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Namb v Batata [2020] PGNC 275; N8607 (23 October 2020)

N8607

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CIA NO. 91 OF 2018

BETWEEN:
PAULUS NAMB For and on behalf of the Landowners
Appellant

AND:
BENEDICT BATATA -Deputy Chief Commissioner
First Respondent

AND:
THE NATIONAL LAND COMMISSION
Second Respondent

Waigani: Miviri J
2020: 11^th September

PRACTISE & PROCEEDURE – Judicial Review & appeals –Appeal – National Land Titles Commission hearing – Appeal against – Application of National Land Registration Act 1977 – Non-compliance of – Whether actionable at law – Evidence insufficient – Balance not discharged – appeal dismissed – cost follow event.

Cases Cited:

Pipoi v Seravo, National Minister for Lands [2008] PGSC 7; SC909

Takori v Yagari [2008] PGSC 3; SC905

Avia Aihi v The State (No.1) [1981] PNGLR 81

National Housing Corporation v Asakusa [2012] PGSC 6; SC1165

Telikom PNG Ltd v Independent Consumer & Competition Commission [2008] PGSC 5; SC906
Counsel:

S. Wanis, for Appellant

No appearance for Respondents

RULING

23^rd October, 2020

1. MIVIRI, J: This is the ruling on the appeal against the decision of the National Land Commission on the 23^rd February 2017.
   
2. The State made no appearance despite being served affidavit of service of deponent Rocky Dunstan, process server with Solomon Wanis Lawyers dated the 11^th September 2020 who effected service on the office of the Solicitor General on the 7^th Floor of the Sir Buri Kidu Haus notifying of the date of the hearing on the matter. There was no prejudice to the State and compliance was heeded of section 8 of the Claims by and Against the State Act. The appellant was granted Leave to move the appeal.
   
3. Which appeal is against the whole of the decision of the Commission on the basis that the learned Commission erred in law and fact when it determined that the claim of the appellant was inadmissible and did not admit it. It is trite that the appellant must demonstrate error of law and fact to vitiate the decision at first instance: Pipoi v Seravo, National Minister for Lands [2008] PGSC 7; SC909 (10 April 2008). Here also relevantly the Supreme Court addressed that where declaration was made in respect of land as is the case here, the time to contest ownership was prior to actual declaration there was avenue open to raise the ownership with the Minister. Here compensation is the issue whether there was an error on the face of the record when the Learned Commission ruled that the claims will not be admitted. And that there would be no amount of settlement of payment. In this regard, I am confined to the material before the commission as this court is not empowered to hear de nova.
   
4. That the material evidence was overwhelming and were not considered. That there was no proper payment made to the actual customary owners when the land was acquired in the colonial administration. And that there is no time limit for service of the claim on the Solicitor General office.
   
5. And further that the learned Commission erred in law and acted ultra vires his powers by the Land Registration Act in not ordering that the claim would not be admitted. There were no proper grounds to come up with the reasoning. And there was no opposition or dispute to the Claim. And the State lawyer was not present at the hearing and made objections to the Claim.
   
6. And the Commission acted contrary to the principles of natural justice under Section 59 of the Constitution in that the learned Commission failed to in that the decision was not based on the evidence provided at the hearing. The transcript or record of the proceedings provided to the appellant had been altered and did not actually reflect what transpired in the hearing. It was altered to suit the decision that was made.
   
7. Alternatively, the decision failed to consider relevant matters or facts such as that the appellant and his tribes men were the legitimate customary landowners of the subject pieces of land. And that the land was lost for the purposes of agriculture or a coffee plantation and they no longer had its use. The appellant and his tribes men’s, fathers, were not paid anything at the colonial time when the land was being acquired, but the members of the neighbouring tribes were paid who had no interest in the land.
   
8. And therefore, the decision of the land Commission is quashed, and the appellants claim be admitted for determination. Further the matter is remitted for rehearing before the National Land Commission de novo.
   
9. At the heart of any appeal is the decision made at first instance, here by the Commission reproduced at Tab 4 of the Appeal book which has been filed dated the 19^th May 2020. It relates to a challenge against a decision that was made on 23^rd February 2017. The notice of appeal filed is dated the 25^th September 2018. It is a year after the decision made. It is made under the Land Registration Act 1977 “the Act”. And is a claim for settlement payment under section 39 of the Act. This section headed Claims for Settlement of payments reads:

(1) Within the prescribed time after the publication of a declaration under Section 9, or within such further time as the Commission, in special and unusual circumstances, allows, a person who is aggrieved by the declaration under Section 9 may make a claim to the Commission for a settlement payment in respect of the land the subject of the declaration.

(2) A claim under Subsection (1) shall be made in the prescribed manner, but this subsection does not prevent the Commission from accepting, on such conditions as to notice or further particulars or otherwise as it thinks proper, a claim made in any manner.

10. There must be publication in the National Gazette by the Minister of Lands that Korgua and Korwin Portions 5 and 6 Milinch Mt Hagen Fourmil Ramu Western Highlands Province is land that was acquired before Independence or pre Independence administration and which is required for a public purpose which reason is reasonable that has regards for the rights of all. That after the expiration of three months the land becomes national land after that publication. This notice will contain all the description of the land including if there is a dispute to that land by the customary owners. The notice will also state that any person aggrieved by it may make representation to the Minister within 60 days of the date of the publication of the notice and specify on what basis they dispute the notice.
    
11. Evidence has come out in the Commission hearing from its reasoning in the appeal book filed that the declaration of the two portions of land as National Lands was made on the 20^th March 2014 fulfilling Section 7 of the Act. By section 8 appellants had not complained to the Minister for Lands on the matter. And when it was raised it was a year later. That is in breach of Section 8 where appellant if he was aggrieved would have made complaint within 60 days. That has not occurred. Even then under section 10 of the Act the declaration by the minister under Section 9 is not subject to appeal or review and shall not be called into question in any legal proceedings. Compensation is not due except for claim for a settlement payment under Part VI of the Act. Section 39 asks for time under Section 9 which is 3 months. That has expired for the appellant. Minister was declaring it National land because there was no complaint against it even after three months. And even if it were the argument of the appellant that Section 155 (4) of the Constitution be invoked to dispense justice on what basis would this constitute: Avia Aihi v The State (No.1) [1981] PNGLR 81 (27 March 1981) was clear she was exercising a right to appeal if denied would have denied her justice. There was proper basis for the exercise of the inherent jurisdiction of this court. That is not the same for the appellant here. He had the opportunity to make the claim he has not produced nor has he pointed out the factors at first instance where this would have originated.
    
12. Fundamentally also is the fact that the appeal is from a decision made the 23^rd February 2017. It is now 23^rd October 2020 when the decision is to be delivered on his appeal filed Notice of Appeal dated 25^th September 2018. In my view this is inordinate delay and will unless there are very good reasons produced will be no basis to hear the matter. There is no time limitations to file but deduced from the discussion of Section 7, 8, 9 and 39 of the Act set out above it will be safe to say the minimum is 60 days the maximum is 3 months. It is clear he has failed on both limitation on time and therefore would not qualify. Even the exercise under section 155 (4) of the Constitution does not par out with the material he has advanced here. This is not in his favour in the appeal made.
    
13. He has not demonstrated on the strength of the material and the decision of the Commission at first instance that there is error apparent and identifiable that vitiates the decision made. Particulars that he pleads set out above have not come accompanied by the excerpts in that decision at first instance evidencing the error or errors. General submissions will not alleviate that there is a lawfully constituted commission that has delivered a determination. He holds the que and must satisfy that there are identifiable errors apparent to vitiate that decision. It has not been drawn to the satisfaction to tilt the balance his way. I am mindful that the issues identifiable and apparent to the cause of action instituted has being finally determined bringing into play the doctrine of issue estoppel: National Housing Corporation v Asakusa [2012] PGSC 6; SC1165 (1 March 2012). Simply put the matter has come to the end of its natural life and will not be revived anymore because there really is no basis to revive the fundamental holding to rest. That in my view is the balance against strength of the evidence in the decision at first instance and therefore the appeal is not substantiated. Because the issues for all intent and purposes are now res judicata: Telikom PNG Ltd v Independent Consumer & Competition Commission [2008] PGSC 5; SC906 (28 March 2008).
    
14. There are no alterations to the (4) four-page decision of the Commission in the appeal book tab 4 and there are no additions or subtractions in the sense of both words. At page 29 of the appeal book there is high light of paragraph 3 and 4 and there is for all intent and purposes no alterations or changes to that record. It is a computer generated decision and there is no evidence on the face of the decision to bring to the balance in favour of the appellant that indeed the decision has been altered. This ground is not made out in the appeal and fails. This is an allegation that goes to the integrity of the Commission and is without any proper foundation. It is without merit and fails.
    
15. The aggregate totality is the grounds of appeal contended by the appellant are not made out, no error has been demonstrated on the face of the decision at first instance. That being so the appeal is dismissed as being without merit and the decision at first instance of the Commission is confirmed in its entirety.
    
16. The orders of the court are therefore:
    
    • (1) The appeal is dismissed.
    • (2) The decision at first instance is confirmed.
    • (3) Costs will follow the event forthwith.

Orders Accordingly.

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Solomon Wanis Lawyers: Lawyers for the Plaintiff /Applicant