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Karogo v Kave [2019] PGNC 387; N8134 (27 November 2019)

N8134

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS (JR) NO 795 OF 2011

FRANCIS KAROGO, REPRESENTATIVE OF
KERAKERA LOLOLO CLAN OF GAVAIVA VILLAGE
Plaintiff

V

JAMES KAVE, REPRESENTATIVE OF
KEVEMUKI CLAN OF GULE VILLAGE
First Defendant

PASKALISE KUPA, REPRESENTATIVE OF
BUALALI CLAN OF GAVUTU VILLAGE
Second Defendant

ROY MOU, REPRESENTATIVE OF
BOBISO CLAN OF KOIMUMU VILLAGE
Third Defendant

HIS WORSHIP REGETT MARUM,
PROVINCIAL LAND COURT MAGISTRATE
Fourth Defendant

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Fifth Defendant

Kimbe: Cannings J
2019: 4^th October, 27^th November

JUDICIAL REVIEW – review of decision of Provincial Land Court, on appeal against decision of Local Land Court – Land Disputes Settlement Act Chapter No 45 – whether Provincial Land Court gave reasons for decision – whether Provincial Land Court decision made in accordance with principles of natural justice – procedural fairness – duty to give reasons – rule against bias.

The plaintiff applied for judicial review by the National Court of a decision of the Provincial Land Court, which had upheld an appeal by the defendants against a decision of the Local Land Court, in favour of the plaintiff’s clan. Two grounds of review were pressed, that the Provincial Land Court erred in law by: (1) not giving reasons for its decision; and (2) making a decision that was actually biased or in a way that gave rise to a reasonable apprehension of bias.

Held:

(1) A Provincial Land Court hearing an appeal against a decision of the Local Land Court under the Land Disputes Settlement Act 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 failed to give good, proper and sufficient reasons for its decision. The first ground of review was upheld.

(3) The manner in which the presiding magistrate communicated with one of the parties to the appeal, to whom he was related, gave rise to a reasonable apprehension of bias, and failed to comply with the constitutional requirement that court proceedings be seen to be conducted fairly. The second ground of review was upheld.

(4) As both grounds of review were upheld, the Provincial Land Court decision was quashed and the decision of the Local Land Court restored.

Cases cited

The following cases are cited in the judgment:

Amet v Yama (2010) SC1064
Application by Herman Joseph Leahy (2006) SC981
Balus Tara v Rachel Gugu (1982) N374(M)
Bougainville Copper Foundation v Minister for Trade and Industry (1989) N747
Danny Yai v Joseph Pindu (2009) N3630
Giru v Edo (2007) N5032
Hami Yawari v Anderson Agiru (2008) SC939
Harbours Board v Breni Kora (2005) N2834
Jack Afing v Martin Pari (2006) N3034
Jack Nou v Richard Cherake, Magistrate, Provincial Land Court, Port Moresby (2004) N2539
John Mua Nilkare v Ombudsman Commission (1996) SC498
Kwame Okyere Boateng v The State [1990] PNGLR 342
Mision Asiki v Manasupe Zurenuoc (2005) SC797
Ombudsman Commission v Peter Yama (2004) SC747
Sela Gipe v The State [2000] PNGLR 271
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 against a decision of the Local Land Court.

Counsel

J Siki, for the Plaintiff
D Kari, for the First, Second & Third Defendants
T Mileng, for the Fourth & Fifth Defendants

27^th November, 2019

1. CANNINGS J: Francis Karogo, representing the Kerakera Lololo clan of Gavaiva village, applies for judicial review of the decision of the West New Britain Provincial Land Court, constituted by his Worship, Mr Regett Marum, dated 20 November 2010, concerning customary ownership of land on which the Moramora Technical School is based, known as Moramora land, in the Hoskins area.
   
2. The Provincial Land Court’s decision was to uphold an appeal by Herman Sahale, representing Bualali, Kevemuki and Bobiso clans, against a decision of the Local Land Court, constituted by his Worship Mr Tera Dawai and Land Mediators Vincent Gala and Tobias Divu, dated 24 March 2009.
   
3. The Local Land Court order was that:
   
   1. Kerakera Lololo clan is now the principal land owner.
      
   2. The Mamapa, Ababe-Brakiko, Baubaku, Kurukuru and Kakea clans had acquired user rights over this land and they must continue to enjoy these rights to usage of the land but if usage is not possible due to development on the land then they be allowed to enjoy the economic benefit derived from the land with the principal landowner.
      
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).
   
5. Two grounds of review were pressed, that the Provincial Land Court erred in law by: (1) not giving reasons for its decision; and (2) making a decision that was actually biased or in a way that gave rise to a reasonable apprehension of bias. The plaintiff seeks various declarations and orders that would quash the Provincial Land Court’s order and reinstate the Local Land Court order. He also seeks damages.
   

PRELIMINARY ISSUE

6. Mr Mileng of the Office of Solicitor-General appeared for the Provincial Court Magistrate and the State. He submitted that the two grounds of review ought not be entertained as they were not pleaded in the plaintiff’s National Court Rules, Order 16, Rule 3(2)(a) statement, in which the grounds of review stated:
   

4.1 That the Provincial Land Court was conducted contrary to the requirements of S. 50 of the Land Disputes Settlement Act with no Court deposition and/or file and the decision has prejudiced the Applicants and is therefore null and void.

4.2 That his Worship Regget Marum wrongly ruled that before the substantive matter is heard, the LLC Magistrate must first bear and determine the Matrilineal Genealogy of the parties over the claim of interest in the Moramora land dispute, when it did, and is therefore null and void.

4.3 That His Worship wrongly ruled that the District Land Court revisit and consider the LTR and lease document, when it did, rendering the decision void.

4.4 That the Provincial Land Court Magistrate failed to ensure compliance of Section 47(2) of the Land Disputes Settlement Act in appointing and involving land mediators demonstrated that he was biased and has a conflicting interest in the case hence rendering his decisions void.

4.5 That the Provincial Land Court Orders of 20 November 2010 in quashing and redirecting the hearing back to the District Land Court to be heard before a new magistrate lacks substance, confusing and is only procrastinating, biased and invalid and ultra-virus, thereby rendering the decision of the Provincial Land Court null and void.

7. Mr Mileng has raised a valid issue. Under the National Court Rules, Order 16, Rule 6(1), an applicant for judicial review is restricted to arguing the grounds set out in the Order 16, Rule 3(2) (a) statement. The grounds of review that have been pressed at the trial of this application are not expressly found in the grounds of review.However, I consider that there is a sufficient connection between the first argument (about failure to give reasons) and ground 4.1 to allow the plaintiff to proceed. Likewise with the second argument (about bias). This has a sufficient connection with ground 4.4.
   
8. The defendants have been put on notice what the real arguments are for trial. There is no procedural unfairness, so I dismiss the preliminary argument of the defendants and will proceed to determine the two grounds of review that have been pressed, on their merits.
   
1. GROUND 1: ALLEGED FAILURE TO GIVE REASONS
   
9. Provincial Land Courts have been established under the Land Disputes Settlement Act 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). It is part of the principles of natural justice and the duty to act fairly that once a judicial or administrative decision is made, the decision-maker must give good, proper and sufficient reasons for the decision (Ombudsman Commission v Peter Yama (2004) SC747 and Mision Asiki v Manasupe Zurenuoc (2005) SC797). In the case of a court, the reasons do not have to be expressed in writing in a formal judgment. However, there must be some identifiable record of the reasons (Amet v Yama (2010) SC1064).
   
10. If reasons are not given, or if they are given, but are scanty and insufficient, the inference is that there are no good reasons for the decision. A decision made in that way will necessarily be made in error of law (Mision Asiki v Manasupe Zurenuoc (2005) SC797; Harbours Board v Breni Kora (2005) N2834, Giru v Edo (2007) N5032).
    
11. In this case the learned Provincial Court Magistrate did not publish a judgment or provide any reasons for his decision. Only an order was published, in these terms:
    
    1. The appeal is allowed.
    2. Decision of the Local Land Court of 24 March 2009 is quashed.
    3. The dispute is referred back to the Local Land Court for hearing before another magistrate with the following directions:

(a) before the substantive dispute is heard, the LLC magistrate must first hear and determine the matrilineal genealogy of the parties over the claim of interest in the Moramora land; and

(b) the court must decide the LIR lease document and decide if such LIR is proof of conclusive ownership of the land, portion 524. If the court decides that the LIR is conclusive evidence of ownership of those who signed the LIR document, then there is no need to continue with the dispute. If not then the court can continue to hear the dispute.

4. Appeal deposit to be refunded in full if it was paid.
5. Parties bear their own costs.
   
12. The order was accompanied by a brief statement:
    

Decision of the Court: Reserved and to be published later.

13. That statement was presumably meant to indicate that reasons for the decision would be published later. But they were not published later. I accept the plaintiff’s evidence. Several attempts have been made to obtain the reasons for decision, but no reasons and no judgment have ever been published. It is presumed therefore that that there were no good reasons to support the order of 20 November 2010. The Provincial Land Court failed to comply with the principles of natural justice by failing to give reasons for its decision. The first ground of judicial review is upheld.
    
2. THE ISSUE OF BIAS
   
14. There are detailed accounts in the affidavits of Isaac Bobore and Helen Bobore, which have been admitted into evidence, of a conversation between the learned Provincial Court Magistrate and people who were supporting the appellants in the appeal, who are allegedly related to his Worship, outside Kimbe courthouse on the morning of 19 November 2010 (the day prior to determination of the appeal). The conversation was to do with the merits of the appeal. The evidence in those affidavits is uncontradicted and appears credible. I accept that evidence and find that such a conversation took place.
    
15. To establish bias as a ground of judicial review it must be proven that the decision-maker was actually biased or that a reasonable apprehension of bias would arise in the mind of a reasonable person with knowledge of the relevant facts and circumstances (Kwame Okyere Boateng v The State [1990] PNGLR 342, John Mua Nilkare v Ombudsman Commission (1996) SC498, Sela Gipe v The State [2000] PNGLR 271, Application by Herman Joseph Leahy (2006) SC981). All judicial proceedings must be conducted fairly, free of actual bias on the part of the presiding judge or magistrate and free of a reasonable apprehension of bias. A claim that a Magistrate or a Judge is biased must be supported by clear evidence that he or she has a connection with one of the parties or otherwise has an interest in the case or has conducted the proceedings in such an obviously one-sided way that there is a reasonable apprehension of bias (Thomas Kavali v Thomas Hoihoi [1984] PNGLR 182, Hami Yawari v Anderson Agiru (2008) SC939, Danny Yai v Joseph Pindu (2009) N3630).
    
16. I find that the fact of the conversation outside the Kimbe courthouse on 19 November 2010 is insufficient evidence of actual bias. However, I find that a reasonable apprehension of bias would arise in the mind of a reasonable person with knowledge of that fact. The second ground of judicial review is upheld.
    

REMEDIES

17. It is now time to consider the consequences of upholding 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). As both grounds of review have been upheld, it follows naturally that the order of the Provincial Land Court will be quashed and the order of the Local Land Court will be restored. The damages claim has been poorly articulated and I see no basis for ordering damages against the defendants. The claim will be refused.
    

COSTS

18. Costs normally follow the event, i.e. 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, and the long delay in having it resolved, I will order that the parties bear their own costs.
    

ORDER

1. It is declared that the 2010 proceedings of the West New Britain Provincial Land Court in the appeal regarding Moramora land were conducted contrary to the principles of natural justice.
   
2. The order of the Provincial Land Court dated 20 November 2010 is quashed.
   
3. The order of the Local Land Court of 24 March 2009 in LLC No 5 of 2001 regarding Moramora land is restored.
   
4. Other relief claimed by the plaintiff is refused.
   
5. The parties shall bear their own costs.
   

Judgment accordingly
________________________________________________________________
Greg Manda Lawyers: Lawyers for the Plaintiff
Public Solicitor: Lawyers for the First, Second & Third Defendants
Solicitor-General: Lawyers for the Fourth & Fifth Defendants