Galem Falide, Bill Hoheg, Deb Abeig & Hans Yob for themselves and on behalf of Mahoban Tribe v Registrar of Titles and the Independent State of Papua New Guinea and Willie Manes (2012) N4775

• Jurisdiction: Papua New Guinea
• Judge: Cannings J
• Judgment Date: 24 August 2012
• Court: National Court
• Citation: (2012) N4775
• Docket Number: OS (JR) NO 593 of 2010
• Year: 2012
• Judgement Number: N4775

Full Title: OS (JR) NO 593 of 2010; Galem Falide, Bill Hoheg, Deb Abeig & Hans Yob for themselves and on behalf of Mahoban Tribe v Registrar of Titles and the Independent State of Papua New Guinea and Willie Manes (2012) N4775

National Court: Cannings J

Judgment Delivered: 24 August 2012

N4775

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

OS (JR) NO 593 OF 2010

GALEM FALIDE, BILL HOHEG, DEB ABEIG & HANS YOB

FOR THEMSELVES AND ON BEHALF OF MAHOBAN TRIBE

Plaintiffs

V

REGISTRAR OF TITLES

First Defendant

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

Second Defendant

WILLIE MANES

Third Defendant

Madang: Cannings J

2011: 23 September, 18 November,

2012: 23 March, 24 August

JUDICIAL REVIEW – alleged failure of Registrar of Titles to give effect to 1932 court decision that recognised the plaintiffs’ tribe’s interest in land – whether error of law established – undue delay.

The plaintiffs applied for judicial review of the alleged failure of the Registrar of Titles to give effect to a decision made in 1932 by the Central Court of the Territory of New Guinea that recognised that their tribe was the customary owner of land. The application was opposed by members of other tribes who argued that the National Court had no jurisdiction as the subject matter of the dispute was ownership of customary land, and that if the National Court had jurisdiction no error had been made in failing to recognise the plaintiffs’ tribe’s interest in the land as they (the defendants) were the proper customary landowners and the 1932 decision had been made in error and that there had been undue delay in applying for judicial review.

Held:

(1) The National Court has no jurisdiction to determine ownership of customary land. But, here, it was not being asked to determine ownership as that question had been determined in the 1932 proceedings; it was being asked to enforce an earlier judicial decision and it had jurisdiction to do so.

(2) The plaintiffs failed to establish any proper ground of judicial review as they failed to show the existence of any statutory or other duty on the part of the Registrar of Titles to give effect to the 1932 decision.

(3) If a ground of judicial review had been established the relief sought would have been refused as a matter of discretion due to the undue delay in seeking it and the lack of a satisfactory explanation for the delay and the substantial hardship that would likely be caused to the defendants and others with competing claims to ownership of the land and because it would be detrimental to good administration to allow 80 years to pass before enforcing a judicial decision.

(4) The application for judicial review was refused.

Cases cited

The following cases are cited in the judgment:

Custodian of Expropriated Property v Commissioner of Native Affairs (Re Jomba Plain) [1971-72] PNGLR 501

Dale Christopher Smith v Minister for Lands (2009) SC973

Dominica Philip v National Education Board (2008) N4024

Eddie Tarsie v Dr Wari Iamo (2010) N4033

Lavu v Thompson & NBPOL, WS No 780 of 2005, 26.07.07

Mision Asiki v Manasupe Zurenuoc (2005) SC797

Nakun Pipoi v Viviso Seravo (2008) SC909

Roderick Tovo Bibilo v Gerard Balbagara (2008) N3291

Shaw v Commonwealth of Australia [1963] PNGLR 119

Supreme Court Reference No 4 of 1980 [1982] PNGLR 65

The State v Lohia Sisia [1987] PNGLR 102

Yap v Tan [1987] PNGLR 227

Counsel

B Meten, for the plaintiff

W Mapiso, for the first and second defendants

B Tabai, for the third defendant

24 August, 2012

1. CANNINGS J: This case is about a tract of customary land to the south of Madang town, known as the Jomba Plain land, formally described as Portions 71, 71A and 72. The plaintiffs, Galem Falide, Bill Hoheg, Deb Abeing and Hans Yob, representing the Mahoban Tribe, are applying for judicial review of the alleged failure of the first defendant, the Registrar of Titles, to give effect to a decision made on 25 May 1932 by the Central Court of the Territory of New Guinea, constituted by Justice Phillips, that, they claim, recognised that their tribe was the customary owner of particular parts of the Jomba Plain land. This land does not fall within the area of Madang town land that was declared by the Minister for Lands in 1988 under the National Land Registration Act Chapter No 357 to be National Land, which became the subject of the Supreme Court case of Nakun Pipoi v Viviso Seravo (2008) SC909.

2. The application was generally opposed by the first and second defendants, the Registrar of Titles and the State, who were represented by the Solicitor-General but unfortunately failed to take an active part in the proceedings, and strongly opposed by the third defendant, Willie Manes, a clan leader of Yabob village, who was represented by Mr Tabai of Tabai Lawyers who tendered by consent a bundle of affidavit evidence of representatives of various tribes who live and have established food gardens and economic activities on the land. Mr Tabai submitted that the National Court has no jurisdiction as the subject matter of the dispute is ownership of customary land, but if the National Court has jurisdiction no error had been made in failing to recognise the plaintiffs’ tribe’s interest in the land as the Yabob clans are the proper customary landowners and the 1932 decision was made in error and that there had been undue delay in applying for judicial review. Three issues arise:

1 Does the National Court have jurisdiction?

2 Has error of law been established by the plaintiffs?

3 What declarations or orders should the Court make?

1 DOES THE NATIONAL COURT HAVE JURISIDICTION?

3. Mr Tabai submitted that the application for judicial review should not be entertained as the National Court has no jurisdiction regarding customary land disputes, which must be determined by the Land Titles Commission or the Local Land Court under the Land Titles Commission Act 1962 or the Land Disputes Settlement Act Chapter No 45.

4. Mr Tabai is right to suggest that the National Court must tread warily when dealing with customary land. In The State v Lohia Sisia [1987] PNGLR 102 the Supreme Court ruled the National Court has no jurisdiction to hear or determine disputes about whether land is customary land or about competing claims to ownership of customary land. That principle has been applied in numerous other cases, eg Lavu v Thompson & NBPOL, WS No 780 of 2005, 26.07.07. However, as I indicated in Roderick Tovo Bibilo v Gerard Balbagara (2008) N3291 a distinction must be drawn between cases in which there is a dispute about whether land is customary land or competing claims to ownership of customary land and cases in which the dispute centres on interpretation or application of a previous court decision as to the status of land or its customary ownership. Only in the former category of cases does the National Court lack jurisdiction. The present case falls into the latter category and the National Court has jurisdiction.

2 HAS ERROR OF LAW BEEN ESTABLISHED?

5. To appreciate the plaintiffs’ case it is necessary to look at the context in which Phillips J’s decision was made, which is explained in the judgment that was published in the 1972 volume of the Papua New Guinea Law Reports, 40 years after the decision was made (Custodian of Expropriated Property v Commissioner of Native Affairs (Re Jomba Plain) [1971-72] PNGLR 501). His Honour was determining the question of “possible native rights” over four pieces of land situated in the administrative district of Madang in the Territory of New Guinea known as:

· Jomba Plain, portions 71, 71A and 72 (having an area of 4,604 hectares);

· Modilon-Jomba, portion 37 (613 hectares);

· Wagol, portion 50 (164 hectares); and

· Wagol Reserve, portion 51 (53 hectares).

6. In the late 1800s that land, a total of 5,434 hectares, had been the subject of two purchase agreements between various persons who held themselves out as the customary landowners and the New Guinea Company. Draft certificates of title were issued to the Custodian of Expropriated Property as successor in title to the New Guinea Company but the questions later arose whether the agreements were fairly entered into and whether those who agreed to sell the land were the true customary owners. The Commissioner of Native Affairs referred various questions to the Central Court for determination. Phillips J inquired into the matters at Madang on 56 sitting days from 16 November 1931 to 21 April 1932 and handed down his decision on 25 May 1932. His Honour ruled that the bulk of the land was indeed “native owned” and that native rights should be protected by necessary entries in the Register Book and on the certificates of title under the Lands Registration Ordinance 1924-1931. Specifically, in relation to the Jomba Plain land (Portions 71, 71A and 72), part of which is the subject of the present judicial review, his Honour ruled as follows:

For the reasons given in this judgment, in particular for the reason that none of...