Ola v Kana [2015] PGPLC 4; DC4097 (12 June 2015)

DC4097

PAPUA NEW GUINEA

[IN THE PROVINCIAL LAND COURT OF JUSTICE]

PLC. 004 of 2008

BETWEEN

Iliga Ola of Hula village

01^st Appellants

AND

Gima Kana of Hula village

Respondent

Port Moresby: S.Lavutul

Mediators: Nil

2008: 23^rd April, 07^th, 21^st , 28^th May, 11^th, 19^th, 26^th June, 17^th, 30^th July, 25^th September, 20^th October, 04^th, 28^th November, 11^th, 16^th December

2009: 06^th, 23^rd February

2010: 13^th February, 01^st, 04^th, 25th May, 15^th June, 28^th, 30^th September

2011: 03^rd June, 26^th July, 16^th August, 05^th, 21^st September, 12^th October,

02^nd, 25^th November

2012: 23^rd January, 23^rd February, 29^th March, 27^th September, 09^th, 30^th October

2013: 21^st March, 24^th April, 15^th May, 05^th, 25^th June, 14^th August, 21^st August,

21^st, 23^rd September, 30^th October, 06^th, 20^th November, 18^th December

2014: 29^th January, 17^th February, 19^th March, 10^th September, 02^nd October

2015: 03^rd, 09^th, 10^th, 12^th June

PROVINCIAL LAND COURT PRACTICE & PROCEDURE- Section 50 Land Dispute Settlement Act – Provincial Land Court Appeal Process–Sections 54, 55, 56, 57, 58, 59 & 60- Non Prosecution of Appeal- Dismissal of Appeal – Reinstatement of Original Local Land Court Order- Effect of Orders – Enforcement of Local Land Court Orders.

Cases Cited

Nil

References

Land Dispute Settlement Act

Local Customs and practices of the Hula people.

Counsel

Appellant or His spokesperson not present

Mr. Gima Kana Respondent appeared in person

REASONS FOR DECISION

12^th June 2015

SLAVUTUL, The Appellant in the matter was granted leave by the Waigani Provincial Land Court on the 23^rd of April 2008 in order to file his appeal out of time pursuant to Section 54 (2) of the Land Dispute Settlement Act against the orders of the Port Moresby Local Land Court of the 11^th of May 2007.

2. The Appellant filed his appeal on the 08^th of April 2008 after the leave was granted by the Waigani Provincial Land Court. The Appellant was aggrieved by the Port Moresby Local Land Court Decision of the 11^th of May 2007 in that the court made the following orders;
i. There is a Local Land Court Order for the land, called MANEA MANEA
in dispute.

ii. This Complaint is a new Ownership complaint.
iii. The matter did not come as an Application to vary the earlier order
under Section 44 of the Land Dispute Settlement Act

iv. This Court does not have the jurisdiction to entertain a new complaint

for ownership.
v. Case is dismissed and Defendants is discharged from the complaint
of ownership.

Facts

3. The said Manea Manea land in dispute is at Hula village, Central province. I note from the court depositions the Appellant ever since he filed his Appeal he only appeared once in person in court. He had continuously failed to appear in Court in order to prosecute his Appeal. Unfortunately, Mr. Iliga Ola is now deceased. However according to the Respondent he notified the court he did served a notice on the deceased’s spokesperson and wife of the deceased. However, I gave them several instances to allow his spokesperson or relatives take on the case but to no avail.

4. I will therefore proceed exparte and determine the matter before me in absence of the deceased Appellant and his spokesperson;

Background of Case

3. By way of background according to the records before me the Manea Manea land was initially awarded to the Respondent Gima Kana by the presiding magistrate His Worship Karo Vagi on the 16^th of January 1995.

4. However the Land Court Decision of the 16^th of January 1995 was declared null and void by Mr. Nasiling Bingtau as Provincial Land Court on the 02^nd of February 2006 and referred the matter back for mediation.

5. The matter was then reheard by His Worship Jimmy Tapat and decided that there was already a Local Land Court Decision over Manea Manea Land Dispute. He also found the complaint by Mr. Iliga Ola over the customary ownership of Manea Manea Land was a new claim for ownership. His Worship ruled that the court does not have jurisdiction to entertain a new complaint for ownership over the same piece of land. He therefore dismissed the new claim for customary ownership by deceased Appellant Iliga Ola.

6. I also note Mr. Tapat’s notation on the court minute of the 19^th of March 2014 and I quote;

* There was an existing District Land Court Order by His Worship Karo Vagi dated 16^th of January 1995.

*Then Mr. Bingtau who was not an Appeal Magistrate determined Mr. Karo Vagi’s decision in 2005 and reinstated the matter.

Findings

7. From the records I find this matter has been pending for the last seven (7) years. It been transferred between several magistrates without reaching finality. The cause of the delay in my view is should be equally shared by the Appellant and the court as well.

8. I also find and note there was sufficient notice given to the parties to appear in court on the 03^rd of June 2015 for call over. Unfortunately only the Respondent Gima Kana appeared and the matter was further adjourned for mention to the Wednesday 10^th of June 2015 in order to give the Appellant’s spokesperson to appear or their counsel if any. They also failed to appear or send any apologies.

9. Mr. Gima Kana (Respondent) did on the 10^th of June 2015 in his oral submission submit that the Appellant’s appeal be dismissed for want of prosecution and that the orders of the 16^th of January 1995 by His Worship Karo Vagi be reinstated and enforced.

Ruling

10. I therefore accept the Respondent’s brief oral submission and make the following orders;

1). That the Appellant’s Appeal is dismissed in its entirety for want of prosecution.

2). That the Local Land Court decision of the 16^th of January 1995 is hereby reinstated and reaffirms that the customary ownership of Manea Manea Land is vested in the Respondent Gima Kana of Hula village, Central Province.

3). That the Appellant’s immediate family, agents, employees and associates are given five (5) months to vacate and return vacant possession of the said Manea Manea Land to the rightful owner Gima Kana.

4). Failure to adhere to this order the Respondent is at liberty to enforce the orders.

5). That the sum of K500.00 paid by the Appellant in lieu of the Appeal be forfeited to the state.

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