|
|
Home
| Databases
| WorldLII
| Search
| Feedback
National Court of Papua New Guinea |
PAPUA NEW GUINEA
IN THE NATIONAL COURT OF JUSTICE
OS NO 92 OF 2009
MARTINA JIMMY,
FOR HERSELF AND ON BEHALF OF BUALALI CLAN
First Plaintiff
KABULUBULU CLAN
Second Plaintiff
V
KEVEMUKI CLAN
Defendant
Kimbe: Cannings J
2009: 23, 24 June, 5 August, 23 October,
7 December,
2010: 25 June
JUDGMENT
JUDICIAL REVIEW – review of proceedings of Provincial Land Court hearing appeal against decision of Local Land Court under Land Disputes Settlement Act Chapter No 45 – whether Provincial Land Court proceedings conducted contrary to principles of natural justice – whether Provincial Land Magistrate obliged to walk boundaries of disputed land.
The plaintiffs sought judicial review by the National Court of a decision of the Provincial Land Court, which had dismissed appeals by the plaintiffs against a decision of the Local Land Court, which was in favour of the defendant. The two grounds of review were that the plaintiffs were denied natural justice by the Provincial Land Court and that the Provincial Land Court did not "walk the boundaries" of the disputed land and decided the case on the evidence of mediators and the defendant's witnesses.
Held:
(1) A Provincial Land Court hearing an appeal against a decision of the Local Land Court under the Land Disputes Settlement Act Chapter No 45 has a duty to conduct its proceedings in accordance with the principles of natural justice, the minimum requirement of which under Section 59(2) of the Constitution is the duty to act fairly and, in principle, to be seen to act fairly.
(2) The Provincial Land Court failed to comply with the principles of natural justice in that it did not address the plaintiffs' grounds of appeal, failed to give the plaintiffs the opportunity to make submissions on the evidence and failed to give good, proper and sufficient reasons for its decision. The first ground of judicial review was upheld.
(3) The Provincial Land Court did not err by failing to walk the boundaries of the land; and it was not sufficiently clear that it decided the case improperly by relying unduly on the evidence of mediators and the defendant's witnesses. The second ground of judicial review was dismissed.
(4) The question of what remedies should be granted is a matter of discretion. As the proceedings of the Provincial Land Court were conducted unfairly, it follows that its decision should be quashed and that the plaintiffs' appeals against the Local Land Court should be reinstated and re-heard by a differently constituted Provincial Land Court as soon as practicable. Orders made accordingly.
Cases cited
The following cases are cited in the judgment:
Balus Tara v Rachel Gugu (1982) N374(M)
Bougainville Copper Foundation v Minister for Trade and Industry (1989) N747
Jack Afing v Martin Pari (2006) N3034
Jack Nou v Richard Cherake, Magistrate, Provincial Land Court, Port Moresby (2004) N2539
Kely Kerua v Council Appeal Committee of the University of Papua New Guinea and University of Papua New Guinea (2004) N2534
Mision Asiki v Manasupe Zurenuoc (2005) SC797
Ombudsman Commission v Peter Yama (2004) SC747
The State v District Land Court at Kimbe; ex parte Casper Nuli [1981] PNGLR 192
Thomas Kavali v Thomas Hoihoi [1984] PNGLR 182
Wohengu v Hickey (2009) N3721
JUDICIAL REVIEW
This was a review by the National Court of the decision of a Provincial Land Court sitting on appeal under the Land Disputes Settlement Act Chapter No 45 against a decision of the Local Land Court.
Counsel
J K Abraham, for the first plaintiff
G Linge, for the second plaintiff
J Unido, for the defendant
25 June, 2010
1. CANNINGS J: This is a ruling on an application for judicial review of the decision of the West New Britain Provincial Land Court, constituted by his Worship, Mr Luke Vava, dated 27 June 2008, concerning ownership of customary land known as "Mutoko", near Karapi village, in the Hoskins area.
2. The Provincial Land Court's decision was to dismiss appeals by Martina Jimmy of Bualali clan (the first plaintiff) and representatives of the Kabulubulu clan against a decision of the Local Land Court, constituted by his Worship Mr Tera Dawai, dated 18 December 2007.
3. The Local Land Court order was that:
4. The appeal to the Provincial Land Court was made pursuant to Section 54 of the Land Disputes Settlement Act. Under Section 60 of that Act a decision of a Provincial Land Court on an appeal "is final and is not subject to appeal". However, that does not rule out a review. Under Section 155(3)(a) of the Constitution, the National Court "has an inherent power to review any exercise of judicial authority". It is well established that the National Court has power to review decisions of Provincial Land Courts (The State v District Land Court at Kimbe; ex parte Casper Nuli [1981] PNGLR 192; Jack Nou v Richard Cherake, Magistrate, Provincial Land Court, Port Moresby (2004) N2539; Jack Afing v Martin Pari (2006) N3034).
THE GROUNDS OF REVIEW AND THE RELIEF SOUGHT
5. Leave was granted to argue two grounds of review:
6. If either or both grounds are upheld the plaintiffs want the Court to quash the Provincial Land Court's order and reinstate their appeals.
ISSUES
7. There are three issues before the Court:
1 DID THE PROVINCIAL LAND COURT FAIL TO COMPLY WITH THE PRINCIPLES OF NATURAL JUSTICE?
8. Provincial Land Courts have been established under the Land Disputes Settlement Act Chapter No 45 to hear appeals against decisions of Local Land Courts. They form part of the National Judicial System under Sections 155(1)(c) and 172(1) of the Constitution. All Courts have a duty to conduct their proceedings in accordance with the principles of natural justice, the minimum requirement of which under Section 59(2) of the Constitution is the duty to act fairly and, in principle, to be seen to act fairly (Balus Tara v Rachel Gugu (1982) N374(M), Thomas Kavali v Thomas Hoihoi [1984] PNGLR 182, Bougainville Copper Foundation v Minister for Trade and Industry (1989) N747). The question raised by the first ground of review is whether the Provincial Land Court complied with this duty.
9. In determining this question, I have considered the records of the Provincial Land Court, particularly:
10. I have also considered the evidence put before the National Court, particularly the oral evidence and affidavits by the first plaintiff and her uncle.
11. I have considered this material not for the purpose of forming an opinion on the merits of the dispute that was before the Local Land Court and the Provincial Land Court (as the National Court has no jurisdiction to determine the question of ownership of customary land and that is not the issue before this Court) but for the purpose of making a determination of whether the Provincial Land Court complied with its duty to act fairly and to be seen to act fairly, and whether the first ground of review should be upheld.
12. I have concluded that the Provincial Land Court did not act fairly, in three respects.
(a) Failure to address the plaintiffs' grounds of appeal
13. The first plaintiff's notice of appeal to the Provincial Land Court, dated 12 March 2008, included the following grounds of appeal:
14. The second plaintiff's notice of appeal, dated 25 February 2008, provided two grounds of appeal:
15. When handing down the decision of the Provincial Land Court on 27 June 2008 the learned Provincial Land Court Magistrate made these remarks:
Having fully examined the evidence from both parties, the appellants' story and the respondent's story, with their genealogies, I find that there was no new evidence brought in by the parties and that the grounds of appeal against the decision of the Local Land Court were irrelevant and are not in line with the statutory grounds in the Land Disputes Settlement Act.
This court finds that the decision was well documented and followed the procedures of the Local Land Court. There was no lapse or any breach of rules of natural justice.
Kevemuki clan's evidence were convincing and stronger that other clans' evidence as found by the Local Land Court.
16. In his written judgment, the learned Provincial Land Court Magistrate, after briefly stating the background of the dispute, stated:
During hearing of the appeal, parties referred me to their original evidence or statements or affidavits filed during Local Land Court hearings.
The appellants claimed that mediators were being bribed and [the decision] of [the] Local Land Court were already made known to the winning party prior to official announcement. This has not been proved as there was no single Bualali and Kabulubulu prove to court of such allegations. [sic]
Even though I didn't walk the boundary I rely on the Local Land Court Magistrate and mediators' decision that they did walk and inspect the boundary of Vavasa land where mini estate was established. Vavasa is a large area of land owned by Karapi village.
There were number of clans in Karapi village and the major one is Kevemuki clan who first claimed ownership of Vavasa as disclosed in their evidence.
Bualali and Kabulubulu clans were part of Kevemuki clan through interchanges of marriage and family relationships.
I agreed with the Local Land Court's decision so I dismissed the appeal and confirmed the decision.
17. It will be observed that a common ground of appeal in both notices of appeal was that the Local Land Court conducted its hearing in a manner contrary to natural justice. Though the plaintiffs (the appellants before the Provincial Land Court) did not say so expressly, it is evident from the affidavits of Martina Jimmy (dated 15 April 2008) and Opnai Mamui and Eremas Rakoli (undated) filed in the Provincial Land Court that there was an allegation of apprehended bias against the learned Local Land Court Magistrate and the land mediators who assisted him in the case. It was alleged in the affidavits that, for example, the mediators had been observed associating with the defendants clan's members in the absence of the plaintiff clans' members.
18. These were serious allegations that were summarily dismissed by the learned Provincial Land Court Magistrate as being irrelevant and not in line with the statutory grounds of appeal. This was not a correct approach to take to such a ground of appeal. Section 58 (grounds of appeal) of the Land Disputes Settlement Act sets out the grounds on which a person aggrieved by a decision of a Local Land Court may appeal to a Provincial Land Court. It states:
An appeal under this Division may be made only on one or more of the following grounds:—
(a) that the Local Land Court exceeded or refused to exercise its jurisdiction; or
(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.
19. The ground of appeal, advanced by both plaintiffs, about the Local Land Court conducting its hearing in a manner contrary to natural justice, was directly in line with Section 58(b) of the Land Disputes Settlement Act. The Provincial Land Court was obliged to give this ground of appeal careful consideration but failed to do so. Instead, the ground of appeal was, in the learned Provincial Land Court Magistrate's final remarks, dismissed as irrelevant, and, in the written judgment, given only cursory consideration, by stating that there was no proof that the mediators were bribed. By failing to properly address this ground of appeal the learned Provincial Land Court Magistrate acted unfairly.
20. Another ground of appeal common to both notices of appeal was that the Local Land Court had not done justice to the parties. The first plaintiff's notice of appeal stated that "injustice in this case now leads to the decision to be appealed against", while the second plaintiff's notice of appeal stated that "no court doing justice between the parties would have made the decision appealed against". This ground of appeal was in line with Section 58(c) of the Land Disputes Settlement Act. The Provincial Land Court was obliged to give this ground of appeal careful consideration but failed to do so. Instead, it was, in the learned Provincial Land Court Magistrate's final remarks, dismissed as irrelevant, and, in the written judgment, ignored. By failing to properly address this ground of appeal the learned Provincial Land Court Magistrate acted unfairly.
(b) Failure to give the plaintiffs the opportunity to make submissions on the evidence
21. The records of the Provincial Land Court reveal that there was only one hearing – on or about 15 April 2008 – prior to the delivery of the decision on 27 June 2008. The first plaintiff has given evidence before the National Court that she was not permitted at that hearing to cross-examine the defendant's witnesses and was not given the opportunity to make submissions on the evidence. There is no evidence to rebut that assertion of fact and the records of the Provincial Land Court suggest that the assertion is correct. The learned Provincial Land Court Magistrate's final remarks and written judgment do not give any indication that witnesses were cross-examined or that submissions were made. I thus accept the first plaintiff's assertion and find as a fact that she was not given the opportunity to cross-examine the defendant's witnesses and to make submissions to the Provincial Land Court. Was that unfair? It must be noted that the Provincial Land Court has a wide discretion to determine its own procedures by virtue of Section 50 (practice, procedure and powers of Provincial Land Courts) of the Land Disputes Settlement Act, which states:
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.
22. The discretion to fix its own procedures conferred by Section 50(2) does not exclude the overriding duty of the Provincial Land Court to conduct its proceedings fairly and to be seen to be acting fairly. In the circumstances of this case, in view of the nature of the allegations being made in the grounds of appeal, it was incumbent on the Provincial Land Court to allow the plaintiffs to cross-examine the defendant's witnesses and to make submissions on the evidence. It would be a rare case indeed where any court could discharge its duty to act fairly and to be seen to act fairly by denying to a party the opportunity to make submissions on evidence that has been placed before the court. At the heart of natural justice is a person's right to be heard. A court only hears a person when it listens. It gives the person the right to present evidence and a right to make submissions on the evidence. The plaintiffs were denied the right to make submissions before the Provincial Land Court and were not treated fairly.
(c) Failure to give good, proper and sufficient reasons for the decision
23. It is part of the principles of natural justice and the duty to act fairly that once a decision is made the decision-maker must give good, proper and sufficient reasons for the decision. Two recent Supreme Court decisions have entrenched this principle: Ombudsman Commission v Peter Yama (2004) SC747 and Mision Asiki v Manasupe Zurenuoc (2005) SC797. It has been applied in numerous National Court decisions including Kely Kerua v Council Appeal Committee of the University of Papua New Guinea and University of Papua New Guinea (2004) N2534. In the latter case Injia DCJ, as he then was, stated:
The Appeals Committee's decision superseded the Student Discipline Committee's decision and it is incumbent on the Appeals Committee to provide some meaningful explanation of how it went about addressing the issues raised by the plaintiff and exercised its mind to it and arrived at its decision.
24. In the present case the learned Provincial Land Court Magistrate's judgment was very brief and failed to disclose, with respect, that his Worship had given serious consideration to the plaintiffs' grounds of appeal or considered the evidence that the plaintiffs had presented either to the Local Land Court or the Provincial Land Court. The duty to give proper reasons means there is a duty to provide the real reasons for a decision – a duty to candidly and transparently state the reasons (Wohengu v Hickey (2009) N3721). That duty was not complied with here.
Conclusion re ground 1
25. I find that the Provincial Land Court failed to comply with the principles of natural justice. The first ground of review is therefore upheld.
2 DID THE PROVINCIAL LAND COURT ERR BY NOT WALKING THE FULL BOUNDARIES OR DECIDING THE CASE ON MEDIATORS' AND DEFENDANT'S EVIDENCE?
26. This ground of review actually consists of two distinct arguments. First that the learned Provincial Land Court Magistrate erred by not walking the full boundaries of the disputed land. Secondly that he erred by deciding the case only on the mediators and defendant's evidence.
27. As to the first argument, I consider that it has little substance in view of Section 50(4) of the Land Disputes Settlement Act, which states:
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.
28. It is a matter for the Provincial Land Court to decide whether it is necessary to inspect the land. If it forms the opinion that it is necessary to do so, it is also a matter of discretion as to what parts of the land should be inspected and whether it is necessary to walk all boundaries. As I indicated earlier, the discretion available to the Provincial Land Court to determine its own procedures is subject to the overriding duty to conduct its proceedings fairly. It might be that in a particular case the circumstances will require that the Provincial Land Court inspect the land or even walk the full boundaries. But it has not been shown that this was such a case. The Provincial Land Court could have determined the plaintiffs' appeals properly – if it had complied with the principles of natural justice – without walking the full boundaries.
29. As to the second argument, it is not sufficiently clear that the Provincial Land Court decided the case improperly by relying unduly on the evidence of mediators and the defendant's witnesses.
Conclusion re ground 2
30. The Provincial Land Court did not commit any error of law by failing to walk the boundaries of the land; and it is not sufficiently clear that the Provincial Land Court had decided the case improperly by relying unduly on the evidence of mediators and the defendant's witnesses. The second ground of review is dismissed.
3 WHAT DECLARATIONS OR ORDERS SHOULD THE COURT MAKE?
31. It is now time to consider the consequences of upholding one of the grounds of review. This is a judicial review, which is a two-stage decision making process. First the plaintiff must establish one or more grounds of judicial review. If this is done, the second stage of the process is persuading the court that the plaintiff should be granted a remedy (Mision Asiki v Manasupe Zurenuoc (2005) SC797).
32. I have no hesitation in exercising the discretion of the National Court in favour of the plaintiffs and quashing the Provincial Land Court's decision. The decision was made contrary to the principles of natural justice and should not be allowed to stand. The dispute over ownership of the Mutoko land has been a hotly contested issue in the local community over the last 13 years. There have been a number of court cases, first in the Village Court, and subsequently there have been two sets of proceedings in both the Local Land Court and the Provincial Land Court. The dispute will only be fairly and properly resolved when all proceedings are conducted fairly and are seen to be conducted fairly in accordance with the requirements of the Constitution.
33. In addition to quashing the decision of the Provincial Land Court I will make other orders to ensure that this matter is brought to the immediate attention of the Senior Provincial Magistrate for West New Britain, so that it can be given an urgent priority. I point out that in view of Section 47(1)(b) of the Land Disputes Settlement Act it is necessary for the Provincial Land Court in this case to be constituted by three Provincial Land Magistrates.
COSTS
34. Costs normally 'follow the event', ie the party that loses a case has to pay the costs of the winning party. But this is always a matter of discretion. In view of the nature of this dispute and the circumstances of the case, I will order that all parties bear their own costs.
ORDERS
(1) It is declared that the proceedings of the West New Britain Provincial Land Court in PLC No 3 of 2008 were conducted contrary to the principles of natural justice.
(2) The order of the Provincial Land Court in PLC No 3 of 2008 dated 27 June 2008 is quashed.
(3) The appeals of the plaintiffs against the judgment and orders of the Local Land Court dated 18 December 2007 are reinstated and shall be reheard by a differently constituted Provincial Land Court in accordance with Section 47(1)(b) of the Land Disputes Settlement Act as soon as practicable.
(4) The Assistant Registrar of the National Court at Kimbe shall within three days after the date of this order serve sealed copies of the judgment and order of the National Court on the Clerk of the West New Britain Provincial Land Court who shall immediately serve those documents on the Senior Provincial Magistrate for West New Britain for his Worship's attention.
(5) Other relief claimed by the plaintiffs is refused.
(6) The parties shall bear their own costs.
(7) Time for entry of this order is abridged to the date of settlement by the Registrar, which shall take place forthwith.
Judgment accordingly.
____________________________
Jaminan Lawyers: Lawyers for the First Plaintiff
Linge & Associates: Lawyers for the Second Plaintiff
Muromu Lawyers: Lawyers for the Defendant
PacLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.paclii.org/pg/cases/PGNC/2010/120.html