N5515

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS (JR) NO 9 OF 2012

ISO DAIO ON HIS BEHALF AND ON BEHALF OF THE MEMBERS OF BUIAWEA CLAN OF FAEA VILLAGE, WEST KIKORI, GULF PROVINCE
Plaintiffs

V

SINCLAIR GORA, MAGISTRATE OF THE PROVINCIAL LAND COURT, KEREMA, GULF PROVINCE
First Defendant

INDEPENDENT STATE OF PAPUA NEW GUINEA
Second Defendant

TARS SAUKA FOR HIMSELF AND FOR THE NATURAL MEMBERS OF NIVE KESEMEN INCORPORATED LAND GROUP INC
Third Defendants

Waigani: Cannings J
2014: 28 January, 28 February

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 entitled to take account of laws and procedures other than those in Land Disputes Settlement Act: Sections 50(2) and 69 – duty of Provincial Land Court to be satisfied that it has jurisdiction: Section 56(1)(a) – time limits for appeal: Section 54. 

The plaintiff sought judicial review of the decision of a Provincial Land Court which had dismissed an appeal against a decision of a Local Land Court. The decision of the Local Land Court was that the disputed customary land was owned by the third defendant's clan, subject to user rights vested in the plaintiff's clan. The Provincial Land Court dismissed the appeal for three reasons. First, the original notice of appeal did not contain any grounds falling within Section 55 (notice of appeal) of the Land Disputes Settlement Act. Secondly, the amended notice of appeal was, without leave, filed well outside the appeal period allowed by the Act, and raised completely new grounds of appeal, which was an abuse of process. Thirdly, there was a five year delay in prosecuting the appeal, which was not satisfactorily explained and unreasonable, warranting, for that reason alone, dismissal of the appeal. The plaintiff argued in support of his application for judicial review that the Provincial Land Court erred in law in five respects: (1) taking account of principles and procedures other than those found in the Land Disputes Settlement Act, contrary to Sections 50(2)(a) and 69 of that Act; (2) failing to assist the plaintiff in drafting the notice of appeal, contrary to Section 55(2) of that Act; (3) dismissing the appeal on a legal technicality, rather than remitting the matter to the Local Land Court for retrial, given that the Local Land Court depositions had been destroyed; (4) not recognising the plaintiff's amended notice of appeal, given that there is no set practice or procedure for filing amended notices of appeal; (5) ruling that the amended notice of appeal pleaded new grounds of appeal, contrary to Section 69 of the Land Disputes Settlement Act, which requires that all matters before a Provincial Land Court be decided "in accordance with substantial justice". The plaintiff sought an order quashing the decision of the Provincial Land Court and remitting the appeal for rehearing before it.

Held:

(1)	Sections 50(2)(a) and 69 of the Land Disputes Settlement Act provide that a Provincial Land Court is not bound by any law or rule of law, evidence, practice or procedure other than what is in the Act. That is not the same thing as saying that a Provincial Land Court cannot have regard to other laws etc in the exercise of its discretion. Here, the Provincial Land Court did not err by taking into account laws and procedures applicable to other statutory appeal regimes in determining that the appeal should be dismissed for want of prosecution.

(2)	Section 55(2) of the Land Disputes Settlement Act obliges a Provincial Land Court to assist an appellant in drafting a notice of appeal, only if the notice of appeal is given orally. Here the notice of appeal was in writing, so there was no obligation on the Court to assist.

(3)	The appeal was not dismissed on a legal technicality but after a careful and considered determination that the Provincial Land Court lacked jurisdiction to consider the amended notice of appeal, made in accordance with Section 56(1)(a) which allows the Court to decide that it is not satisfied that it has jurisdiction in the matter.

(4)	The effect of Section 54(2) of the Land Disputes Settlement Act is that a Provincial Land Court cannot extend the time for appealing against a decision of the Local Land Court beyond the period of 12 months after the date of the decision appealed against. Here the amended notice of appeal, containing completely new grounds of appeal, was filed four years after the original notice of appeal, and it was filed without leave. No error of law was committed by the Provincial Land Court in concluding that it lacked jurisdiction to consider the new grounds of appeal and that the filing of the amended notice of appeal was an abuse of process.

(5)	The requirement of Section 69 that a Provincial Land Court shall "decide all matters before it in accordance with substantial justice" does not mean that the Court should ignore the requirements of the Act as to time limits for appeal.

(6)	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:

Arthur Ageva v Bobby Gaigo [1986] PNGLR 160
Martina Jimmy v Kevemuki Clan (2010) N4101
Mavu v Moto (2005) N2879
Roderick Tovo Bibilo v Gerard Balbagara (2008) N3291

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

T M Rei', for the plaintiff
B Kulumbu, for the first & second defendants
M Miva, for the third defendant

28th February, 2014

1. CANNINGS J: This is a ruling on an application for judicial review of the decision of the Gulf Provincial Land Court sitting on appeal against the decision of the Local Land Court.

2. The Local Land Court determined a dispute over ownership of customary land at Faea village in the West Kikori area of Gulf Province. It decided on 16 March 2006 that the land was owned by the third defendant's clan, Nive Kesman, subject to user rights vested in the plaintiff's clan, Bui Awea.

PROVINCIAL LAND COURT DECISION

3. On 21 December 2011 the Provincial Land Court, constituted by the first defendant, his Worship Mr Sinclair Gora, dismissed the appeal for three reasons:

•	First, the original notice of appeal did not contain any grounds falling within Section 55 (notice of appeal) of the Land Disputes Settlement Act.

•	Secondly, the amended notice of appeal was, without leave, filed well outside the appeal period allowed by the Act, and raised completely new grounds of appeal, which was an abuse of process.

•	Thirdly, there was a five year delay in prosecuting the appeal, which was not satisfactorily explained and unreasonable, warranting, for that reason also, dismissal of the appeal.

GROUNDS OF REVIEW

4. The grounds of judicial review are not clearly pleaded in the plaintiff's originating statement under Order 16, Rule 3(2)(a) of the National Court Rules. The grounds are more clearly expressed in the written submission of Mr Rei, who argued, in support of the plaintiff's application for judicial review, that the Provincial Land Court erred in law in five respects:

(1)	taking account of principles and procedures other than those found in the Land Disputes Settlement Act, contrary to Sections 50(2)(a) and 69 of that Act;

(2)	failing to assist the plaintiff in drafting the notice of appeal, contrary to Section 55(2) of that Act;

(3)	dismissing the appeal on a legal technicality, rather than remitting the matter to the Local Land Court for retrial, given that the Local Land Court depositions had been destroyed;

(4)	not recognising the plaintiff's amended notice of appeal, given that there is no set practice or procedure for filing amended notices of appeal;

(5)	ruling that the amended notice of appeal pleaded new grounds of appeal, contrary to Section 69 of the Land Disputes Settlement Act, which requires that all matters before a Provincial Land Court be decided "in accordance with substantial justice".

5. I will regard those five alleged errors of law as being the grounds of review and address each in turn.

GROUND 1: TAKING ACCOUNT OF PRINCIPLES AND PROCEDURES OTHER THAN THOSE IN THE LAND DISPUTES SETTLEMENT ACT, CONTRARY TO SECTIONS 50(2)(a) AND 69

6. Mr Rei submitted that Sections 50(2)(a) and 69 of the Land Disputes Settlement Act provide that a Provincial Land Court is not permitted to take into account any law or rule of law, evidence, practice or procedure other than what is in the Act. He argued that that principle was breached when the Provincial Land Court went beyond the Act to find reasons for dismissing the appeal.

7. Section 50 (practice, procedure and powers of Provincial Land Courts) states:

(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. [Underlining added]

8. Section 69 (general law to be applied) states:

In exercising its jurisdiction under this Act, a Provincial Land Court or a Local Land Court is not bound by any law other than this Act that is not expressly applied to it, but shall, subject to Section 68, decide all matters before it in accordance with substantial justice. [Underlining added]

9. Mr Rei submitted that the Provincial Land Court acted ultra vires (beyond power) by ignoring the dictates of Sections 50(2)(b) and 69, particularly by finding that the appeal should be dismissed for want of prosecution. He argued that the Court erred by applying principles about dismissing appeals from the National Court to the Supreme Court and referring to cases such as Arthur Ageva v Bobby Gaigo [1986] PNGLR 160 to reach the conclusion that it was incumbent on the plaintiff to provide a satisfactory explanation for the five year delay in prosecuting the appeal.

10. I reject these arguments, which I consider are based on a misinterpretation of Sections 50(2)(b) and 69. Both those provisions simply say that the Provincial Land Court is not bound by any law or rule of law, evidence, practice or procedure other than what is in the Land Disputes Settlement Act. That is not the same thing as saying that a Provincial Land Court cannot have regard to other laws etc in the exercise of its discretion.

11. It is noteworthy that Section 69 requires the Court to decide all matters before it "in accordance with substantial justice". It also 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 (Martina Jimmy v Kevemuki Clan (2010) N4101). The twin concepts of substantial justice and natural justice (also known as procedural fairness) make it clear that a Provincial Land Court must at all times act fairly. Here, the Provincial Land Court took the view that it would not be fair or just to expect the respondents to the appeal to respond more than five years after the original appeal had been lodged.

12. I find that the Provincial Land Court did not err by taking into account laws and procedures applicable to other statutory appeal regimes in determining that the appeal should be dismissed for want of prosecution. The first ground of review is dismissed.

GROUND 2: FAILING TO ASSIST THE PLAINTIFF IN DRAFTING THE NOTICE OF APPEAL, CONTRARY TO SECTION 55(2) OF THAT ACT

13. The plaintiff complains that he was not assisted by the Provincial Land Court in drafting his appeal. The Local Land Court also ignored his requests for assistance. He bases his argument about error of law in this regard on Section 55(2) (notice of appeal) of the Land Disputes Settlement Act, which states:

A notice of appeal may be given orally or in writing, but if given orally it shall be reduced to writing by the Provincial Land Court or the Local Land Magistrate to whom it is given.

14. Again, I find that the plaintiff's arguments are based on a misconstruction of the statute. Section 55(2) obliges a Provincial Land Court to assist an appellant in drafting a notice of appeal, but only if the notice of appeal is given orally. Here the notice of appeal was in writing, so there was no obligation on the Court to assist. The second ground of review is dismissed.

GROUND 3: DISMISSING THE APPEAL ON A LEGAL TECHNICALITY, RATHER THAN REMITTING THE MATTER TO THE LOCAL LAND COURT FOR RETRIAL

15. I find that this ground of review is based on a false premise: that the appeal was dismissed on a legal technicality. The appeal was not dismissed on a legal technicality but after a careful and considered determination that the Provincial Land Court lacked jurisdiction to consider the amended notice of appeal, which was filed on 14 June 2011, more than five years after the filing, on 16 March 2006, of the original notice of appeal.

16. Section 56(1)(a) (action on receipt of notice) is a key provision. It states:

Where a Provincial Land Court receives a notice of appeal under Section 55, the Court shall not proceed to hear and determine the appeal unless … it is satisfied that it has jurisdiction in the matter. [Underlining added.]

17. Section 56(1)(a) allows the Court to decide that it is not satisfied that it has jurisdiction in the matter. Here, the Court formed the view that it was not satisfied, and it did not err in reaching that conclusion. The third ground of review is dismissed.

GROUND 4: NOT RECOGNISING THE PLAINTIFF'S AMENDED NOTICE OF APPEAL, GIVEN THAT THERE IS NO SET PRACTICE OR PROCEDURE FOR FILING AMENDED NOTICES OF APPEAL

18. The plaintiff's argument is that although his amended notice of appeal was not filed until 14 June 2011, more than five years after the filing, on 16 March 2006, of the original notice of appeal, the amended notice of appeal should have been "recognised" as there is nothing in the Act to allow or prohibit amended notices of appeal.

19. To determine this ground of review it is necessary to set out the provision of the Act that deals with the appeal period. Section 54 (appeal against decision of Local Land Court) states:

(1)	Subject to this section, a person aggrieved by a decision of a Local Land Court may appeal within three months after the date of the decision to the Provincial Land Court.

(2)	Where the Provincial Land Court is of opinion that it is desirable in the interests of justice to do so, it may, whether or not the time fixed for appeal under Subsection (1) has expired, extend the time fixed for appeal, but leave shall not be granted after the end of the period of 12 months after the date of the decision appealed against.

20. The proper construction of Section 54 is:

•	the person aggrieved must generally appeal within three months after the date of the Local Land Court decision;

•	the only exception is if, by the end of the period of 12 months after the date of the decision appealed against, the Provincial Land Court, being of the opinion that it is in the interests of justice to do so, extends the time for appealing.

21. The effect of Section 54(2) of the Land Disputes Settlement Act is that if the Provincial Land Court is to extend the time for appealing against a decision of the Local Land Court it must grant leave within the period of 12 months after the date of the decision appealed against (Mavu v Moto (2005) N2879, Roderick Tovo Bibilo v Gerard Balbagara (2008) N3291).

22. Here the amended notice of appeal, containing completely new grounds of appeal, was filed five years after the original notice of appeal, and it was filed without leave being sought or granted. No error of law was committed by the Provincial Land Court in concluding that it lacked jurisdiction to consider the new grounds of appeal and that the filing of the amended notice of appeal was an abuse of process. The fourth ground of review is dismissed.

GROUND 5: RULING THAT THE AMENDED NOTICE OF APPEAL PLEADED NEW GROUNDS OF APPEAL, CONTRARY TO SECTION 69 OF THE LAND DISPUTES SETTLEMENT ACT

23. Mr Rei submitted that the amended notice of appeal, filed on 14 June 2011, simply contained 'traditional' grounds of appeal. They were not really new grounds of appeal, so the Provincial Land Court was again ignoring the requirement of Section 69 that a Provincial Land Court shall "decide all matters before it in accordance with substantial justice".

24. To test these arguments it is necessary to compare and contrast the amended notice of appeal (filed 14 June 2011) with the original notice of appeal (filed 16-17 March 2006).

25. The original notice of appeal stated:

Subject: Appeal to the Kikori District Court

Disputed clan, Bui Awea, boundary clan, Kaman and users right, Yunikivatuvi is appealing to the Kikori District Court for Provincial Court t Kerema. The reasons for the court appeal are listed below:

1	Bui Awea clan's history man, Sikake Yovorie was not given by Baimu (Nive Kesman) because during the court, Nive Kesman clan didn't answer Bui Awea's question regarding where (which location) and when. But after court, the decision was layed to Bui Awaea as users rights. Why?

2	As an indication of ownership, the Kaman clan defeated Koramai clan in 1983 mediation at Kikori over Oma site area. During that time, I never met Nive Kesmn clan.

3	The Kaman has always attended this land dispute for almost 30 years regarding its boundary with Bui Awea clan …

4	The boundary between Kaman clan and Bui Awea clan has always been there during history.

5	Each time we have court or mediation, the Nive Kesman clan always presents its origination history from different angles (map and names of places, old sites, map and properties of the land).

 Therefore, Bui Awea clan, will bring its boundary clans as its witness for the Provincial Court. The list of clans are below:

1	Yunikivatuvi clan as users rights
2	Kesman clan as witness
3	Bui clan as witness
4	Kavakava clan as witness
5	Makina clan as witness
6	Kankuyuman clan as witness
7	Fatarafanie clan as witness
8	Busul clan as witness
9	Kuman clan as witness

For the Kuman clan, the names of its witnessing sub-clans are listed below:

1	Fas clan and Sumen clan

Before the court start, we would like the court panel will travel to the disputed area for foot patrol to inspect land, properties, old sites and etc.

Also, therefore, any distribution of any resource benefit from the disputed area, should not be released to Nive Kesman clan [until] the end of the dispute.

26. The amended notice of appeal stated:

1	The appellant appeals against the whole of the decision of the Local Land Court made on the 26th of March 2006 at Kikori Local Court in that pursuant to Section 58(a) and/or (b) of the Land Disputes Settlement Act 1975:

(a)	THAT the said Local Land Court exceeded and/or refused to exercise its jurisdiction during the hearing of the matter in that evidence given by the appellant was not given due weight by the Local Land Court magistrate.

(b)	THAT the said Local Land Court conducted its hearing in a manner contrary to natural justice in that the learned Local Land Court magistrate refused to take into consideration the evidence given by the witnesses of the appellant as to the ownership of the land.

2	The customary piece or parcel of land the subject of these appeal proceedings is not known as Esune/Memaria where exists the Faea camp site and Faea log pond. It is commonly referred to and known as MEMARIA LAND and not ESUNE/MEMARIA land.

3	His Worship the learned Local Land Court magistrate therefore erred in fact in noting the land the subject of disputes as Esune/Memaria as it is MEMARIA LAND as no land in Kikori District is known as Esune/Memaria.

4	His Worship erred in fact in holding that the land on which the log pond tands is Esune/Memaria land as it is known as Devahamuta land and the land on which the campsite stands is known as Taraham land.

27. The two documents are completely different. It is like comparing chalk with cheese. The amended notice of appeal has been drafted by a lawyer with careful regard to Section 58 (grounds for appeal) of the Land Disputes Settlement Act, which 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.

28. The original notice of appeal appears, on the other hand, to have been drafted by a layperson. Clearly the amended notice of appeal contains new grounds. I reject the argument that it contained no new grounds of appeal. The requirement of Section 69 that a Provincial Land Court shall "decide all matters before it in accordance with substantial justice" does not mean that the Court should ignore the requirements of the Act as to time limits for appeal or the nature of grounds of appeal. The Provincial Land Court had no jurisdiction to consider the new grounds in the amended notice of appeal. The correct decision was made to refuse to consider them. The fifth ground of review is dismissed.

WHAT DECLARATIONS OR ORDERS SHOULD THE COURT MAKE?

29. 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 1 of 2006 dated 21 December 2011 is affirmed.

(3)	The parties shall bear their own costs.

Judgment accordingly.

___________________________________________________

T M Rei Lawyers: Lawyers for the Plaintiff
Solicitor-General: Lawyers for the First & Second Defendant
PAC–Oceania Lawyers: Lawyers for the Third Defendant