Manub Edom v Wanor Agun (2013) N5225

• Jurisdiction: Papua New Guinea
• Judge: Cannings J
• Judgment Date: 24 May 2013
• Citation: (2013) N5225
• Docket Number: CIA NO 172 0F 2011
• Court: National Court
• Year: 2013
• Judgement Number: N5225

Full Title: CIA NO 172 0F 2011; Manub Edom v Wanor Agun (2013) N5225

National Court: Cannings J

Judgment Delivered: 24 May 2013

N5225

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CIA NO 172 0F 2011

MANUB EDOM

Appellant

V

WANOR AGUN

Respondent

Madang : Cannings J

2013: 10, 24 May

LAND – Customary land – Land Disputes Settlement Act Chapter 75, Section 64 (failure to comply with orders) – appeal against conviction and sentence by District Court re offence under Section 64 – whether open to District Court to order eviction of person convicted of offence under Section 64 – whether District Court erred in interpretation of order of Local Land Court – whether District Court gave person charged a reasonable opportunity to be heard.

The District Court convicted the appellant of an offence under Section 64 of the Land Disputes Settlement Act, refusing to comply with an order of the Local Land Court, and sentenced him to two months imprisonment and ordered that he and his family be “forcefully removed with the assistance of Police from the subject land”. The appellant appealed against his conviction and sentence on four grounds: (1) excess of jurisdiction as the District Court lacked power under Section 64 to order eviction; (2) misinterpretation of the order of the Local Land Court the subject of the charge; (3) failure to take account of the appellant’s and his ancestors’ equitable interest in the land; (4) failure to give a reasonable opportunity to be heard.

Held:

(1) There was an excess of jurisdiction in the sentence in two respects: (a) no law gives the District Court power to include in the penalty for an offence under Section 64 an order for eviction; and (b) the Local Land Court order the subject of the offence made no provision for eviction. Ground 1 of the appeal was upheld.

(2) The District Court misinterpreted the Local Land Court order, which gave the appellant’s ancestors (and by implication the appellant) usufructuary rights over the subject land. Ground 2 was upheld.

(3) The question of whether the appellant and his ancestors had equitable interests in the land was irrelevant to the primary question before the District Court which was whether the appellant had failed to comply with the order of the Local Land Court. There was no error of law in that regard. Ground 3 was dismissed.

(4) There was insufficient evidence that the appellant was denied the opportunity to be heard. Ground 4 was dismissed.

(5) Two grounds of appeal having succeeded, the National Court was satisfied that there had been a substantial miscarriage of justice and allowed the appeal and quashed the conviction and sentence and entered a verdict of not guilty.

(6) Remarks: as to suggested methods by which the appellant and the respondent might resolve their dispute.

Cases cited

The following cases are cited in the judgment:

Francis Tarei v The State (2008) N3539

Gawi v png Ready Mixed Concrete Pty Ltd [1984] PNGLR 74

Gaya Nomgui v The Administration (Re Lae Administration Land) [1974] PNGLR 349

Re Yabo Sabo [1995] PNGLR 13

The State v Bruno Tanfa Chilong (2009) N3578

APPEAL

This was an appeal from a decision of the District Court.

Counsel

S Tanei for the appellant

O Ore for the respondent

1. Cannings J: The Madang District Court convicted the appellant, Manub Edom, of an offence under Section 64 (failure to comply with orders) of the Land Disputes Settlement Act for refusing to comply with an order of the Local Land Court. He was sentenced to two months imprisonment (the sentence has been stayed pending determination of this appeal) and he and his family were ordered to be “forcefully removed with the assistance of Police from the subject land”. The appellant appeals against his conviction and sentence on four grounds:

(1) excess of jurisdiction as the District Court lacked power under Section 64 to order eviction;

(2) misinterpretation of the order of the Local Land Court the subject of the charge;

(3) failure to take account of the appellant’s and his ancestors’ equitable interest in the land;

(4) failure to give a reasonable opportunity to be heard.

GROUND 1: EXCESS OF JURISDICTION

2. Mr Tanei for the appellant submitted that the District Court (Mr S W Seneka SPM presiding) exceeded its jurisdiction by including in its order of 16 December 2011 a form of punishment – eviction from land – which is not provided for by Section 64 of the Land Disputes Settlement Act or any other law and which did not relate to the Local Land Court order with which the appellant was found guilty of not complying. Section 64 states:

A person who refuses to comply with an order or direction lawfully given by a Provincial Land Court or Local Land Court is guilty of an offence.

Penalty: A fine not exceeding K200.00 or imprisonment for a term not exceeding six months.

3. The order of 16 December 2011 stated:

(1) The respondent is guilty of refusing to comply with an order or a direction of the Local Land Court under Section 64 of the Land Disputes Settlement Act.

(2) The respondent be punished accordingly and he is sentenced to imprisonment for a period of two months forthwith.

(3) The respondent, his family, relatives, servants or agents be forcefully removed with the assistance of Police from the subject land forthwith.

4. I uphold Mr Tanei’s submission and find that there was an excess of jurisdiction in two respects. First, no law allows the District Court to impose a penalty of eviction from land on a person who has been convicted of an offence under Section 64. Except in the case of contempt of court, no court in Papua New Guinea can impose whatever penalty it thinks appropriate on a person who has been convicted of an offence. The court is always constrained by laws which prescribe the available penalties. This is an important aspect of the right of all persons to full protection of the law guaranteed by Section 37(2) of the Constitution, which states:

Except, subject to any Act of the Parliament to the contrary, in the case of the offence commonly known as contempt of court, nobody may be convicted of an offence that is not defined by, and the penalty for which is not prescribed by, a written law.

5. In the case of an offence under Section 64 of the Land Disputes Settlement Act the available penalties are prescribed by Section 64 itself and by Section 65 (orders for compensation) which states:

(1) A court trying an offence against Section 63 or 64 may order the payment of compensation in addition to or instead of any penalty under this section.

(2) A person who fails to comply with an order under Subsection (1) is guilty of an offence.

Penalty: A fine not exceeding K200.00 or imprisonment for a term not exceeding six months.

6. Thus if a person is convicted of an offence under Section 64 the available penalties are:

· a maximum fine of K200.00; or

· a maximum term of imprisonment of six months; and/or

· payment of compensation.

7. Eviction is not one of the available penalties. Eviction might be ordered by the District Court if the owner of customary land commences civil proceedings for example based on the tort of trespass against the person who is allegedly occupying the land unlawfully. But that was not the case here. The appellant was charged with an offence under Section 64. He was convicted and could only be sentenced in accordance with the available penalties.

8. The second way in which there was an excess of jurisdiction is that the order of the Local Land Court the subject of the offence did not provide for anybody’s eviction. If it had provided for eviction there might have been an argument that the District Court was simply enforcing the Local Land Court order; not that the argument would have succeeded as it is clear that the District Court imposed a penalty which it had no power to impose. Ground 1 is upheld.

GROUND 2: MISINTERPRETATION OF LOCAL LAND COURT ORDER

9. Whereas ground 1 addressed the sentence this ground challenges the conviction. The appellant was convicted of failing to comply with an order of the Madang Local Land Court dated 14 January 1983 which determined a dispute over two areas of customary land known as “Bamgail” and “Gobile” near Umin village, close to Madang town. The dispute was between on the one hand the appellant’s father Edom Saho and his lain and on the other hand ancestors of the respondent to this appeal (and the person who was the informant in the District Court) Wanor Agun. The Local Land Court decided that the two areas of land were owned by the respondent’s ancestors but that the appellant’s ancestors had user rights over the land, expressed in the following terms:

Edom Saho is to use Bamgail land as in the past and only can use Gobile to harvest what he has in that land such as coconut, betel nut etc. If and when he wants to cut bush material from Gobile he has to ask permission from Galu and Lave [another of the respondent’s ancestors] first. NO NEW CASH CROPS TO BE STARTED ON GOBILE by Edom or his brothers.

10. Having examined the reasons for decision of the...