N6780
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CIA NO. 156 OF 2015 

IN THE MATTER OF AN APPEAL UNDER SECTION 38 OF THE LAND TITLES COMMISSION ACT, 1962
BETWEEN
SALE HOMOKA FOR HIMSELF AND ON BEHALF OF ARUTU CLAN OF BARUNI VILLAGE, NCD
 Appellant

AND
BENEDICT OKINA BATATA, ACTING CHIEF LAND TITLES COMMISSIONER SITTING AS LAND TITLES COMMISSION AT WAIGANI, NCD
First Respondent

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Second Respondent

NICKY ALLAN 
Third Respondent

Waigani: Makail, J
2017: 16th & 19th June   

CIVIL APPEAL – Appeal from decision of Land Titles Commission – Grant of a conversion order – Grounds of – Ultra vires – Breach of natural justice – Error of law – Unreasonableness – Land Titles Commission Act, 1962 – Sections 15 & 38 – Land (Tenure Conversion) Act, 1963 – Sections, 7, 8, 9, 10, 11, 15 & 16 

Cases cited:
Joseph Lyaki Taleokon v. Geoffrey Apakali & Ors (2011) N4386
Re Hides Gas Project Land [1993] PNGLR 309
Thomas Nen & Ors v. Grand Chief Sir Michael Somare, NEC & The State: OS (JR) No 156 of 2011 (Unnumbered & Unreported Judgment of 6th November 2015)

Counsel:
Ms. M. Kokiva, for Appellant
Ms. I. Mugugia, for First & Second Respondents
Mr. A. Asan, for Third Respondent

JUDGMENT
19th June, 2017
1.	MAKAIL, J:    This is an appeal against the decision of the first respondent of 9th April 2015 in relation to a conversion order for a large portion of land called “Abahua” located along the Porebada Road next to Koukou village towards the PNGLNG site.
Preliminaries
2.	The appeal is made pursuant to Section 38 (1) of the Land Titles Commission Act 1962.  Section 38 (1) states that a “person aggrieved by a decision of the Land Titles Commission whether after review under Division 2 of this Part or otherwise, may appeal to the National Court within 90 days after the decision or review of the decision.”
3.	There is no dispute that the appellant was out of time and was granted leave to file the appeal out of time.  The third respondent contends that even so, the appeal would serve no purpose and is futile because the title to the land, subject of the conversion order has passed to him after the conversion order was entered in the Register held by the Registrar of Titles, hence he holds an indefeasible title.

Backgrounds Facts
4.	 The third respondent made an application to the Land Titles Commission (“Commission”) to grant a conversion order.  The Appellant and his Arutu clan of Baruni village were one of the parties who objected to the application at the hearing before the first respondent.  The first respondent ruled dismissing all the objections including the appellant’s objection, upheld the application and granted the conversion order. The conversion order was granted under Section 9 of the Land (Tenure Conversion) Act 1963. 
Grounds of Appeal
5.	According to Section 38 (2) of the Land Titles Commission Act 1962 an appeal may be made only on the ground that, the Commission has exceeded its jurisdiction, the decision was against the weight of the evidence, the hearing of the Commission were conducted contrary to natural justice and the Commission was wrong in law.  
6.	In this case, the appellant relied on three of these grounds.  They are:
(a)	Ultra vires, in that, the first respondent exceeded his jurisdiction when he made the conversion order.  This is because there is a dispute in relation to the customary ownership of the land, such dispute was brought up by the appellant and should have been determined first by the local land disputes settlement authorities including the Local Land Court under the Land Disputes Settlement Act.
(b)	Breach of natural justice, in that, the first respondent was biased towards the appellant when he did not consider or ignored his objection to the application on the grounds that there was a dispute as to the third respondent’s ownership of the land and that he refused to vacate and adjourned the hearing pending the determination of the ownership dispute.
(c)	Error of law, in that, the first respondent ruled that the application for conversion order satisfied the requirement of Section 9 (5) (a) when the appellant and others disputed the ownership of the land and that the first respondent failed to consider whether adequate provision for compensation had been made to them whose interests and rights to the land were abolished or diminished by the conversion order.
(d)	Unreasonableness under the Wednesbury principles of unreasonableness, in that, the third respondent’s application was for a portion of the land referred to as Portion 2984C, yet the first respondent granted to him conversion of the entire Abahua land and that the first respondent relied on a causal advice from a personal female friend outside the hearing to arrive at the decision, such decision no reasonable tribunal would have reached. 
Procedure for Conversion Order
7.	The procedure for making a conversion order is set out in the Land (Tenure Conversion) Act 1963. This Act enables customary landowners to convert their customary land to fee simple which is a freehold right in land.  The relevant provisions are Sections 7, 8, 9, 10, 11, 15 and 16.
8.	A conversion of customary land to a fee simple commences when a citizen applies to the Commission in a prescribed form for registration in his or its name of any customary land or of an interest in customary land (Section 7).
9.	When the Commission decides that the application should be dealt with, it shall, amongst other things, prepare a conversion plan of the area in respect of which the application is made and publish a notice of the application and the conversion plan by such means to give reasonable notice to all persons affected or likely to be affected to respond.  Persons who claim ownership of or an interest in the land subject of the application may object to the application and must lodge an objection within 30 days to the Commission (Section 8).
10.	However, in my view, the pertinent provision is Section 9.  It is set out in full below:
	“9.	Conversion order.
(1)	After the expiration of the period specified under Section 8(2)(c), the Commission shall consider the application and any objections thereto and, if satisfied that—
(a)	subject to Subsections (3) and (4), the land the subject of the application is customary land;
(b)	all persons interested in the land the subject of the application are in agreement with the application;
(c)	subject to Subsection (5), adequate provision has been made, whether by way of a cash payment or otherwise, for compensation to all persons whose interests by custom in the land would be abolished or reduced by the making of a conversion order; and
(d)	in all the circumstances it is proper that the application be granted,
the Commission shall, subject to Subsection (2) and to Part III, make a conversion order in accordance with this Division.
(2)	The Commission shall not make a conversion order over land which should, in order to meet the need for the production of food for their own consumption by some or all of the owners of the land, remain customary land.
(3)	Subject to Subsection (4), the Commission may, with the consent of the Minister, include in a conversion area an area of Government land as though it were customary land the subject of an application under this Part.
(4)	The Commission may, with the consent of the Custodian for Trust Land, include in a conversion order trust land as though it were customary land the subject of an application under this Part.
(5)	Where—
(a)	the applicant is a business group or a land group and all the members of the group owning the land the subject of the application are members of that business group or land group; or
(b)	the application has been made by not more than six natural persons who are members of the group owning the land the subject of the application and the Commission is satisfied that a substantial number of that group have expressly waived the requirement of adequate provision for compensation,
the Commission does not require to be satisfied that adequate provision for compensation has been made.”  (Emphasis added).
11.	Briefly, after the expiration of 30 days, the Commission shall consider the application and any objections and if it is satisfied, amongst other things, that the land is customary land and all persons interested in the land are in agreement with the application, it shall make a conversion order (Section 9 above).
12.	This process was briefly considered in Joseph Lyaki Taleokon v. Geoffrey Apakali & Ors (2011) N4386 in the context of Government land being returned to customary land pursuant to a declaration by the Minister for Land & Physcial Planning pursuant to Section 133 of the Land Act 1996.  The decision in that case was a subject of an application for leave to review but leave was refused: see Joseph Lyaki Taleokon v. Geoffrey Apakali & Ors (2013) SC1306.
Excess of Jurisdiction
13.	Counsel for the first and second defendants conceded that the first respondent exceeded his jurisdiction when he proceeded to hear and grant the application for conversion order when there was a dispute as to the customary ownership of the land.  Where there is a dispute, she submitted, it could not be said that the precondition that all persons interested in the land must be in agreement with the application has been satisfied thus, within the discretion of the first respondent to make the conversion order.  
14.	But she submitted that if the Court upheld the appeal on this ground, it should remit the matter to the Commission to determine the customary land ownership dispute pursuant to the Court’s power under Section 38 (3) (b) of the Land Titles Commission Act 1962.
15.	Counsel for the third respondent submitted that Section 15 of the Land Titles Commission Act 1962 confers jurisdiction on the first respondent to determine customary land ownership dispute. In the exercise of this jurisdiction, the first respondent held that the third respondent was the customary landowner of the subject land and went on to grant the application for conversion order in favour of the third respondent. 
16.	In any case, counsel submitted that if the decision of the first respondent and the evidence before him is considered in totality, the first respondent made it abundantly clear that he was not determining the customary landownership dispute but given the huge number of objections, he formed a view that the objections though baseless, where made to frustrate the efforts made by the third respondent to register the land.  For these reasons, it was open to the first respondent to uphold the application and for that, the conversion order is lawful and the appeal should be dismissed.
17.	I accept the submissions of the first and second respondents’ counsel.  Her submission is consistent with the procedure for applying for a conversion order under the Land (Tenure Conversion) Act 1963 as outlined at [7] to [11] above.
18.	By conceding that the first respondent exceeded his jurisdiction to grant the conversion order when there is a dispute in relation to the customary ownership of the land, it is an admission to the first ground of appeal and the appeal should be upheld on this ground alone.
19.	Further, I wish to expound on the submission of counsel on one of the preconditions for a conversion order under Section 9 (1) (b) of the Land (Tenure Conversion) Act 1962.  I agree with her submission that all persons interested in the land must be in agreement with the application before a conversion can be made.  If not, it is not open to the Commission to make an order for conversion.  
20.	In this case, it is quite clear that not all the persons interested in the subject land were in agreement with the application because the appellant and his Arutu clan disputed the third respondent’s ownership of the land.  And in my view, it was not necessary for the appellant and his clan to prove their ownership of the land at the hearing before the first respondent.
21.	On the other hand, I reject the submissions of counsel for the third respondent.  It is misconceived because Section 15 of the Land Titles Commission Act 1962 has no application in this case.   This provision applies to “all disputes concerning and claims to the ownership by custom of or the right by custom to use, any land water reef, including a dispute as to whether any land is or is not customary land.......” 
22.	The jurisdiction of the Commission is confined to these matters.  The factors that make it appropriate for the exercise of this jurisdiction are set out in the earlier provision, Section 14 A (1) namely, the value of the land in dispute, the complexity or importance of the issues involved, or any other sufficient cause.  Given this, I am of the view that the jurisdiction of the Commission does not include determination of customary land ownership disputes.  
23.	That jurisdiction as correctly submitted by counsel for the appellant is exercised by the land disputes settlement authorities including the Local Land Court under the Land Disputes Settlement Act.  Even the finding by the first respondent that the huge number of objections was intended to frustrate the efforts of the third respondent to register the land is self-serving.
24.	There is an exception though, and that is in cases where, as counsel for the appellant correctly submitted, a Special Land Titles Commissioner is appointed by the Head of State, acting on advice, to determine a customary landownership dispute because of the complexity or importance of the issues involved pursuant to Section 4 of the Land Disputes Settlement Act.
25.	An example of such case is the Re Hides Gas Project Land [1993] PNGLR 309 where Amet CJ was appointed as Special Land Titles Commissioner in 1990 by the Head of State, acting on advice, to determine the customary landownership dispute where the Hides Gas project is currently located.  That is an example of a case involving complex issues given the large area of land and land groupings and economic importance of the gas project.  No such Special Land Titles Commission was appointed in this case.
26.	A more recent example is the case of Thomas Nen & Ors v. Grand Chief Sir Michael Somare, NEC & The State: OS (JR) No 156 of 2011 (Unnumbered & Unreported Judgment of 6th November 2015) where three Special Land Titles Commissioners comprising of late Mr. Robert Irung, Mr. Lawrence Titimur and Mr. Richard Cherake were appointed by the Head of State, acting on advice, to determined the customary landownership dispute in relation to a large portion of customary land and landowning groups in Wafi/Golpu gold mine project area.
27.	These cases are against the third respondent and for these further reasons, I am satisfied that the first respondent exceeded his jurisdiction when he proceeded to determine the ownership dispute in favour of the third respondent and made the conversion order to him.  This ground is upheld. 
Breach of Natural Justice
28.	As to breach of natural justice, in that, the first respondent was biased and favoured the third respondent, I am not satisfied that he was.  On the other hand, I am satisfied that the first respondent formed an erroneous view that he was conferred jurisdiction to determine the customary land ownership dispute and did when he lacked jurisdiction.  This ground is dismissed.
Error of Law
29.	As to whether the first respondent committed an error of law, I think the significant point to make under this ground is the effect of the conversion order. According to Section 16 of the Land (Tenure Conversion) Act 1963 the land subject of a conversion order ceases to be a customary land. 
30.	This is not all.  The land and any right to the ownership or possession of the land, any other right, title, estate or interest in or in relation to the land, ceases in all respects to be subject to or regulated by custom.  To my mind these matters make it so critical that the Commission must make sure that all the preconditions for the conversion order must be satisfied before granting it.
31.	In this case, as was found above, there is a dispute in relation to the ownership of the land by custom.  The third respondent claimed that it was his land and the appellant and his Arutu clan claimed that they own it.  That alone is sufficient for the first respondent to find that the parties are not in agreement with the application and should have formed the basis for the first respondent to vacate and adjourned the hearing until the ownership dispute is resolved.  
32.	By taking that approach, it is to make sure that the conversion order had all the landowners’ agreement.  He did not do that.  This is where I find he fell into error.  Such error is so serious because it has deprived the appellant the right to land.  This ground is upheld.	
Unreasonableness
33.	For this ground, I am of the view that the factors relevant for the first respondent’s exercise of discretion must be confined to those set out in Section 9 of the Land (Tenure Conversion) Act 1963.  Any matters outside Section 9 would bring up the question of whether the decision reached was reasonable in the circumstances.
34.	To start off with, the third respondent applied for a conversion order for Portion 2984C, Milinch Granville, Fourmil Moresby, Central Province. This is the description of the land which the first respondent noted in his introduction of the decision. It appears this portion is part of Abahua land.
35.	There is no dispute and as noted from the findings of the first respondent that, there are other portions within Abahua land that were granted Special Agriculture and Business Leases (SABL”) such as Portion 2546C which was granted to Mrs. Lucy Daure.
36.	Despite this, as correctly submitted by counsel for the appellant and I accept, the conversion order covers the Abahua land.  In my view, the conversion order conflicts with the existing SABL to Mrs. Daure and goes beyond the original Portion subject of the conversion order application.  These matters demonstrate that there are serious issues as to the land boundary and ownership which must be sorted out first before a conversion order can be made.  The Commission must treat these issues with care and must work with the disputing party to resolve them.  Where there are competing claims to the land, this is where the Commission must adjourn and allow the parties to resolve before the land disputes court.
37.	Secondly, I accept the appellant’s counsel’s submission that the first respondent took into account extraneous matters to arrive at the conclusion he did when he commented in his decision that he relied on a causal advice from a Motuan friend that Motuan people are busy bodies and try to frustrate others from developing their land by objecting to the efforts.  
38.	It is accepted that customary land tenure in Papua New Guinea has always been communally owned based, such as through clans.  It is also accepted that there is no waste and vacant customary land.  There is always an owner and the introduction of the western concept of adverse possession has tested the traditionally accepted principle of no waste and vacant land in customary land tenure to its limit in the present times where land is being used for economic gain and windfall.
39.	In this case, lack of activity on the subject land by the appellant and his clan or steps taken to challenge the third respondent’s claim of ownership of the land does not, in my view, necessarily mean that the appellant and his clan do not own the land.  It is one case where the customary land tenure must be tested to see if it can survive. These are matters that should be brought before the land dispute courts to deal with.  This is where I find the first respondent went beyond what he was required to do under Section 9 and the decision is unreasonable. I uphold this ground.
Conclusion
40.	Despite the third respondent’s contention that title of the land has passed to him and he is the registered proprietor and holds an indefeasible title, there is no evidence of a title deed or entry in the Register of the Registrar of Titles to back this contention.  For this reason, I am of the view that it is open to the Court to quash the conversion order.
Order 
41.	As to the type of orders the Court will make, given that three out of four grounds have been upheld, it follows that the appeal must be upheld and the conversion order must be quashed.  Finally, it is not necessary to remit the matter to the Commission to hear. Any land ownership dispute must be taken up by those responsible with the relevant land dispute authorities. 
42.	The orders are:
	1.	The appeal is upheld.
	2.	The conversion order of 9th April 2015 is quashed.
3.	The respondents shall pay the costs of the appeal, to be taxed, if not agreed.
Judgment and orders accordingly.
________________________________________________________________
Martha & Associates Lawyers: 	Lawyers for Appellant
Solicitor-General:  Lawyers for First and Second Respondents
Niuage Lawyers:  Lawyers for Third Respondent