N5202

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS NO 117 of 2013

BETWEEN:

BERNARD LOLOT FOR HIMSELF AND ON BEHALF OF TALINGA CLAN
Plaintiff/Applicant

AND:

LUDWIG IVLIE FOR HIMSELF AND ON BEHALF OF THE KAIMUN CLAN
First Defendant/Respondent

AND:

PNG FOREST AUTHORITY
Second Defendant/Respondent

AND:

NIUGINI LUMBER MERCHANTS LIMITED
Third Defendant/Respondent

Kokopo: Maliku, AJ
2013: 17th & 29th April

CIVIL JURISDICTION- Application to discharge Orders of this Court – Pursuant Order13; Rule 11 (1) and Order 2; Rule 45 (2) of the National Court Rules

CIVIL JURISDICTION - Application to discharge Orders No. 2, 3, and 4 of this Court made on the 14th of December 2009 and entered on the 15th of December 2009 is granted - Orders No.2, 3, and 4 are discharged.

Counsel: 

Mr Orim Kivu, for Applicants/Plaintiffs
No appearance of counsel for the defendant/Respondent

29th April, 2013

1.	MALIKU AJ: This Application was filed under Order 2; Rule 45 (2) and Order 13; Rule 11 (1) of the National Court Rules to discharge Orders Nos. 2, 3, and 4 of the Order made by this Court on the 14th December 2009 marked Annexure 'B'. 

Introduction

2.	By way of an introduction, I set out what took place when this matter came before me today, the 17th of April 2013. This matter was adjourned from the 12th of April for trial today the 17th of April. 

3.	Present in Court on the 12th of April were Mr Paisat on behalf of Mr Motuwe for the defendants/respondents and who had carriage of the matter and Mr Kivu for the Applicant. Mr Paisat undertook to inform Mr Motuwe of today's hearing. 

4.	When the matter was called today at the time set Mr Motuwe did not appear. When the Court enquired about Mr Motuwe's absence Mr Ludwig Ilvie on his behalf and of the Kaimun Clan, (the Defendants/Respondents) informed the Court that Mr Motuwe had gone to Port Moresby on the 16th of April 2013. 

5.	Mr Ludwig Ilvie did not tell this Court why Mr Motuwe had gone to Port Moresby and also of any instructions to him by Mr Motuwe, his counsel for consideration by this Court today. I verily believe that Mr Paisat did inform Mr Motuwe of today's hearing.

6.	Mr Kivu for the Plaintiff however informed the Court that he and his wife met Mr Motuwe this morning at the airport travelling to Port Moresby. Mr Kivu told the Court that he did remind Mr Motuwe of today's hearing but Mr Motuwe did not say much about this matter, nor did he suggest to Mr Kivu as to how the matter should be put to the Court this morning for consideration by the Court.

Notice of Appearance and Notice of Intention to defend

7.	Mr Kivu further told the Court that since the matter was filed counsel for the Defendants/Respondents, Mr Motuwe had not filed a Notice of Appearance and a Notice of Intention to defend the matter on behalf of his clients. A Notice of Appearance gives the counsels legal access to the jurisdiction of this Court, without such the counsel has no legal access to the jurisdiction of this Court.

8.	I consulted the file and did find no Notice of Appearance and no Notice of Intention to Defend filed by Mr Motuwe for the Defendant/Respondent. This obviously meant that Mr Motuwe should have never appeared for the Defendants/Respondents in the first instance until today.

9.	I accept Mr Kivu's story that Mr Motuwe left for Port Moresby this morning and not yesterday as told to the Court by Mr Ludwig Ilvie. 

10.	I also accept Mr Kivu's story that he did remind Mr Motuwe of today's hearing when they met at the airport this morning before Mr Motuwe's departure to Port Moresby. 

11.	I also accept that Mr Kivu's story that Mr Motuwe did not suggest to Mr Kivu how the matter could be dealt with this morning bearing in mind that it was fixed for trial today.

Ex parte Hearing

12.	In view of that Mr Motuwe had not filed a Notice of Intention to Defend as well as a Notice of Appearance I ruled that the Application is to be heard today. I also ruled that in the absence of a Notice of Appearance as well as no Notice of Intention to defend on the part of the defence this matter is to proceed today and it is so by ex parte hearing.

Submission by Counsel for Plaintiff/Applicant

13.	Mr Kivu submitted that this is a short application by the Plaintiff to discharge Orders Nos 2, 3 and 4 of this Court's Order of the 14th December 2009 Annexure 'B'.

14.	I set out Orders Nos 2, 3 and 4 which the applicant seeks to discharge.

Order No.2: 	That the first defendants, the associates, servants and or agents are restrained from dealing with the Second and Third Defendants in so far as it relates to the payment of the royalties, premium and levies for the Meakais Land area until the dispute is resolved.

Order No.3:	 The Second and Third Defendants are restrained from paying any royalties, premiums, and or levies to the First Defendants pending the determination of the dispute in accordance with the Land Disputes Settlement Act processes.

Order No.4: 	The royalties, levies or premiums due for payment to the land owners for the "Meakais" Land are paid to the Trust Account of the National Court until the dispute is dissolved.

Evidence relied upon by Applicant/Plaintiff:

15.	In support of his application to discharge the above Orders Nos.2, 3, and 4, the Applicant relied on the affidavit of Mr Bernard Lolot sworn on the 27th of February 2013 and filed on the 8th of March 2013. The Applicant further relies on the affidavit of Mr Kivu sworn on the 8th March 2013 and filed on the same date.

Evidence of Bernard Lolot

16.	I set out the evidence in the said affidavit of Mr Bernard Lolot of the 27th February 2013.

1.	That Mr Bernard Lolot is the Applicant on behalf of himself and of his clan Talinga/Tling Miok clan.

2.	On the 30th of April 2008 after completing the hearing between myself on behalf of the Talinga/Tling clan and Ludwig Ivlie for and on behalf of the Kaimun clan over "Meakais" Land, the Local Land Court made a decision awarding the "Meakais" Land to my clan – see Annexure 'A'- a true copy of the Decision of the Local Land Court.

3.	On the 15th May 2008 Ludwig Ivlie on behalf of the Kaimun clan lodged an Appeal to the Provincial Land Court, (No. PLC 04 OF 2008) against the Decision of the Local Land Court dated 30th of April 2008.

4.	On the 14th of December 2009 the Appellant Ludwig Ilvie on behalf of the Kaimun clan through Paraka Lawyers obtained an Order form this Court (OS.774 of 2009) to the effect amongst others that; "The royalties, levies and or premiums due for payment to the landowners for the Meakais Land are paid to the trust account of the National Court until the dispute is resolved." – see a copy of the Court Order dated 14th of December 2009 referred to here is annexed hereto and marked with letter 'B'.

5.	The Kokopo Provincial Land Court heard the Appeal (PLC No.4 of 2008) and concluded it in 2011. The Provincial Land Court in it decision dismissed the Appeal but remitted the matter back to the Local Land Court on allegation of bribery – see a copy of the Provincial Land Court Decision is attached and marked annexure 'C'.

6.	The Applicants/Plaintiffs were not happy with the decision so they instructed their Lawyers to seek leave to apply for a Judicial Review (OS No. 409 of 2009) in this Court. Leave was granted on the 18th of August 2011 – see a copy of this Order is annexed hereto and marked letter 'D'.

7.	The Applicants/Plaintiff Lawyers filed the necessary documents for the Judicial Review (OS No. 255 of 2012) of the matter on the 4th of June 2012.

8.	The matter was heard by His Honour Justice Derek Hartshorn in Kokopo on the 24th of July 2012.

9.	The Decision was handed down by His Honour Justice Salatiel Lenalia on behalf of His Honour Justice Hartshorn on the 26th of October 2012 - see a copy of the Decision and the Court Order are annexed hereto and marked 'E' and 'F'.

10.	The Decision was in the Applicants/Plaintiffs favour, awarding the land "Meakais" Land to Mr Ludwig Ilvie on behalf of himself and of the Talinga/Tlinga clan.

11.	The matter had been fully resolved and the Applicants/Plaintiffs seek that the Orders of the 14th of December 2009 be discharged by this Honourable Court and the funds held in the National Court Trust be released to the Applicants/Plaintiffs, the landowners of the "Meakais" Land.

12.	The Applicants/Plaintiffs finally submit that any intention to appeal against the Decision of His Honour Hartshorn J dated the 26th of October 2012 to the Supreme Court by the defendant/respondents had long lapsed and time barred.

Evidence of Mr Orim Guere Kivu:

1.	Mr Kivu is the Proprietor of the Legal Firm Kivu and Associates Lawyers and has the care and carriage of the matter on behalf of the Applicants/Plaintiffs.

2.	Mr Kivu been acting for the Applicants from the time of Appeal to the Provincial Land Court, Application seeking Leave for Judicial Review up until the decision of the Judicial Review on the 26th October 2012.

3.	The ownership of "Meakais" Land the subject of the Appeal was confirmed to our clients the Applicant/Plaintiffs in these proceedings. Therefore the moneys held in the National Court Trust Account pursuant to Orders of the National Court Kokopo dated 15th of December 2009 in OS No. 774 of 2009 are to be released to our clients.

4.	The time to file an Appeal to the Supreme Court lapsed in December 2012.

17.	I find and accept to be true of this matter the following from the evidence of Mr Bernard Lolot and Mr Kivu the followings:-

a.	That on the 30th of April 2008 after completing the hearing between Mr Bernard Lolot on his behalf and on behalf of his clan, the Talinga/Tling clan and Ludwig Ivlie for and on behalf of the Kaimun clan over "Meakais" Land, the Local Land Court made a decision awarding the "Meakais" Land to Mr Bernard Lolot's clan – see Annexure "A" a true copy of the Decision of the Local Land Court.

b.	That on the 15th May 2008 Ludwig Ivlie on behalf of the Kaimun clan lodged an Appeal to the Provincial Land Court, (No. PLC 04 OF 2008) against the Decision of the Local Land Court dated 30th of April 2008.

c.	That on the 14th of December 2009 the Appellant, Ludwig Ilvie on behalf of the Kaimun clan through Paraka Lawyers obtained an Order form this Court (OS.774 of 2009) to the effect amongst others that; "The royalties, levies and or premiums due for payment to the landowners for the Meakais Land are paid to the Trust Account of the National Court until the dispute is resolved." – see a copy of the Court Order dated 14th of December 2009 referred to here is annexed hereto and marked with letter "B".

d.	The Kokopo Provincial Land Court heard the Appeal (PLC No.4 of 2008) and concluded it in 2011. The Provincial Land Court in it decision dismissed the Appeal but remitted the matter back to the Local Land Court on allegation of bribery – see a copy of the Provincial Land Court Decision is attached and marked annexure "C".

e.	The Applicants/Plaintiffs were not happy with the decision so they instructed their Lawyers to seek leave to apply for a Judicial Review (OS No. 409 of 2009) to this Court. Leave was granted on the 18th of August 2011 – see a copy of this Order is annexed hereto and marked letter "D".

f.	The Applicants/Plaintiffs Lawyers filed the necessary and relevant documents for the Judicial Review (OS No. 255 of 2012) of the matter on the 4th of June 2012.

g.	The Application to apply for Leave to grant Judicial Review was heard by His Honour Justice Derek Hartshorn in Kokopo on the 24th of July 2012.

h.	The Decision of that Application was handed down by His Honour Justice Salatiel Lenalia on behalf of His Honour Justice Hartshorn on the 26th of October 2012 - see a copy of the Decision and the Court Order are annexed hereto and marked "E" and "F".

i.	The Decision was in the Applicants/Plaintiffs favour, awarding the land Meakais land to me on behalf of the Talinga/Tlinga clan.

j.	Mr Kivu has been acting for the Applicants from the time of Appeal to the Provincial Land Court, Application seeking Leave for Judicial Review heard on the 24th of July 2012 and up til the decision of the Judicial Review on the 26th October 2012.

k.	That the ownership of "Meakais" Land the subject of the Appeal was confirmed to the Applicant Bernard Lolot and his clan. Therefore the moneys held in the National Court Trust Account pursuant to Orders of the National Court Kokopo dated 14th of December 2009 in OS No. 774 of 2009 are to be released to the Applicant and his clan.

l.	That the matter had been fully resolved and therefore the Orders of the 14th of December 2009 is discharged by this Honourable Court and the funds held in the National Court Trust be released to us as landowners of the Meakais land.

m.	The time to file an Appeal to the Supreme Court lapsed in December 2012 and is time barred.

18.	Having found and concluded in favour of the Applicant/Plaintiff I conclude that the matter had been so resolved. I also conclude from the evidence before me that any intention to appeal against his Honour Justice Derek Hartshorn's decision in Kokopo on the 26th of October 2012 is time barred. 

19.	In view of my findings and conclusions for the Applicants/Plaintiffs, I make the following Orders:

1.	Pursuant to Order 13; Rule 11 (1) of the National Court Rules that the Orders Nos. 2, 3, and 4 of this Honourable Court made on the 14th of December 2009 is discharged forthwith.

2.	Pursuant to Order 2; Rule 45 (2) of the National Court Rules this Court orders that all monies held in the National Court Trust Account under Order No.4 of the Court Order dated 14th of December 2009 be released forthwith to the Applicants/Plaintiffs through its lawyers, Kivu and Associates Lawyers.

3.	Respondent/Defendants to pay cost for these proceedings.

___________________________________________________________
Kivu Lawyers: Lawyer for the Plaintiff/Applicant
No appearance of counsel for the defendant/Respondent.