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Bruce v Penu [2013] PGNC 156; N5294 (17 June 2013)

N5294

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS NO. 708 OF 1999

BETWEEN:

JOHN BRUCE & MICHAEL PORA
Acting for and on behalf of DUPANGA MEVI CLAN
Plaintiff

AND:

WANPIS PENU
First Defendant

AND:

NATANAIAS MARUM
Commissioner of the National Land Commission
Second Defendant

AND:

THE SECRETARY
Department of Lands & Physical Planning
Third Defendant

AND:

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Fourth Defendant

AND:

DR. THOMAS WEBSTER
Administrator of the Department of Western Highlands
Fifth Defendant

Mount Hagen: Poole, J
2013: 23 May & 17 June

PRACTICE – Judicial review – Claim for payment of compensation – Section9 National Land Registration Act – Claim to entitlement contested by parties claiming customary title to Declared Land – Land Dispute Settlement Act – National Court lacks jurisdiction.

JURISDICTION – Competing claims for payment of compensation for Declared Land – National Land Registration Act – Land Dispute Settlement Act – Local Land Courts exclusive jurisdiction.

Counsel:
N/A
N/A

17th June, 2013

1. POOLE, J: Background: The Plaintiffs seek to have the court Judicially Review the decision of the Second Defendant, made under section 9 of the National Land Registration Act, that the State pay compensation to the First Defendant in respect of the Declaration of land known as Koban Plantation (UAL 373) to be National Land.

2. As is common in such matters, much time has been spent in filing many documents concerning the merits of the claims by various parties.

3. These may be of critical interest to the parties but, in a Judicial Review, they are of no interest to the Court. The merits of the decision to be reviewed are not to be considered. The Court, as has been said many times, in many cases, over many years, is interested only in the procedure – making process by which the decision was arrived at. If the procedure was correct and fair, parties with sufficient interest have been afforded natural justice (especially the right to be heard by an impartial tribunal) and, if the decision was correctly made, that is the end of the matter. This proposition is so fundamental to the law of Papua New Guinea that it should require neither authorities nor repeating.

4. For the Plaintiffs to succeed in this Application they must establish that the decision making process was flawed because the Second Defendant;

• Lacked jurisdiction to make the decision
• Misdirected itself by taking into account matters which were not relevant or failing to take into account matters which were relevant.
• Failed to afford the applicant natural justice (in this instance denied a right to be heard)
• Was not impartial; or
• Arrived at a decision which was so illogical and unreasonable that it cannot be allowed to stand: (a breach of "the Wednesbury Corporation" principal.)
  

5. In addition, before being heard, a party must exhaust any administrative right of appeal that may be available to it in order to have the Court's Leave to make the Application.

6. In this case, the Plaintiffs claim they were denied the opportunity to be heard when the Second Defendant conducted a hearing at Gauli village in October 1999. They were granted Leave, to bring this Application on 6th January 2000 and, while seeking a number of other Orders, the main relief they seek is that the Second Defendant, as Commissioner of the National Lands Commission, conduct a fresh hearing at which it can consider the Plaintiffs' claim.

7. The facts before the Court are:

• The land was declared by the Minister and the Commissioner was to deal with claims for compensation by traditional owners.
• The Commissioner says he held a meeting at Gauli village to hear claims from parties claiming to be customary owners.
• The Plaintiffs and a number of their witnesses claim there was no hearing held or that they were not aware of any hearing.
• The Defendants claim that not only was there a hearing but that they saw the Plaintiffs there.
  

8. I find that the real issue to be determined is who is entitled to be paid the compensation due to customary owners of the Declared Land. This cannot be decided until it is determined which of the disputing parties were the rightful customary owners of the land.

9. This question is not one which the National Court has jurisdiction to decide. The jurisdiction to decide customary ownership of land is vested exclusively with the Local Land Court by virtue of the Land Dispute Settlement Act.

10. I note the Commission's statement in his decision that the claimants before him (Defendants in this Application) lack the proof required to establish their case, and his later statement that "Natural Justice must prevail." Natural justice required that the Plaintiffs be heard. Justice also required that the Claimants prove their case to the requisite standard of proof. Neither of these two conditions was fulfilled.

11. Accordingly, I Order;

1. The question of customary ownership giving rise to entitlement to compensation for the Declared Land known as Koban, UAL Portion 373 Milinch of Hagen, fourmil Ramu be remitted to the Local Land Court in its ancillary Jurisdiction;

2. The Commissioner's decision of 2nd November 1999 is quashed.

3. No Order as to Costs.
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