N3102

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS NO. 183 OF 2000

BETWEEN:

GABRIEL GARIA for himself and on behalf of MARAYANG CLAN
Plaintiff

AND:

GNOB SAMU for himself and on behalf of MARADIRING CLAN
Defendant

Lae: Gabi, J
2005: 9, 10 & 19 May
2006: 17 February

PRACTICE AND PROCEDURE – S.50 (3) of the Land Dispute Settlement Act - Mandatory requirement – Failure to disclose information to parties renders decision null and void.

Cases Cited:
Kekedo v Burns Phillip (PNG) Limited & others [1988–89] PNGLR 122 
Boateng v The State [1990] PNGLR 342

Counsel:
P Ousi, for the plaintiff
G Anis, for the defendant

DECISION

17 February, 2006

1. GABI, J: 

Introduction: The plaintiff seeks judicial review of the Decision dated 10 December, 1999 of the Provincial Land Court in Lae.

Relief:

2. The plaintiff seeks the following relief:

"2.	The Relief sought are:

(a)	That leave be granted to me to apply for Judicial Review of the Decision of the Provincial Land Court at Lae handed down on 10 December, 1999 whereby the Court made the following Orders:

(i)	That the Decision of the Local Land Court is quashed.

(ii)	That the former interest or the customary ownership of the disputed land is reverted to Ngob Samu of Maradiring Clan.

(iii)	That the land use by other clanmen or other than the Maradiring clan is subject to the control of the landlord namely Ngob Samu of Maradiring Clan.

(iv)	Any person who is currently occupying or in use of the land may have the right for the uses and shall be under the control of the Landlord.

3.	An Order in the nature of certiorari that the Orders of the Provincial Land Court on 10th December, 1999 be brought into this Honourable Court and be quashed.

4.	An Order that the Plaintiff is the owner of Pabub land and/or alternatively this matter be remitted for re-hearing in the Provincial Land Court.

5.	Costs of these proceedings." (sic)

Grounds:

3. The grounds upon which the relief is sought are as follows:

"(i)	The Learned Magistrate denied me natural justice when he refused to hear evidence from my witnesses despite accepting evidence from the Respondent’s witnesses. The evidence from these witnesses would also contradict the evidence of the Respondent’s witnesses.

(ii)	The Learned Magistrate took into account irrelevant factors and based his Decision on evidence not presented in Court.

(iii)	The decision was tainted or based on misconception of the evidence or on unreliable evidence.

(iv)	The decision made was so unreasonable that there was a miscarriage of justice."

Facts:

4. The trial proceeded by way of affidavit evidence and oral testimonies. The plaintiff filed and relied on the following affidavits: three (3) affidavits of Gabriel Garia sworn on 5 April 2000, 6 February 2001 and 8 August 2001 respectively; affidavit of Tom David sworn on 8 August 2001; affidavit of Peter Guko sworn on 8 August 2001; and affidavit of Ben Nawie sworn on 22 June 2004. The respondent relied on the following affidavits: affidavit of Ngob Samu sworn on 2 August 2001 and affidavit of Bon Harry Amos sworn on 12 November 2002.

5. The brief facts are these. The plaintiff and the respondent were parties to a dispute over ownership of a customary land known as "Pabub" in Markham, Morobe Province. On or about 4 June 1998, the land mediators, namely Silas Sibisa and Thanney Maraba, referred the dispute to the Local Land Court. On 14 May 1999, the Local Land Court awarded ownership of the said land to the plaintiff. The respondent, having been aggrieved by the decision, appealed to the Provincial Land Court. On 10 December 1999, the Provincial Land Court upheld the appeal and quashed the decision of the Local land Court.

Submissions:

6. Both Counsel made extensive oral and written submissions. Counsel for the plaintiff submitted that the Provincial Land Court Magistrate, Bon Amos, and the land mediator, Silas Sibisa, are personally known to Ngob Samu, who has been a land mediator for over forty (40) years. As such, there is real likelihood of bias or apprehension of bias. He argued that the refusal of the learned Magistrate to allow the plaintiff’s witnesses to give evidence and his reliance on the evidence of the pastor and others, which evidence or information was not disclosed to the plaintiff to rebut, amount to denial of natural justice. He submitted that as there was no full and detailed inspection of the land, the learned Magistrate breached s.50 (4) of the Land Dispute Settlement Act (hereinafter the Act"). Furthermore, the failure by the learned Magistrate to consider the evidence that the plaintiff had been on the land in excess of twelve (12) years is contrary to s 67 of the Act as there is a rebuttable presumption that interest vests in the party who has been on the land in excess of twelve (12) years.

7. Counsel for the respondent submitted that there has been no denial of natural justice in that it was the plaintiff who elected not to call witnesses in the Provincial Land Court. Secondly, there is no evidence of bias before the Court.

The Law:

8. The law in respect of judicial review is settled in this jurisdiction. Judicial review is concerned with the process of decision making. It is available "where the decision making authority exceeds its powers, commits an error of law, commits a breach of natural justice, reaches a decision which no reasonable tribunal could have reached or abuses its powers." (see Kekedo v Burns Phillip (PNG) Limited & others [1988 – 89] PNGLR 122, per Kapi DCJ (as he then was) at p.124.

9. I am of the view that the plaintiff’s complaint is limited to breach of natural justice. His case is that the learned magistrate failed to allow him to call witnesses in the Provincial Land Court and to disclose the evidence of the pastor and others to him to rebut. In addition, he claims that the association between the learned Magistrate and the land mediator and the respondent ultimately influenced the outcome of the case.

Failure to call witnesses:

10. The evidence conflict. The evidence of Ngob Samu is that the appellant voluntarily refused to call witnesses because they may "bagarap" or "spoil" his case. Bon Harry Amos deposed that he advised both parties that he did not want to hear the same evidence already given in the Local Land Court. As a result of that direction, the appellant declined to call witnesses on the grounds that the evidence before the Local Land Court may be "spoilt" or "changed" by the witnesses.

11. The appellant’s evidence is that he was stopped from calling his witnesses while the respondent and his witness Giding Marafi were allowed to testify. He said that had he been allowed to call witnesses, he would have called Tom David, Gabriel David, Peter Guka and Ngep Ngasingoin.

12. The depositions show that Simon Namong, Peter Guko, Tom David, Gabriel David and Nashon Apiyong gave evidence in the Local Land Court. In the Provincial Land Court, the appellant and Simon Ngamong gave evidence. After a careful consideration of the evidence before me, I am unable to find that the appellant was denied the opportunity to present his case in the Provincial Land Court.

Failure to disclose the evidence of the pastor and others

13. In his Decision, the learned Magistrate said:

"8-5	The reaction from other people and the church pastor had confirmed that this land belongs to the Maradiring clan.

8-6	Therefore, the claim of ownership by the Marayang clan does not support by other factors as I have stated in the previous paragraphs (Para 5-4 and 5-5)" (sic).

14. The respondent testified that he was present when the pastor, Ati Fuia, and the learned Magistrate discussed the land boundaries. It is clear to me that the evidence obtained from the pastor and others was material evidence and given weight by the learned Magistrate to arrive at the decision that the land belonged to Maradiring clan. The evidence of the plaintiff is that the evidence or the information obtained from the pastor and others was never disclosed to him.

15. Section 50 of the Land Dispute Settlement Act provides:

"(1)	Subject to this Part, the practice and procedure of a Provincial Land Court are as prescribed.

(2)	Subject to this Part and the regulations, a Provincial Land Court –

(a)	is not bound by any law or rule of law, evidence, practice or procedure other than this Act; and

(b)	may call and examine, or permit the parties to call and examine, such witnesses as it thinks fit; and
(c)	may receive fresh evidence; and

(d)	may otherwise inform itself on any question before it in such manner as it thinks proper; and

(e)	subject to any guidelines laid down in the regulations, shall endeavour to do substantial justice between all persons interested, in accordance with this Act and any relevant custom.

(3)	Where a Provincial Land Court informs itself on any question in accordance with Subsection (2) (d), it shall -

(a)	make the information available to the parties; and
(b)	call for and hear argument on the information.

(4)	A Provincial Land Court may, where in its opinion it is necessary to do so, inspect the land in dispute before or during a hearing." (emphasis added)

16. A Provincial Land Court is entitled to inform itself on any question before it in any manner it thinks proper, provided that the evidence or information it obtains is disclosed to the parties to the dispute. A Magistrate is duty bound to act fairly and to do substantial justice between the parties. (see also section 59(2) of the Constitution). Section 50(3) is mandatory. A failure to observe the requirements renders a decision null and void.

17. There is no evidence before me that the evidence or information obtained from the pastor and others was placed before the parties. There has been a breach of s 50(3) of the Act. I am of the view that the decision is null and void.

Association between Ngob Samu and the learned Magistrate and Silas Sibisa

18. The evidence is that Silas Sibisa and the respondent have been land mediators and have done mediation work together previously. The respondent has been a land mediator for about forty-two (42) years. Silas Sibisa was the assessor in this case. The respondent said that he was known to the learned Magistrate, however, they never discussed the case. 

19. Considering the evidence before me, I am satisfied that a reasonable person would draw an inference or impression that there was an association or relationship between the respondent and the learned Magistrate and Silas Sibisa which could affect the outcome of the case. In Boateng v The State [1990] PNGLR 342, the Supreme Court said at page 346:

"Justice requires that there be complete absence of any inference or impression that a judge or his family have, by personal association with parties or witnesses, influence the outcome of a case. However, impeccable a judgment or a decision of judge might, the appearance created by such association in the mind of a reasonable man that justice might not have been done to a party cannot be remedied by the denials, however true, that such association had no effect on the outcome of the case." (emphasis added).

20. I accept the plaintiff’s argument that although there is no evidence of bias, there is, however, a perception of bias on the basis of the association between the learned Magistrate and the land mediator and the respondent. I find that the association or the relationship influenced the outcome of the case. For all the reasons stated in my judgement, I am of the opinion that there has been a breach of natural justice. I, therefore, make the following orders:

"1.	The Decision dated 10 December, 1999 is quashed.

2.	The matter be remitted to the Provincial Land Court for rehearing before a different Magistrate and Assessors.

Costs to the plaintiff to be agreed, if not, to be taxed."
____________________________________

Warner Shand Lawyers: Lawyer for the plaintiff
Gamoga & Co Lawyers: Lawyer for defendant