John Anis, for and on behalf of Dumuna Akiki Clan of Damaende Village, Nahu Rawa LLG, Rai Coast District, Madang Province and Simon T Mackerell, for and on behalf of Oimoku Dumna Tribe, of Goviro Village, Nahu Rawa LLG, Rai Coast District, Madang Province and Sawen Moli, for and on behalf of Taupi Clan of Ramu Village, Ward 1, Ranara, Tauta Sub-District, Rai Coast District, Madang Province and Ruben Traive, for and on behalf of Renofi Clan, Henganofi District, Eastern Highlands Province v Nabura Morissa, for and on behalf of Bumbu, Bopirumpu, Mususam & Sankiang Villages, Usino-Bundi District, Madang Province and Jeremiah Singomat, Provincial Land Court Magistrate and The Independent State of Papua New Guinea and Ramu Agri Industries Limited (2011) N4307

• Jurisdiction: Papua New Guinea
• Judge: Cannings J
• Judgment Date: 03 June 2011
• Docket Number: OS NOs 598, 613, 617 & 668 of 2008
• Citation: (2011) N4307
• Court: National Court
• Year: 2011
• Judgement Number: N4307

Full Title: OS NOs 598, 613, 617 & 668 of 2008; John Anis, for and on behalf of Dumuna Akiki Clan of Damaende Village, Nahu Rawa LLG, Rai Coast District, Madang Province and Simon T Mackerell, for and on behalf of Oimoku Dumna Tribe, of Goviro Village, Nahu Rawa LLG, Rai Coast District, Madang Province and Sawen Moli, for and on behalf of Taupi Clan of Ramu Village, Ward 1, Ranara, Tauta Sub-District, Rai Coast District, Madang Province and Ruben Traive, for and on behalf of Renofi Clan, Henganofi District, Eastern Highlands Province v Nabura Morissa, for and on behalf of Bumbu, Bopirumpu, Mususam & Sankiang Villages, Usino-Bundi District, Madang Province and Jeremiah Singomat, Provincial Land Court Magistrate and The Independent State of Papua New Guinea and Ramu Agri Industries Limited (2011) N4307

National Court: Cannings J

Judgment Delivered: 3 June 2011

N4307

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

OS NOS 598, 613, 617 & 668 OF 2008

JOHN ANIS,

FOR AND ON BEHALF OF DUMUNA AKIKI CLAN

OF DAMAENDE VILLAGE, NAHU RAWA LLG,

RAI COAST DISTRICT, MADANG PROVINCE

First Applicant

SIMON T MACKERELL,

FOR AND ON BEHALF OF OIMOKU DUMNA TRIBE,

OF GOVIRO VILLAGE, NAHU RAWA LLG,

RAI COAST DISTRICT, MADANG PROVINCE

Second Applicant

SAWEN MOLI,

FOR AND ON BEHALF OF TAUPI CLAN

OF RAMU VILLAGE, WARD 1, RANARA, TAUTA SUB-DISTRICT,

RAI COAST DISTRICT, MADANG PROVINCE

Third Applicant

RUBEN TRAIVE,

FOR AND ON BEHALF OF RENOFI CLAN,

HENGANOFI DISTRICT, EASTERN HIGHLANDS PROVINCE

Fourth Applicant

V

NABURA MORISSA,

FOR AND ON BEHALF OF BUMBU, BOPIRUMPU, MUSUSAM

& SANKIANG VILLAGES,

USINO-BUNDI DISTRICT, MADANG PROVINCE

First Respondent

JEREMIAH SINGOMAT,

PROVINCIAL LAND COURT MAGISTRATE

Second Respondent

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

Third Respondent

RAMU AGRI INDUSTRIES LIMITED

Fourth Respondent

Madang: Cannings J

2010: 25 May, 8 July

2011: 3 June

JUDGMENT

JUDICIAL REVIEW – review of proceedings of Provincial Land Court hearing appeal against decision of Local Land Court under Land Disputes Settlement Act Chapter No 45 – whether Provincial Land Court deliberated on grounds of appeal – whether Provincial Land Court erred in law in awarding ownership under Land Disputes Settlement Act, Section 67 (presumption as to vesting of interests) – whether Provincial Land Court decision unreasonable.

The applicants sought judicial review by the National Court of a decision of the Provincial Land Court, which had dismissed appeals by them against a decision of the Local Land Court, in favour of the first respondent. Three grounds of judicial review were pressed. It was argued that the Provincial Land Court erred in law by: (1) not determining the grounds of appeal before it; (2) misapplying Section 67 of the Land Disputes Settlement Act; and (3) making a decision that no court doing justice would make.

Held:

(1) The Provincial Land Court did not clearly address and determine the grounds of appeal in the notice of appeal against the decision of the Local Land Court, the result being that it exceeded its jurisdiction and erred in law. Ground 1 of the review was upheld.

(2) The Provincial Land Court interpreted and applied Section 67 in a conventional way, consistent with the principles in the landmark decision of Amet J, as he then was, sitting in the Land Titles Commission in Re Hides Gas Project Land [1993] PNGLR 309. Ground 2 of the review was dismissed.

(3) The Provincial Land Court failed to address and determine a critical ground of appeal, viz that the decision of the Local Land Court (constituted by a magistrate and two mediators) that was formally recorded did not reflect the fact that two members of the Court disagreed with that decision. The Provincial Land Court’s decision, in that sense, was unreasonable. Ground 3 of the review was upheld.

(4) As two grounds of review were upheld the Provincial Land Court’s decision was quashed and the applicants’ appeal against the Local Land Court decision reinstated.

Cases cited

Papua New Guinea cases

Commissioner General of Internal Revenue v Bougainville Copper Ltd (2008) SC920

Dale Christopher Smith v Minister for Lands (2009) SC973)

Dopsie v Tetaga (2009) N3722

Isaac Lupari v Sir Michael Somare (2008) N3476

Jack Afing v Martin Pari (2006) N3034

Jack Nou v Richard Cherake, Magistrate, Provincial Land Court, Port Moresby (2004) N2539

Martina Jimmy v Kevemuki Clan (2010) N4101

Mision Asiki v Manasupe Zurenuoc (2005) SC797

Papua Club Inc v Nusaum Holdings Ltd (2005) SC812

PNG Forestry Authority v Iare Tribe (2008) N4022

Re Hides Gas Project Land [1993] PNGLR 309

Ronny Wabia v BP Exploration Co Ltd [1998] PNGLR 8

Saboko v Commissioner of Police (2006) N2975

Tawindi Clan v Kaimari Clan (1998) N1775

The Application of Ambra Nii on behalf of Himself and Other Members of the Toisap Clan [1991] PNGLR 357

The State v District Land Court at Kimbe; ex parte Casper Nuli [1981] PNGLR 192

Overseas Cases

Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223

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 Chapter No 45 against a decision of the Local Land Court.

Counsel

P K Kunai, for the first applicant

J Lai, for the second & third applicants

B Tabai, for the first respondent

T Anis, for the fourth respondent

3 June, 2012

1. CANNINGS J: This is a ruling on an application for judicial review of the decision of the Madang Provincial Land Court, constituted by his Worship, Mr Jeremiah Singomat, dated 1 September 2008, concerning ownership of customary land near the Ramu Sugar estate, Madang Province. The boundaries of the disputed land are not in question: south of the Gusap River, extending to the north of Surinam River, extending to the east up to the foot and on to the Naho Rawa Hills of the Finisterre Range. A small portion of the land has been under cultivation for 30 years.

2. The Provincial Land Court’s decision was to dismiss appeals by the various clans and tribes represented by the four applicants, John Anis, Simon T Mackerell, Sawen Moli and Ruben Traive, against a decision of the Local Land Court, constituted by Local Land Court Magistrate his Worship, Mr Ignatius Kurei, and Land Mediators, Mr Anis Animor and Mr David Harry, dated 30 March 2007. The Local Land Court decision was in favour of the first respondent, Nabura Morissa, and various clans and tribes he represents, who are called the Mari people.

3. 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; Martina Jimmy v Kevemuki Clan (2010) N4101).

THE GROUNDS OF REVIEW AND THE RELIEF SOUGHT

4. Leave was granted to argue seven grounds of review but at the hearing of the application for judicial review it was conceded by Mr Kunai, for the first applicant, that a number of them overlapped, so they were reduced to three. It was argued that the Provincial Land Court erred in law by:

1 not determining the grounds of appeal before it;

2 misapplying Section 67 of the Land Disputes Settlement Act; and

3 making a decision that no court doing justice would make.

5. If any of the grounds are upheld the applicants want the Court to quash the Provincial Land Court’s order and to declare that they are the customary owners of the disputed land.

1 DID THE PROVINCIAL LAND COURT FAIL TO DETERMINE THE GROUNDS OF APPEAL BEFORE IT?

6. The applicants’ notice of appeal against the decision of the Local Land Court raised three grounds of appeal:

· Ground No 1: that the Local Land Court exceeded its jurisdiction by (a) failing to ‘eliminate third parties’ from the hearing; (b) failing to acknowledge that the applicants were the original inhabitants of the disputed land and giving too much prominence to the concept of “interest” in land under Section 67 of the Land Disputes Settlement Act; and (c) giving priority to foreign concepts of land ownership over the concepts prescribed by the Land Disputes Settlement Act.

· Ground No 2: that the Local Land Court conducted its hearing contrary to the principles of natural justice by (a) refusing to inspect the applicants’ burial sites and villages; (b) restricting the rights of the applicants to challenge evidence given by other parties about customary sites; and (c) allowing affidavits of...