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Biri v Aua [2009] PGNC 218; N4043 (26 June 2009)

N4043

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS NO. 428 OF 2003 (JR)

BETWEEN:

NAIME BIRI
Plaintiff

AND:

NAIME AUA
First Defendant

AND:

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Second Defendant

Waigani: Injia CJ
2009: 26th June

JUDICIAL REVIEW – application for judicial review –review of decision made by provincial land court - grounds of review include excess of jurisdiction, error of law, denial of right to be heard, ultra vires, and unreasonableness – Order 16 National Court Rules

JUDICIAL REVIEW – issue to be determined - whether the PLC Magistrate had before him the LLC records to deliberate on the matter – whether the Magistrates failure to invite a Land Mediator to sit with him on the appeal amounts to an error of law - invitation of Land Mediator is discretionary in the absence of formal request by plaintiff - judgment by PLC Magistrate shows that he considered all relevant matters including material contained in LLC records - procedural error or legal error by Magistrate not demonstrated by plaintiff- Court cannot interfere with his decision – application dismissed with costs to respondent – ss 38, 47 Land Disputes Settlement Act

Cases Cited:

Commissioner of Internal Revenue and Chief Collector of Taxes v Bougainville Copper Ltd (2008) SC920

Counsel:

Mr Geroro, for the Plaintiff
First Defendant in person
Mr Chillion, for the Second Defendant

26th June, 2009

1. INJIA, CJ: This is an application for judicial review made under O 16 of the National Court Rules. The plaintiff applies for a review of a decision made by the Provincial Land Court sitting in Port Moresby on 25th June 2003 regarding ownership of the Hanuabada By-pass land situated in downtown Port Moresby.

Facts and Circumstances

2. The plaintiff relies on his affidavits sworn on 30th August 2003 and 10th October 2003 and filed on 16th October 2003. The defendants rely on the affidavit of the first defendant sworn and filed on 17th August 2007.

3. In addition, the certified Court records of the Local Land Court (LLC) proceedings referenced NCL 42/98 and Provincial Land Court (PLC) referenced RLS 19/01 are before me. Further an English translation of the Land Mediators’ decision of 08/07/98 and a copy of the Notice of Appeal lodged with the PLC which were not part of the PLC records are before me.

4. The hearing before me proceeded on affidavit and other material tendered before me but did not involve oral evidence.

Submissions of the parties

5. Counsel representing the Plaintiff and Second Defendant made oral submissions based on their written submissions. The First defendant made written submissions and made oral submissions as well. He was assisted by Mr Kevin Dogodo who sat beside him at the bar table and gave him advice.

6. I deal with those submissions when I determine the grounds of the application.

Facts and circumstances

7. The brief facts and circumstances of the case extrapolated from the evidence and other material before me are these.

8. The customary land in dispute is the land on which the Hanuabada by-pass road is situated. The land is known as "Kavai Madai-Nebira" (the land). In 1998 a dispute arose amongst persons claiming customary ownership of this land. The dispute was processed under the Land Dispute Settlement Act (Ch No.45) ("the Act"). The dispute was first mediated by Mediators appointed under the Act. The disputing parties who registered their interest were Siaka Frank Bau and his group. Naime Aua was a member of his group. This group identified the land as Kavari Madai. Naime Biri and his group were parties to the dispute and they described the land as Nebira. The mediation failed to reach a settlement of the dispute. The matter was referred to the LLC. The disputing parties registered on the LLC documents are "Siak Frank Bau, Vagi Heni Nobo and Arua Arua Miria" as Complainants and "Lohia Tolana & Guba Tom" as defendants (see LLC Court order of 18th August 1999). Naime Biri’s name features in other LLC documents and record of hearing before LLC. On 18th August 1999, the LLC decided that "Siak Frank Bau and others to own the Land, and to collect any payments".

9. On 16th February 2001, "Naime Biri and others" appealed the decision. The others were Leonard Sabadi, Dala Rei Pipi and Ms Igo Rei. In the Notice of Appeal, they alleged that there was "misjudgment and total miscarriage of justice". The respondents named in the Notice of Appeal were Naime Aua and others. At the hearing of the appeal, Mr Naime Aua appeared with Mr Kevin Dogodo. The appellants provided affidavits and explanatory statements accompanying the notice of appeal. At the hearing both parties were heard. On 23rd June 2003, the Court, Magistrate W. Noki presiding, gave his decision. The Magistrate dismissed the appeal and affirmed the LLC decision. The Magistrate published his judgment. The judgment contains detailed reasons for decision. The Court order states:

"1. That the decision of the Port Moresby Local Land Court dated 18th January 2001, insofar as it relates to awarding of ownership rights to the "Kavali Madai (CB.81)- Hanuabada By-Pass) to the respondents is hereby affirmed.

2. That any dealing over the land to be headed by Mr Naime Aua.

3. That any payments in relation to the above land should be paid under Naime Aua’s name.

4. The appeal deposit of K100.00 is forfeited to the State".

10. Mr Naime Biri is aggrieved by this decision and has applied for judicial review.

Grounds of review and relief sought

11. There are six (6) grounds of review and these are as follows:

(1) The learned Magistrate exceeded his jurisdiction in determining an appeal from the Local Land Court in a manner contrary to section 47(b) of the Land Disputes Settlement Act.

(2) The learned Magistrate erred in law in failing to take into account and or consideration, the evidence of the Applicants/plaintiffs adduced in the Local Land Court in respect to the land known as Nebiri-Kavari Madai – CB: 81 – Hanuabada By Pass before arriving at his decision dated 25 June 2003.

(3) The learned Magistrate acted ultra vires his powers in arriving at his decision on 25 June 2003 when all relevant documentation and evidence in the Local Land Court file regarding the same land (CB 81: Hanuabada By Pass) and of which an appeal was lodged against the decision of the Local Land Court, was not available to him.

(4) In failing to retrieve the Local Land Court file, regarding the same land before making a decision in the matter, the applicants were denied the right to be heard on the matter.

(5) The learned Magistrate acted unreasonably in making his decision regarding the land known as Nebiri-Kavari Madai – CB 81 – Hanuabada by Pass, by failing to have the Local Land Court file located and to consider the evidence and all relevant documentation adduced in the Local Land Court.

(6) The Learned Magistrate denied the applicant’s right to be heard on the matter when he refused and or failed to allowed the parties to be heard on the matter and consider the applicants’ submissions in the Provincial Land Court regarding the land in issue, CB: 81 – Hanuabada By Pass.

12. The principal relief sought are as follows:

(1) A declaration that the decision of the Second Defendant to award ownership of rights pertaining to the Customary land known as ‘Kavari Madai – Nebira’ [CB:81 – Hanuabada By Pass], to the first defendant is null and void and of no effect.

(2) An order in the nature of certiorari to quash the decision of the Second Defendant dated 25 June 2003.

(3) The ownership rights to the land known as Kavari Madai-Nebira [CB:81 – Hanuabada By Pass] be awarded to the plaintiffs.

(4) Alternative to orders sought under paragraph four (3) above, the matter be remitted back to the Provincial Land Court for a rehearing.

Determination of grounds

13. The first ground of review purports to raise an error of law on the part of the PLC Magistrate in failing to invite a Land Mediator to sit with him to assist him as required by s 47 (1) (b) of the Act. I agree with Mr Chillion’s submission that this provision is not obligatory. This provision confers a discretion on the Magistrate to request such a person to sit with him in an appropriate case. The Court may exercise this discretion on its own accord or upon request by a party. There is no suggestion in this application that the parties requested the Magistrate to exercise this discretion. If the parties had requested the Magistrate to exercise his powers under s 47 (2) and if the discretion was exercised against the party making the request, the exercise of that discretion is reviewable by this Court. Further, the Magistrate saw no need to exercise his discretion. In the circumstances it cannot be said that the Magistrate exceeded his jurisdiction.

14. In his submissions, the plaintiff’s counsel relies on the Court’s alleged breach of s 68 and s 69 of the Act. However that is introducing a new ground of review without following the procedure set out in O16 r 6 of the National Court Rules. The plaintiff cannot be allowed to advance a ground which he has not set out in the Statement under O16 r 3 for which leave for review has been granted. For these reasons, this ground of review is dismissed.

15. Grounds 2, 3, 4 & 5 are related and can be dealt with together. The determination of these grounds is dependant on a factual finding on whether the LLC records before the PLC were considered by the PLC in conducting the appeal and reaching its decision.

16. The relevant provision of the Act on provision of LLC records is s.38 of the Act. This provision comes under Part IV (Local Land Court) which relates to proceedings before the LLC. Section 38 states:

s.38 Records and returns of cases.

(1) As far as practicable, a Local Land Court shall keep, or cause to be kept, a record of the proceedings in a form approved by the Minister.

(2) The record of proceedings shall include minutes of any evidence or information given in the proceedings before the Court.

(3) The reasons for the decision of the Court shall be recorded by the Local Land Magistrate on the record.

(4) The record of proceedings shall be certified by the Local Land Magistrate presiding at the hearing, and when so certified is prima facie evidence of the matters set out in it.

(5) The Local Land Magistrate shall forward a copy of the record of each proceedings to the Provincial Land Court.

(6) Nothing in this or any other Act prevents the conduct of proceedings, keeping of records or taking of minutes in Pisin, Hiri Motu or a vernacular language understood by all the parties.

17. There is no provision in Part V Div. 3 (Appellate Jurisdiction) of the Act which sets out procedure for appeals, which says the PLC must consider the LLC records supplied to it under s.38. However the purpose of s.38 is clear. It is to make the records available to PLC as a matter of course so that it can be considered in determining the appeal for an appeal without LLC records would be meaningless: In Commissioner of Internal Revenue and Chief Collector of Taxes v Bougainville Copper Ltd (2008) SC 920 the Supreme Court enunciated this principle at page 16 of the judgment in the following terms:

" The Land Disputes Settlement Act provides for appeals from a decision of the Local Land Court to the Provincial Land Court. The Act is silent on the appeal being by way of a rehearing. However, Section 38 provides for the Local Land Court to keep a written record of its proceedings including evidence taken, and to forward a certified copy of the record to the Provincial Land Court, as a matter of course, whether or not an appeal is filed. Section 58 which sets out the grounds of appeal that are open to be raised by an appellant, are the sorts of grounds that would be available to an appellant from errors which may be apparent from the face of the record and would require an examination of the records to resolve, eg excess of or refusal to exercise jurisdiction."

18. In the present case there is a dispute as to whether the PLC Magistrate had before him the LLC records. In the absence of any evidence from the PLC Magistrate on point, this Court is invited by the plaintiff’s counsel to go by the record of PLC proceedings and the plaintiff’s account of the PLC Magistrate’s conduct of the appeal. He points to a number of notes appearing on the record and copies of correspondence in the record which he submits suggests the LLC records of court proceedings were never before the PLC. He also relies on the plaintiff’s account of the PLC Magistrate’s conduct of the appeal as noted in his affidavit,

19. From the records of proceedings as at 02/09/02, it is clear the LLC and PLC files were not available to the PLC Magistrate because the Magistrate wrote in the Court worksheet that he "will dispatch a driver from my Court to get the relevant file". On 04/10/02 the LLC Magistrate wrote to the Clerk of the Land Court enclosing the LLC file on the matter. A copy of the same letter was forwarded to the parties (see annexure B of Plaintiff’s affidavit). I infer from this evidence that the PLC Magistrate did dispatch a driver to obtain the LLC and PLC files on the matter and the LLC Magistrate supplied the LLC records to the PLC Magistrate. The question is whether there is any evidence to show that the PLC Magistrate received the LLC file.

20. Subsequent records do not show if the file was physically before the PLC. In the written judgment published by the Court, no mention is made of the LLC and PLC files being made available and his consideration were based on the LLC records. The relevant PLC and LLC files have now been produced before this Court so we know the files did exist then and now. In these circumstances, the question is whether it is safe to find that the LLC records were not before the PLC and were not considered in determining the appeal.

21. The strongest indication on the whereabouts of the two files is the notation made by the Magistrate on 02/09/02. The next important activity is the LLC Magistrate’s letter dated 04/10/02. Thereafter the issue as to availability of the LLC records to the PLC never arose before the Court. I infer this from the absence of any record as to the unavailability of the LLC file. The certified LLC records and PLC records produced before me by the Clerk of the Land Court appear to be intact. The nature of the judgment given shows a detailed consideration of case history and circumstances surrounding the case. I get the impression that the LLC file reached the PLC Magistrate and had the LLC file before him and considered it in these circumstances.

22. Also the plaintiff or any party was entitled to ask the PLC Magistrate if he had received the LLC records sent to him by the LLC Magistrate and if he had them, then to request for and insist on being furnished with a copy of the LLC records for their use at the hearing of the appeal. In this way the parties would have conclusively known if LLC records were before the PLC Magistrate and obtained copies for their own use. There is no record in the PLC records and also there is no evidence put before me to show that any of the parties requested for and insisted on a copy being furnished to them. The plaintiff now assumes that the PLC Magistrate did not have the LLC records before him. In my view it is not safe for this Court to rely on such an assumption in the circumstances to find that the LLC file was not before the PLC Magistrate and it was considered by him at all.

23. And we now know that these files existed and the documents appear to be intact. It is very unlikely for a judicial officer, in this case a senior magistrate presiding as a PLC Magistrate, to deal with and determine the appeal from the LLC without the LLC records. If a party asserts this to be not the case, the onus is on the party making that assertion to refute the obvious with appropriate, relevant and credible evidence. The onus is on him to call for that evidence from the Land Court Clerk or even the PLC Magistrate and once produced, to test that evidence. The plaintiff has failed to do this.

24. For these reasons I find that the LLC records and PLC records for that matter were before the PLC Magistrate and considered them in determining the appeal.

25. Having reached this finding, it is not necessary to consider the Plaintiff’s arguments raised based on unavailability of the LLC records under grounds 2 – 5. This finding is determinative of grounds 2-5. I dismiss those grounds.

26. In relation to ground 6 which raises the issue of denial of natural justice, to the extent that it relates to unavailability of LLC records, for reasons given above, this ground is without merit. To the extent that the PLC Magistrate is alleged to have failed to give the parties an opportunity to be heard after the visit to the site after submissions and before judgment, it is not suggested by the plaintiff that parties requested the Magistrate to be heard in Court on what transpired at the site visit. Visit to the site in the PLC’s exercise of appellate jurisdiction is not provided for in the Act. It is a discretionary matter. Having visited the scene he is not required to convene another hearing to hear submissions on what transpired at the site. I know of no rule of law or practice which requires a Magistrate to conduct a further hearing in Court after a visit to the site or scene of an activity. In the absence of any request, I am not satisfied the Magistrate erred in that regard.

27. The parties advanced their case before the PLC with whatever material they had excluding the LLC records and the PLC Magistrate took care to hear them out and arranged a site visit to clear any uncertainty which he may have had about the case for the respective parties. Later he gave his judgment after considering all relevant matters including matters contained in the LLC records. And the judgment has all the ingredients of a valid judgment of the PLC.

28. The plaintiff takes issue with the PLC Magistrate’s published judgment. However I have no reason to suspect that the decision was concocted or fabricated by the Magistrate. It appears to be a genuine decision and I go by that record.

29. I am satisfied that the judgment given by the PLC Magistrate shows that he took into account all relevant matters including the material contained in the LLC records and reached a decision that was proper and warranted in the circumstances of the case. The records showed that the respondent’s exclusive interest in the land was recognized consistently throughout the proceedings by mediators and the LLC and even project developers. Based on this information he reached a conclusion that was supported by the material before him on the face of the record. I am not persuaded that the Magistrate committed any procedural or legal errors which would warrant this Court to interfere with his decision.

30. For these reasons I dismiss ground 6.

Conclusion & Orders

31. For these reasons, the application is dismissed with costs to the respondent.

_______________________________
Stevens Lawyers: Lawyers for the Plaintiff
First Defendant in person
Solicitor-General: Lawyer for the Second Defendant