SC2129
PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCA NO. 59 OF 2019

BETWEEN
HERMAN SAHALE as
Representative of Bualali Clan, Kevemuki Clan & Bosibo Clan of Hoskins Appellant

AND
FRANCIS KAROGO as
Representative of Kerakera Lololo Clan of Gavaiva Village
First Respondent

AND
HIS WORSHIP REGETT MARUM, PROVINCIAL LAND COURT MAGISTRATE
Second Respondent

AND
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Respondent

Waigani:  Manuhu, Anis and Berrigan, JJ
2021: 1st & 9th July

Cases Cited:

Beni Sarea & Ilaiah Bigilala v Dr Andrew Moutu & Ors (2019) SC1893
Amet v Yama (2010) SC1064
Mountain Catering Ltd v Punangi (2013) SC1225
Kuk v O’Neill (2014) SC1331
Nominees Niugini Limited v Independent Public Business Corporation (2017) SC1646
Yama v Singirok (2020) SC1982 
Kitogara Holdings Pty Ltd v NCDIC & Ors [1988-89] PNGLR 346 
Dupnai v Weke (2016) SC1525
Papua New Guinea Banking Corporation v Tole (2002) SC694  
Yakasa v Piso (2014) SC1330 
MVIT v John Etape [1994] PNGLR 596 
Motor Vehicles Insurance (PNG) Trust v Pupane (1993) SC452
Covec (PNG) Ltd v Kama (2020) SC1912
Kuman v Digicel (PNG) Ltd (2013) SC1232 
Asiki v Zurenuoc, Provincial Administrator (2005) SC797
Curtain Bros (PNG) Ltd v UPNG (2005) SC788 

Counsel

Mr I. Dalu, for the Appellant
Mr J. Siki, for First Respondent
DECISION ON APPEAL
9th July, 2021
1.	BY THE COURT: This an appeal against the decision of the National Court on 27 November 2019 granting judicial review. 

BACKGROUND 

2.	There is a long running dispute as to the ownership of customary land, known as Moramora land, on which the Moramora Technical School, is located in the Hoskins area.

3.	On 24 March 2009 the Kimbe Local Land Court found that the First Respondent’s clan was the principal owner of the land.

4.	On 20 November 2010 the West New Britain Provincial Land Court upheld an appeal, in proceedings PLC 01/2009, by the Appellant representing Bualiaili, Kevemuki and Bobiso Clans against a decision of the Local Land Court and referred the matter back to the Local Court for hearing with certain conditions including hearing and determining the matrilineal genealogy of the parties over the land in dispute.

5.	On 19 October 2011 the First Respondent, representing the Kerakera Lolo Clan of Gavaiva Village, applied for Judicial Review of the decision of the West New Britain Provincial Land Court, seeking various declarations and orders that would quash the Provincial Land Court’s order and reinstate the Local Land Court order.  He also sought damages. 

6.	The application for judicial review was, for reasons which are not apparent from the face of the record, not heard until 4 October, 2019.  The Appellant was not named in the judicial review proceeding and he did not appear for trial.  

7.	On 27 November 2019 the trial judge quashed the Provincial Land Court’s decision and restored the Local Land Court decision. Aggrieved by the decision of the trial judge the Appellant appeals the decision.

STANDING 

8.	At the hearing of the appeal the First Respondent raised an oral objection to the competency of the appeal on the basis that the Appellant lacked standing to bring the appeal thus rendering it incompetent. 

9.	It is well established that the issue of competency may be raised at any time. Furthermore, the Court may of its own volition at any time raise any issue as to jurisdiction of the Court, including competency of an appeal:  Beni Sarea & Ilaiah Bigilala v Dr Andrew Moutu & Ors (2019) SC1893; Amet v Yama (2010) SC1064, Mountain Catering Ltd v Punangi (2013) SC1225, Kuk v O’Neill (2014) SC1331, Nominees Niugini Limited v Independent Public Business Corporation (2017) SC1646.

10.	As has been observed, however, there is a growing trend by respondents to raise the issue of competency for the first time, without notice, at what is meant to be the hearing of the substantive appeal.  That is not appropriate.   In the words of Batari J in Yama v Singirok (2020) SC1982 the “principle that the issue of competency can be raised at any stage of the proceedings is not an open-ended or catch-all process”.   

11.	The situation here is somewhat different but also concerning.  The First Respondent previously filed a notice of objection to the competency of the appeal with respect to the same issue.  The objection to competency was dismissed by the Supreme Court on 19 June 2020 on the basis that it was incompetent for failing to comply with the Supreme Court Rules.  Now the First Respondent comes without any proper notice and asks the Supreme Court to hear the objection to standing again on the basis that the matter is one that “goes to jurisdiction”.  This is wholly unsatisfactory and misconceives the Supreme Court authorities referred to above.  We would in future refuse to entertain such an application.

12.	In any event, we are not persuaded that we should of our own volition dismiss the matter for lack of standing.  The First Respondent concedes that the Appellant is genuinely aggrieved by the National Court decision.  He also concedes that the Appellant was both a party to the Local Land Court and the Provincial Land Court proceedings.  It was the Appellant who brought the appeal in the Provincial Land Court representing the Bualali, Kevemuki and Bobiso Clans.  Despite that the First Respondent failed to name him in the National Court proceedings it brought against the Provincial Land Court’s decision.  It is not disputed that the Appellant is a member and leader of one of the clans and there was no suggestion that he is not authorised to represent the clans in these proceedings. 

13.	The objection is dismissed.   The Appellant has standing. Kitogara Holdings Pty Ltd v NCDIC & Ors [1988-89] PNGLR 346 applied.  The case is distinguishable from Dupnai v Weke (2016) SC1525.

GROUNDS OF APPEAL 

14.	The grounds of appeal are that:

a)	The Trial Judge erred in law when he failed on his part to ensure the main appellant before the Provincial Land Court namely Herman Sahale was given every opportunity to be heard on the challenge to the judgment from which fruits he benefited from;

b)	The Trial Judge erred in law in entertaining the two main grounds of review namely (i) failure to give reasons, and (ii) bias, when both grounds were not pleaded in the Order 16 Rule 3(2)(a) Statement;

c)	In entertaining the two main grounds of review (failure to give reasons and bias) the Trial Judge breached the principles of natural justice by going outside of the pleadings and depriving the respondents from meeting the applicant on his grounds pleaded in the Order 16 Rule 3(2)(a) Statement;

d)	The Trial Judge erred in law when he failed to order that the matter be remitted back to the Provincial Land Court for the appeal to be heard by another magistrate after granting judicial review on mere technical ground.

15.	Ground a) was abandoned on the appeal.  Grounds (b) and (c) may be conveniently dealt with together.  

GROUNDS (b) and (c): LACK OF PLEADINGS 

16.	In summary, the Appellant complains that the learned trial judge erred in law in finding that:   

a)	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; and

b)	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 conducted fairly and be seen to act fairly, 

when those matters were not pleaded in the Order 16 Rule 3(2)(a) Statement. 
17.	It is well established that unless there is foundation in a plaintiff’s pleadings no evidence, and no damage or relief of matters not pleaded can be allowed.  The purpose of pleadings is to: furnish a statement of the case sufficiently clear to allow the other party a fair opportunity to meet it; define the issues for decision in the litigation and, thereby, enable the relevance and admissibility of evidence to be determined at the trial; and give a defendant an understanding of a plaintiff's claim in order to be able to respond: Papua New Guinea Banking Corporation v Tole (2002) SC694.  

18.	It is also clear, however, that undue rigidity in the application of procedural requirements should not be allowed to compromise the substantive goal of the Court, which is “to do justice between parties according to law”: Yakasa v Piso (2014) SC1330 (Lenalia, Murray and Logan JJ) at [61] adopting and applying Bomanite Pty Ltd v Slatex Corp Australia Pty Ltd (1991) 32 FCR 379 per French J (as he then was) at 391.  

19.	What is essential is that the statement of claim read as a whole discloses a cause of action in sufficiently clear terms to put the defendant on notice as to the claim that it has to meet”:  Kuman v Digicel (PNG) Ltd (2013) SC1232 at [14].

20.	As the Court explained in Yakasa v Piso (supra) at [66] (emphasis ours):
“The rules of court with respect to pleadings are directed to the end of achieving procedural fairness but, where it can be seen that, in the circumstances of a particular case, procedural fairness has been achieved, albeit without strict compliance with the rules of court, it would be to elevate form over substance to set aside the resultant relief. The true position is as stated by Mason CJ and Gaudron J in Banque Commerciale SA (En Liqn) v Akhil Holdings Ltd [1990] HCA 11; (1990) 169 CLR 279 at 286-287 (emphasis ours; citations omitted):
“The function of pleadings is to state with sufficient clarity the case that must be met… In this way, pleadings serve to ensure the basic requirement of procedural fairness that a party should have the opportunity of meeting the case against him or her and, incidentally, to define the issues for decision. The rule that, in general, relief is confined to that available on the pleadings secures a party's right to this basic requirement of procedural fairness. Accordingly, the circumstances in which a case may be decided on a basis different from that disclosed by the pleadings are limited to those in which the parties have deliberately chosen some different basis for the determination of their respective rights and liabilities. 
Ordinarily, the question whether the parties have chosen some issue different from that disclosed in the pleadings as the basis for the determination of their respective rights and liabilities is to be answered by inference from the way in which the trial was conducted. It may be that, in a clear case, mere acquiescence by one party in a course adopted by the other will be sufficient to ground such an inference.””
21.	Where evidence is led without objection, a Court is entitled to make findings on the basis of such evidence provided it is within the general ambit of the plaintiff’s claim:  MVIT v John Etape [1994] PNGLR 596 applying Motor Vehicles Insurance (PNG) Trust v Pupane (1993) SC452.

22.	As summarised by Kandakasi DCJ in Covec (PNG) Ltd v Kama (2020) SC1912: 
“In short, these authorities make it clear that unless there is foundation in a plaintiff’s pleadings, no evidence and damages or reliefs of matters not pleaded can be allowed. If, however, at the trial of a matter by the conduct of the parties, they have allowed evidence to be led and not objected to or no issue is taken on matters not pleaded being allowed in, can empower a trial court to grant such reliefs as the justice of the case warrants. For the strictures of pleadings and the rules governing them are only “are a handmaiden of justice, not its master” to use the words of the Court in Maniosa Yakasa v. David Piso (supra).”

23.	The Appellant contends, as he did in the lower court, that the two grounds of review relied upon by His Honour, were not pleaded in the First Respondent’s National Court Rules, Order 16, Rule 3(2)(a) statement which 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 (he substantive is heard, the LLC Magistrate must first bear and determine the Matrilineal 5 000000 020 Genealogy of the parties over the claim of interest in the Moraniora 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. 

24.	The learned trial judge specifically considered the issue with respect to both reasons and bias before rendering his decision but dismissed it in each case, saying: (emphasis ours):

“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. 

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.”

25.	We find no error in his Honour’s finding for the following reasons.  

Failure to Give Reasons

26.	It is the case that the wording of Ground 4.1 would have benefited from greater clarity.   The Order 16 Rule 3(2) Statement, when read as a whole, however, is an attack against the entirety of the Provincial Land Court proceedings, as well as the decision itself.  Essentially it is claimed that the proceedings were conducted without any proper procedure, without the taking of depositions or the keeping of a court file.  Furthermore, that the decision or order made in those proceedings was confusing, tainted with bias, made in the absence of natural justice, and wrong.  Ground 4.1 must be read in that context.  The reasons of the magistrate for his decision, and whether or not any such reasons were ever provided, is clearly central to all of those matters.  

27.	The conduct of the parties at the lower court is also relevant.  Affidavit evidence was tendered in support of the claim, including affidavit evidence, to which no objection was taken, which was not challenged under cross-examination, and which the trial judge accepted, that at the time the magistrate issued his ruling, he undertook to provide written reasons, which were never forthcoming.  Evidence was led at the trial from the First Respondent to establish that they wrote to the Provincial Land Court following the hearing requesting the written decision and the transcripts but were advised that there was no written decision on file.    

28.	Accordingly, while the claim did not expressly plead a failure to provide reasons, it was in sufficiently clear terms to identify the issues for determination and put the Appellants on notice to meet it: Yakasa v Piso (2014) SC1330; Kuman v Digicel (PNG) Ltd (2013) SC1232 applied.

Bias 

29.	The Order 16 Rule 3(2) Statement would certainly have benefited from greater specificity as to the precise nature of the alleged bias relied upon by the First Respondent.  Ground 4.4 did refer to both bias and a conflict of interest, albeit that it focused on the appointment of land mediators, rather than conversations observed between the Provincial Land Magistrate and one of his relatives who was close to one of the clans challenging the Local Land Court decision. Ground 4.5 also referred to bias on the part of the Provincial Land Magistrate, and there are multiple references to alleged bias on his part elsewhere in the Order 16 Rule 3(2) statement.   Again, affidavit evidence was tendered from a number of witnesses on the issue of bias, none of which was objected to, or challenged, and which was clearly relevant to the question of bias on the part of the magistrate.  In the circumstances we find no error in his Honour’s finding.

30.	For the above reasons we dismiss grounds (b) and (c). 

GROUND d): FAILURE TO REFER THE MATTER BACK TO THE PROVINCIAL LAND COURT 

31.	As the trial judge correctly pointed out, a judicial review involves a two-stage decision making process.  First, the plaintiff must establish one or more of the grounds of review.  If this is done, the second stage of the process is persuading the court that the plaintiff should be granted a remedy:  Asiki v Zurenuoc, Provincial Administrator (2005) SC797.

32.	In applying the principle His Honour said:

“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 claims has been poorly articulated and I see no basis for ordering damages against the defendants.  The claim will be refused.” 

33.	The decision to reinstate the Local Land Court decision was a discretionary one.  It is well established that an appellate court "will not interfere with a discretionary judgment on a procedural matter within [the primary judge’s] jurisdiction, except where the exercise of that discretion is clearly wrong. A discretionary judgment may be set aside if an identifiable error occurred in the exercise of discretion. Alternatively, it may be set aside where there is no identifiable error, but the resulting judgment or order is ‘unreasonable or plainly unjust’ and such that an error can be inferred”: Curtain Bros (PNG) Ltd v UPNG (2005) SC788. 

34.	The following statement by Dixon, Evatt, and McTiernan JJ in the High Court of Australia in House v R [1936] HCA 40; (1936) 55 CLR 499 at 504-5 has been applied with approval many times in this jurisdiction (emphasis ours):

“It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure to properly exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.”

See Davies v Barker [1977] PNLGR 386;  Chief Collector of Taxes v BCL [2007] SC853.

35.	We have found this question difficult.  His Honour succinctly stated the principles when applying them in exercise of his discretion.  The remedy was available to him and was the remedy sought in the Order 16 Rule 3(2) Statement.  

36.	The order of the Provincial Land Court remitting the matter to the Local Land Court for hearing before another magistrate was made on 20 November 2010.  The application for judicial review was filed almost a year later on 19 October 2011.  There was no evidence at the National Court to establish whether or not another Local Land Court magistrate did hear the matter following the Provincial Land Court decision.  The only reference we can find is a statement from the bar table by the First Respondent’s counsel that there was no such hearing.  

37.	The question is whether the learned trial judge in exercising his discretion considered all material considerations, in particular the prejudice to the Appellant, and the clans he represents, in restoring the decision of the Local Land Court rather than remitting the Appellant’s appeal against that decision for hearing before another Provincial Land Court magistrate in circumstances where the appeal against the Provincial Land Court magistrate was not upheld on the merits but because of an apprehension of bias on the part of the Provincial Land Court magistrate, and a failure by him to provide reasons.   

38.	Respectfully, we do not agree with the learned trial judge that “it follows naturally” that the order of the Local Land Court should be restored in those circumstances.  In our view, the order that would follow naturally in such circumstances would be to remit the substantive matter, namely the appeal, for hearing before the Provincial Land Court by another magistrate.  If there was some reason for that not to occur then it was incumbent on the First Respondent to establish that.  

39.	The decision to restore the Local Land Court Decision was one with severe consequences for the Appellant and the clans he represents, and required a full consideration of the circumstances of the case, having regard to the nature and effect of the decision on judicial review, the prejudice to all parties concerned, and the alternative remedies available. 

40.	In particular, the prejudice to the Appellant and those clans was to deny them the opportunity to have the substantive merits of the appeal against the Local Land Court decision determined at the Provincial Land Court given that any appeal against the Land Court decision is now time barred under s 54 of the Lands Dispute Settlement Act.  As the finding was one of apprehended and not actual bias there is no question of any fault on the part of the Appellant or the clans concerned in the failures of the Provincial Land Court magistrate.  

41.	Regrettably, however, neither counsel at the lower court assisted the trial judge by specifically addressing this issue.  It was incumbent on both of them to do so.  Whilst the First Respondent addressed the court on relief, he did so only with respect to damages.
 
42.	Indeed the issues were not fully addressed before us either.  The First Respondent relied on the lack of submission by the Appellant’s clans at the lower court but failed to address his own failure to address the court. 

43.	The Appellant suggested that the question of the Local Land Court’s jurisdiction over the subject land was a matter properly for determination by the Provincial Land Court.  That is beside the point.  As we understand from the material before us, the dispute regarding the land is not about whether or not the land is customary land but which clans are entitled to the rentals payable under a State Lease over the land.        

44.	In our view had the learned trial Judge been properly assisted he would have given specific consideration to the issue of prejudice.  

45.	Accordingly, it is our respectful view that in restoring the Local Land Court decision, the learned trial judge failed to consider that the prejudice to the Appellant and the clans he represents was grave, resulting in the complete loss of an opportunity to challenge the substantive merits of the decision of the Local Land Court in accordance with their appeal, which was properly before the Provincial Land Court, through no fault of their own, but the failure of the magistrate to provide reasons, and to avoid an apprehension of bias.  Any appellant in those circumstances would be entitled to feel justifiably aggrieved at being denied the opportunity to have their appeal heard.  

46.	In the circumstances, we find that the learned trial judge erred in failing to consider a material consideration and uphold this ground of the appeal.  

47.	It now remains for this Court to determine what is an appropriate order.

48.	For the reasons stated above, it is our view that the only appropriate remedy in the interests of justice is to remit the matter back to the Provincial Land Court for it to be heard and determined in accordance with the Land Dispute Settlements Act.    

49.	In making this order we note that more than 10 years have passed since the Local Land Court decision was made.  A review of the material reveals, however, that the dispute associated with this land is much older than that.  

50.	The ownership of customary land is often very contentious. The Land Dispute Settlements Act provides the machinery for the resolution of such matters in accordance with the principles of traditional dispute resolution.  It is in the interests of justice that the substantive issues in dispute be resolved once and for all in accordance with those processes.   For the same reason that the Appellant should not benefit from the failings of the Provincial Land Court magistrate to apply them, neither should the First Respondent.  It is important that all concerned have confidence in the ultimate decision. 

CONCLUSION

51.	In conclusion, we dismiss grounds (a), (b) and (c) of the appeal.  We uphold ground (d).  

52.	It is appropriate that the parties bear their own costs.  Whilst the Appellant has been successful with respect to ground (d), his appeal has otherwise failed.  We also note his own failures to properly address the court with respect to ground (d). 

53.	We make the following orders.

ORDERS

1.	The appeal against grounds (a), (b) and (c) is dismissed.    

2.	The appeal against ground (d) is upheld.

3.	The appeal in PLC 01/2009 is remitted to the Provincial Land Court for hearing before a different magistrate, to commence within the next three months, on the following conditions:

a.	the magistrate appointed shall be agreed to by all parties;
b.	the magistrate will deliver a written decision.

4.	The parties shall bear their own costs of the appeal. 
______________________________________________________________
Public Solicitor:     	Lawyer for the Appellant		
Jerry Siki Lawyers:	Lawyer for the First Respondents