N2064

PAPUA NEW GUINEA

[In The National Court of Justice]

O.S. NO. 637 of 1999

BETWEEN:

In the Matter of the Application of Richard Maribu
-Applicant-

AND:

Lae District Land Court
-1st Respondent-

AND:

Siomngaivon Clan
2nd Respondent-

LAE: INJIA, J.
2000: December 11
2001: March 9

Judicial review – Land – Customary Land – Mediation Agreement - Approved Mediation Agreement – Effect of – Land Dispute Settlement Act (Ch. No. 45), Ss.18, 19, 20, 27, 43 & 44

Cases cited:
Aviah Aihi v. The State [1981] PNGLR 81; 
Kekedo v. Burns Philip (PNG) Ltd [1988-89] PNGLR 122;
PNG v. Colbert [1988] PNGLR 138.

Counsel:
Applicant in person
Ms Kiele for the First Respondent
P. Ousi for the Second Respondent

9 MARCH 2001

INJIA, J.: This is an application to review the Provincial Land Court decision of the First Respondent dated 13 August 1999 in respect of customary land known as "Zinoto" pursuant to provisions of the Land Dispute Settlement Act (Ch. No. 45). The application is made under Order 16 of the National Court Rules. Leave to seek review was granted on 22/10/99. The District Court upheld an appeal by the respondent against the Local Land Court decision which awarded exclusive ownership rights over the customary land known "Zinoto" to the applicant. The District Court then referred the matter back to the Local Land Court for a re-hearing.

A procedural point is raised by Mr. Ousi of counsel for the Second Respondent in relation to the requirements for leave. He submits the Statement in Support of application for leave filed on 14/10/99 upon which leave was granted was defective in that the Statement was not verified as required by Order 16 r3(2)(b). Therefore he submits, this application should be dismissed because the application for leave was incompetent as the grant of leave was irregular. The applicant submits this argument is far too belated and it should be rejected.

I have perused the Statement and I agree with Mr. Ousi that it does not contain a verifying affidavit endorsed on the Statement. 

However, there is an affidavit filed by the applicant on 14/10/99 together with the Originating Summons, Notice of Motion seeking leave and Statement in support, which verifies all the matters contained in the Statement. In my view, this affidavit satisfies the requirement of O16 r3(2)(b). 

To support the application, the applicant relies on his affidavit sworn on 14/10/99, the affidavit of Elijah Maribu sworn on 19/10/99, affidavit of the applicant sworn on 20/6/00 and the affidavit of Mathew Yalom sworn on 18/6/00. The second respondent’s evidence comes from one Ben Anton, sworn on 3/4/00. The first respondent is only a nominal defendant and has not filed any affidavits or any submissions. There is some dispute between the parties on some aspect of the evidence in these affidavits, and which neither party wanted to test by way of cross-examination. Therefore, I must be careful not to make findings of fact on those disputed areas. Notwithstanding this, this review concerns what transpired in the District Land Court and my principal source of evidence or factual information is to be found in the records of proceedings of these Courts. And I have before me the relevant District Land Court and Local Land Court files to assist me in that regard.

This is a review under Order 16 of the National Court Rules and S.155(3) of the Constitution and not an appeal. Indeed an appeal against a District Land Court is precluded by statute: Land Dispute Settlement Act, s.60. Unlike an appeal, the nature and scope of review is limited in two respects. First judicial review is not concerned with the decision itself but the decision-making process: Kekedo v. Burns Philip (PNG) Ltd [1988-89] PNGLR 122, and second, it is very discretionary; and the discretion is not to be exercised readily but sparingly where:-

(a)	It is in the interest of justice;
	
(b)	There are cogent and convincing reasons and exceptional circumstances where some substantial injustice is manifest or the case is of special gravity; and
	
(c)	There are clear legal grounds meriting a review.	

See Aviah Aihi v. The State [1981] PNGLR 81; PNG v. Colbert [1988] PNGLR 138.

The decision sought to be reviewed was made on 13 August 1999 by the District Land Court at Lae. The Court upheld an appeal by the respondent against the Finschafen Local Land Court made on 7 February 1997 over customary land known as "Zinoto". The Local Land Court found that "Zinoto land" was exclusively owned by the "Molage Clan" and not by the "Korowal Clan". The principal representatives of these two disputing clans are Richard Maribu for the Molage Clan and Ben Anton for the Korowal Clan. The District Land Court quashed the Local Land Court decision and send the matter back for re-hearing. The grounds of review are:

(1)	The decision was wrong in law in that it was not based on any legal basis.
	
(2)	The decision was wrong in law in that it was based on a misconception and misconstruction of the reasons of the Local Land Court that awarded the land exclusively to the Molage Clan.
	
(3)	The decision was wrong in law and fact in that the First Respondent did not take into consideration all the relevant evidence that the Local Land Court relied on to award the disputed land exclusively to the Molage Clan.
	
(4)	The decision was wrong in law in that the appeal was conducted in a manner contrary to law and rules of practice.
	
(5)	There was substantial miscarriage of justice in view of all the circumstances of the case.	

In my view, grounds 1, 4 and 5 are general grounds which allege gross unfairness of the decision. Therefore, these need not be specifically addressed. Grounds 2 and relate to the misapprehension of the reasons for decision by the District Land Court in relation to the relevant evidence before the Local Land Court. The reasons for decision of both Courts are before me together with the original Court file documents. 

The main submissions of the applicant is that the District Land Court did not consider the sum effect of the entire Local Court decision which was based on the entirety of the evidence presented before him. Instead, the District Land Court based its decision entirely on para 6.4 and 7.0 of the Court’s decision, which parts did not deal with the evidence but other administrative aspects of the management of the dispute at the mediation stage. Therefore, it is submitted, the decision was flawed, that no reasonable tribunal doing justice would have arrived at such decision, and that as a result, substantial injustice was caused to the applicant. 

Counsel for the respondents submits that the Court made the decision on the basis of overwhelming evidence before the Local Land Court that the respondent had ownership and use of the land. It is also submitted that the Local Land Court erred in rejecting two witnesses of the respondent for giving evidence but this argument is not open in this review because it is not the decision of that Local Land Court which is under review before this Court.

The decision of the Local Land Court reviewed by the District Land Court on appeal is 9 pages long and is comprehensive and it includes a summation 
and analysis of the evidence before it, the Zinoto land boundary map and the history of mediation over the land going back to 1988. The magistrate’s conclusions are set out in para 6.4 – 7.0 – 7.1 of the written judgment which reads:

"6.4	From all evidence and features adduced in Court and then to the Court by both clans on different occasions but there has been no arguments in the ancestor times up to gran fathers times to their fathers time then the dispute over Zinoto land come up in 1993 between the Molage and Siomngaiwon clan after Molage disptued the same land with the Korovals and with Gaurus in 1988.
	
"7.0	However, the Court is of the view that the Zinoto land is exclusively owned by the Molage clan on the grounds that it is a normal human practice that if the Siomngaiwon owned the Zinoto land then it should have registered dispute with the Molage Korovals and Gaurus in 1988 however the Siomngaiwons kept silent while the Molages from the same Gomlongon village disputed and finally reached agreement with other clans in favour of the Molage clan.	
		
"7.1	Though the mediation agreement tendered by Molage as evidence of the mediation and agreement held from 29/2/88 – 2/3/88 between Molage and 	
	Koroval and Gauru was not endorsed by Patrol Officer David Kaura and or the agreement approved by the Local Land Court, that agreement was binding of the Molage, Gauru and Koroval and so respect the boundary they have set and agreed on as according to their ancestral discovery and use of the disputed Zinoto clan.	

The District Land Court judgment on appeal is short and it runs for 2 pages. The two main grounds of appeal were –

(1)	That the Local Court conducted its hearing in a manner contrary to natural justice;
	
(2)	That in the circumstances of the case, no Court doing justice between the parties would have made the decision appealed against. 	

The District Land Court’s reasons for decision is contained in the following paragraphs:

"I am of the opinion that those arguments cannot be accepted now because this is a retrial case now appealed against. The arguments are talking about what happened before and during the first hearing which is dated 10/5/95 in which the same local land court declared both clans joint owners and divided the timber royalty rights between the two clans as 60% for Molage and 40% for Siomngaivon.

"This decision was appealed and the District Land Court quashed that decision and ordered a retrial. The local land court then retried the case and awarded the land exclusively to Molage, which is the result of this appeal. This is an appeal over the retrial Decision so we cannot go back to the beginning as that should have been brought up by the appellant in the first appeal and not now. As far as the records of the local land court show the rehearing of the case was done properly according to procedure so the first ground of appeal must fail.
 
"Now as to the second ground of appeal which is, as in the circumstances of the case, the court could not have made, the decision it made on this ground the appellant submits the only reason the magistrate made the order giving the land to Molage was because they first registered the dispute. In order to answer this ground of appeal I will look at the reasoning of the magistrate in arriving at this decision. I refer to paragraph 6.4 and 7.0 of his judgment. In paragraph 6.4 he said I quote:

"PARAGRAPH 6.4

"From all evidence and features in court and then to the court by both clans, both clan on different occasions but there has been no arguments in the ancestor times up to grand fathers times to their fathers time, then the dispute over Zinoto come up in 1993 between the Molage and Siomngaivon clan after Molage clan disputed the same land with Korovals and with Gaurus in 1988.

"PARAGRAPH 7.0

"However the court is of the view that the Zinoto land is exclusively owned by the Molage clan on the grounds that it is a normal human practice that if the Siomngaivon owned the Zinoto then it should have registered the dispute with the Molages, Korovals and Gaurus in 1988, however the Siomngaivons kept silent while the Molage from the same Gomlongon village disputed and finally reached agreement thereafter claims in favour of the Molage clan.

"Now if the Magistrate had claimed no history was given to clearly ascertain who is the rightful owner then how did he decide that Molage owned the land. The only reason given then is in paragraph 7.0 because they first registered the dispute this does not prove they are the true land owners. I am of the opinion that the decision was based on the reasoning in paragraph 7.0 as quoted above. As such I consider this reasoning to be illogical and irrelevant factors were relied on to make the decision which was not based on customary principles of the people but on some illogical reasoning. So I must accept ground two of the appeal and rule that in the circumstances before the court as stated in paragraph 6.4 of the judgment the magistrate could not have made the decision he made in awarding the Zinoto customary land ownership exclusively to Molage clan as there was no basis to do so. I will allow the appeal…"

In my view, the Local Land Court’s decision is based on one fundamental legal assumption which is erroneous. 

The mediation agreement over the Zinoto land between the Molage and the Korovals in 1988, which was recorded in writing, was as the Magistrate found, not endorsed by Patrol Officer David Karum who supervised the medication and that the agreement was not approved by the Local Land Court. Sections 18 – 20 provides for recording of mediation agreements by mediators and approval of it by the Local Land Court. Sections 19 – 20 provide:-

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.	
20.	Effect of agreement

Until approved under Section 19 –
	
(a)	an agreement is, in any legal proceedings, evidence of the interests of the parties to the agreement in the land in dispute as at the date of the agreement; but
	
(b)	the agreement or any admission or concession made by a party in arriving at the agreement, is not binding on a party, his heirs, successors or assigns.	

Section 43 states the effect of orders of the Local Land Court as follows:-

43.	Effect of orders	
(1)	Subject to Section 44, an order of a Local Land Court made under this Part is, as between the parties and all persons claiming through them, conclusive evidence that the interest or interests in the land the subject of the dispute that is or are specified in the order may be exercised by the person or group of persons named in the order as being the person or group of persons vested with the interest or interests.
	
(2)	An order under Subsection (1) is not a bar to any claim of right by any person to exercise any interest other than the interest, as set out in the order, over the land or part of the land the subject of the order.
	
(3)	An order under Subsection (1) has effect, subject to Section 59, from the date on which it is made.
	
(a)	may not be made within 12 years after the date of the order; and

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. 

I presume the Patrol Officer who mediated the dispute in 1988 no doubt, as part of his normal duties, submitted the recorded mediation agreement to the Local Land Court under S.18(1)(d). There is however no record to show that either party applied to the Local Land Court to approve the agreement. And I accept the Local Land Court’s finding that it was not approved by the Local Land Court. Because of this, the dispute between the present parties re-surfaced and the Local Land Court heard it in its original jurisdiction to hear fresh disputes which are not the subject of approved mediation agreements: see S.26 and S.27(1)(g). And all interested parties claiming interest over the Zinoto land including the Molage and the Koroval who were the only parties to the 1988 mediation were entitled to have their claim heard and determined by the Local Land Court. That is how the respondent, the Simnagaivon clan represented by Ben Anton, joined the dispute before the Local Land Court because there was no approved mediation agreement between the Molage and the Koroval to bar their claim over the Zinoto land. And that is how the dispute was heard afresh by the Local Land Court as empowered by S.27(1)(g).

Therefore, it was wrong for the Local Land Court Magistrate to rely on the 1988 mediation agreement as evidence of preclusion of the respondents’ claim over the land. The dispute that the Local Land Court was hearing was not a mediation agreement approval hearing but a fresh hearing in which the applicant was entitled to bring his claim. I am satisfied that despite the evidence for both parties heard before the Local Land Court, the Local Land Court decided the dispute based primarily on the absence of the respondent in the mediation agreement in 1988. This conclusion was clearly erroneous in law and it caused grave injustice to the respondent. Hence I have come to the same conclusion as did the District Court Magistrate on appeal. For these reasons, I dismiss the application for review with costs to the respondent.
_________________________________________________________________
Lawyer for the Applicant			:	Applicant in person
Lawyer for the 1st Respondent		:	Public Prosecutor
Lawyer for the 2nd Respondent		:	Warner Shand