N260

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

REVA MASE
PLAINTIFF

V

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
DEFENDANT

Waigani: Narokobi AJ
24-25 September 1980; 29 September 1980; 1 October 1980

INTERLOCUTORY JUDGMENT

NAROKOBI AJ: In this case, the plaintiff sues as a representative of the Tubumaga Laurina clan. The precise nature and extent of the plaintiff’s claimed land is not very clear, as it seems there had been several amendments to the Statement of Claim since the start of these proceedings. In the Statement of Claim of 9th April 1979 the claim was for the land known as "Eranese" land the detailed delineation of which is contained in the Schedule. The plaintiff’s claim is that the Tubumaga Laurina clan are the owners of that land by custom and he sought possession of the land and demanded that the defendant vacate the land as he was an unlawful occupant. Prior to this claim, there had been other claims by the plaintiff apparently since 1977.

A Notice of Motion filed on 24th of September 1980, sought to add a new claim and sought an order to rectify the deed.

This followed the filing of a specially endorsed amended statement of claim which was filed on the fifth (5th) of September 1980.

Whether I could make an order concerning the deed seems to me to go to the merits of the case. At this stage, I restrict myself to the question of jurisdiction.

Mr. Lucas, counsel for the State argues that, for two reasons, I cannot hear this matter. First he says that all the disputed land has been fully contested before all the courts of the land. The highest court at the time, the High Court of Australia had decided on the issue. The matter is therefore res judicata. His second argument is that the Minister’s gazettal of the subject land is conclusive by operation of s.8 of the National Land Registration Act.

Mr. Mase argues that this court has the jurisdiction to decide on the substantial issues or the merits of this case. He argues principally that the doctrine of res judicata operates to estop the State from litigating an issue which was not contested before the highest court regarding the land he now claims.

He further argues that s.8 of the Land Act is subject to the Constitution and s.155 of the Constitution does not exclude the National Court from exercising its inherent power to review all judicial functions. Section 8 of the Act is also subject to other provisions of the Constitution and the Act itself.

Mr. Reva Mase argues in any case that he was never a party to the High Court decision. It was therefore open to him to litigate the subject land. Besides so he argues the land he claims was either awarded to his clan or was specifically left out in the long drawn legal battles which would have entered the corridors of judicial authority of the Privy Council but for the change of political fortunes. He refers especially to area No. 1.

Part 5 of the Schedule to the Constitution at Schedule 2.8(1)(d) accepts the legal doctrine of res judicata as part of the law of P.N.G. The doctrine of stare decisis or judicial precedent is also by the same schedule 2.8(1)(a) a part of the law of P.N.G.

Principles governing subordination of courts are set out in Schedule 2.9. Supreme Court decisions bind all lower courts except itself. Decisions of the National Court bind all other lower courts except itself and the Supreme Court.

Under Schedule 2.12 (1) (a) decisions of the High Court of Australia in so far as they apply to the parties in dispute and to the land in issue, have the same binding force as decisions of law of the Supreme Court. I would be bound by the High Court decision in a matter that has already been settled, and in which the same parties have been the contestants or where possibly a party that could have joined issues stood by and did nothing. At least that is how I understand the interplay of the common law doctrines of judicial precedent stare decisis and res judicata and estoppel.

To decide whether I have jurisdiction, I have to address myself to the following questions:

(1) 	Was Reva Mase or in the alternative Tubumaga Laurina Clan a party to the contest that went through various judicial tribunals in P.N.G. and finally to the High Court of Australia?

(2) 	Was the land in issue and upon which the High Court decided inclusive of the land the subject of present litigation? In other words, is all the land claimed by Reva Mase all or portion of land already decided upon by the High Court of Australia?

(3) 	If Reva Mase was not a party in answer to (1) above was he nevertheless estopped from litigation either because throughout, he stood by and did nothing or because the deed of release operates to estop him.

(4) 	If the claimed land in the present case, was not the land in issue in the High Court of Australia, was it subsequently included in the Minister’s declaration in the Government Gazette No. G 30 of 17th May, 1979, rendering it State land, and by operation of s.8 National land Registration Act, I am excluded from hearing it?

The fourth question can be dealt with easily. In this judgment I do not deal with the first second and the third issues.

Section 9 of that Act seeks to prevent appeal or review of the Minister’s declaration nor shall it be called into question in any legal proceedings. Compensation is excluded but under Part VI a person aggrieved, may make a claim to the Commission for a settlement payment.

Section 9 of the National Land Registration Act is expressly subject to s.s.57, 155, of the National Constitution. If there is anything to suggest that the National Court is excluded by this section then by the operation of the Constitution that much would be rendered unconstitutional and of no effect. This is not an issue I have to settle.

Section 57 of the Constitution enables any person to go to any court, including the National Court to have his claimed right enforced so long as he/she is a person with an interest, whether personal or not. The court is given a discretion to hear the person on the matter in question.

The Constitution s.155(3)(a) makes it clear that the National Court has an inherent power to review any exercise of judicial power or authority and such other jurisdiction and powers as are conferred on it by this Constitution or any law. That power may be removed or restricted by a Constitutional Law or an Act of the Parliament (s.155 (3) (e).)

It is argued that section 9 of the Natural Land Registration Act excluded the National Court’s jurisdiction. That, in my view is not correct.

Subsection (5) of s.155 of the Constitution makes it abundantly clear that whatever the restrictions an Act of Parliament might seek to place on the jurisdiction of the National Court pursuant to s.155(3)(e), it the National Court nevertheless has an inherent power of review where, in its opinion, there are over riding considerations of public policy in the special circumstances of a particular case. In other words, the Act simply cannot cut out the jurisdiction of the National Court to review any exercise of judicial authority.

It may be that this power is an unnecessary judicial surveillance of executive or even parliamentary activity. However, I think it is a vital, if not the most crucial safeguard in a Constitutional democracy. If by legislative enactments, interested and aggrieved persons could be excluded from ever approaching the courts for conflict resolution we would quickly reach a situation whereby the excluded aggrieved parties will resort to violence and severe political agitation to seek redress. Rule of Law would, by legislative action give way to rule of the mob.

I recall, in the making of the Constitution days those largely involved in government service, arguing strongly that subsection (5) should not exist. It was my strong personal protest that led to the inclusion of subsection (5). I foresaw then an over anxious executive, having every command of the Legislature, enacting laws, taking away or restricting human liberties, under written law and leaving the aggrieved with no recourse to a court of law, and justice and conscience.

Our Constitution is a fragile and flexible document. Various sections can be changed with different degrees of parliamentary approval. All sections can be changed by the Parliament. The people have no direct say, except through the elected representatives in the change of any provisions of their Constitution. A strong Executive with popular Parliamentary support may easily change or even subvert the will and the judicial power of the people, expressed through the Constitution, to be vested in the National Judicial System (s.158).

It is all the more important that the courts be not excluded ultimately from providing a forum in which competing interests of parties, including the State may be contested under prior acknowledged rules, designed to extract truth and under disinterested referees.

The judicial authority of the people is rightly vested in the National Judicial System (s.158). Other law may confer judicial authority in other tribunals (s.159(1) of the Constitution) outside the National Judicial System. But that cannot take away the National Court’s inherent power under s.155(4) to make whatever orders appropriate to do justice, and its inherent power of review under s.155(5) of the Constitution. Furthermore Section 166 of the Constitution makes it very clear that the National Court is a court of unlimited jurisdiction. It is also a superior court of record (s.163(2)).

I look to trends in Australia New Zealand Canada and the United States where native rights and titles rest on statute or even on treaties or on sovereign proclamations and find that the native people have not always done well.

I have not examined legislations in those countries, but I would be surprised if by legislation people are prevented from approaching the courts to seek redress following government or legislative action.

It may be argued that the situation in those countries is different to the situation in P.N.G. Mr. Lucas in fact argued that in those countries including England all the land is rightly owned by government in the first instance. I indicated in argument that I didn’t think the latter argument has much merit in P.N.G. today. In some respects P.N.G. is different. Both Germans and the British and subsequently the Australians have recognized the native title to land by native custom. In other respects, P.N.G. in my view at least since Independence, is no different from any other modern nation State.

The interests of a modern nation state often do not coincide with the interests and welfare of clans tribes and villagers which have been or may be dispossessed. As government machinery becomes complex, the State increasingly takes on the face of a stranger. The people, tribes and clans increasingly become alienated and estranged from roots of power. In this sense a modern nation State of P.N.G. is no different to other modern nation States. It is important therefore that the courts remain as a link between the individuals and the corporate personality of the State.

It is true that at this time some 3% of the entire land of P.N.G. is government land. My guess is that this 3% represents a significant percentage of the best land in P.N.G. Alienation of native land cannot and should not be equalled with progress, welfare development or even monetary increment to those dispossessed.

The purposes of the National Land Registration Act are clearly set out under the Preamble to the Act. The intentions of the State are also clear namely to stop once and for all any complaints and claims to land purchased before Independence to promote public good and to minimise costs or save money. My humble guess is that any law or policy which seeks to silence or prevent the people from seeking redress from some other tribunal than a tribunal directly under the Executive Arm of the State will increase rather than decrease complaints, increase rather than decrease cost and ultimately replace Constitutional democracy with executive dominance sanctioned by legislation.

Part VI of the Constitution carefully sets out the three principal arms of Government the Parliament the National Executive and the National Judicial System. Division 2 vests or entrusts the legislative power of the people in the Parliament. Division 4 of the Constitution vests or entrusts the executive power of the people in the National Executive, of which the Minister, acting pursuant to National Land Registration Act is a member who may legitimately exercise that power. The Constitution also vests the judicial power of the people in the National Judicial System of which the National Court is a part. These three Arms are in principle to be kept separate from each other.

An Act of Parliament may place judicial authority of the people in some other body than the courts. But it cannot, in my view cut off the National and Supreme Courts under the present frame of the Constitution. The National Land Act cannot, in my view operate to exclude the National Court’s jurisdiction.

It may be argued that the Constitution operates or comes into play only if the declaration of the Minister published in the Government Gazette is regarded as a judicial function. That in my view is a question of characterization of functions or acts of the Minister. What is material is whether, a person following the gazettal who has an interest in the matter genuinely believes he is being adversely affected. Provided his claim is not vexatious or trivial he may have recourse to the National Judicial System, including the National Court, in its original jurisdiction, or its review jurisdiction.

It may be, that in the present case, even if there is jurisdiction, the matter is res judicata, following the High Court decision. I reserve my judgment on this issue for the time being until I am further addressed by both parties on specific directions I will set out.

The only issue I am deciding now is this. Once the Minister made his declaration pursuant to Section 8 of the National Land Registration Act, Section 9 of that Act comes into play. That section is made subject to Sections 57 and 155 of the Constitution and to section 5 of the Act. Section 9 says that a declaration under s.8 is not subject to appeal or review and shall not be called in question in any proceedings. It also stops payment of compensation in respect of or arising out of any such declaration. Subsection (2) permits aggrieved parties to have recourse to Part VI of the Act for settlement payment. Section 5 of the National Land Registration Act is inapplicable here, because the issue is not one of determining whether a dispute exists or whether it is genuine. Besides section 4(b) of the same Act expressly excludes land that has been decided upon as customary land. The effect of section 4(b) is that if any land has been decided upon as customary land, it cannot be subject to gazettal as national land.

At this point in time I am not deciding whether all or any of the plaintiff’s claimed land falls within the meaning of section 4(b) of the National Land Registration Act. To decide that issue I will have to be further addressed on the specific directions I will come to later.

Section 9 of the Act seems to me to leave at least several alternatives to a contestant such as Reva Mase. He may accept the declaration and seek settlement payments under Part VI of the Act. If the contestant chooses to seek redress under Part VI then several preconditions apply and one post condition applies. First he must be a "prescribed person" as defined under s.40. Secondly, there must have been no ex gratia payment made in respect of that land previously. Thirdly, his claim may be opposed as non-admissible by the Commission under s.41, even before the merits of the claim can be heard. Furthermore a claimant under Part VI is or would be submitting to the limited jurisdiction of the Commissioner which does not include jurisdiction to decide on ownership rights or title to land.

On the preliminary issue of admissible claims a party aggrieved may appeal to the National Court (s.41(2)). On the question of settlement payment, there is a limited right of appeal against the Commission’s decision provided for under s.46 but only on failure by the Commission to follow the principles of natural justice as required by section 34(2) of the Act.

If Mr. Reva Mase is claiming land that has not been declared then the condition that there must not have been any ex gratia payments (s.40 (2)(b)) would not apply and he may have a claim. But, if it falls within land over which ex gratia payments have been made then he could not even approach the Commission as a "person prescribed" under s.40. It is unnecessary for me to decide this issue at this point in time, except to indicate that recourse to the Commission under Part VI of the Act is at least arguably open to him.

But Mr. Reva Mase’s claim goes well beyond claims envisaged under Part VI of the Act. He is claiming right title and interest to the claimed land under Customary Ownership. As I have indicated, my view is that the structure and specific provisions of the Constitution would not prevent him from approaching the National Court and subject to the question of res judicata the National Court would have jurisdiction.

Again subject to res judicata and issue of estoppel, Mr. Mase may proceed under s.57 of the Constitution. This section enables "any person who has an interest" in the protection and enforcement of a right or freedom referred to in Division 3 (sections 32-56 inclusive), to approach the National or Supreme Courts to have that right or freedom enforced. The court may move on its own initiative to have that right or freedom enforced by operation of section 57(1) of the Constitution. By operation of s.57(3) the court may make such orders and declarations as are necessary including orders or declarations relating to a statute whether or not it is in force.

Section 155 of the Constitution is also available to Mr. Reva Mase and I have already mentioned this aspect of the Constitution. It seems to me therefore that as a matter of Constitutional law, there is really no way the State can avoid the jurisdiction of the National Court. Once the Minister’s declaration is published in the Gazette I am of the view that a party aggrieved may either go to the Commission or to the Courts, depending on what he is claiming or complaining about.

I hold this view as a matter of general jurisdiction. Mr. Reva Mase may nevertheless be prevented from contesting the merits of his particular case before the National or even the Supreme Court by any rule of law including res judicata, estoppel or stare decisis.

The Constitution is the supreme law. But it is also a document which sets up various institutions, distributes various heads of power, and sets out various principles of law and justice. The Constitution itself adopts the doctrines of stare decisis, res judicata, the common law and equity, and customary law. The Constitutional adoption of these principles does not mean they are all in order and in perfect harmony with each other. In some specific issues, these principles may even be in violent conflict with each other.

To decide specifically whether I may entertain Mr. Reva Mase’s claim, I would have to resolve what may or may not be in conflict. I cannot decide these issues unless I am clear on the precise areas of land in dispute and on whether Mr. Reva Mase was a litigant in the previous High Court decision.

To assist me reach that decision, I propose the following order or directions, the answers to which should be supplied to me as soon as practicable by both parties:

(a) 	Is the declaration of the Minister in G 30 of 17th May, 1979 inclusive or purportedly inclusive of an area commonly known as Area No. 1?

(b) 	Is the declaration of the Minister in G 30 of 17th May, 1979 inclusive or purportedly inclusive of the red strip referred to by the plaintiff as area "G"?

(c) 	Does the declaration of the Minister in G 30 of 17th May, 1979 inclusive of or purportedly inclusive of a small southern portion in the area referred to by the plaintiff as area "F"?

I should also be addressed on the four (4) questions I outlined at p. 2 of my judgment, and especially the first question. Assistance on these issues will enable me to decide whether, even if the National Court has jurisdiction, that by operation of res judicata, or estoppel or some other law that I could not proceed to decide on the merits of the case.

It is my hope that both parties will act with speed to furnish me with these particulars or answers.

Solicitor for the State: A/State Solicitor, R.K. Woods
Counsel: G. Lucas
The Plaintiff, Mr. Reva Mase (of the Tubumaga