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Kipuai v Lane [2025] PGNC 148; N11276 (9 May 2025)

N11276

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

CIA NO. 39 OF 2024

BETWEEN
SIMON KIPUAI & MISTAN KIPUAI
Appellants

AND
BOUTE LANE
Respondent

LAE: COLLIER J
9 MAY 2025

CIVIL APPEAL – appeal against decision of District Court – eviction proceedings – whether District Court actually conducted hearing – whether unspecified ground of appeal competent – whether appellants could rely on new ground of appeal.

The appellants resided on land in respect of which the respondent had obtained an Alluvial Mining Lease. The respondent made a complaint to the District Court seeking orders that the appellants be evicted. A Magistrate made those orders. The appellants filed a notice of appeal against the orders of the District Court, relying ultimately on two grounds. The first ground of appeal was, in summary, that the Magistrate had made orders without a hearing on 16 July 2024, thus denying the appellants the right to be heard. The second ground of appeal on which the appellants relied was “Any other grounds that may arise during the time of hearing of the appeal”. The appellants also sought to rely on a new ground of appeal, namely that the District Court lacked jurisdiction to make eviction orders in the circumstances.

Held:

Appeal dismissed. The Magistrate had signed a record of the hearing on 16 July 2024 and no evidence was given by the appellants that they were unaware of the hearing being held on that day. The second ground of appeal was too unspecified and was incompetent. Leave was refused to the appellants to raise a new ground of appeal in view of the lateness of raising the issue, the prejudice to the respondent, and the uncertainty of the merit of the ground in the absence of proper submissions in support of it.

Cases cited
Alum v Bendum [2014] DC2065
Gawi v PNG Ready Mixed Concrete Pty Ltd [1984] PNGLR 74
Ngan v Yai [2016] N6381
Okuk v Fallscheer [1980] PNGLR 274
Yamba v Wambu [2001] N2075

Counsel
Mr K Aisi, for the appellants
Mr T Berem, for the respondent

1. COLLIER J: Before the Court is an appeal from Orders of the District Court dated 16 July 2024 whereby the appellants were the subject of eviction order from land over which the respondent held an alluvial mining lease, and an order to pay the costs of the proceedings in the District Court. In the Notice of Appeal filed on 15 August 2024 the appellants set out four grounds of appeal, namely:
   
   1. The Presiding Magistrate did not allow us opportunity to present our case and consider our Defense that we have occupied this lease AML 1052 for more than 40 years and mine this land which is our livelihood.
   2. That the Complainant/Respondent have trespassed on our land and did mapping and surveying without consulting us the very people who were physically occupying the lease AML 1052 at the time.
   3. That the Complainant/Respondent has used misleading information to obtained a title to this lease # AML 1052.
   4. Any other grounds that may arise during the time of hearing of this Appeal.
2. At the hearing (where both parties were represented) the appellants did not press grounds of appeal 2 and 3. They did, however, press ground 1, and further sought to rely on a fresh ground of appeal pursuant to ground of appeal 4. That fresh ground of appeal was articulated by Counsel for the appellants at the hearing as:
   

The Magistrate lacked jurisdiction to order the eviction of the appellants.

3. Before turning to these remaining grounds of appeal it is convenient to summarise background facts.

BACKGROUND

4. The appellants, Simon and Mistan Kipuai reside on land described as AML 1052 at Watut, Wau-Waria District, Morobe Province (Land).
   
5. On 12 July 2023, the Minister for Mining (Minister), by the Registrar of the Minerals Resource Authority, granted a five-year Alluvial Mining Lease over the Land to the respondent, Mr Boute Lane (AML).
   
6. On 3 June 2024, the respondent filed a Complaint in the District Court seeking orders that:
   
   1. The defendants each and severally evict the complainant’s Alluvial Mining Lease # ML 1052 and deliver up the possession of the said Lease to the complainant.
   2. Defendants to meet the cost in the sum of K500.00.
   3. Other orders the Court deems fit and just.
      
7. On 16 July 2024, a Magistrate of the District Court in Wau made orders in the terms of those sought by the respondent (District Court Decision), namely:
   
   1. The Defendant each and severally are to evict from the Complainant’s Alluvial Mining Lease # ML 1052 and deliver up the possession of the said Lease to the Complainant.
   2. Defendant to meet the cost in the sum of K500.00.
8. By a Notice of Appeal filed 15 August 2024, the appellants appeal against the District Court Decision.

GROUND OF APPEAL 1

9. The essence of ground of appeal 1 is that the presiding Magistrate did not conduct a hearing prior to making the order of 16 July 2024, with the result that the appellants were not given an opportunity to be heard.
   
10. No written submissions were filed by the appellants in respect of this ground of appeal. However, at the hearing on 7 May 2025 Counsel for the appellants directed the attention of the Court to the Appeal Book filed on 7 January 2025, in particular pages 29, 30, 33 and 34. Counsel also submitted that there was no transcript of the proceedings of the District Court.
11. Page 29 of the Appeal Book is a Complaint filed by the respondent in the District Court seeking the eviction of the appellants from the Land. Page 30 of the Appeal Book is a Summons to a Person Upon Complaint dated 3 June 2024 addressed to the appellants and requiring them to appear before the District Court in Wau on Tuesday 11 June 2024 at 9.30am. Proof of service of the summons on the appellants on 5 June 2024 was signed by a police officer and can be found at page 32 of the Appeal Book. Page 33 is a statement signed by the appellants in which they stated, inter alia, that their family had resided on the Land for four generations.
    
12. Page 34 is a document which appears to be a record of hearing of the Magistrate on 16 July 2024, and is signed by His Worship. Page 35 is the Court Order of that date.
    
13. As was observed in the Supreme Court decision of Okuk v Fallscheer [1980] PNGLR 274, the right to be heard, where it exists, is properly categorized as one of the principles of natural justice and are specifically referred to in Div. 4 of Pt. 3 of the Constitution of the Independent State of Papua New Guinea. The appellants had been served with a summons to appear in the District Court referable to a complaint to have them evicted – plainly they were entitled to be heard. However, I am not persuaded that a hearing did not take place on 16 July 2024 whereby the Magistrate heard the complaint of the respondent. In saying so I note the following:
    

• It is an extremely serious allegation on the part of the appellants that a Magistrate of the District Court would in effect falsely complete and sign a hearing record if the hearing had not taken place. I am satisfied that the evidence to support such an allegation would need to be extremely compelling.
• Neither of the parties were in Court before me on 7 May 2025 to give evidence in respect of this issue. Similarly, neither of the parties filed affidavits with evidence referable to this issue. The allegation embodied in the first ground of appeal is not supported by any evidence of the appellants, including for example that they were not in Court on 16 July 2024.
• Not only is the Appeal Book certified by the lawyer for the appellants, it is certified by the Clerk of Court, District Court at Wau. The document at page 34 of the Appeal Book is a document issued by the District Court in Wau, and appears to be a record of a hearing on that day. I infer that the Clerk of Courts certifies that the record at page 34 of the Appeal Book relates to hearing at the District Court in Wau on 16 July 2024 involving the parties, as recorded by the Magistrate.
• As Counsel for the respondents submitted, the appellants have not satisfied the requirements of Order 18 Rule 6(3) of the National Court Rules. Order 18 Rule 6 relevantly provides:

6. Appeal Book
(1) The Appellant or his/her lawyer is responsible for compiling the Appeal Book.
(2) The Appellant or his/her lawyer is responsible for ensuring that the Court depositions are provided by the Clerk of Court or appropriate officer of the tribunal or authority which made the decision and received by the National Court.
(3) Transcripts of District Court
Where a handwritten transcript is provided by a Magistrate, then the lawyer must ensure that they are typed by the lawyer and sent back to the Clerk with the hand-written original from whom the transcript has been received to certify in the following words:
"I, ............................................ , Clerk of the Court hereby certify that I have examined the attached transcript with the original and certify that it is correct.
Dated the ........day of .........20 ........
.............................. (Clerk)
This Certificate entitled with the name and number of the National Court appeal and place of hearing of appeal shall be prepared for signature of the Clerk of Court by the lawyer for the appellant.
...
(5) Appeal Book
1. The Appeal Book shall contain the following information—

...
viii. Typed copy of the Transcript – signed by a Clerk of Court certifying that the Transcript is correct.

• With respect, the hand-writing of the Magistrate recording the hearing of 16 July 2024 is difficult to decipher. However, this does not derogate from the fact that His Worship did complete a record of a hearing involving the parties on that day.
  

14. In my view, ground of appeal 1 is not substantiated.

GROUND OF APPEAL 4

15. A ground of appeal in terms of “any grounds that may arise during the time of hearing the appeal” was considered by Kandakasi J (as his Honour then was) in Yamba v Wambu [2001] N2075 where his Honour said:
    

This is not a recognised ground of appeal. It is only a speculation that there may be further grounds for appeal. It is also an indication that, if the transcript or the depositions disclose other possible grounds of appeal, the Appellant will rely on them. The Appellant did not advance any argument under this purported ground of appeal.
I note in any case, that the Appellant has received the transcript of the proceedings before the District Court and the appeal book has been compiled thereafter. The Appellant has not pointed out to any additional ground of appeal. Besides, appeals cannot be lodged without knowing the grounds for appeal. If an appellant does not know his or her grounds of appeal at the time of lodging the appeal, the appeal is without merit and an abuse of process. Even if some additional ground come to light after the receipt of the transcript, an appellant has no automatic right of appeal on such grounds unless the relevant appeal period has not yet run out and the Appellant is still within his right to appeal on such grounds as of right. I thus dismiss this ground of appeal as well.
(emphasis added)

16. I respectfully adopt the reasoning of his Honour in this respect. In my view, ground of appeal 4 is incompetent.
    
17. To the extent that the appellants seek to rely on a new ground of appeal referable to the jurisdiction of the District Court to make an eviction order, I observe as follows.
    
18. First, this ground of appeal was raised at the conclusion of the submissions of Counsel for the appellant. The extreme lateness of the reliance on this new ground of appeal strongly militates against this Court entertaining the ground of appeal, noting in particular the prejudice to the respondent of a ground of this nature being raised at this very late stage and without notice.
    
19. Second, Counsel for the appellants submitted that the orders made by the Magistrate were pursuant to section 6 of the Summary Ejectment Act 1952 (Chapter 202), that this legislation only applied to State leases, and that it was only the National Court of Justice which had power to make orders evicting the appellant. In response, the respondents submitted that the orders made by the Magistrate on 16 July 2024 were made pursuant to section 22 of the District Court Act 1963.
    
20. There is certainly some authority that the holder of an alluvial mining lease may have no legal estate in land such as to support an eviction notice. In particular, I note from my own research the discussion in the District Court case of Alum v Bendum [2014] DC2065 in respect of the rights of the holders of such leases. I also note the discussion of Makail J concerning the interaction of section 6 of the Summary Ejectment Act and section 22 of the District Court Act in Ngan v Yai [2016] N6381 at [17], as well as the more general analysis of the Supreme Court of relevant principles in Gawi v PNG Ready Mixed Concrete Pty Ltd [1984] PNGLR 74. However, if there is merit in this argument, it is unclear to me why it was not raised by the appellants before the District Court. Further, if the appellant’s proposition has any merit, it is unclear to me whether the National Court has any more jurisdiction to make such an eviction order than the District Court. Such issues require a properly drafted ground of appeal with supporting arguments. That was not the case here.
    
21. In circumstances where the appellants failed to raise this new ground of appeal in a proper manner, so as to give adequate notice to the respondent, I am not prepared to allow the appellants to rely on it at this point of the proceedings.
    
22. Ground of appeal 4 is dismissed, and leave refused to the appellants to rely on a new ground of appeal.

CONCLUSION

23. For the reasons stated above, the appeal should be dismissed.
    
24. Costs follow the event.
    

25. The Court orders that:

1. The appeal be dismissed.
2. Leave be refused to the appellants to rely on a new ground of appeal.
3. The Orders of the District Court in proceeding DC No. 10 of 2024 made on 16 July 2024 are confirmed.
4. The appellants pay the costs of the respondent of and incidental to the appeal.
   

Lawyers for appellants: Aisi Lawyers
Lawyers for respondent: Berem Lawyers