N770

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

THE APPLICATION OF NANGO PINZI ON 
BEHALF OF CERTAIN SIO PEOPLE

Waigani
Barnett J
17 October 1986
31 October 1989

REAL PROPERTY - Ownership of land - Settlement of disputes - Appeals - Appeal to Provincial Land Court - Powers and duties on appeal - Statutory grounds of appeal - To be dealt with specifically - Use of extraneous material - Custom - Determination of - Rebuttable presumption of vesting after 12 years possession - Not unjust deprivation of property - Land Disputes Settlement Act (Ch No 45), ss 39(2), 50, 58, 67, 68 - Constitution, s 53.

Held

(1) On appeal from the decision of a Local Land Court to the Provincial Land Court under the Land Disputes Settlement Act (Ch No 45), (the Act), the Provincial Land Court:

(a) where the ground of appeal is that "in the circumstances of the case no court doing justice between the parties would have made the decision appealed against" (s 58(c)), the court is not restricted to the evidence before the Local Land Court, but may examine further evidence provided it complies with the provisions of s 50(3) and makes the material available to the parties and invites argument thereon;

(b) because the grounds of appeal are limited to the grounds specified in s 58 of the Act, must deal specifically with the ground or grounds of appeal or the criteria to be established in its reasons for determination;

(c) must, where extraneous material such as patrol reports, is referred to, in accordance with s 50(3) of the Act, formally make the information available and formally call for argument thereon;

(d) must, where custom is a relevant issue in the case, inquire into, determine and apply custom as required by s 39(2) and s 68 of the Act in a manner which is directed to solving the dispute for the future rather than merely disposing of the appeal before it.

(2) Section 67 of the Act which creates a rebuttable presumption that interests which have been exercised for 12 years or more by one party without the "permission, agreement or approval of any other person" are presumed to have vested in that party unless there is clear evidence that the interest is vested in the other party, is an evidentiary aid only in the process of determining judicially, land disputes; the grant of possession of land, as a result of the application of the section does not amount to compulsory acquisition and is not an unjust deprivation of property contrary to s 53 of the Constitution.
Discussion of the purpose of the Land Disputes Settlement Act (Ch No 45).

Cases Cited

The State v District Land Court; Ex parte Nuli [1981] PNGLR 192.
The State v Giddings; Ex parte Tiangan Koan [1981] PNGLR 423.
Twimahene Adjeibi Kojo II v Opanin Kwadwo Bonsie and Anor [1957] 1 WLR 1223.
Wena Kaigo v Siwi Kurondo [1976] PNGLR 34.

Judicial Review

This was an application commenced by notice of motion pursuant to O 16, r 5, of the National Court Rules for review of a decision of the Provincial Land Court on appeal from the Local Land Court.

Counsel

B M Narokobi, for the applicants.
J Everingham, for the respondents.
Cur adv vult

31 October 1989

BARNETT J: This is an application for judicial review of a decision of the Provincial Land Court given at Lae on 29 November 1985 which had quashed the decision of a Local Land Court sitting at Wasu. The matter concerns the ownership and right to use land known as Nomba and Nom which is in dispute between the Sio and the Kulavi people.

The Local Land Court found that the land was owned by the Sio but, as the Kulavi had planted economic coconut trees, the Sios were ordered to pay compensation of K20,000. The Kulavis were ordered to vacate the land within one year. The Kulavis appealed against this order to the Provincial Land Court which quashed the decision of the Local Land Court and decided that the Kulavis had established the right to use the land. It granted the Sios only traditional right of passage over the land. It made no order as to ownership.

The applicants (the Sios) have asked this Court to review that decision of the Provincial Land Court. After a false start seeking to proceed by way of notice of appeal, the matter eventually came to this Court by way of notice of motion for judicial review under O 16, r 5, of the National Court Rules.

This procedure was adopted as s 60 of the Land Disputes Settlement Act (Ch No 45) provides that a decision of the Provincial Land Court is not subject to appeal. It is, however, well settled that s 155(3) of the Constitution gives inherent power to the National Court to review a decision of the Provincial Land Court (see The State v District Land Court; Ex parte Caspar Nuli [1981] PNGLR 192) and that s 155(4) empowers the National Court to make an order in the nature of a prerogative writ. The applicant has, in effect, sought such an order (certiorari).

Notice of application, statement in support and affidavit in support by Bernard Mullu Narokobi were served on the magistrate and the respondent. The magistrate has chosen not to respond (and has, in fact, now resigned and left the country).

As the Provincial Land Court decision under review was an appeal from a decision of the Local Land Court, I have had to review the depositions and court records of both courts.

The Local Land Court was presided over by a magistrate sitting with two mediators. They walked the land for one day and then conducted a hearing at Wasu over a period of two days. By agreement, six witnesses from each side gave evidence.

As each witness concluded his evidence, all of the "opposing" witnesses were allowed to cross-examine.

At the conclusion of the hearing, the Local Land Court magistrate found that the coastal lands known as Nomba and Nom were owned by the Sio people but that the Kulavi had moved down from inland "over the last 10 years or so" and planted coconuts and cash crops.

He ordered that:

"1. It is unanimous decision that the land known as kulavi (nomba & Nom) or ravoka is owned by sio clan and can use and do anything with it as they see fit and later be used by their children and their children’s children.

2. The land is ordered the property of the sio clan. Due to the improvements put on the land, the sio clan will pay compensation to the kulavis in the sum of K20,000.00. (I took into account that the Kulavis have used the land and harvest the economic trees for the last (10) years or so.) The said amount be paid within five (5) years from the date of this order. The said amount of which, the first payment of K4,000.00 to be paid by 1.12.85 and thereafter in the next five (5) years or as follows:

First payment due on — 1.12.1985 = K4,000.00
2nd payment due on — 1.12.1986 = K4,000.00
3rd payment due on — 1.12.1987 = K4,000.00
4th payment due on — 1.12.1988 = K4,000.00
5th payment due on — 1.12.1989 = K4,000.00

So by 1st day of December, 1989 the sio clan will have paid K20,000.00 to the kulavis of the selepet tribe.

3. The kulavis will continue to harvest the fruits of the economic trees until the first payment is made. The kulavis will cease to harvest the fruits of any economic trees on the date the first payment is made. The kulavis will continue to harvest and live on the produce of their existing gardens and that no new gardens to be made on [sic] the date of this order.

4. It is further ordered that the kulavis are to move out of the land within twelve (12) months from the date of this order. They can take out any moveable effects plus their domestic animals, birds etcetra [sic].

5. Should the sio clan fail in meeting any payment whatsoever by a period greater than thirty (30) days after the due date, then they will deem [sic] to have forfeited their previous payments as well as their ownership of the land.

Dated this 29th day of November 1984 S. Samuel Local Land Court Magistrate."

It is not clear whether the order gave the Kulavi people permission to harvest for the lifetime of the trees or just for the period of one year. Nor is it clear on what basis the compensation was calculated.

From reading his findings and comments it is clear that the Local Land Court magistrate based his decision as to ownership on the (conflicting) evidence of oral traditions, migratory movements, place names, the physical features of the respective parties, the existence and appearance of village sites and graves, and the existence and maturity of trees and cash crops. He does not appear to have given any consideration to the possible application of s 67 of the Land Disputes Settlement Act (Ch No 45) which created a rebuttable presumption that interests which have been exercised for 12 years or more by one party without the "permission, agreement or approval of any other person" are presumed to have vested in that party unless there is clear evidence that the interest is vested in the other party.

By ordering compensation and by allowing the Kulavis one year to vacate the land, the Local Land Court magistrate was clearly trying to carry out the underlying purpose behind the Land Disputes Settlement Act and was attempting to make an order which would settle the dispute in the longer term. He was not merely awarding ownership to one party. The Kulavi people appealed against that decision to the Provincial Land Court. It was originally alleged that the grounds of appeal were not reduced to writing or known but after commencement of these proceedings in the National Court a notice of appeal in this matter was located in the records of the Provincial Land Court and the ground stated was:

"That in the circumstances of the case, no court doing justice between the parties would have made such an order",

which is one of the grounds of appeal allowed by s 58 of the Land Disputes Settlement Act.

The appeal was heard on 8, 9 and 10 July 1985 by Provincial Land Court magistrate, Mr G C Lapthorne. Although it was open for him under the Act to sit with assessors, he chose to sit alone. He also visited and walked over the land and he conducted the appeal by way of rehearing. Two of the original Kulavi witnesses and four new ones gave evidence for the respondent and all the original Sio witnesses gave evidence for the applicant. The learned Provincial Land Court magistrate also referred to files and patrol reports some of which he mentioned on the face of the court record and in the body of the depositions of evidence.

He expressed himself as dissatisfied with the evidence of witnesses for both sides. In his reasons he stated:

"It is quite obvious that witnesses for both sides were either deliberately lying or at best stretching the truth."

He proceeded to quash the order of the Local Land Court and to substitute his own order dated 29 November 1985 in the following terms:

"1. Appeal upheld. The order of the Local Land Court made on the 29 November 1984 is quashed.

2 The people of Kulavi shall have possession of the land.

3. The Kulavi people shall permit reasonable passage to persons using the traditional track along the coast through the land.

4. People and groups that traditionally had landing rights to landing places on the land shall continue to do so.

5. The deposit of K500 paid by the Kulavi people (O/RAR52284 on 13 June 1985) is to be refunded in full."

He based his decision entirely on the operation of the rebuttable presumption created by s 67. He found on the facts that the Kulavi had been in possession of the land for in excess of 12 years and (presumably — for he did not expressly state it) that the presumption was not rebutted by clear evidence that possession was vested in the applicants. He did not deal with the question of ownership of the land, which the Local Land Court had awarded to the applicant. He gave, in fact, nothing to the applicant other than the right to land at traditional landing places on the beach and to pass through the land on the traditional coastal track.

Before considering the grounds of this application, I wish to make a few comments on the purposes of the Land Disputes Settlement Act. In this regard I have found the more detailed comments of Kearney Dep CJ, in The State v Giddings; Ex parte Tiangan Koan [1981] PNGLR 423 at 429 and 432, very helpful.

The main aim of the Act is to provide ways for the amicable settlement of disputes in accordance with substantial justice and to give full scope for customary dispute-settling procedures and local participation. To this end, the legislation goes to great lengths to set up a system of mediation before court proceedings are allowed to commence. Imposed court orders are seen as the last resort in the settlement process and even when an unresolved dispute goes eventually before the Local Land Court the composition of the Court must include mediators sitting with the magistrate. Even when the Local Land Court decision goes on appeal to the Provincial Land Court, there is provision for the magistrate to sit with assessors to enable maximum local participation (s 47(2)). The Provincial Land Court is directed, not so much to impose an order in favour of one party as against the other but, to make orders designed to "dispose of the appeal and the dispute".
It is clear that the courts are expected to consider a wide range of interests (as described in s 39) and to make orders tailored to do substantial justice in very complex situations, where concepts such as objective or absolute truth, and absolute ownership will rarely be determinable.

GROUNDS FOR REVIEW

The grounds for this application are set out in the affidavit of Bernard Mullu Narokobi, counsel for the applicant. In essence, those grounds are:

1. The Provincial Land Court magistrate made no positive finding that a ground of appeal permitted by s 58 of the Land Disputes Settlement Act had been established.

2. The Provincial Land Court magistrate did not determine and apply custom as required by s 39(2) and s 68 of the Land Disputes Settlement Act.

3. That the Provincial Land Court erred in applying s 67 of the Land Disputes Settlement Act as an irrebuttable presumption vesting a possessory interest in the respondents. A proper determination of custom would have provided clear evidence rebutting this presumption.

4. Section 67 of the Land Disputes Settlement Act operates to extinguish the applicant’s right to the land and therefore amounts to unjust deprivation of property contrary to s 53 of the National Constitution.

In his written submissions filed prior to the hearing of this application, counsel for the applicant raised an additional ground for review:

5. The Provincial Land Court magistrate placed undue reliance on patrol reports and files and did not give the applicant an opportunity to examine them and to provide argument as required by s 50 of the Land Disputes Settlement Act.

There being no objections by counsel for the respondents (though he commented unfavourably), I allowed this fresh ground to be argued.

Each ground will now be analysed in detail.

1. The Local Land Court magistrate made no positive finding that a ground of appeal permitted by s 58 had succeeded

Section 58 limits the grounds of appeal from a Local Land Court’s decision to:

"(a) that the Local Land Court exceeded or refused to exercise its jurisdiction;

(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 only ground specified in the appeal to the Provincial Land Court was that no court doing justice between the parties would have made the decision appealed against.

Nowhere in his reasons did the learned Provincial Land Court magistrate ever refer to the ground of appeal or to the criteria which should be established before allowing the appeal. This is an error on the face of the record which, by itself perhaps, would not constitute sufficient cause to interfere with the learned magistrate’s decision.

This error must, however, be taken into account when considering other possible errors before I exercise my discretion in this review.

2. The Provincial Land Court magistrate did not determine and apply custom as required by s 39(2) and s 68 of the Land Disputes Settlement Act

I interpret this section as requiring the magistrate to make determinations of custom only when custom is a relevant issue in the case. Mr Everingham, counsel for the respondent, argues that neither party was raising custom as a relevant issue before either the Local or Provincial Land Courts. He submitted that the issues were limited to factual matters such as the names given to various places and the history of migration by the various clans. The only determination of custom made by the magistrate was that land ownership in each group was organised according to patrilineal descent. (This custom was agreed by consent.)

This approach may be quite sufficient in cases where the only issue is which group of ancestors occupied the land in question at a particular point in time. In this case, however, the learned Provincial Land Court magistrate has separated "ownership" from "possession" and made an order allowing the Kulavis to continue in possession. There is substantial evidence that the Sios may have been the original owners by custom even if they have not recently exercised possessory rights. At present, the question of ownership is left unresolved (and with it possible customary rental payments). There should have been an inquiry into the custom regarding an agreement by the land-owning clan to let outsiders "use" the land and the customary terms of such agreements (if any). If, as is claimed by the Sios, the Kulavis were in breach of such an agreement and if, as the magistrate found, the Kulavis have gained a vested interest in possession of the land and the right to plant cash crops, then the whole question of their relationship with the original owners really needs to be determined. In order to do justice and to apply this Act correctly, the magistrate should also have inquired into any possible shortage of land amongst the two parties and considered the application of s 40 which would allow consideration to be given to former owners even if the operation of s 67 had resulted in possession of some (or part) of the land vesting in the Kulavis.

In this case s 39(2) and s 68 did require the magistrate to inquire into custom and in these circumstances that requirement is mandatory.

3. The Provincial Land Court erred in applying s 67 of the Land Disputes Settlement Act as an irrebuttable presumption vesting a possessory interest in the respondents. A proper determination of custom would have provided clear evidence rebutting this presumption

There is sufficient evidence in the depositions to justify the magistrate in finding that the Kulavis held possession for more than 12 years. Whether that evidence is so strong that "no court doing justice" could have found otherwise is not so clear.

It is possible also that a full investigation into custom would have given clear evidence of ownership and possibly shown that the original "possession" was by agreement but that the planting of cash crops was not with the permission, agreement or approval of the Sio people.

4. Section 67 of the Land Disputes Settlement Act operates to extinguish the applicant’s right to the land and therefore amounts to unjust deprivation of property contrary to s 53 of the Constitution

The applicant’s final objection about the use of s 67 is that the section is unconstitutional. Mr Narokobi argued that s 53 of the National Constitution provides that possession may not be compulsorily taken unless just compensation is paid. He argues that to grant possession as a result of the s 67 presumption would be to compulsorily acquire possession.

I find no merit whatsoever in this argument. Section 53 of the Constitution is designed to protect the individual against arbitrary seizure of his property by the State without just compensation. Section 67 of the Land Disputes Settlement Act is an evidentiary aid in determining interests in land according to due judicial process. The presumption, if it is fairly raised by facts proved in evidence, is then used as one factor in the normal decision-making process by a properly appointed court.

5. Referral to extraneous patrol reports and other materials in contravention of s 50(3)

The applicant correctly submits that, if the learned Provincial Land Court magistrate chose to refer to patrol reports and other files (as he is entitled to under s 50,(2)(d)), then he was obliged to:

(a) "make the information available to the parties"; and

(b) call for and hear argument on the information.

The magistrate clearly noted in the record that he referred to such material and specifically referred to:

A. "The letter about Land Disputes referred to District Commissioner. From Assistant District Commissioner Kabwum to OIC Wasu dated 10 March 1985. (sic) Comments on Nago and on this dispute."

B. Record of Mediation of 3 and 4 August 1981.

Mr Narokobi submits that there is no indication that the magistrate advised the parties of his private research into these materials or that he complied with the mandatory requirements of s 50(3). He argues that this was a denial of natural justice as well as a contravention of the section which should require this Court to overturn his decision.

A closer examination of the depositions taken by the Provincial Land Court shows that the magistrate specifically noted in the record that he referred to files 34-1-2 and 35-1-7 (p 94). The way these are noted shows they were examined in open court and commented upon by the magistrate. On p 10, it is clear that on at least one occasion a Sio witness argued that the file referred to a different incident (so argument apparently was allowed in that instance at least).

It is not clear, however, that the magistrate made the files available to the parties or called for arguments as required by s 50(3). It should be noted that the letter dated 10 March 1975 contains some highly prejudicial comments from the District Commissioner regarding the claim brought by Nango Pinzi in 1975. It was in these terms:

"Officer in Charge
Patrol Post
WASU
Morobe District

Subject: land dispute reported to the district commissioner

Some natives of Sio Village, led by Nango Hiskia of Sio, have approached the DC in Lae and reported a dispute over land.

The District Commissioner has written to this office and suggests that we contact you to have the matter investigated.

Below is a quote from his letter, the notes in brackets are mine.

‘The land concerned is situated between Sio village and Wasu Station. It is claimed that the land is occupied by some villages from the Selepet CD (actually Kalalo CD). The villages named were not in the Directory but one of them is Molanpipi (probably Belombibi). This land has been used by these people for about 9 years and in 1973 they moved in and settled on the ground.’

‘Nango claims that the above land is his inherited through his father. He further states that his father was unable to get the squatters off the land and they refused to do so. Coconut seedlings planted by Nango’s father were pulled out by the squatters and thrown away and this was first reported to a Patrol Officer at Wasu (not me).’

The DC then finishes with the comment "it seemed possible that the squatters may have a valid claim on the land".

I think you will find that the land is somewhere between the Kwama River and the Kaziwa creek. This land is generally claimed and occupied by the villages of Kulavi and Belombibi. The Kulavis occupy the coastal strip and the Belombibis occupy the higher section.

I think you will find that this is another example of Sio "Colonialism" stirred up by that PO on leave from Madang. Without wishing to prejudice your investigations I feel you will find that the Sio have no claim.

When you have contacted the complainants you should also point out to them that the correct channel for such complaints is through your office first.

Please investigate the dispute and reply direct to the District Commissioner with a copy to this Office please.

P S Edwards a/ADC Kabwum"

Whether to make an order in the nature of certiorari is a matter for the discretion of this Court. It seems that the magistrate erred in failing to make the documents physically available to the parties and in not formally inviting argument upon them. Had that been done, it would probably have been noted on the depositions which were recorded meticulously directly onto a typewriter. (There was, however, no affidavit evidence from any person present at the hearing to swear that the files were not made available to the parties.)

I ask myself now whether this likely failure by the magistrate should lead me to interfere with his decision. It does not seem as though he was making secret reference to outside documents as originally submitted by Mr Narokobi. It seems he openly disclosed the research he was doing in court at the time. Obviously he was prepared to entertain comment by the (unrepresented) parties in those informal proceedings as Sio comments were recorded on one occasion. He was, in fact, checking evidence of traditional oral histories against more contemporary evidence (as recorded in files) in the manner approved by Saldana J in Wena Kaigo v Siwi Kurondo [1976] PNGLR 34 and referred to favourably by Kearney Dep CJ in The State v Giddings at 430. These judges in turn were following the approach approved by the Judicial Committee of the Privy Council (Reid, Denning LJJ and de Silva J) in Twimahene Adjeibi Kojo II v Opanin Kwadwo Bonsie and Anor [1957] 1 WLR 1223 at 1226.

It should be remembered that the magistrate’s task in this appeal was to decide whether "in the circumstances of the case no court doing justice between the parties would have made the decision appealed against".

Does "in the circumstances of the case" mean "on the evidence before the Land Court magistrate" or does it allow the Provincial Land Court magistrate to assess justice on the basis of his further inquiries into the wider circumstances of the case found in documentary evidence which was not before the Local Land Court? Clearly, the Provincial Land Court magistrate is allowed to examine such new evidence as it is provided for by s 50(2)(d), but if he does so he must comply strictly with the provisions of s 50(3) and make the material available to the parties and invite argument.

It is most unfortunate that this ground was raised only at the last minute because it meant that the learned magistrate was never given notice of it and therefore was given no chance to explain what happened regarding this aspect.

FINDINGS

The final result of this review is that I find there have been sufficient errors to amount to a substantial miscarriage of justice. First, the magistrate did not clearly address the fact that he should not allow the appeal merely because he disagreed with the lower court’s decision but only if he was satisfied "in the circumstances of the case that no court doing justice could have reached the decision appealed against". Secondly, the magistrate failed to determine questions of custom regarding ownership, usage and possession which, had he done so, may have influenced him to make an order which addressed those rights separately and which was directed more towards solving the "dispute" for the future and not just towards disposing of the present "appeal". Finally, the magistrate erred in not positively making all the written records which he perused (and found were relevant to the issues) available to the parties and in not inviting argument on them. This is particularly so in relation to the letter of 10 March 1975 which included references which were highly damaging to the applicant’s case on the very issue which the learned magistrate then determined in favour of the respondents.

For these reasons I quash the decision of the Provincial Land Court dated 29 November 1985 and remit the appeal back to the Provincial Land Court for rehearing before another magistrate.

Decision of Provincial Land Court quashed Matter remitted for rehearing

____________________

Lawyer for the appellant: B M Narokobi.
Lawyer for the respondent: J Everingham.