Unreported National Court Decisions
N549
PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]
O.S. NO. 6 OF 1986
BETWEEN: THE APPLICATION OF TOMBA EMBA & ORS.
APPLICANTS
AND: IN THE MATTER OF AN ORDER DATED 5 NOVEMBER 1985 MADE BY THE MENDI DISTRICT LAND COURT IN ITS APPELLATE JURISDICTION
Mount Hagen & Waigani
Los J
10 July 1985
22 August 1985
PREROGATIVE WRITS - Certiorary - Review of District Land Court decision - Order under Land Disputes Settlement Act - No substantial justice where party determined to frustrate negotiations - Natural justice - All parties informed of what magistrate has in mind.
Cases Cited
Iambakey Okuk v. Gerald Sidney Fallscheer [1980] PNGLR 274
Re Piawai, Pig & Masas Island [1974] PNGLR 235
The State v. Giddings [1981] PNGLR 423
Legislation
Land Disputes Settlement Act, Ch No.45
Counsel
P Kopunye, for Applicants.
D O’Connor for Respondents.
LOS J:  The applicant having been granted leave previously to apply for a judicial review, seeks an order in the nature of certiorary to remove to this court and quash a decision by Mendi District Land Court made in its appellate jurisdiction on the 5 November 1985. The decision involves a land known as Akume in the Mendi valley situated near the township of Mendi. Mr. O’Connor advised earlier that as his argument would be similar to the state counsel’s argument, it was agreed he would cover all the issues.
The dispute over the land has a long history. The dispute has been between the applicant’s clan, the Birop clan and the Komia clan. It is claimed that the Birop clan (the Birops) are the original owners (‘as graun’) of the land while the Komia clan (the Komias) are the recent occupiers of the land. The occupation was by conquest. In recognition of this fact it is claimed that the Komia clan has returned the first part of the land to the Birop clan subject to certain compensation being paid by the latter clan. The litigations began in 1982 when an agreement was made between certain members of the Birop clan and Komia clan to return the remaining part of the land to the Birops. Upon application pursuant to the provisions of the Land Dispute Settlements Act, Ch No.45 the agreement was approved by the Local Land Court on 12 November 1982. Other members of the Komia clan disputed the agreement hence the first formal proceedings began by way of appeal to the Mendi District Land Court.
The appeal was successful and the matter was remitted for re-hearing. The Mendi Local Land Court on 25 May 1984 decided in favour of the Birop clan. On 28 May 1984 Komia clan again lodged an appeal (the second appeal) to the Mendi District Land Court. On 5 November 1985 the Mendi District Land Court upheld the appeal and awarded the land to the Komia clan. It is this decision that the applicant seeks to review and quash. In upholding the appeal by Komia clan, the Mendi District Land Court quashed the decision of the Local Land Court and ordered that the interest in the Akume land be vested entirely in Komia clan, that members of the Komia clan that received the compensation return it in cash or in kind to the value of K10,000 within twelve months. The court also ordered that the appeal deposit be refunded in full to the appellants. The applicant advances three grounds of the application for review:
(a)      That the order was wrong in law;
(b)      That the order was contrary to the provisions of the Land Dispute Settlements Act; and
(c)      That the order was contrary to the principles of Natural Justice.
(A) THAT THE ORDER WAS WRONG IN LAW
The applicant argues that the learned magistrate was wrong in applying the provisions of s 67 of the Land Dispute Settlements Act because there was no clear evidence that Komia clan had exercised an interest over the land for more than twelve years. Further, in the light of the evidence of recent practice in Mendi, that land once acquired by conquest can be returned to the owners for a price.
Section 67 - Presumption as to vesting of interests.
“(1)    Notwithstanding any other law, proof that a party to a dispute has exercised an interest over the land the subject of the dispute for not less than 12 years without permission, agreement or approval of any other person sets up a presumption that that interest is vested in the first-mentioned party.
(2)      Where a presumption is set up under sub-s.(1), it may be rebutted only by evidence leading to clear proof that the interest is vested in some other person.”
I accept the history of the occupation as found by the Land Court magistrate in 1983. Sometime between 1938 and 1950 there was a fight beteen the Komias and the Birops. Komias chased Birops out of the Akume land. The Komias subsequently built houses on the land and planted gardens. There had been continued fights over the land. At one stage in 1954 a formal decision was made in favour of the Komias in respect of the part of the land known as Sebabanki. Despite this, fights and mediations continued until in November 1982 this part of the land was returned to the Birops by the Komias. The Birops paid as compensation twenty-eight pigs, 100 kina shells, K200 in cash and one bamboo of vegetable oil. This arrangement was sanctioned under s 19 of the Land Disputes Settlements Act. The other part of the land is now under dispute.
Mr Kopunye submits that a presumption as to vesting of interests in the land cannot apply because there have been continued mediations and negotiations. I can well understand the counsel’s submission in one respect. The occupation of the land by Komia clan was by conquest and therefore the original owners (the ‘as graun’ people) cannot be said to have acquiesced with the occupation of their land by the strangers. The continued fights and mediation meant the recent occupiers had not been given permission to settle on the land. Section 67 however, clearly sets up a presumption of vested interest regardless of occupation “without the permission, agreement or approval of any other person”. Such an interpretation gains supports in principle and facts in the case of Wena Kaigo v. Siwi Kurundo and Others [1976] PNGLR 34 at p 38:
“To recognize as owners of native land persons who had acquired that land by conquest after Government control had been established would undoubtedly be repugnant to the general principles of humanity but to recognize as owners of land those who had acquired it by conquest and who were in effective occupation of the land at the time when Government control was established is not repugnant to the general principles of humanity. It is the only practical and sensible basis upon which ownership of land can be recognized otherwise a tribunal would be faced with the impossible task of going back to the mists of time in order to ascertain who are the rightful owners of disputed land. Before the advent of the Administration native customary law had reigned supreme, and, it was not only expedient but also right and proper that when it imposed its own control the Administration should have recognized rights of ownership of land acquired by native custom even if native custom meant brute force.”
It is apparent therefore the applicant’s argument must fail.
In relation to the other argument, in my view, there is little dispute that a recent practice has developed in Mendi that a land could be returned to the ‘as graun’ people upon payment of compensation. Possibly the practice has developed because of the legal situation. The presumptive interest principle under the Land Disputes Settlements Act and the decided cases favour the recent occupiers more than the ‘as graun’ people, see Re Piawai, Pig & Masas Islands [1974] PNGLR 235, and The State v. Giddings [1981] PNGLR 423. The only question is whether the agreement to return the land to the ‘as graun’ people subject to the payment of certain compensation meets the approval of all the Komias. Apparently not.
On the first appeal, some members of the Komia clan claimed that one of their members negotiated to return the land to Birops as a revenge against other members of the Komia clan who he believed ‘poisoned’ his son. Mr. Giddings who entertained the first appeal as the District Land Court magistrate remitted the case for re-hearing on the major ground that no sufficient inquiry was made. He commented that the agreement “was bulldozed through the court so as to give its added strength of authority”.
At the re-hearing in March 1984 the Local Land Court was constituted by a magistrate and four mediators. The case began with careful selection of mediators. The Komias objected to one mediator and a replacement was appointed. Komias also objected to an interpreter so a different one was appointed. Witnesses were carefully examined. There were various adjournments, a physical view of the land was also taken. The magistrate had taken some time to consider his decision and on 25 May 1984 he awarded the land to the Birop clan. Three days after the decision the Komias lodged their second appeal. The grounds of appeal included bribery against the Local Land Court magistrate. The allegation of bribery was dropped when the magistrate had secured a judgment against one of the members of the Komia clan. I mention this aspect of the appeal for reasons that will be apparent later. The appeal was successful on other grounds and that this decision is subject to the review.
Mr. O’Connor for Komia clan argues that the whole case revolves around the question whether the negotiations were properly conducted and that the compensation was properly paid so that a permanent settlement was reached whereby the recent occupiers accepted the compensation and the original owners reacquired the land. The speed at which the agreement was approved by the Local Land Court raises suspicion, he says. The purpose of the Land Disputes Settlements Act is to ensure any settlement must be permanent and lasting. If I have understood him, he says a forced settlement cannot be long lasting. Mr. O’Connor’s argument does make sense as it accords with s 1 of the Act:
“The purpose of this Act is to provide a just, efficient and effective machinery for the settlement of disputes in relation to interests in customary land by:
(a)      encouraging self-reliance through the involvement of the people in the settlement of their own disputes; and
(b)      the use of the principles underlying traditional dispute settlement processes.”
The disputing parties must be allowed to settlement their own disputes in accordance with their own customs and ways. Indeed this is also a constitutional directive principle, National Goals and Directive Principles, Goal 5. In my view the principle and the purpose of the Act has been complied with. The question now, in my view, is how far can the disputants be allowed to go on. The disputes have gone on for years. One part of the land has been returned in accordance with the practice respected by both clans. The first appeal was upheld on the ground that there were insufficient inquiries made. The re-hearing processes had sufficiently involved the disputants. Sufficient evidence was produced on both sides. The learned magistrate was impressed with the advice of the independent mediators that were selected with the consent of all parties. The Komias were still not satisfied with the decision. This time they claimed bribery against the magistrate.
In my view the reversal of the Local Land Court decision mean that both parties will be back to the same position and to an extent back to the ‘negotiation table’. For several years this has not succeeded. It is apparent that some members of the Komia clan are determined to sabotage the efforts of their elders who have agreed to return the land to the Birop clan. “Self-reliance” method and “the use of the principles underlying traditional dispute settlement processes” have failed. The Act in my view does envisage at other times these methods may be unsuccessful in which case a forced settlement may be necessary. Reading of ss 4,27 and 40 of the Act together would support this assertion. There is evidence on both sides that the Birop clan is short of land because of the population increase while Komias that have interest on land are about 500. They have land elsewhere too. In my view therefore, the reversal of the Local Land Court decision in view of the facts of this case cannot achieve substantial justice required by the Land Disputes Settlements Act.
(B) THAT THE ORDER WAS CONTRARY TO THE PROVISIONS OF THE LAND DISPUTES SETTLEMENTS ACT
I do not say anything more than what I have said under the previous ground of application.
(C) THAT THE ORDER WAS CONTRARY TO THE PRINCIPLES OF NATURAL JUSTICE
Mr Kopunya argues that the magistrate should have invited the counsel to submit whether or not s 67 was applicable if his worship had in mind applying the provision of that section. As a result the Birop clan did not call evidence to rebut the Komia clan’s claim nor did the counsel address on the issue. It is apparent to me that Mr. Singomat who heard the second appeal had before him an advice from Mr. Giddings who is very experience in land matters. The advice included what decision he would give if he were to entertain the appeal and the grounds of the decision. The relevant part of the advice stated:
“Let me tell you what I now believe I would do on the basis of the evidence:
(1)      Uphold the appeal;
(2)      Proceed to make an order under s 59(b)(ii) and find:
(a)      that the rights to control, occupy and use AKUME LAND are entirely vested in the Komia group for reasons of their interest under s 67 of the Act;
(b)      Order Karl Embambo and those other Komias who accepted compensation from the Birop people to return the same value of property and cash which they received from the Birops within a set period.
(c)      Order the Birops not to interfere with Komias control, occupation and use of the land.”
I do not think the finding of presumptive interest under s 67 of the Act and using that as a basis of the decision has must bearing on this review. It is amply clear that the Komias are newcomers to the land and they recognize that. Those who object simply do not want to move. But as far as the legal argument go, that is, failure to observe natural justice, I find no difficulty in upholding the argument. Sections 50(1), (2) and 69 ensure that the proceedings before a District Land Court is not burdened with technical rules but consider all matters before it “in accordance with substantial justice”.
Subsection (3) of s 50:
“Where a Provincial Land Court informs itself on any question in accordance with subs (2) (d), it shall:
(a)      make the information available to the parties; and
(b)      call for and hear the argument on the information. (my emphasis)
The circumstances of this case is more like in the case of Ume More and Others v. The University of Papua New Guinea - Unreported Supreme Court judgment, No SC 310 dated 11 December 1985 though it involved enforcement of the provisions of the Constitution. One of the grounds upon which the appeal to the Supreme Court was successful was that the trial judge failed to draw the attention of the appellants and their counsel that he had in mind making certain orders. He did not ask them whether they had anything to say on these. The learned magistrate may have been influenced by a thought that as the Act did not require rigid and formal procedures, he did not have to apply the rule of natural justice. It does not matter whether a hearing is formal or less formal or non-judicial, the principles of natural justice must be observed where a decision or a determination affects other people and their interests. This is abundantly clear in many single judges decisions and the Supreme Court decisions, for example Iambakey Okuk v. Gerald Sidney Fallscheer [1980] PNGLR 274.
The lengthy provisions requiring notices to be served on other parties under s 70 in themselves indicate how serious the Act requires all parties to know and present or argue the issues.
I have come to a firm view that the District Land Courts orders on appeal in view of the nature of evidence produced before the Local Land Court cannot stand. That is, as it appears that a limited number of the members of the Komia Clan are determined to frustrate the efforts of the elders seeking a settlement, the orders could not have been aimed at achieving a substantial justice required under the Land Disputes Settlement Act. Further, had the learned magistrate in mind making orders based upon presumptive interest under s 67 of the Act, as is apparent in his orders, he should have called upon the applicants or their lawyer to address on the issue. This he failed to do. I grant therefore the orders asked.
ORDERS
The proceedings before the Mendi District Land Court in its appellate jurisdiction in relation to the land known as Akume be brought before the National Court and the decision of the said Court given on 5 November 1985 be quashed.
Lawyer for the Applicants: Peter C Kopunye
Lawyer for the Respondents: D O’Connor