N5200
PAPUA NEW GUINEA
IN THE NATIONAL COURT OF JUSTICE

OS (JR) NO 546 OF 2007

GIMA RAKA ON BEHALF OF LAURINA CLAN OF VABUKORI VILLAGE
Plaintiff

V

PHILIP MAIMU ON BEHALF OF DOGURAHASI CLAN OF VABUKORI VILLAGE
First Defendant

MOSES VAMUANI ON BEHALF OF DARAHASI-PORE CLAN OF VABUKORI VILLAGE
Second Defendant

PETER ASIAMU ON BEHALF OF DARAHASI KIRA-KIRA CLAN OF VABUKORI VILLAGE
Third Defendant

BILL NOKI, PROVINCIAL LAND COURT MAGISTRATE
Fourth Defendant

Waigani: Cannings J
2013: 28 March, 3 May

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 took irrelevant considerations into account – whether Provincial Land Court conducted a proper hearing – whether reasons for decision were given

The plaintiff sought judicial review of the decision of a Provincial Land Court which had dismissed appeals against a decision of a Local Land Court and decided that the customary land in dispute was to be communally owned by the plaintiff's clan and other clans. The three grounds of review were that the Provincial Land Court: (1) took irrelevant considerations into account in arriving at the decision: that no one clan should be awarded exclusive ownership of land within the boundaries of a village and that the principle of adverse possession applied and that it was permissible to both affirm and vary the order of the Local Land Court; (2) failed to conduct a proper hearing by way of cross-examination of witnesses thus denying the plaintiff the right to elicit evidence in his favour; and (3) failed to give reasons for its decision, in particular that it failed to address the plaintiff's grounds of appeal fairly and sufficiently, to give good, proper and sufficient reasons for making an order that benefited a clan that was not a party to the Local Land Court proceedings and to provide proper reasons for ordering that benefits flowing from the disputed land be shared equally amongst all parties. The plaintiff sought an order quashing the decision of the Provincial Land Court and a declaration that his clan was exclusive owner of the land.

Held:

(1)	The considerations argued to be irrelevant (that no one clan should be awarded exclusive ownership of land within boundaries of a village and that the principle of adverse possession applied) were not irrelevant, but pertinent matters properly taken into account. The argument that the Court erred by affirming and varying, without quashing, the order of the Local Land Court could not succeed because though there was an indication in the judgment that the Local Land Court order would be varied (by declaring that the clan that was not a party to the Local Land Court proceedings was also a communal owner of the land) the formal order of the Provincial Land Court did not mention that clan and simply affirmed the Local Land Court decision. The first ground of review was dismissed.

(2)	Where a question of fact over the proceedings of a Court arises (as in this case where the question was whether the Provincial Land Court failed to give the plaintiff the opportunity to cross-examine the witnesses of other parties) the presumption of regularity regarding judicial proceedings should be applied: the proceedings are presumed to have been conducted properly and the court's records are presumed to be accurate and any person challenging the propriety of the proceedings or the court's records has the onus of proving otherwise. Here the records of the Provincial Land Court suggested that no party asked to cross-examine witnesses and that it was decided that the appeals would be decided on affidavit evidence without oral testimony. The plaintiff failed to prove that the records of the Court were inaccurate or that he was denied the opportunity to cross-examine witnesses. There was no denial of natural justice. The second ground of review was dismissed.

(3)	The Provincial Land Court gave reasons for its decision in a nine-page written judgment. The allegation of failure to give reasons was entirely meritless. The arguments that purported to support this ground of review were inconsistent with the ground set out in the Order 16 statement and were not properly before the court. If the arguments were considered on their merits they still deserved to be dismissed as the plaintiff failed to show how his grounds of appeal were not addressed or how the reasons for decision were not good, proper and sufficient or that there was a failure to explain why benefits flowing from the disputed land should be shared equally amongst the parties. The third ground of review was dismissed.

(4)	As none of the grounds of review succeeded the application for judicial review was dismissed, with parties bearing their own costs.

Cases cited

The following cases are cited in the judgment:

Application of Ambra Nii on behalf of Toisap Clan [1991] PNGLR 357
John Anis v Nabura Morissa (2011) N4307
Kely Kerua v Council Appeal Committee of the University of Papua New Guinea (2004) N2534
Martina Jimmy v Kevemuki Clan (2010) N4101
Meriba Tomakala v Robin Meriba [1994] PNGLR 10
Mision Asiki v Manasupe Zurenuoc (2005) SC797
Ombudsman Commission v Peter Yama (2004) SC747
Paias Wingti v Kala Rawali (2010) N3982
Papua Club Inc v Nusaum Holdings Ltd (2005) SC812
R v Ireland (1970) 44 ALJR 263
Re Hides Gas Project Land [1993] PNGLR 309
Siwi Bungo v John Robin (2011) N4195
Stephen John Rose v The State (2007) N3241
Tawindi Clan v Kaimari Clan (1998) N1775
The State v District Land Court at Kimbe; ex parte Casper Nuli [1981] PNGLR 192
Tzen Pacific Ltd v Kanawi Pouru (2013) N5156
Wallbank and Minifie v The State [1994] PNGLR 78

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 a Local Land Court.

Counsel

A Token, for the plaintiff
J Sirigoi, for the first defendant
P Wariniki, for the second and third defendants
F Barton, for the fourth defendant

3rd May, 2013 

1. CANNINGS J: This is a ruling on an application for judicial review of the decision of a Provincial Land Court sitting on appeal against the decision of a Local Land Court concerning ownership of customary land known as Vaharereva at the coastal village of Vabukori in the National Capital District. Vaharereva is a hill, the site of a navigational aid, a lighthouse that was erected in 1914. Substantial amounts of money are apparently due to be paid by the Department of Transport to the customary owners of the land for use of the land but no payments have been made for a long time due to ongoing disputes and court proceedings about which clans own the land.

2. A dispute between various clans as to ownership of the land was first registered with the National Land Commission in December 1976 but not dealt with until early 1988 when a Local Land Court constituted by Magistrate Mr Clement Malaisa and Land Mediators Mr Bobby Baia and Mr Pidi Monise heard the matter. The Local Land Court's decision of 24 March 1988 was that the land was jointly and equally owned by three clans. The order stated:

1	The land, VAHAREREVA, is declared by this Court to be owned and used by the three clans:
 
(a)	Laurina,
(b)	Dogurahasi,
(c)	Darahasi Pore.

2	Interests (if any) be shared equally among the above named Clans.

3. On 14 June 1988 Mr Gima Raka of Laurina clan – the plaintiff in the current proceedings – filed an appeal under the Land Disputes Settlement Act Chapter No 45 against the decision of the Local Land Court in the Provincial Land Court. Nine grounds of appeal were set out in the notice of appeal and a declaration was sought that Laurina clan was the sole owner of the land. The two other clans also appealed. Each clan was asserting exclusive ownership.

4. The appeals did not progress for 18 years. This extraordinary delay was due in part to the Magistrate who was appointed to deal with the appeals being suspended, and then he died. None of the parties appears to have taken any positive steps to prosecute the appeals or to have them dismissed until Mr Raka re-agitated the matter. Eventually the appeals were set down before senior Magistrate Mr Bill Noki, constituting the Provincial Land Court, who heard the matter over nine sitting days from February to August 2006. The parties to the appeals were representatives of the three clans who were involved in the Local Land Court proceedings and an additional clan, Darahasi Kira-Kira, which, like the other three clans, was claiming that it owned the land to the exclusion of other clans. His Worship delivered judgment on 21 July 2007, concluding that none of the clans had proven exclusive use or possession of the land: it was communal land to be used for the benefit of everyone in the village. His Worship ordered as follows:

1	All appeals are dismissed.
2	Decision of the Local Land Court dated 24 March 1988 is affirmed.
3	Respective appeal deposits are forfeited to the State.
4	Costs be in the cause.

5. It is that decision which is the subject of judicial review. The plaintiff Mr Raka is aggrieved by the decision and maintains that his clan, Laurina, should be regarded as the exclusive owner of the land. He commenced the present proceedings on 8 October 2007. The defendants are:

•	first defendant: Philip Maimu of Dogurahasi clan, which was a party to both the Local Land Court and Provincial Land Court proceedings;

•	second defendant: Moses Vamuani of Darahasi-Pore clan, which was a party to both the Local Land Court and Provincial Land Court proceedings;

•	third defendant: Peter Asiamu of Darahasi Kira-Kira clan, which was a party to the Provincial Land Court proceedings but not a party to the Local Land Court proceedings;

•	fourth defendant: his Worship Mr Noki, the Provincial Land Court Magistrate who made the decision under review.

6. Leave for judicial review of the Provincial Land Court's decision was granted on 9 November 2007. Then the matter stalled again. Why it took more than five years for the application to be set down for trial is unknown. However, none of the parties wants to make this or any of the other delays an issue. They just want a decision and that is what I intend now to provide.

THE GROUNDS OF REVIEW

7. Four grounds of review are set out in the plaintiff's statement under Order 16, Rule 3(2)(a) of the National Court Rules. One (paragraph 17(b) of the statement) was abandoned, leaving three to be determined. It is argued that the Provincial Land Court:

(1)	took into account irrelevant considerations (para 17(a));

(2)	failed to conduct a proper hearing by way of cross-examination of witnesses thus denying the plaintiff the right to elicit evidence in his favour (para 17(c)); and

(3)	failed to give reasons for its decision (para 17(d)).

(1)	IRRELEVANT CONSIDERATIONS

8. The Order 16, Rule 3(2)(a) statement states that the decision of the Provincial Land Court was erroneous in that the Court:

... took into account irrelevant considerations.

9. No particulars were provided in the statement in support of this ground of review. It was only in the course of submissions at the trial that it became apparent what the plaintiff's arguments were. Mr Token for the plaintiff submitted that his Worship took into account three irrelevant considerations:

(a)	that no one clan should be awarded exclusive ownership of land within the boundaries of a village;

(b)	that the principle of adverse possession applied; and

(c)	that it was permissible to both affirm and vary the order of the Local Land Court.

(a)	Village land

10. After assessing the evidence presented by each of the parties his Worship concluded that none had proven exclusive ownership and emphasised that the land was part of the village and should be regarded as communally owned. His Worship stated:

The Court has assessed the evidence and contentions of the respective appellants and this appeal and it is of the view that no one party has shown in evidence it has exclusive use or possession of the Vaharereva hill, where the lighthouse beacon is located north-west of Vabukori village.

This may be of the fact that generally in Papua New Guinea societies no one clan would claim supremacy over village land because settlement would always be collective and not individual. Customary land owned by clan or lineages or families would be situated further away from the village, it would be demarcated properly between the lineages or families for the benefit of the clan, as well as other clans to take special notice of, including other nearby villages. Therefore it is my view that [the] village is a collective settlement of people from various clans who built their houses and developed their respective backyards for gardening or planting of tree fruits or coconuts or betel nuts and must always remain as common land.

The mangroves, reefs and the sea that extends three nautical miles out to the sea from the shoreline is considered common fishing ground for everybody to fish and gather for domestic consumption.

The land tribunals deal with ownership issues over village land must be very cautious of the type of communal base relationships and activities that are carried out in villages and any claims made by one clan over property established by the government, for any benefit that a clan owns the entire village land would be considered fraudulent and not in the best interest of the administration and social welfare of the inhabitants of the villages.

For the benefit of good governance and administration village land must remain communal land for the benefit of everyone in the village, so as to maintain peace and harmony.

11. The plaintiff argues that his Worship incorrectly assumed that no one clan would claim supremacy over village land as there are different forms of customary land ownership and that that assumption was an irrelevant consideration.

12. The problem with this argument is that it is based on the false premise that his Worship made an assumption that no one clan could exclusively own customary land if it was within the boundaries of a village. His Worship did not make such an assumption. He weighed the conflicting evidence and found that none of the clans had proven exclusive ownership; and having reached that conclusion his Worship said that that finding is consistent with what he regarded as a traditional principle that applies to ownership of customary land in a village: that is usually owned and used communally by a number of different clans. This was not an irrelevant consideration but a pertinent matter properly taken into account.

(b)	Principle of adverse possession

13. The plaintiff argues that his Worship wrongly considered the principle of adverse possession without corroborative evidence, and therefore that this was an irrelevant consideration.

14. The principle of adverse possession is the notion that if members of a clan occupy land for a long time without permission, agreement or approval of the original owners of the land, the clan that has actually possessed the land can if there has been no opposition to their occupation be regarded as the owners. This principle derives from Section 67 (presumption as to vesting of interests) of the Land Disputes Settlement Act, which states:

(1)	Notwithstanding any other law, proof that a party to a dispute has exercised an interest over the land the subject of the dispute for not less than 12 years without the permission, agreement or approval of any other person sets up a presumption that that interest is vested in the first-mentioned party.

(2)	Where a presumption is set up under Subsection (1), it may be rebutted only by evidence leading to clear proof that the interest is vested in some other person.

15. Since the landmark decision of Amet J, as he then was, sitting in the Land Titles Commission in Re Hides Gas Project Land [1993] PNGLR 309 it has been generally accepted that entitlement to customary land depends not only on the question of which disputing party had the earliest claim to the land, by reason of genealogical or ancestral evidence, but also, and more importantly, which disputing party has actually possessed the land (without opposition) in recent years. Instances of the National Court adopting the Hides Gas principle in the course of determining judicial reviews of decisions of a Provincial Land Court include the decision of Woods J in Application of Ambra Nii on behalf of Toisap Clan [1991] PNGLR 357 and the decision of Injia J, as he then was, in Tawindi Clan v Kaimari Clan (1998) N1775. In the latter case his Honour indicated that Section 67 was entrenching a principle of land ownership akin to the common law doctrine of adverse possession:

The principle of adverse possession under s 67 confers customary ownership right or title over the land by operation of law: Re Hides Gas Project Land [1993] PNGLR 309 at 316-317. It is not merely an "evidentiary aid" to the determination of title over land … The use of the land over a period of more than 12 years without opposition confers that right of title by operation of law. Upon the expiration of 12 years, the person is the absolute owner of the land which includes all improvements on the land which they have erected. This process of acquisition of title by operation of law extinguishes any existing supposed propriety rights of any other party.
 
16. In the present case his Worship took the principle of adverse possession into account by considering the evidence of the various clans that they had actually occupied the land, for example by building houses on it. However, application of the principle did not favour any one clan as his Worship concluded that it "applies equally to all appellants". I can detect no error in that reasoning or in the conclusion that was reached. The principle of adverse possession was not wrongly considered. It was a pertinent matter properly taken into account.

(c)	Affirming and varying the order of the Local Land Court

17. The plaintiff argues that an irrelevant consideration was taken into account by allowing the third defendant, Peter Asiamu, on behalf of Darahasi Kira-Kira clan, to become a beneficiary of the Provincial Land Court decision. It is argued that this was wrong as that clan was not a party to the Local Land Court proceedings. By including Darahasi Kira-Kira clan as one of the communal owners of the land his Worship was varying the decision of the Local Land Court contrary to Section 59 (powers on appeal) of the Land Disputes Settlement Act, which states:

(1)	In determining an appeal under this Division, a Provincial Land Court may—

(a)	affirm the order; or

(b)	quash the order and—

(i)	make such other order as, in the opinion of the Court, will dispose of the appeal and the dispute; or

(ii)	where, in the opinion of the Court, justice demands that the matter or part of the matter of the appeal be remitted to the Local Land Court, remit the matter, or that part of the matter to the Local Land Court.

(2)	In remitting a matter to a Local Land Court under Subsection (1)(b)(ii), a Provincial Land Court may give such instructions, directions or guidelines to the Court as to the manner in which the matter remitted is to be dealt with as it thinks proper.

18. It is correct that a Provincial Land Court cannot vary a Local Land Court order. It can either affirm the order or quash it (and if it quashes the order, it can make a substitute order or remit the matter to the Local Land Court). That the Provincial Land Court is restricted in that way was confirmed by Bredmeyer J in The State v District Land Court at Kimbe; ex parte Casper Nuli [1981] PNGLR 192 and by Doherty J in Meriba Tomakala v Robin Meriba [1994] PNGLR 10.

19. Did the Provincial Land Court in the present case vary the order of the Local Land Court? The plaintiff argues that it did because there was a new party in the Provincial Land Court proceedings, the Darahasi Kira-Kira clan, which was a beneficiary of the Provincial Land Court order, which was not recognised in the Local Land Court order. Support for this argument is found in the concluding paragraphs of his Worship's judgment, which state:

For these reasons the Provincial Land Court declares:

1	The decision of the learned Magistrate to make award of the Vaharereva hill lighthouse beacon land within Vabukori village, Port Moresby, to be held in common by all parties to the dispute is affirmed.

2	The Vaharereva Hill lighthouse beacon land is located with the delineated common boundaries of the Vabukori village, commencing from south-eastern end following a straight line between the Taikone cemetery running towards the sea, then following the shoreline in the northerly direction towards Vabukori village. Then following the main access road excluding the hills on the eastern part running back southerly towards Taikone cemetery, at the place of commencement.

3	That the land being Vaharereva Hill land, where the lighthouse is situated is common land, for reasons that no one party adduced evidence to prove it had exclusive use or possession of the land the subject of this dispute.

4	The respective parties claimed of boundaries overlapped each other and constant changing of clans by some members of parties now before the court made it impossible as to [determine] how best the provisions of Section 68 of the Act can be applied.

5	No one clan adduced evidence describing any events that took place of the customary acquisition of the land either through first settlement or discovery by ancestor, of any one party, so as to trace the current descendants through their respective genealogies.

6	All clans that currently dwell at Vabukori, that is Dogurahasi, Darahasi Pore, Darahasi Kira-Kira and Laurina clans, traditionally settled as a village, remained settled as they have been till this day, in that each have acquired ownership status in respect of portions of land they each have respectively settled as a village; and

7	As such there shall be no exclusive ownership to any one party in so far as to uphold the principle of adverse possession of the land by each party to maintain peace and harmony.

And the Provincial Land Court orders that:

1	The appeals by respective appellants are dismissed and the decision of the learned Magistrate dated 24 March 1988 is affirmed; and

2	Any benefits that flow from the Vaharereva lighthouse to be shared equally amongst all parties concerned in this proceeding;

3	Respective appeal deposits are forfeited to the State;

4	Each party bear their own costs.

20. If this judgment were read in isolation from the formal order that was later signed and sealed the conclusion would be reached that the Darahasi Kira-Kira clan was one of the clans declared to be communal owners of the land and entitled to an equal share with other clans of any benefits flowing from the land, and that because Darahasi Kira-Kira clan was not a party to the Local Land Court proceedings the order of the Local Land Court was varied. However the judgment and the order cannot be read in isolation. The order that was signed and sealed on 10 December 2007 stated:

1	All appeals are dismissed.
2	Decision of the Local Land Court dated 24 March 1988 is affirmed.
3	Respective appeal deposits are forfeited to the State.
4	Costs be in the cause.

21. The purpose of the formal order of any court is to state in a simple and straightforward way the orders or declarations that the court has made. The judgment (whether oral or written) on the other hand provides the reasons for the court making the order. Ideally the part of the judgment that describes the order that will be made will be a mirror image of the order that is signed and sealed and entered. Sometimes however there is an inconsistency and in such cases the order must prevail. Strictly speaking it is the order that is the judgment; and what is generally known as the judgment is actually the reasons for the judgment (R v Ireland (1970) 44 ALJR 263). It might be that the order differs from the judgment by inadvertence on the part of the judge or magistrate or a court official, and in such cases an application to set aside the order and replace it with an order that accurately reflects the judgment can be successful (Wallbank and Minifie v The State [1994] PNGLR 78, Stephen John Rose v The State (2007) N3241). But unless and until an order is set aside it is presumed to have been regularly entered even if it appears to be inconsistent with the judgment. Of course a court order must be interpreted in the context of all the court's orders and the reasons given for making the orders and the circumstances in which the order was made (Paias Wingti v Kala Rawali (2010) N3982, Tzen Pacific Ltd v Kanawi Pouru (2013) N5156). If an order is ambiguous it will be appropriate to look at the reasons set out in the judgment to determine the meaning of the order.

22. In the present case there is no ambiguity in the order but it differs materially from the judgment. The order simply affirms the Local Land Court decision and makes no mention of benefits from the land being shared equally amongst all parties to the Provincial Land Court proceedings. This means that Darahasi Kira-Kira clan, which was not referred to in the Local Land court decision, is not included in the Provincial Land Court order, whereas the judgment indicated that Darahasi Kira-Kira clan would be regarded as one of the communal owners and be entitled to an equal share with the three other clans of benefits from the land. The order prevails. It did not vary the Local Land Court order. Therefore no error of law has been established.

23. If I had decided otherwise and found that the order did include Darahasi Kira-Kira clan and that the Local Land Court order was varied without being quashed I would still have had difficulty upholding the plaintiff's argument. The argument was framed as an error of law arising from taking an irrelevant consideration into account, but it should have been framed as an argument of excess of jurisdiction or something similar. It is not an argument about irrelevant considerations. I would have decided that the argument was not properly before the court.

Conclusion re ground 1

24. The plaintiff has failed to show that the Provincial Land Court took any irrelevant considerations into account. The first ground of review is dismissed.

(2)	FAILURE TO CONDUCT A PROPER HEARING

25. The Order 16, Rule 3(2)(a) statement states that the decision of the Provincial Land Court was erroneous in that the Court erred:

... in failing to conduct a proper hearing of the dispute by way of cross-examination of witnesses when it was glaringly obvious that there were a lot of crucial matters of fact in dispute, which were contained in the affidavits filed by the parties thus denying the plaintiff the right to elicit evidence in his favour.

26. The plaintiff argues that the Provincial Land Court proceedings were not properly conducted as there was no oral evidence permitted. The Court relied only on affidavit evidence which meant the plaintiff was denied the right to cross-examine witnesses of other parties. This was a procedural error and a denial of natural justice as it was glaringly obvious that there were a lot of crucial matters of fact in dispute.

27. In determining this ground of review two points of law must be made. First a 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.

28. Secondly the discretion to fix its own procedures does not exclude the overriding duty of the Provincial Land Court to conduct its proceedings fairly and to be seen to be acting fairly (Martina Jimmy v Kevemuki Clan (2010) N4101). If the learned Magistrate had allowed only one of the parties to cross-examine witnesses and refused to allow others, that would be unfair. If his Worship refused a request by a party to cross-examine witnesses that might be unfair if the decision was made arbitrarily or without good reason. What happened here? Did his Worship unfairly favour one party? Did he refuse a request by the plaintiff? If he did, was that decision made without good reason?

29. In resolving these issues the plaintiff, being the party who is challenging the regularity of the proceedings, bears the onus of proof. This is because there is a presumption of regularity regarding judicial proceedings, sometimes described by the Latin maxim omnia praesumuntor rite essa acta. It is a common law principle that says that, unless the contrary is proven, court proceedings are presumed to have been conducted properly and that the court's records are presumed to be accurate (Siwi Bungo v John Robin (2011) N4195). It is a rebuttable, not a conclusive, presumption, which means that it is open to contradiction. If there is a dispute or uncertainty as to what actually happened in court, the court's record will be regarded as accurate unless the person challenging the record proves that there is an inaccuracy and the proceedings will be presumed to have been conducted properly.

30. Here his Worship treated all parties equally: there was no oral evidence and no cross-examination of any witnesses. The parties were allowed to file fresh affidavits and all parties were given the opportunity to make submissions. The judgment does not record any request by any party for the opportunity to cross-examine the witnesses of other parties. The inference arises that there was no such request. What evidence was put before the National Court on the question of whether there was any such request? On the one hand the plaintiff Mr Raka deposed in an affidavit on behalf of Laurina clan:

The Court led parties to believe that by requesting parties to file affidavits the hearing would be conducted by way of affidavits only and not by calling of witnesses.

The Court failed to conduct a proper hearing of the matter as witnesses were not called to give evidence or be examined.

31. On the other hand Goodnews Aruai deposed in an affidavit on behalf of the first defendant and Dogurahasi clan:

The proceedings in the Provincial Land Court were conducted by way of affidavit material and written submissions. All parties were given time to prepare and file all affidavits they intended to rely on in support of their case and also in rebuttal to affidavits filed by the other parties. All the parties had participated in the full trial following which the Court directed parties to make written submissions for deliberation by the Court.

At different times during the hearing the presiding Magistrate would ask questions to the different parties on their affidavit material otherwise I do not recall any of the parties asking the Magistrate for an opportunity to conduct cross-examination. I am not aware of any notice being given to our witnesses to appear in Court to be questioned on their evidence. I am also aware that we did not give any notice to the other side to cross-examine their witnesses as everything was dealt with in the affidavits.

32. I find nothing in the affidavit of Mr Raka to rebut the presumption of regularity of the proceedings in the Provincial Land Court; and Mr Aruai's evidence, which I accept as reliable as it was not contradicted, confirms the presumption of regularity as it shows that no one asked to cross-examine other witnesses. I uphold the submissions of Mr Sirigoi for the first and second defendants, Mr Wariniki for the third defendant and Ms Barton for the fourth defendant and find as a fact that none of the parties requested the opportunity to cross-examine the witnesses of other parties. There was no refusal by his Worship to allow cross-examination. As none of the parties requested it, his Worship was under no obligation to allow cross-examination of witnesses.

Conclusion re ground 2

33. The plaintiff has failed to show that the proceedings of the Provincial Land Court were conducted improperly or unfairly. The second ground of review is dismissed.

(3)	FAILURE TO GIVE REASONS

34. The Order 16, Rule 3(2)(a) statement states that the decision of the Provincial Land Court was erroneous in that the Court:

... failed to give reasons for the said decision.

35. No particulars were provided in the statement in support of this ground of review. It was only in the course of submissions at the trial that it became apparent what the plaintiff's arguments were. Mr Token submitted that his Worship failed to give reasons in three respects:

(a)	failed to address the plaintiff's grounds of appeal fairly and sufficiently;

(b)	failed to give good, proper and sufficient reasons for making an order that benefited a clan that was not a party to the Local Land Court proceedings; and

(c)	failed to provide proper reasons for ordering that benefits flowing from the disputed land should be shared equally amongst all parties.

36. The trouble with these arguments is that they do not support the fundamental contention underlying the ground of review: that his Worship failed to give reasons. In fact his Worship did give reasons, in the form of a nine-page written judgment, so this ground of review is entirely meritless and can be dismissed for that reason alone. The arguments do not warrant consideration as they attack the reasons actually given by the Provincial Land Court and are inconsistent with the ground of review, but as they have been argued I will comment on them briefly.

(a)	Grounds of appeal

37. Mr Token submitted that his Worship failed to address the plaintiff's grounds of appeal.

38. An appeal from the Local Land Court to the Provincial Land Court is an appeal by way of rehearing which means that the best way for the appellate court to discharge its statutory responsibility of conducting the appeal is to set out the grounds of appeal – which circumscribe the jurisdiction of the court in the case before it – and then proceed to address and determine each one (Papua Club Inc v Nusaum Holdings Ltd (2005) SC812). If a Provincial Land Court fails to determine the grounds of appeal before it this will be a denial of natural justice and an error of law (John Anis v Nabura Morissa (2011) N4307).

39. Here, the plaintiff failed to show which of his grounds of appeal were not addressed. The argument is made in a vacuum and must be dismissed.

(b)	Good, proper and sufficient reasons

40. Mr Token submitted that his Worship failed to give good, proper and sufficient reasons for his decision, particularly the part of the decision that favoured Darahasi Kira-Kira clan, which was not a party to the Local Land Court hearing.

41. 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 (Ombudsman Commission v Peter Yama (2004) SC747, Mision Asiki v Manasupe Zurenuoc (2005) SC797, Kely Kerua v Council Appeal Committee of the University of Papua New Guinea (2004) N2534). I have already decided that despite what was stated in his Worship's judgment, the final order did not favour Darahasi Kira-Kira clan. Putting that issue aside for the moment my overall assessment of his Worship's judgment is that it was a clear, coherent and logical set of reasons for the conclusion that the land was not owned exclusively by any of the four clans who were asserting exclusive ownership, and that the land was owned communally in a way that is common and proper in cases where there is a dispute over village land. The reasons given by his Worship were good, proper and sufficient.

(c)	Benefits flowing equally

42. Mr Token submitted that his Worship failed to provide proper reasons as to why he ordered that benefits flowing from the land should be shared equally amongst the parties.

43. I have already decided that despite what was stated in his Worship's judgment, the final order did not include any order as to equal share of benefits. Putting that issue aside for the moment, it is in my view clear and rational that having decided that the land is communally owned in equal shares by the clans who were disputing ownership, his Worship would conclude that benefits flowing from the land should be shared equally.

Conclusion re ground 3

44. The allegation of failure to give reasons is entirely meritless. The arguments that purported to support this ground of review are inconsistent with the ground set out in the Order 16 statement and not properly before the court. If they were properly before the court they would still be dismissed as having no merit. The third ground of review is dismissed.

WHAT DECLARATIONS OR ORDERS SHOULD THE COURT MAKE?

45. As none of the grounds of review succeeded the application for judicial review must be dismissed. Costs normally follow the event, ie the party that loses a case has to pay the costs of the winning party. But this is 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)	The application for judicial review is dismissed.

(2)	The order of the Provincial Land Court in PLC No 3 of 2005 dated 21 June 2007 is affirmed.

(3)	The parties shall bear their own costs.

(4)	Time for entry of this order is abridged to the date of settlement by the Registrar, which shall take place forthwith.

Judgment accordingly.

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Elemi Lawyers: Lawyers for the Plaintiff
Sirigoi Lawyers: Lawyers for the First Defendants
Wariniki Lawyers: Lawyers for the Second & Third Defendants
Solicitor-General: Lawyer for the Fourth Defendant