincial Land Court from granting leave in giving extension of time in which to appeal against a Local Land Court decision if it was made more than twelve months ago, such as in this case and that decision to grant the extension of time to the appellants then was made ultra vires the provisions of Section 54 (2) of LDSA. For these reasons alone, the appellants appeal should be dismissed. Facts also show that the appellant’s grounds of appeal are not the ones provided for under Section 58 (a) to (d) of LDSA and only those grounds shall be raised on appeal and this Court has no power to waive or ignore this statutory requirement. (See KIAU NIGINTS v MOKI RUMINTS [1990] PNGLR 123 and KIMBE BAKERY PTY LTD v BEN JALATANG APP. NO. 241 of 1992, N1274). Therefore the appellants have no grounds of appeal and have not made them out and their appeal should be dismissed for this reason as well.

Facts also show that the orders of the Provincial Land Court of 6th February, 2003 in quashing the orders of Aitape District Court of 19th November, 2002 is made without jurisdiction for it was not an order of the Local Land Court which is subject to an appeal before it, under the provisions of Division 3 of LDSA. Secondly the Aitape District Court order of 19th November, 2002 is appellable only under the provisions of Part XI, Sections 219 to 222 of District Courts Act Chapter 40. The appellants appeal lies to the National Court under these provisions of the law referred to above and not under Division 3 of Land Disputes Settlement Act and for this reason as well, their appeal should be dismissed.

The proper course is for the Provincial Land Court to refer the matter back to the Local Land Court Magistrate at Aitape, with directions that he appoint new mediators and if there is a need to, Ad-Hoc ones under the provisions of Sections 16 and 17 of LDSA, to re mediate this dispute in order to try to reach an amicable agreement amongst the parties and if fails, the dispute is to be referred to the Aitape Local Land Court, either by the parties, mediators or District Officer, Lands at Aitape, for a hearing before it.

CONCLUSION

It follows from the above reasoning that the appellants appeal before this Court is not competent for it to hear and determine it and it should be dismissed and dispute referred back to Aitape Local Land Court with appropriate directions under Section 59 (1) (b) (ii) and (2) of LDSA.

FORMAL ORDERS

1. APPEAL IS DISMISSED; AND

2. MATTER OF APPEAL REFERRED BACK TO AITAPE LOCAL LAND COURT WITH THE FOLLOWING DIRECTIONS:-

(a) NEW OR AD HOC MEDIATORS, SUBJECT TO AVAILABILITY OF FUNDING, BE APPOINTED TO MEDIATE THIS DISPUTE BETWEEN THE PARTIES OVER THIS CUSTOMARY LAND DISPUTE.

(b) IF MEDIATION FAILS, THEN IT SHOULD, UPON APPLICATION BY EITHER OF THE PARTIES OR MEDIATORS OR THE DISTRICT OFFICER LANDS, AITAPE DISTRICT OFFICE, HEAR AND DETERMINE THIS CUSTOMARY LAND DISPUTE.

Simon Sapar: Appellant
Francis Yong: Respondent