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Falide v Gabi [2023] PGNC 460; N10610 (12 December 2023)

N10610

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS (JR) NO 312 OF 2022

GALEM FALIDE FOR HIMSELF & WAHALUB CLAN
OF HILU VILLAGE
Plaintiff

V

BEYE GABI & AYEHU CLAN
First Defendant

HIS WORSHIP GEORGE EPOR
Second Defendant

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Defendant

Madang: Cannings J
2023: 11^th September, 27^th October, 8^th, 12^th December

JUDICIAL REVIEW – decision of Local Land Court – whether Local Land Court has jurisdiction to make findings re ownership of portion of customary land when a previous order has been made in relation to same portion of land by Provincial Land Court – Land Disputes Settlement Act, s 27(4).

PRACTICE AND PROCEDURE – whether plaintiff had standing to institute judicial review proceedings – whether standing of plaintiff is a relevant consideration at the trial of a judicial review, after plaintiff has been granted leave to apply for judicial review.

The plaintiff applied to the National Court for judicial review of a decision of a Local Land Court that recognised in 2022 the first defendant’s clan as owner of a portion of customary land. The plaintiff argued that the Local Land Court exceeded its jurisdiction as the question of ownership of the land was settled by a 1992 decision of the Provincial Land Court that recognised that another clan, which the plaintiff claims to lead, is the rightful owner.

Held:

(1) The fact that the plaintiff’s clan’s claim to the land is ultimately based on a 1932 decision of the pre-Independence Supreme Court, which recognised that the land was owned by a tribe with the same name as the clan who the plaintiff says he is representing, rather than by that clan, is of no consequence as the terms “tribe” and “clan” are not legal terms and are often used interchangeably.

(2) The plaintiff gave evidence in these proceedings, which was not challenged, that he is now the chief of the tribe recognised as owner of the land in the 1932 decision of the pre-Independence Supreme Court and it is reasonably to be inferred that he is also the chief of the clan recognised as owner of the land in the 1992 Provincial Land Court decision. The fact that the plaintiff lives in a village 16 km from the subject land has no bearing on the issues in this case.

(3) The court was satisfied that the plaintiff had standing to pursue the judicial review.

(4) The Local Land Court exceeded its jurisdiction as the question of ownership of the land was settled by the 1992 Provincial Land Court decision and there was no evidence that that decision had been quashed. The Local Land Court acted contrary to s 27(4) of the Land Disputes Settlement Act in hearing and determining the first defendant’s claim to the land.

(5) The decision of the Madang Local Land Court was null and void and was quashed by order of the National Court. It was declared that the 1992 Provincial Land Court decision remained in force.

Cases Cited

The following case is cited in the judgment.

Custodian of Expropriated Property v Commission of Native Affairs [1971-72] PNGLR 501

Counsel

B B Wak, for the Plaintiff
B Tabai, for the First Defendant

12^th December 2023

1. CANNINGS J: The plaintiff, Galem Falide, representing Wahalub clan of Hilu, Madang Province, applies for judicial review of the decision of the Madang Local Land Court constituted by Land Court Magistrate his Worship George Epor of 30 November 2022 to declare that the first defendant, Beye Gabi and Ayehu clan, is the rightful owners of Ubi land, Kesup village.

2. The plaintiff argues that the Local Land Court exceeded its jurisdiction as the question of ownership of the land was settled by a 1992 decision of the Provincial Land Court that recognised that another clan, which the plaintiff claims to lead, is the rightful owner.

3. The Provincial Land Court decision was by his Worship Cosmas Bidar, who upheld an appeal by Mahoban clan and ordered:

The portion of land known as Hubu (Ubi) upon which the Waterboard treatment plant is located is owned by Mahoban clan of Kesup village.

4. The first defendant does not dispute the existence of the Provincial Land Court decision but argues as a preliminary point that the plaintiff lacks standing to commence the judicial review. He argued, firstly, that the basis of the plaintiff’s claim to the land is that his clan was recognised as owner of the land by the 1932 decision of Justice Phillips in the pre-Independence Supreme Court in Custodian of Expropriated Property v Commission of Native Affairs [1971-72] PNGLR 501. However, he argues that that decision recognised a tribe with the same name as the plaintiff’s clan – Mahoban Tribe – not the plaintiff’s clan – Mahoban Clan – as owner.

5. Secondly he argued that the plaintiff and his clan are not in fact members of the tribe or the clan whose interests he claims to represent, as borne out by the fact that the plaintiff has commenced the judicial review proceedings in the name of an entirely different clan, and furthermore the plaintiff and his clan are from a village 16 km away from the subject land.

6. I accept that though the plaintiff has been granted leave for judicial review and the question of his standing has been addressed, it is still open to a defendant (especially a defendant who had no opportunity to be heard at the leave hearing) to raise the issue at the trial of the judicial review.

DETERMINATION

7. The fact that the plaintiff’s clan’s claim to the land is ultimately based on the 1932 decision of the pre-Independence Supreme Court, which recognised that the land was owned by a tribe with the same name as the clan who the plaintiff says he is representing, rather than by that clan, is, in my view, of no consequence. The terms “tribe” and “clan” are not legal terms and are often used interchangeably.

8. It is curious that the plaintiff has commenced these proceedings in the name of a clan that is entirely different from the name of the tribe recognised as owner of the land in the 1932 decision of the pre-Independence Supreme Court. However, the plaintiff gave evidence in these proceedings, which was not challenged, that he is now the chief of the tribe recognised as owner of the land in the 1932 decision of the pre-Independence Supreme Court and it is reasonably to be inferred that he is also the chief of the clan recognised as owner of the land in the 1992 Provincial Land Court decision. The fact that the plaintiff lives in a village 16 km from the subject land has no bearing on the issues in this case.

9. I am satisfied that the plaintiff has standing to pursue the judicial review.

10. This case is determined by the terms of s 27(4) of the Land Disputes Settlement Act, which provides:

A Local Land Court shall not proceed to hear and determine a dispute, other than an application under Section 44, unless it has first satisfied itself that no previous order has been made in relation to the land by—

(a) a Provincial Land Court or a Local Land Court; or

(b) the Land Titles Commission.

11. I find that the Madang Local Land Court exceeded its jurisdiction as the question of ownership of the land had been settled by the 1992 Provincial Land Court decision and there is no evidence that that decision had been quashed. The Local Land Court acted contrary to s 27(4) of the Land Disputes Settlement Act in hearing and determining the first defendant’s claim to the land.

ORDER

(1) The decision of the second defendant of 30 November 2022 at Madang in Local Land Court proceedings styled as LLC 11 of 2021 is quashed forthwith.

(2) It is declared that the decision of the Provincial Land Court constituted by his Worship Cosmas Bidar, of 30 December 1992, that “the portion of land known as Hubi (Ubi) upon which the Waterboard treatment plant is located is owned by Mahoban Clan of Kesup village”, remains in force.

(3) The first defendant is restrained forthwith from filing in the Local Land Court or the District Court or any inferior court or tribunal any proceedings regarding the subject matter of LLC 11 of 2021 without the leave of the National Court.

(4) The defendants shall pay the plaintiff’s costs of these proceedings on a party-party basis, which shall, if not agreed, be taxed.

(5) The file is closed.

________________________________________________________________
Bradley & Co Lawyers: Lawyers for the Plaintiff
Tabai Lawyers: Lawyers for the First Defendant
Solicitor-General: Lawyers for the Second & Third Defendants