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Tono v Harry [2021] PGNC 478; N9339 (23 November 2021)

N9339

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CIA NO. 29 0F 2019

BETWEEN:
MEKELA TONO OF YUKU CLAN
Appellant

V

ROY TALU HARRY OF MIAU CLAN
First Respondent

AND:
COMMUNITY AFFAIRS MANAGER, OIL SEARCH LIMITED
Second Respondent

Mt. Hagen: Eliakim AJ
2021: 09^th, 23^rd November

INFERIOR COURTS - Appeal from the District Court – District Court exercised its jurisdiction to strike-out Complaint – Substantive proceeding brought to an end - Without formal reinstatement of the initiating process, there is nothing before the District Court to proceed on - Appeal upheld – cost in the cause.

INFERIOR COURTS – Appeal from District Court – District Court has no jurisdiction to deal with disputes on customary land ownership – Local Land Court has jurisdiction on customary land ownership dispute under the Land Dispute Settlement Act – Error in law and fact.

Cases Cited
Hila Agalu -v- Peter Eno (2005) N2904
Kola Kuma -v- Brem Maju (PNG) Ltd [2008] PGDC 73
Mathew Karap -v- Paul Kamea DC241

Counsel
Mr. D. Laura, for the Appellant
Mr. S. Minara, for the First Respondent
Mr. T. Kuma, for the Second Respondent

DECISION

23^rd November, 2021

1. ELIAKIM AJ: This is my decision to the hearing of the substantive appeal from a decision of the District Court in Tari made on 21 November 2018.
   
2. On 10 April 2019, the Waigani National Court granted the plaintiff an extension to lodge their appeal out of time.
   
3. The appeal was filed at the Tari National Court but formally transferred to the National Court in Mt Hagen on 08 June 2021 for further determination.
   

Background

1. The First Respondent filed a Complaint and issued Summons upon Complaint, under the District Court civil court reference CV No.126 of 2017, out of the Tari District Court on 08 December 2017.
   

4. He sought restraining orders against the Appellant, Mekela Tono Yuku Clan. His complaint was as follow:
   

“That the Yuku Clan Members, Mr. Mekela Tono and his members are to be restrained from receiving the Environment Damage payments for the Muruk #1 PPL 402 in which the said company is located on the said complainant’s land.

The aforesaid Complainants further also sought Court Order to restrain the Oil Search Management from paying out these payments until the matter is settled in the Court”.

5. Upon an application filed by the appellant on 11 January 2018, the court struck out the complaint on 19 February 2018, under the following terms:
   

“The matter is struck out as the complaint is defective and due process under the Land Dispute Settlement Act was not been followed”.

6. There was no application filed nor any formal orders setting aside and or varying this order.
   
7. From the Magistrate’s worksheet attached to the Appeal Book, the matter was stood over on several occasions after the Court Order of 19 February 2018.
   
8. The Magistrate then issued other orders after 19/02/18 and further adjourned the matter sine die on 21 November 2018.
   
9. The orders of 21/11/18 prompted the appellant to file this appeal.
   

Grounds for Appeal

10. The appellant’s grounds of appeal can be summarized as follow:
    
    1. The District Court in Tari erred when it made orders of 21 November 2021, when it had no jurisdiction for reasons that:
       
       1. District Court complaint No.CV 126 of 2018 had been struck-out on 18 February 2018 and had never been formally re-instated;
       2. The District Court sitting in its civil jurisdiction does not exercise the same jurisdiction as the Local Land Court under the Land Dispute Settlement Act.
          

Application of the Law to the Facts

11. The main argument raised by the appellant is that the District Court’s order of 19 February 2018 striking out the matter on the basis of the Compliant being defective, brought the proceedings to an end.
    
12. There was no evidence of any application setting aside the order of 19 February 2018, nor a formal order from the same court re-instating the matter.
    
13. As such, the Tari District Court was acting out of jurisdiction when it continued to hear the matter after that.
    
14. Furthermore, it was not sitting as a Local Land Court and therefore does not have jurisdiction to have made the orders of 21 November 2018, referring the matter to the Lands Division, Koroba District Office and adjourning the matter sine die.
    
15. Mr. Minara for the first respondent made a preliminary application seeking leave of court to withdraw its earlier Notice of Motion filed 13 April 2021. Leave was granted.
    
16. He submitted that although there exists a dispute as to customary ownership, his clients had not yet registered their complaint through the proper land dispute settlement process. Further, that his client got himself confused with the different processes at the District Court and as such filed proceedings at the wrong court which had no jurisdiction to deal with customary land disputes.
    
17. Mr. Minara then conceded with the appellant that the Complaint being struck out by the Tari District Court, brought the proceeding to an end.
    
18. The second respondent is the developer under the Oil & Gas Act. It has exploration licenses and petroleum development licenses in Hela and Southern Highlands. As such, it takes seriously customary land disputes.
    
19. Mr. Kuma for the second respondent submitted that his client remains neutral in such disputes. As such, it stopped any royalty payments when this dispute arose.
    
20. Mr. Kuma supported submissions by the appellant and the first respondent that the court order of 19 February 2018 brought the proceeding to an end.
    
21. The civil jurisdiction of the District Court is clearly provided for under s.21 of the Act. It does not list customary land dispute as part of its civil jurisdiction. Similar view is adopted by the former CJ Injia in the case of Hila Agalu -v- Peter Eno (2005) N2904.
    

What is the effect of an Order to struck out?

22. An order striking out a court proceeding, brings the case to an end before a final hearing of evidence.
    
23. The District Court in Tari had struck out the proceeding on the basis that the Complaint was defective.
    
24. The District Court has powers under sections 22, 25 and or 144 of the District Courts Act, to properly reinstate a proceeding. This can be done under an application to set aside and or vary the initial order to struck out. However, there is no evidence of this process being undertaken before or by the Tari District Court.
    
25. I find that the Magistrate erred in law when he allowed the case to proceed and he continued to make additional orders in proceeding CV No.126 of 2017, when the substantive Complaint had already been struck out on 19 February 2018.
    

ORDERS

1. The appeal is upheld.
2. The order of Tari District Court of 21 November 2018 is quashed.
3. The First respondent to pay the Appellant and the Second Respondent’s costs.
4. Time be abridged.

________________________________________________________________
Mr. D. Laura: Lawyer for the Appellant
Public Solicitor: Lawyers for the First Respondent
Mr. T. Kuma: Lawyer for the Second Respondent