Papua New Guinea Law Reports - 1981
[1981] PNGLR 192
PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]
THE STATE
V
DISTRICT LAND COURT EX PARTE CASPAR NULI
Rabaul
Bredmeyer J
22 June 1981
1 July 1981
PREROGATIVE WRITS - Certiorari - Grounds for certiorari to quash - Error on face of record of inferior court - District Land Court - No right of appeal from decision - Powers of District Land Court on appeal limited by statute - Excess of power - Certiorari available - Land Disputes Settlement Act 1975 s. 60*[cccviii]1 - Constitution ss. 155(3), 155(4).
INFERIOR COURTS - District Land Court - Jurisdiction on appeal from District Land Court - Powers limited by statute - Power exercised with “variations and alterations” - Error on face of record - Certiorari available to quash - Land Disputes Settlement Act, 1975, s. 60*[cccix]2 - Constitution ss. 155(3), 155(4).
Although there is no right of appeal from a decision of a District Land Court, given on appeal from a Local Land Court, the writ of certiorari is available under s. 155(3) or s. 155(4) of the Constitution to quash an error of law on the face of the record.
The powers of a District Land Court on appeal from a Local Land Court are confined to those alternatives set out in s. 60 of the Land Disputes Settlement Act 1975, namely, to affirm the order of the Local Land Court, to quash the order and make such other order as ... will dispose of the appeal and the dispute, or to quash the order and ... remit the matter to the Local Land Court.
Held:
Accordingly, where a District Land Court magistrate purported to “affirm” with “variations” and “alternatives”, that there was an error of law on the face of the record, to which certiorari would lie.
Certiorari:
This was a summons in accordance with O. 81 rr. 7 and 8 of the Rules of the National Supreme Court, for an order nisi for certiorari to remove into the National Court and quash an order made by a District Land Court magistrate on appeal from a Local Land Court.
Counsel:
S. Fowler, for the applicant.
Cur. adv. vult.
1 July 1981
BREDMEYER J:  Caspar Nuli has applied under O. 81 r. 1 of the Rules of the National Court for an order to show cause why a writ of certiorari should not issue to quash a decision given by the District Land Court at Kimbe on 13th April, 1981.
The decision of the District Land Court was given under s. 60 of the Land Disputes Settlement Act 1975 on an appeal from a decision of the Local Land Court. By s. 61 the effect of a decision of a District Land Court “is final and not subject to appeal in any way”. That section prevents any appeal to the National Court of Justice but it is not effective to prevent an application for review by means of a prerogative writ. Under s. 155(3) of the Constitution the National Court has “an inherent power to review any exercise of judicial authority” and under s. 155(4) the National Court has “an inherent power to make, in such circumstances as seem ... proper, orders in the nature of prerogative writs and such other orders as are necessary to do justice in the circumstances of a particular case”. Appeal and review are two different things. Appeal is prevented by s. 61 but review is open by those sections of the Constitution. Even if s. 155 of the Constitution did not exist, at common law certiorari lies even where a statute declares the decision of an inferior court to be “final”, for that only prevents an appeal, and an application for an order for certiorari is not an appeal: R. v. Medical Appeal Tribunal, ex parte Gilmore[cccx]3.
This application for certiorari is by way of originating summons. A copy of it was served on the magistrate concerned more than six days before the hearing before me, and the mistakes or omissions which the applicant intends to rely on have been adequately stated in the originating summons and in a separate document entitled “Grounds for Application”. There has thus been compliance with O. 81 rr. 7 and 8 and it is in order for me to hear the application. There was no appearance on behalf of the magistrate nor by the Ruka clan which was the other party to the appeal heard by the magistrate and no evidence that that clan had been served with the originating summons. The matter was thus before me ex parte.
At the commencement of his argument, Mr. Fowler, counsel for the applicant Caspar Nuli, tendered a number of documents to me including a certified copy of the District Land Court order and reasons for decision, a certified copy of the Local Land Court decision, a copy of the grounds of appeal from the Local Land Court to the District Land Court, etc. One of the documents tendered was a statutory declaration of Caspar Nuli alleging that the magistrate had a secret meeting with Ruka clan leaders for three hours on the day he gave his decision. I reject the tender of that statutory declaration as inadmissible because (a) I can only receive evidence on oath or by affidavit, and if by affidavit only after proper prior notice has been given to the magistrate and the Ruka clan members concerned under s. 40 of the Evidence Act 1975; (b) The allegations in the statutory declaration go to the ground of breach of natural justice and that was not a ground specified and therefore it would be contrary to O. 81 r. 8 to allow that to be argued; and (c) Even if Caspar Nuli had been called to give sworn evidence before me of the secret meeting alleged in the statutory declaration, I would be inclined not to hear him ex parte. This Court is required to observe the principles of natural justice under s. 59 of the Constitution and those principles would require that notice of the allegation be contained in the originating summons and that the summons be served on the magistrate and the Ruka clan members to give them an opportunity to be present at the court to hear this very serious allegation, and if they choose, to give evidence to refute it.
The only ground for certiorari specified and properly before me is error of law on the face of the record. To understand this ground it is necessary to describe briefly the proceedings that came before the District Land Court magistrate. Mr. Koronai. The Local Land Court consisting of a magistrate (Mr. P. Dende) and two mediators heard a dispute between Wasikuru and Ruka clans. The Local Land Court’s decision does not name the land in dispute but I am told by Mr. Fowler that the land concerned was named Rakatava situated at Talasea. The Local Land Court’s decision of 23rd April, 1980, was as follows:
“Decision of the Court
1.       Land is owned by Wasikuru clan.
2.       Ruka clan to harvest existing crops (coconuts and other crops) for five years ending 23rd April, 1985.
3.       Ruka clan not to plant new crops on disputed land.
4.       Ruka clan to pay annual rental of K100 per year to Wasikuru clan.
5.       Wasikuru clan to compensate Ruka clan for trees existing at the end of five years annual renting, on the 23rd April, 1985.
6.       Undeveloped areas are to remain Wasikuru land.”
The Ruka clan appealed against that decision to the District Land Court in a written document containing seven “points” of appeal. The clan also paid the deposit of K500. As Mr. Koronai correctly observed in his reasons for decision, there are only four permissible grounds of appeal under s. 59 of the Act and none of the seven “points” of appeal use the wording of any ground under the section. That is understandable as the appeal notice was drawn up by a layman. It was the District Land Court magistrate’s task to group the seven appeal points so far as possible under the four grounds allowed by s. 59. If any appeal point fell outside the grounds the magistrate could ignore it. I think all seven points can be brought under three of the permitted grounds. Point 1 was that the magistrate was wrong in his decision in giving the land to the Wasikuru clan, he should have given it to the Ruka clan. That point should have been construed under s. 59(c) “that in the circumstances of the case no court doing justice between the parties would have made such an order”. Points 2 to 6 relate to the natural justice ground, s. 59(b). Point 7, that there was no prior mediation of the dispute, can be related to s. 59(a), that the Local Land Court exceeded its jurisdiction.
The District Land Court magistrate published reasons for decision dated 13 April, 1981. Summarizing them he dealt with the natural justice points and found that the court had not conducted its hearing in a manner contrary to natural justice. He said that there had been prior mediation. Considering the evidence as to which clan owned the land, the learned magistrate said this:
“Evidence before the Local Land Court clearly show that this land Rakatava belongs to the Wasikuru clan with the Ruka clan regularly visiting it. The Ruka clan moved to this land just recently and the Wasikuru clan have lived and hunted over this land prior to the arrival of the Ruka clan. There are witnesses from Ruka clan of Buladava village who gave evidence to the point that this land is not theirs and see no reason to lie, as it is Wasikuru clan land. These witnesses are, Lenga Waluka, Herman Vokua, Pinda Kau and Gala Pandi who are all from Buludava village. There is no reason for them to tell lies as it would be gravely against their interests to do so, and go against their own clansmen as the consequences could be serious, but they went ahead and gave evidence against their clansman.”
Mr. Koronai concluded his reasons with this sentence:
“Finally having given the reasons set out I must now find that this appeal must fail and that the order of the Local Land Court handed down on 23rd of April 1980 must stand with slight variations to its order (see attached order and variation order).”
The attached order, also dated 13th April, 1981, reads as follows:
ORDER
“Having heard the parties to this appeal, I do find that this appeal by the Ruka clan is unsuccessful and this Court hereby ORDERS that:
(1)      The order of the Local Land Court is confirmed with the following slight alterations:
(a)      The boundary of this land now runs from Belaukaube track on the edge of the disputed coconut plantation from the south/west along a straight line above Buludava village until it meets Dala Utu track just above the edge of Committee Gala Pandi’s coconut plantation;
(b)      All land above this boundary belongs to the Wasikuru clan and all land below this boundary, including the coconuts planted and disputed belongs to the Ruka clan; and
(c)      Order as to annual payment of rent by Ruka clan to Wasikuru clan for five years and for the Wasikuru clan to compensate the Ruka clan at the end of 5 years, by the Local Land Court, is set aside.
(2)      IT IS FURTHER ORDERED that out of the K500 deposited by Ruka clan in respect of this appeal, only K400 is to be returned to them and the remaining K100 be retained by the Government in respect of this appeal.”
Mr. Fowler for the applicant has argued that the reasons for decision and the order reveal an error of law. I first look at the powers of appeal contained in s. 60:—
“S60   POWERS ON APPEAL
In determining an appeal under this Division, a District Land Court may:—
(a)      affirm the order; or
(b)      quash the order and shall—
(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 subject matter or part of the subject matter of the appeal be remitted to the Local Land Court, remit the matter to the Local Land Court and may, in doing so, give such instructions, directions or guidelines to that Court as to the manner in which the matter remitted is to be dealt with as it thinks fit.”
The order does not use the key words of the section as it should have done. It says “The order of the Local Land Court is confirmed with the following ‘slight alterations’.” The final sentence of the reasons, quoted above, uses similar words. To ascertain if the order is valid I must construe it under the words used in s. 60. The District Land Court is strictly bound by that section. It can only make the orders permitted by that section. As the appellant is limited to the four grounds of appeal set out in s. 59, so the appeal court is limited to the three alternatives under s. 60:
“(a)    to affirm the order;
OR
(b)(i)   to quash the order and make such other order as ... will dispose of the appeal and the dispute;
OR
(b)(ii)  to quash the order and ... to remit the matter to the Local Land Court ...”
What the learned magistrate has purported to do is to “affirm the order with slight variations”. He had no power to do that and has erred in law. If he affirms the order he must simply affirm it; he cannot add variations. This application for certiorari must succeed on that basis.
The “slight alterations” or “slight variations” which the magistrate has purported to add to the Local Land Court’s decision are by no means slight. They are major alterations but, perhaps being unsure of his powers to do so, the magistrate has described them as slight. The decision of the Local Land Court is one that is often given when original owners play host to (or allow, or tolerate) a new clan to settle on their land and some time later a land dispute occurs. The Local Land Court’s decision was a compromise, giving some rights to each side. The decision, quoted above in full, in summary was that the Wasikuru clan owned the land, the Ruka clan were the newcomers, the Ruka clan could harvest their existing crops on the part they occupied for a period of five years, they had to pay rent for that part of the land, they could not plant any new crops, they were not to use any undeveloped land, and at the end of five years they were to be paid compensation for their crops and, by inference, would have to vacate the land. Mr. Koronai’s decision radically changes that. It scraps the lease for five years to the Ruka clan of their existing coconut area. It simply partitions the land by a line drawn parallel to the coast. According to a sketch map tendered to me, the Ruka clan was given the coastal strip on which is situated coconut palms and Buludava village, and the Wasikuru clan was given the larger, inland portion of the land.
Can the magistrate’s order be upheld on the basis that, correctly interpreted, it is not an order affirming the Local Land Court’s order with variations (which I have found is ultra vires s. 60(a)) but an order which quashes the Local Land Court’s order and substitutes a new order, which is allowed under s. 60(b)(i)? The answer is, no. To answer the question, yes, would involve another error of law. Certainly, under s. 60(b)(i), a District Land Court can quash an order of the Local Land Court and substitute another order which, in its opinion, will dispose of the appeal and the dispute. But it can only exercise that power if it finds that one of the grounds of appeal of s. 59 has succeeded. The two sections must be read together. It is clear from the learned magistrate’s reasons for decision that the appellant clan did not succeed on any ground of appeal. It is a pre-condition to the exercise of the power under s. 60(b)(i) that one or more of the grounds of appeal under s. 59 has succeeded. None of the grounds succeeded so the magistrate’s order cannot be upheld under s. 60(b)(i).
Order 81 r. 2 reads:
“Orders to show cause shall be to show cause before the Full Court, unless the matter appears to be one of urgency, in which case the Court or Judge may make the Order returnable before a single Judge in Court or Chambers.”
The Rules of the Supreme Court 1900 (Queensland adopted) have been expressly adopted after Independence as Rules of Court of the National Court by s. 14 of the National Court Act 1975 and as Rules of Court of the Supreme Court by s. 45 of the Supreme Court Act 1975. In each case the adoption is “with the necessary modifications”. Probably by analogy with the provision contained in s. 42 of the Supreme Court Act I should read “Full Court” as “Supreme Court” in O. 81 r. 2.
I consider O. 81 r. 2 ultra vires s. 155(3)(a) and s. 155(4) of the Constitution. Those subsections give the National Court the power to review any exercise of judicial authority and to make orders in the nature of prerogative writs and that clearly implies a power to make orders nisi and orders absolute. Even if I were wrong on this, I consider the urgency of this present matter, the desirability of saving the parties some legal costs, and the relatively small compass of the points in issue, justify me in making the order nisi returnable before a single judge of the National Court which I propose to do.
The originating summons seeks an order nisi. Mr. Fowler asked that I grant it absolute in the first instance. I have power to do so under O. 81 r. 1 “where it appears necessary for the advancement of justice”. I decline to do so in the circumstances of this case where the Ruka clan have not been served with the originating summons, and thus have not been given an opportunity to be heard. I would have had no hesitation in making the order absolute if the Ruka clan had been served with the originating summons.
An order nisi will issue returnable before a single judge of the National Court at Kimbe in its August 1981 sittings.
Solicitor for the applicant: Warner Shand, Wilson & Associates.

[cccviii]* Infra p. 196.
[cccix]* Infra p. 196.
[cccx][1957] 1 Q.B. 574.