DC4025

PAPUA NEW GUINEA

IN THE KIMBE PROVINCIAL LAND COURT 

PLC 07/2018

BETWEEN

JOHN MONDO OF SAIKO CLAN
-Appellants-

AND

STEVEN MOSES & VINCENT DAU OF TARAWA WAWA CLAN
-Respondents-

Kimbe: B. Tanewan

2019:		7th May

Land Disputes Settlement Act – Section 58 –Grounds of Appeal
Provincial Land Court – Appeal from Local Land Court decision – Approval of Agreement –validity of Agreement –
Land Disputes Settlement Act - Section 18 – Agreement after mediation and recorded by Land Mediators
Land Disputes Settlement Act, Section 19 – Approval of Agreement – inquiry into matters required before endorsement –process and requirements on approval of agreement
Land Disputes Settlement Act, Section 20- Effect of Agreements- Court orders upon endorsement by Local Land Court.
Land Disputes Settlement Act -, Section 59 – Appeals from the Local Land Court – Powers of Provincial Land Court to make orders.

Legislation:
Land Disputes Settlement Act, 1975
Case cited:
Kaman v.  Mukap (2009) PGNC63; N3669
Richard Maribu -v- Lae District Land Court & Siomngaivon Clan (2001) N2064,
Telabe Babena -v- Gambolo Land Group Inc & Oil Search Limited: CIA No 160 of 2007 (Unnumbered & Unreported Judgment of 07th July 2008). 
Pauria v Tovee [2014] PGNC 316; N5538 (18 March 2014)

Counsel 
 Gerard Linge of Linge & Associates 			for the Appellants 

 Felix Kua of Kua& Company Lawyers			for the Respondents

B. TANEWAN, PM: This is an appeal against the Local Land court decision, through an endorsement of the approval of Agreement by the Kimbe, Local Land Court on 13th July 2018 over the ownership of the customary land known as “Tarawa land” located within the Kove area of West New Britain Province.

There is no dispute that I have jurisdiction to hear the appeal as the land is located within the mediation area of the Kimbe Provincial Land Court.

Brief Facts. 

The brief facts are that the dispute was set for mediations through the Notice of Intention to Mediate (Form7) on 29th November 2017, however, mediation did not proceed as intended and were subsequently deferred to 10th of January 2018. On 10th of January 2018 mediations did not actually go off the ground again and so the mediators had the mater referred to the Local Land Court through Form 08 (Notice of Hearing at Local Land Court) and was registered as LLC No: 6 of 2018 that matter was set for hearing by the Local Land Court on 17th May 2018. However , before the date set for mediations, a purported mediation was held at  Tarawa village on the 9th of August 2018, prior to the date set by the Local Land Court being 17th May, 2018 .

The mediations were made and matter referred to Local Land Court for Approval of Agreement in a subsequent Local Land Court matter registered as LLC 20 of 2018 in which the approval of Agreement was endorsed by the Local Land Court Magistrate on 13th of July 2018.

On 9th August 2018 when the matter in LLC NO: 6 of 2018 came before the Local Land Court but another Magistrate, the Local Land Court ordered that mediations must still be held on 27th of September 2018 as there was no compliance with the orders made on 10th January, 2018 which means, in essence the Local Land Court matter in LLC No: 06 of 2018 was still pending determination and the matter was further adjourned to 9th November, 2018 to confirm m the status of the two Local Land Court matters in relation to the same piece of land.

 Therefore on 09th of November 2018, the Local Land Court Magistrate struck out the matter in LLC No: 6 of 2018 for being a duplication of Local Land Court 20 of 2018, in relation to the same piece of land and same parties and also that even though LLC No 6 of 2018 was filed earlier then LLC No: 20 of 2018, the latter has already been progressed to an advance stage.

Being the case, the Defendants/Appellants filed this appeal at the Provincial Land Court on 13th July 2018. The grounds of Appeal stated by the Appellants are as follows;

a)	The Magistrate did not consider properly and signed the Approval of Agreement in the Appellants’ absence.

b)	The Magistrate did not consider properly and signed the Approval of Agreement breaching section 18 (2) (b) and section 19 (a)(b)(c) of the Land Dispute Settlement Act . 

Section 58 of the Land Disputes Settlement Act sets out the grounds for aggrieved parties at the Local Land Court to appeal against any decisions to the Provincial Land Court, which states;

“58.	GROUNDS FOR APPEAL.
An appeal under this Division may be made only on one or more of the following grounds:–
(a) that the Local Land Court exceeded or refused to exercise its jurisdiction; or
(b) that the Local Land Court conducted its hearing in a manner contrary to natural justice; or
(c) that in the circumstances of the case no court doing justice between the parties would have made the decision appealed against; or
(d) that, in the case of an appeal against a decision given under Section 40, the order for the return of the interest or interests in land or the grant of another equivalent interest or interests was not supported on the facts.”

The grounds of Appeal set out by the Appellants, in my view can be summarized as follows;

Ground 1 of the Appeal can falls under s. 58 (b) which states; that the Local Land Court conducted its hearing in a manner contrary to natural justice; 
Ground 2 of the Appeal comes under s. 58 (c) which states; that in the circumstance of the case no court doing justice between the parties would have made the decision appealed against.

Submissions By Parties

Mr. Linge appearing for the Appellant s filed a written submission whilst Mr. Kua for the Respondents made oral submissions.

THE APPELLANTS’ SUBMISSIONS

Basically the appellants submissions come in two-fold. Firstly, the appellants argued that they were not present in Court when the purported Approval of Agreement was signed or endorsed by the Local Land Court Magistrate on 13th July, 2018. 

Secondly Mr. John Mondo being a party to these proceedings did not sign in the Approval of Agreement so as other members of his Saikou Clan. Their contention is that the persons whose names and signatures appear on the Approval of Agreement were the Tara Wawa clan members and other persons whose clans are not a party to the Local Land Court matters now before the court.

The Appellant further submitted that the Local Land Court failed to confirm the parties and the Terms of Agreement in the Court Sitting before endorsing the Agreement, and so failure to do so has breached the principals of natural justice and fairness, which are Constitutional rights enshrined in the Constitution and also in breach of the procedures and processes of determining land disputes provided for under the Land Disputes settlement Act

Mr. Linger also submitted that the whole process followed to arrive at the decision to endorse or approve the agreement was an abuse of the court process thus flawed. In supporting that Mr. Linger submitted that mediations were still ongoing as per lawful orders of the Local Land Court in LLC No: 6 of 2018, when the land mediators purportedly conducted a mediation prior to the date set by court then referred the matter to the Local Land Court in  LLC No:  20 of 2018, thus duplicating the matter.

Thus, in these circumstances the Appellants strongly submit that the Approval of Agreement of 13th July, 2019 should be quashed and matter remitted for proper mediations.

THE RESPONDENTS’ SUBMISSIONS.

Mr. Kua on the contrary submitted that once an Approval of Agreement in Form 10 is endorsed by the Local Land Court Magistrate it becomes an order of the court. He further submitted that the Appellants cannot rely on Constitutional provisions to support their appeal as the Provincial Land Court as it is deprived of jurisdiction to deal with constitutional matters.

Mr. Kua urged that the Court to be cautions in setting aside Court Orders which are lawfully entered. The Respondents further submitted that this Appeal was filed out of time and be dismissed. The Respondent, through their lawyers urged that the Court to be cautions in setting aside Court Orders which are made lawfully.  

Considerations

 In addressing the issues, I intend to address the issue of time required to file appeal to the Provincial Land Court which has been brought up by the respondents. In doing so I refer to section 54 of the Land Dispute Settlement Act, which states;

Section54 is in the following terms;

“APPEAL AGAINST DECISION OF LOCAL LAND COURT.
(1) Subject to this section, a person aggrieved by a decision of a Local Land Court may appeal within three months after the date of the decision to the Provincial Land Court.
(2) Where the Provincial Land Court is of opinion that it is desirable in the interests of justice to do so, it may, whether or not the time fixed for appeal under Subsection (1) has expired, extend the time fixed for appeal, but leave shall not be granted after the end of the period of 12 months after the date of the decision appealed against.”
In the particular case the appeal is filed after three (3) months from the date of the Local Land Court decision. In fact the Local Land Court decision was made on 13th of July 2018 and the appeal was filed on 12th April 2019, after eight (08) months of the decision of the Local Land Court. However, in considering section 54(2) it appears that the discretion whether or not to extend time for appeal lies with Provincial Land Court if it is of the opinion that, it is in the interest of justice to so.

Being so, I am of the view that it is desirable in the interest of Justice that an extension of time be allowed and I so I do exercise that discretion and grant leave to proceed with the Appeal as, there are obvious fundamental issues of public interest and procedural irregularities herein which require the Court’s determination and interpretation.
In this particular case, the mediators recorded an agreement on 10th January 2018 under Form 10 and had that agreement referred to the Local Land Court in the following terms;
“To the Local Land Court at Kimbe. 
We Steven Moses, Vincent Dau, John Mondo parties to a dispute over the land known as Tarawa Wawa of the Tarawa Clan hereby make application for the Approval of Agreement reached by us after mediation on the 10th of January 2018.
The terms of the Agreement are as appeared in page 01;
Both Parties agreed and confirm that TARAWA WAWA is the principal Land-Owners of the area disputed namely Tarawa Wawa Land.
_____________	__________	                       ____________	__		______
STEVEN MOSES  	BEN MICHAEL 		SIMON MANGAE  		JAMES
											GILO CLAN
Certification under 26 (2); 
We Tobias Divu and Albert Baleki of Bali/Vitu LLG and Land Mediators certify that the above agreement for which approval is sought is be Agreement reached between the parties after mediation by us. 
Dated 10th day of January 2018
Signed 			signed 
Mediators 
In the local land court at Kimbe on the 13th day of July 2018 before Mrs Georgina Coppard Local Land Court Magistrate,
The parties to this agreement have this day applied to the court for approval of agreement under section 19(1) of the Land Dispute Settlement Act, 1975.
Being satisfied that the Agreement fulfills the provisions of section 19(2) of the Land Dispute the agreement is Approved and becomes an Order of this Court’.
Dated the 13th day of July 2018			_________________________
							Local Land Court Magistrate”
The Law

I now come to the issue of Approval of Agreements and agreements under the Land Disputes Settlement generally, and in doing so, I am mindful of section 18 and section 19 of the Land Dispute Settlement Act, which state;

18.	AGREEMENTS.
(1) If an agreement is reached between the parties to a dispute as to the whole or part of the dispute, the Land Mediator shall–
(a) record that an agreement has been reached; and
(b) unless he thinks it inappropriate to do so–record the terms of the agreement; and
(c) ensure that the terms of the agreement are understood by the parties and are formally and publicly acknowledged by or on behalf of the parties; and
(d) where the terms of the agreement are recorded–forward a copy of the record to the nearest Local Land Court.
(2) Where the terms of an agreement include agreement as to the location of a boundary, the Land Mediator shall–
(a) as far as practicable, walk the boundary with the parties; and
(b) unless he thinks it impracticable to do so, direct the parties–
(i) to inform him of all prominent natural features located on the boundary; or
(ii) to mark the boundary in such manner and with such marks as he thinks appropriate; and
(c) record the boundary in such manner as he thinks will enable it to be readily identified; and
(d) record the names of not less than three witnesses who are prepared to testify to the position of the boundary as determined in the agreement.
(3) A Local Land Court to which a record is forwarded under Subsection (1) shall forward copies of the record–
(a) to the Provincial Land Court for the province in which the land is wholly or partly situated; and
(b) on request, to any Local-level Government in whose area the land in dispute is wholly or partly situated; and
(c) on request, to the parties to the dispute or any of them.
19.	APPROVAL OF AGREEMENTS.
(1) The parties to an agreement may apply to a Local Land Court to have the agreement approved.
(2) On receiving an application under Subsection (1), the Court shall make such inquiries as it thinks necessary to ensure that–
(a) the terms of the agreement are fully understood by the parties; and
(b) where a party to the agreement consists of more than one person, a substantial majority of the persons comprising the party concur with the terms of the agreement; and
(c) the agreement is not in breach of any law, or contrary to natural justice or public policy.
(3) Where the Court is not satisfied as to any matter specified in Subsection (2), it may–
(a) mediate between the parties in order to reach a satisfactory agreement; or
(b) by order direct the Land Mediator who mediated the dispute or another Land Mediator specified in the order to conduct further mediation, with, if it thinks fit, a direction as to how any defect in the original agreement might be overcome.
(4) Where further mediation has been carried out under Subsection (3)(b) and an agreement has been reached and recorded, the parties may re-apply to the Court to have the agreement approved in accordance with this section.
(5) Where the Court is satisfied as to the matters specified in Subsection (2), it may approve the agreement.
(6) An agreement approved under Subsection (5) has effect as an order of a Local Land Court made under this Act.
There are numerous case laws that deal with Approval of Agreements in (form 10) of the Land Disputes Settlement Act, 1975. In Kaman v.  Mukap (2009) PGNC63; N3669, the Court said;
“So the question is, is the mediation agreement reached between the parties on 12th April 2000 binding and therefore enforceable against the Defendants? Section 19(5) of the LDS Act states that an agreement reached between parties at mediation must be approved by the Local Land Court and by subsection (6) of that section; an approved mediation agreement has the effect of an order of the Local Land Court.
15. In my research, I have been able to find the case of Richard Maribu -v- Lae District Land Court & Siomngaivon Clan (2001) N2064, which was an application for judicial review of the decision of the First Respondent to award a customary land to the Second Respondent. His Honour Injia J, (as he then was) who presided over this case commented on the application and effect of sections 19(6) and 43 of the LDS Act in the following way:
"It is clear from S.19 (6) and S.43 that an approved mediation agreement is binding on the disputing parties in respect of the land in dispute. It is also binding on persons not parties to the mediation agreement in respect of the land covered in the approved mediation agreement: Section 43(2). An approved mediation agreement confers exclusive interest or title to either party or both as agreed, and at the same time extinguishes the interests or rights of non-disputants over the same land. The effect of an unapproved mediation agreement is different. It may be used by either party as evidence in any legal proceeding to show a party's interest in the land in dispute, and it is not binding on the parties or a person who is not a party to the agreement. And so because the medication agreement in the present case was not approved by the Local Land Court, there was no mediation agreement which was binding on the parties or on any other person claiming interest over the same land". (Underlining is mine).
16. I agree entirely with His Honour’s views. They correctly represent the law and in my determination of the issues raised in this proceeding, I find no reason to depart from them. In fact I made similar observations when I was asked to decide an appeal from a decision of a District Court setting aside a temporary order for stay issued by the same District Court under section 30(1)(a) of the LDS Act in the case of Telabe Babena -v- Gambolo Land Group Inc & Oil Search Limited: CIA No 160 of 2007 (Unnumbered & Unreported Judgment of 07th July 2008). There, I made these observations in the context of how a dispute may be instituted under the provisions of the LDS Act after I cited mediation as one of the modes by which a party to a customary land ownership dispute may invoke while the other two modes are under sections 30 (Temporary orders by magistrates) and 31 (Applications) of the LDS Act respectively in the following way at p 23 of the judgment: 
"Then by section 18 of the Land Disputes Settlement Act, if an agreement is reached between the parties to a dispute as to the whole or part of the dispute, the Land Mediator shall interalia record that an agreement has been reached and record the terms of the agreement. Then, by section 19 of the Land Disputes Settlement Act the parties to the agreement may apply to a Local Land Court to have the agreement approved and if approved it has the effect of an order of the Local Land Court".
 The same view was echoed in another National Court judgement of Pauria v Tovee [2014] PGNC 316; N5538 (18 March 2014) when it stated;
“The process under s. 19 of the Land Dispute Settlement Act is also another opportunity for Plaintiff to pick up vibes of such Mediation Consent Agreement when the matter reaches the Local Land Court Registry that further publication is required to be posted at District and Local Level Government Public Notice Board under s. 19 (2) & (5) of the Land Dispute Settlement Act. This is the final vetting process and golden opportunity for the Court to be satisfied upon making proper enquiries in respect to matters specified under subsection (2) of s. 19 of the Land Dispute Settlement Act are properly addressed. 
 The Court upon being satisfied may approve the consent agreement. Once the Court is satisfied with the Consent Land Mediation Settlement Agreement, and approved the agreement under s. 19 (5) and it may have the legal effect of a Local Land Court Order per se under s. 19 (6) of the Land Dispute Settlement Act 1975. The legal effect of such consent mediation settlement agreement upon approval becomes the formal Local Land Court Order per se. The said Local Land Court Order is evidence of traditional landowner's interest over the said traditional land in question under dispute, the subject of the Judicial Review. Whilst the conversion of the consent land mediation agreement is approved into formal Local Land 

Court Order, it has the same legal effect and status of a decision issued from a properly constituted Local Land Court before a Local land Court Magistrate.”
The Issues
1.	Whether an agreement signed between one party to the dispute and other persons who are not parties to the disputes constitute a valid Approval of Agreement under Section 18 of the Land Disputes Settlement Act? 
In this case, it appears that the Applicants/Respondents signed the purported agreement with other persons who are not parties to the proceedings. In my view a valid agreement under the Land Disputes Settlement Act is an agreement signed by all parties to the dispute as they all are a privy to that agreement or contract. Such an agreement contains all terms that are explained and agreed to by all parties and that agreement is not unconstitutional and contrary to public opinion and other laws of the country.
In this particular case it is clearly demonstrated that the Local Land Court did not actually made enquiries to the agreement. The agreement was not subjected to an open court hearing so as to give opportunities to any party to enquire into its terms and make its decision to concur or refute.
2.	Whether, all the required processes and procedures under Section 19 of the Land Disputes Settlement were complied with thus resulting in the agreement being signed and endorse by Court so as to constitute a valid Local Land Court Order?
In this particular matter, the Local Land Court need not to look far then Section 19 of the Land Deputes Settlement Act. Now when looking at this agreement in the light of the section 19 and in particular section 19 (2) of the Land Disputes Settlement Act, I am of the view that the Local Land Court must do the following as requirement under law to ensure that such agreements  are valid and can constitute a Local Land Court order;
(i)	The Local Land Court Magistrate must call all parties into the Court room and conduct an open court hearing.
(ii)	The Local Land Court must  make enquiries into the terms of the agreement  to ensure that the agreement or its terms are fully understood by parties;
(iii)	That the Local Land must enquire so as to determine whether a substantial majority concur with the terms of the agreement or not ;
(iv)	The Local Land Court must also ensure that the agreement is not in breach of any law or contrary to natural justice and public policy.
Having satisfied itself of the above requirements, the Local Land Court Magistrate can the sign the Approval of agreement (Form 10) to give the agreement the legal recognition, so to speak.
However, if the Local Land Court is not satisfied as to the above requirements or one of the requirement is amiss; it can mediate and sign if mediation is successful or remit the matter for mediations and refuse to sign the Approval of Agreement.

CONCLUSION 
In consideration of all the circumstances of this particular case, the law and the case precedents on the issues raised and alluded to above, I find the following;
1.	The Approval of Agreement signed on 13th July, 2019 is not a valid agreement as all parties to the disputes were not present in court and did not sign.
2.	The process followed in endorsing the purported Approval of agreement was flawed and not in accordance with the process provided for under section 19 of the Land Disputes Settlement Act, thus rendering the Agreement invalid and must be set aside.
3.	The endorsement of the purported agreement in the light of the above findings does not amount to a lawful and valid Local Land Court Order.

Hence, in the light of the the above findings and conclusions and being empowered under section 59 of the Land Dispute Settlement Act, which states;
“POWERS ON APPEAL.
(1) In determining an appeal under this Division, a Provincial Land Court may–
(a) affirm the order; or
(b) quash the order and–
(i) make such other order as, in the opinion of the Court, will dispose of the appeal and the dispute; or
(ii) where, in the opinion of the Court, justice demands that the matter or part of the matter of the appeal be remitted to the Local Land Court, remit the matter, or that part of the matter to the Local Land Court.
(2) In remitting a matter to a Local Land Court under Subsection (1)(b)(ii), a Provincial Land Court may give such instructions, directions or guidelines to the Court as to the manner in which the matter remitted is to be dealt with as it thinks proper.”
I make the following as the formal orders of the Kimbe Provincial Land Court ;
1.	 The Approval of Agreement of 13th of July 2018 is quashed.

2.	The matter is remitted to the Local Land Court under section 59 (2) of the Land Disputes Settlement Act, 1975.

3.	The Local Land Court shall allocate a date for mediations to be held in accordance with section 32 (1) (11) of the Land Dispute Settlement Act, 1975.

4.	The Local Land Court shall appoint three (3) new mediators, apart from the  two (2) mediators who have already mediated the matter previously pursuant to section 59 (2) of the  Land Dispute Settlement Act.

5.	Parties to meet their own costs.

Orders accordingly,