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Hari v Viri [2018] PGNC 450; N7565 (2 November 2018)

N7565

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS NO. 175 OF 2018

BETWEEN
MORATA HARI for himself and on behalf of Scot B Morata,
Vahu Morata and Gabuta Geita as Principal Landowners of
Central Claim No. 79.
Plaintiffs

AND
STEVEN MABATA VIRI, KURUKU VAIBUA, BABANI MABA, HARRY GEGE, GOROGO IORI, BURUKA CHARLIE, JIMMY CHARLIE and other members of Enehako Clan of Korobosea Village, National Capital District
First Defendants

AND
REX MANGA WAPALIN
Second Defendant

Waigani: Dingake J
2018: 26 April, 19 July, 23 August, 20 September, 9 & 26 October

Counsel:

Mr. Timil Tape, for the Applicants/Plaintiffs
Mr. Jacob Tumbu, for the Respondent/Defendants

2 November, 2018

1. DINGAKE J: By way of notice of motion filed with this Court on the 27^th of March, 2018, the plaintiffs/applicants seek the following relief:
   • (1) Pursuant to Order 7 Rule 7 of the National Court Rules, leave be granted to the plaintiffs to dispense with the requirement for service of the interim application.
   • (2) Pursuant to Section 155(4) of the Constitution, an Order that the Local Land Court proceeding styled as LLC No. 008 of 2017 – Morata Hari & Others of Uhadi Iarogaha Clan, Korobosea Village, NCD v Steven Mabata Viri & Others of Enehako Clan of Korobosea Village, NCD, be stayed until the determination of this proceeding.
   • (3) Pursuant to Section 155(4) of the Constitution, the Land Titles Commission and Kutt Paonga, the Chief Commissioner of Lands Titles Commission be restrained from hearing on Land known as Kohoroko, which is item No. 5 of a Notice published on the Post Courier on the 28^th of February, 2018, until further orders from this Court.
   • (4) Pursuant to Order 14, Rule 10(1) of the National Court Rules, Rex Manga Wapalin be restrained from further constructing any fencing, building or any structure within the land covered under Central Claim No. 79 until further orders from this Court.
   • (5) Pursuant to Order 14, Rule 10(1) of the National Court Rules, an Order that the defendants and their agents including, the National Capital District Commission be restrained from further constructing any fencing, building or any structure within the land covered under Central Claim No. 79 until further orders from this Court.
   • (6) Pursuant to Order 14, Rule 10(1) of the National Court Rules, an Order that the State, including the National Capital District Commission be restrained from acquiring any land within Central Claim No. 79 until further orders from this Court.
   • (7) Pursuant to Order 14, Rule 10(1) of the National Court Rules, the National Capital District Commission and any member of the Papua New Police Force be restrained from conducting any eviction against the plaintiffs including their agents from land within Central Claim No. 79 until further orders from this Court.
   • (8) An order for costs against the defendants.
2. The applicants rely on the affidavits of Morata Hari filed on the 25^th of March, and 29^th of August, 2018 respectively.
3. The main thrust of the applicant’s factual averments in support of the relief sought is that the Ownership of the land, the subject matter of the originating summons filed on the 27^th day of March, 2018, and this current application, being Central No. 79, was already determined by the then National Land Commission on the 12^th of November, 1959.
4. It is common cause that the title or ownership of the above piece of land is contested, and the matter is before the Local Land Court, in proceedings styled as LLC No. 008 of 2017 – Morata Hari & Others of Uhadi Iaragaha Clan, Korobosea Village, NCD v Steven Mabata Viri & Others of Enehako Clan of Korobosea Village.
5. The defendants objected to the jurisdiction of this Court on the basis that the Court has no jurisdiction to preside over bonafide Customary Land Disputes in the country.
6. In this matter, I would assume, without deciding, that this Court has jurisdiction over this matter in so far as the applicants seek declaratory orders confirming their title allegedly determined in 1959 by the Land Native Commission.
7. I make the above assumption because having read the supporting affidavits of the parties and considered the submissions of Counsels, I do think that this proceedings amount to an abuse of the Court process because this matter is properly before a duly constituted Court or Forum, which must be allowed to deal with this matter as it deems fit. There is nothing stopping the plaintiffs from placing the determination of the Land Native Commission in 1959 before the Land Court for an appropriate determination. After all, the Land Court may in its wisdom decide to conduct a trial to determine the veracity of the documents placed before it.
8. In my humble opinion, this Court must be slow to undermine the processes already underway before another Court without a compelling reason.
9. In this case, there is no compelling reason why this Court must circumvent the judicial process already underway before the Land Court.
10. I must mention in passing that on the 9^th of October, 2018, after I heard and reserved judgement in this matter, I received communication from Counsel for the defendants through my Associate, complaining that the Law firm representing the plaintiff’s trading has expired at the time they filed some of the Court papers and appeared before me.
11. Subsequent to receipt of such a letter, and in the interest of fairness and transparency, I invited the parties in open Court to address me on the defendants’ complaint.
12. After considering the submissions, I should say that nothing of substance turns on the complaint and that it is in actual fact improper and unethical for Counsel to write the judge a letter with respect to a reserved judgment, which communication may be calculated and or may have the effect of influencing a judge over matters that were not argued in Court.
13. In all the circumstances of this case and having regard to what I have said earlier, that this Court should respect the judicial process before another Court, I am not inclined to grant the relief sought.
14. In the result:

14.1 The application is dismissed.

14.2 I make no order as to costs.
_______ ____________________________________________________
Kandawalyn Lawyers: Lawyers for the Applicant
Parkil Lawyers: Lawyers for the Respondent