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Yawar v Sau [2018] PGLLC 2; DC4018 (17 July 2018)

DC2018

PAPUA NEW GUINEA

[IN THE DISTRICT COURT OF JUSTICE

SITTING IN IT’S LOCAL LAND COURT JURISDICTION]

LLC 17 of 2014
BETWEEN

Garry Yawar for and on behalf of Muduk Clan
Complainant

AND

Silen Sau for and on behalf of Joh Clan
Defendant

Madang: Josephine Kilage
Local Land Court Magistrate

2018: 17 July
      

CIVIL- Case details: Local land court matter. Parties had agreed on land boundaries and had applied to the local land court for approval of the agreement. The agreement was approved by His Worship Teko. This agreement known as the “Banarih Agreement” along with four other approved agreements known as Sad Agreement, Oramgu Agreement, Hirtabu Agreement and Baginou Agreement were then subject to the National Court Judicial Review OS No 812 of 2014. On 22 September 2015 the National Court dismissed the Judicial Review for want of prosecution. This local land court case agreement and the other approved agreements were left subject to the decision of the National Court. Neither party had informed the Local land court of the decision of the National Court. The local land court on its own initiative wrote to the National Court and acquired a copy of the National Courts decision. The dismissal of the National Court Judicial Review then confirms the approved agreements. Therefore this file is now closed.

Cases Cited
Domol Irun of Joh Clan , Sein Village v Gary Yawar of Mudug Clan & 9 Ors OS No 812 of 2014

References
Land Dispute Settlement Act

Counsel

No Appearance, for the Complainant

No Appearance, for the Defendant

June 2018

Josephine Kilage

1. FACTS

On 30^th January 2014 Garry Yawar of Muduk Clan, Sein Village and Silen Sau of Joh Clan Sein Village of Ward 16 of Ambenob Local Level Government area, Madang District, Madang Province, on behalf of their respective clan members were parties to an agreement called the “Banarih Agreement”. They made an application under Section 18 and 19 of the Land Dispute Settlement Act 1975 using form 10 to the Local Land Court of Madang seeking approval of that agreement.

The mediated agreement stated that the following lands would be owned by both clans:

On 19^th November 2014 the application for approval of agreement was granted and the agreement was approved by His Worship Teko.

On 21 November 2014 the plaintiff Domol Irun of Joh Clan applied to the National Court, by Originating Summons, for review of the local land court decisions. As the matter was for Judicial Review the agreements were stayed pending the review. A full discourse of the background of what actions were taken by the National Court can be read in the case OS No 812 of 2014 Domol Irum of Mudug Clan, Sein Village v Gary Yawar of Mudug Clan, Sein Village& 9 Ors. Garry Yawar was named as the First Defendant in the case. Silen Sau was named as the Third Defendant in that case.

Justice Cannings in OS No 812 of 2014 held that “the plaintiff has been unable to provide a good explanation for the delay. Therefore the application for dismissal is granted. He orders that the proceedings OS 812 of 2014 are dismissed for want of prosecution, the parties shall bear their own costs of the proceedings and the file is closed”.

None of the ten parties to the proceedings had notified the Madang local land court of the decision of the National Court. I took carriage of all land court matters this year and once I was made aware that the agreement had been stayed, pending the National Court proceeding, I requested a copy of the order from the National Court registry. Upon reading the order I noted that the judicial review was dismissed for want of prosecution and the file was closed.

On 13 July 2018 Mr Ulul who represented the parties to the agreement who were named as defendants in the National Court matter appeared in court and informed the court of the National Court decision in which the matter was dismissed for want of prosecution and asked for the agreements to be endorsed and the matter closed. The matter was adjourned to 17 July 2018 for Mr Ulul to bring a copy of the National Court order. The court then realised that it had a copy of the National Court decision in its file and therefore proceeded to summarily determine that the agreements remained effective and closed the file.

2. ISSUE

Whether the dismissal of the National Court Judicial Review OS No 812 of 2014 confirms the approved “Banarih Agreement” of 19^th November endorsed by his Worship Mr Robert Teko.

3. EFFECT OF JUDICIAL REVIEW ON THE SAD AGREEMENT

The dismissal of the National Court Judicial Review does confirm the approved “Banarih Agreement” and therefore the contents of the Banarih Agreement are binding on the parties to the Agreement.

It must be also stated that the plaintiff in the National Court Judicial Review did not follow due process to appeal to the Provincial Land Court for review of the said agreements. Also due process was followed in the approval of the mediated agreement.

4. TERMS OF APPROVED AGREEMENT

The terms of the ownership of the Muduk Clan and the Soh Clan as approved by His Worship Teko on 19^th November 2018 are hereby confirmed in its entirety. That the lands listed in the table below are confirmed by the “Banarih Agreement” to belong to the Muduk Clan and Soh Clan of Sein Village, of Ward 16 of Ambenob Local Level Government, Madang District, Madang Province:

5. CONCLUSION

The approved mediated agreement is now confirmed and is to be effected forthwith and parties who are signatories to the agreements are now bound by the terms and conditions of the “Banarih Agreement”.

6. ORDERS
   1. For the avoidance of doubt, the Order by his Worship Mr Robert Teko of the 19^th day of November 2014,which approved the “Banarih Agreement”, the subject of the dismissed National Court Appeal, has full force forthwith.
   2. Time for entry of the Order is abridged and the file is closed.

Order the 17^th day of July 2018
Entered the 17^th day of July 2018

BY THE COURT
Josephine Kilage
Local Land Court Magistrate