Martina Jimmy, for Herself and on behalf of Bualali Clan and Kabulubulu Clan v Kevemuki Clan (2010) N4101

• Jurisdiction: Papua New Guinea
• Judge: Cannings J
• Judgment Date: 25 June 2010
• Citation: (2010) N4101
• Docket Number: OS NO 92 OF 2009
• Court: National Court
• Year: 2010
• Judgement Number: N4101

Full Title: OS NO 92 OF 2009; Martina Jimmy, for Herself and on behalf of Bualali Clan and Kabulubulu Clan v Kevemuki Clan (2010) N4101

National Court: Cannings J

Judgment Delivered: 25 June 2010

N4101

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

OS NO 92 OF 2009

MARTINA JIMMY,

FOR HERSELF AND ON BEHALF OF BUALALI CLAN

First Plaintiff

KABULUBULU CLAN

Second Plaintiff

V

KEVEMUKI CLAN

Defendant

Kimbe: Cannings J

2009: 23, 24 June, 5 August, 23 October,

7 December,

2010: 25 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 proceedings conducted contrary to principles of natural justice – whether Provincial Land Magistrate obliged to walk boundaries of disputed land.

The plaintiffs sought judicial review by the National Court of a decision of the Provincial Land Court, which had dismissed appeals by the plaintiffs against a decision of the Local Land Court, which was in favour of the defendant. The two grounds of review were that the plaintiffs were denied natural justice by the Provincial Land Court and that the Provincial Land Court did not “walk the boundaries” of the disputed land and decided the case on the evidence of mediators and the defendant’s witnesses.

Held:

(1) A Provincial Land Court hearing an appeal against a decision of the Local Land Court under the Land Disputes Settlement Act Chapter No 45 has a duty to conduct its proceedings in accordance with the principles of natural justice, the minimum requirement of which under Section 59(2) of the Constitution is the duty to act fairly and, in principle, to be seen to act fairly.

(2) The Provincial Land Court failed to comply with the principles of natural justice in that it did not address the plaintiffs’ grounds of appeal, failed to give the plaintiffs the opportunity to make submissions on the evidence and failed to give good, proper and sufficient reasons for its decision. The first ground of judicial review was upheld.

(3) The Provincial Land Court did not err by failing to walk the boundaries of the land; and it was not sufficiently clear that it decided the case improperly by relying unduly on the evidence of mediators and the defendant’s witnesses. The second ground of judicial review was dismissed.

(4) The question of what remedies should be granted is a matter of discretion. As the proceedings of the Provincial Land Court were conducted unfairly, it follows that its decision should be quashed and that the plaintiffs’ appeals against the Local Land Court should be reinstated and re-heard by a differently constituted Provincial Land Court as soon as practicable. Orders made accordingly.

Cases cited

The following cases are cited in the judgment:

Balus Tara v Rachel Gugu (1982) N374(M)

Bougainville Copper Foundation v Minister for Trade and Industry (1989) N747

Jack Afing v Martin Pari (2006) N3034

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

Kely Kerua v Council Appeal Committee of the University of Papua New Guinea and University of Papua New Guinea (2004) N2534

Mision Asiki v Manasupe Zurenuoc (2005) SC797

Ombudsman Commission v Peter Yama (2004) SC747

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

Thomas Kavali v Thomas Hoihoi [1984] PNGLR 182

Wohengu v Hickey (2009) N3721

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

J K Abraham, for the first plaintiff

G Linge, for the second plaintiff

J Unido, for the defendant

25 June, 2010

1. CANNINGS J: This is a ruling on an application for judicial review of the decision of the West New Britain Provincial Land Court, constituted by his Worship, Mr Luke Vava, dated 27 June 2008, concerning ownership of customary land known as “Mutoko”, near Karapi village, in the Hoskins area.

2. The Provincial Land Court’s decision was to dismiss appeals by Martina Jimmy of Bualali clan (the first plaintiff) and representatives of the Kabulubulu clan against a decision of the Local Land Court, constituted by his Worship Mr Tera Dawai, dated 18 December 2007.

3. The Local Land Court order was that:

1 Kevemuki clan [the defendant] is the principal owner of the land.

2 Both Bualali and Kabulubulu clans have an equal interest in the land, in common with Kevemuki, provided that they respect Kevemuki as the principal landowner.

3 All monetary benefits arising from the use of the land be divided equally amongst the parties.

4. 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).

THE GROUNDS OF REVIEW AND THE RELIEF SOUGHT

5. Leave was granted to argue two grounds of review:

· that the first plaintiff was denied natural justice in that her evidence was not taken into consideration;

· that the presiding Magistrate did not walk the full boundaries of the disputed land and decided the case on the evidence of mediators and witnesses from the defendant’s side.

6. If either or both grounds are upheld the plaintiffs want the Court to quash the Provincial Land Court’s order and reinstate their appeals.

ISSUES

7. There are three issues before the Court:

1 Did the Provincial Land Court fail to comply with the principles of natural justice?

2 Did the Provincial Land Court err in law by not walking the full boundaries of the disputed land or deciding the case on the evidence of mediators and witnesses from the defendant’s side?

3 What declarations or orders should the Court make?

1 DID THE PROVINCIAL LAND COURT FAIL TO COMPLY WITH THE PRINCIPLES OF NATURAL JUSTICE?

8. Provincial Land Courts have been established under the Land Disputes Settlement Act Chapter No 45 to hear appeals against decisions of Local Land Courts. They form part of the National Judicial System under Sections 155(1)(c) and 172(1) of the Constitution. All Courts have a duty to conduct their proceedings in accordance with the principles of natural justice, the minimum requirement of which under Section 59(2) of the Constitution is the duty to act fairly and, in principle, to be seen to act fairly (Balus Tara v Rachel Gugu (1982) N374(M), Thomas Kavali v Thomas Hoihoi [1984] PNGLR 182, Bougainville Copper Foundation v Minister for Trade and Industry (1989) N747). The question raised by the first ground of review is whether the Provincial Land Court complied with this duty.

9. In determining this question, I have considered the records of the Provincial Land Court, particularly:

· the notices of appeal filed by the first and second plaintiffs;

· the evidence put before the Provincial Land Court by the first plaintiff (three affidavits), the second plaintiff (one affidavit) and the defendant (one affidavit); and

· the judgment, concluding remarks and order of the Provincial Land Court dated 27 June 2008.

10. I have also considered the evidence put before the National Court, particularly the oral evidence and affidavits by the first plaintiff and her uncle.

11. I have considered this material not for the purpose of forming an opinion on the merits of the dispute that was before the Local Land Court and the Provincial Land Court (as the National Court has no jurisdiction to determine the question of ownership of customary land and that is not the issue before this Court) but for the purpose of making a determination of whether the Provincial Land Court complied with its duty to act fairly and to be seen to act fairly, and whether the first ground of review should be upheld.

12. I have concluded that the Provincial Land Court did not act fairly, in three respects.

(a) Failure to address the plaintiffs’ grounds of appeal

13. The first plaintiff’s notice of appeal to the Provincial Land Court, dated 12 March 2008, included the following grounds of appeal:

1 That the [Local] Land Court conducted its hearing in a manner contrary to natural justice.

2 That injustice in this case now leads to the decision to be appealed against.

3 The decision was not supported on any facts but on false evidence.

14. The second plaintiff’s notice of appeal, dated 25 February 2008, provided two grounds of appeal:

1 That the [Local] Land Court conducted its hearing in a manner contrary to natural justice.

2 That in the circumstances of the case no court doing justice between the parties would have made the decision appealed against.

15. When handing down the decision of the Provincial Land Court on 27 June 2008 the learned Provincial Land Court Magistrate made...