DC4097
PAPUA NEW GUINEA
[IN THE PROVINCIAL LAND COURT OF JUSTICE]
PLC. 004 of 2008
BETWEEN
Iliga Ola of Hula village
01st Appellants
AND
Gima Kana of Hula village
Respondent
Port Moresby: S.Lavutul
Mediators: Nil
2008:  23rd April, 07th, 21st , 28th May, 11th, 19th, 26th June, 17th, 30th July, 25th September, 20th October, 04th, 28th November, 11th, 16th December
2009: 06th, 23rd February
2010: 13th February, 01st, 04th, 25th May, 15th June, 28th, 30th September
2011: 03rd June, 26th July, 16th August, 05th, 21st September, 12th October,
          02nd, 25th November
2012: 23rd January, 23rd February, 29th March, 27th September, 09th, 30th October
2013: 21st March, 24th April, 15th May, 05th,  25th June, 14th August, 21st August,
           21st, 23rd September, 30th October, 06th, 20th November, 18th December
2014: 29th January, 17th February, 19th March, 10th September, 02nd October
2015: 03rd, 09th, 10th, 12th 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
12th June 2015
SLAVUTUL, The Appellant in the matter was granted leave by the Waigani Provincial Land Court on the 23rd 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 11th of May 2007.
2. The Appellant filed his appeal on the 08th 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 11th 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 16th of January 1995.
4. However the Land Court Decision of the 16th of January 1995 was declared null and void by Mr. Nasiling Bingtau as Provincial Land Court on the 02nd 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 19th of March 2014 and I quote;
* There was an existing District Land Court Order by His Worship Karo Vagi dated 16th 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 03rd of June 2015 for call over. Unfortunately only the Respondent Gima Kana appeared and the matter was further adjourned for mention to the Wednesday 10th 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 10th 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 16th 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 16th 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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