Yapohafo v Aupe [2009] PGPLC 1; DC908 (16 June 2009)

DC908

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE
SITTING ITS PROVINCIAL LAND COURT JURISDICTION]

PLC 2 of 2009

BETWEEN

UPEGUTO YAPOHAFO
Applicant

AND

NATHAN AUPE
Respondent

Goroka: G Madu
2009: June 16

CIVIL -

Cases Cited:
Nil

References:
Nil

Counsel:
Upeguto Yapohafo, for the Applicant
Nathan Aupe, for the Respondent

16 June 2009

REASONS FOR DECISION

G Madu PM: This is an application by way of notice of motion instituted by the applicant seeking the following declaratory orders:

1. A declaration that the clarifications issued by His Worship Martin Ipang on 24th March 2009 is not a decision of the Goroka Provincial Land Court.

2. A declaration that the clarification issued by His Worship Martin Ipang dated 24th March 2009 is not binding on the parties.

3. A declaration that the Memorandum of Agreement between the parties and Shorncliff (PNG) Limited dated 5th May 2008 remains effective and enforceable as between the parties.

4. Any other orders as the Court

2. The preliminary issue to discuss is whether the applicant has properly filed this application in the Provincial Land Court. I had a looked at the Land Dispute Settlement Act and could not find any specific provision for such action to be taken except that section 50 which allows for the court to inform itself on any question before it in such manner as it thinks proper and call for and hear argument on the information. I am satisfied that section 50 of the said act gives a wider power to the court to hear such application and accordingly find that the application is in order with supporting affidavits and additional documents intact.

3. The facts in chronological order which lead to the filing of this notice of motion is that the District Land Court heard the appeal on the land namely Mohaviga between Gosaroka and Upegu on 23rd of October 1987 and quashed the decision of the Local Land Court. The orders made by the Appeal Land Court are:

(a) That the Mohaviga land be divided into half.

(b) The boundary to commence as from the Marmar trees on road side then follow by a small drain mark towards the corner of new fence as built by the Upego’s then following the fence straight to the Asaro River.

(c) That the part as largely developed by Upego’s as coloured in black towards the Upego’s shall be in the peaceful use and occupation of Upego people.

(d) And whereas the other half as the uncultivated piece as between the road linking the Asaro River shall be in the peaceful possession and use by the Gosaragabo’s as coloured in red.

(e) The Sketch plan of the map is attached.

4. Based on the District Land Court decision of 23rd of October 1987, an agreement between Shorncliffe (PNG) Ltd and Landowners of the Yupiyupi (Homu) Crusher Site was entered on 31st August 2008.On behalf of Landowners the following people signed namely:

1. Kay Gideon

2. Nota Dalepa

3. Moses Movarimo

4. Tomson Isuma

5. Waisa Kare

6. Gibson Bako

For Shorncliffe (PNG) Ltd the two representatives who signed the agreement were Robert Aup and Patrick Saial.

5. Another meeting was convened between the Landowners and Shorncliffe on royalty payments and other matters to reach some understanding between the parties.

6. On 23rd March 2009 Ralph Siove, Advisor Lands wrote to His Worship Martin Ipang advising that there was a dispute on royalty payment after signing of the Memorandum of Agreement. In that letter the officer sought clarification on the following:

1. court to examine the contents of the previous land court decision of 1987;

2. court to review and examine the MOA by the parties and the Shorncliffe Company ; and

3. the land court re-enforce the decision of the previous court.

7. On 19th of March 2009, His Worship, heard both parties presenting their grievances and set 20th March 2009 to physically visit the disputed site to confirm the location of Shorncliffe’s Crusher and the land boundaries. His Worship then considered what was presented to him and made the following observation in reference to the Appeal Land Courts Decision:

1. The Shorncliffe’s crusher and the machinery/equipment (plant) is located on the Goraroka’s side of the land. No one can deny this.

2. Upego’s have no right to trespass into Goraroka’s side of land and claim benefits from the Crusher Plant by Shorncliffe.PCL No.01/87 is very specific and clear about this. Benefits from Shorncliffe Crusher Plant only goes to the legal/rightful land owners the Gosaragabo’s through NathanAupe.

3. The Agreement dated 05th May 2008 between Shorncliffe (PNG) Ltd and the so called landowners which involved some people from Upego is now declared “Null and Void”. Because of the sole reason that Upego’s are not the landowners of the current land where the Crusher Plant is located. (Refer to Land Court Decision PCL No.01/87).

4. A new Agreement be signed by the company Shorncliffe (PNG) Ltd and the Gosaragabos with Natan Aupe as the leader.

5. All benefits, royalty payments, lease payments accrued to and kept in trust be paid to Gosaragabos through Nathan Aupe now and in the future.

8. From what had transpired between the parties which lead to this matter coming back to Provincial Land Court again is nothing more than an abuse of the court process. I say this because the Appeal Court has made its decision which is final unless the aggrieved party has decided to seek a judicial review in the National Court.

9. It is now about 22years since the District Land Court heard the appeal and made a decision, the aggrieved parties in this case the Upego’s did not seek judicial review in the National Court. The legal implication is that the decision by the District Land Court on 23rd October 1987 is effective and enforceable.

10. The Advisor Lands in writing to His Worship was only seeking clarification on the effectiveness of the order by the District Land Court. What His Worship was required to do was to write to the officer and advise him. It was the officers responsibility to talk to the parties and inform them of the effect of the decision of the Appeal Court.

11. Although His Worship Martin Ipang as a Local Land Court magistrate called the both parties and interpreted and clarified the District Land Court decision and therefore what he said was not a new order and was not binding on the parties. The conclusion that can be made is that His Worship was only endorsing the order of the District Land Court

12. In this juncture I may say that it was not necessary to reconvene a Local Land Court and interpret and clarify the District Land Court Order of 23rd October 1987 to both parties. It would have been proper for His Worship to advise the Lands Officer in writing of the effect of the order on both parties. If such administrative approach was taken the parties would not have been given the opportunity to take this action.

13. On basis of the reasons given, the Decision of the District Land Court of 23rd October 1987 is effective and enforceable on parties. The clarification made by His Worship Martin Ipang on 24th March 2009 are not Court Orders and not enforceable and effective. Accordingly I dismiss the application with parties to meet their own costs.

_________________

For the Applicant: Upeguto Yapohafo
For the Respondant: Nathan Aupe