Nathan Koti v David Susame

• Jurisdiction: Papua New Guinea
• Judge: Cannings J
• Judgment Date: 10 January 2017
• Citation: (2017) N6586
• Court: National Court
• Year: 2017
• Judgement Number: N6586

Full : OS (JR) No 694 of 2013; Nathan Koti, for and on behalf of Dumuna Akiki Clan of Damaende Village, Nahu Rawa LLG, Rai Coast District, Madang Province and Sawen Moli, for and on behalf of Gambai Clan of Ramu Village, Rai Coast District, Madang Province and Simon T Mackerell, for and on behalf of Oimoku Dumuna Tribe of Goviro Village, Nahu Rawa LLG, Rai Coast District, Madang Province and Opusie Amesohafa, for and on behalf of Kogulari Clan, Henganofi District, Eastern Highlands Province and David T Itano, for and on behalf of Ranofi Clan, Henganofi District, Eastern Highlands Province v His Worship David Susame, Provincial Land Court Magistrate and Nabura Morrisa, for and on behalf of Bumbu, Bopirumpun, Mususam & Sankiang Villages, (Mari Group), Usino-Bundi District, Madang Province and the Independent State of Papua New Guinea and Bruce Yaku, for and on behalf of Sangan Sambiyal Clan, of Musuam, Usino-Bundi District, Madang Province (2017) N6586

National Court: Cannings J

Judgment Delivered: 10 January 2017

N6586

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

OS (JR) NO 694 OF 2013

NATHAN KOTI, FOR AND ON BEHALF OF DUMUNA AKIKI CLAN OF DAMAENDE VILLAGE, NAHU RAWA LLG,

RAI COAST DISTRICT, MADANG PROVINCE

First Applicant

SAWEN MOLI, FOR AND ON BEHALF OF GAMBAI CLAN

OF RAMU VILLAGE, RAI COAST DISTRICT, MADANG PROVINCE

Second Applicant

SIMON T MACKERELL, FOR AND ON BEHALF OF OIMOKU DUMUNA TRIBE, OF GOVIRO VILLAGE, NAHU RAWA LLG,

RAI COAST DISTRICT, MADANG PROVINCE

Third Applicant

OPUSIE AMESOHAFA, FOR AND ON BEHALF OF KOGULARI CLAN, HENGANOFI DISTRICT, EASTERN HIGHLANDS PROVINCE

Fourth Applicant

DAVID T ITANO, FOR AND ON BEHALF OF RANOFI CLAN,

HENGANOFI DISTRICT, EASTERN HIGHLANDS PROVINCE

Fifth Applicant

V

HIS WORSHIP DAVID SUSAME,

PROVINCIAL LAND COURT MAGISTRATE

First Respondent

NABURA MORRISA, FOR AND ON BEHALF OF BUMBU, BOPIRUMPUN, MUSUSAM & SANKIANG VILLAGES, (MARI GROUP), USINO-BUNDI DISTRICT, MADANG PROVINCE

Second Respondent

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

Third Respondent

BRUCE YAKU, FOR AND ON BEHALF OF

SANGAN SAMBIYAL CLAN, OF MUSUAM,

USINO-BUNDI DISTRICT, MADANG PROVINCE

Fourth Respondent

Madang: Cannings J

2016: 10 December,

2017: 10 January

JUDGMENTS AND ORDERS – judicial review of proceedings of Provincial Land Court– appropriate orders to make after upholding judicial review – alternative dispute resolution – whether National Court can give effect to mediated agreement in absence of agreement of all parties.

A successful application for judicial review of a decision of a Provincial Land Court resulted in the question of what further orders should be made to determine the proceedings being referred to mediation. The mediation was almost entirely successful in that all but one of the parties (the first applicant) agreed on how the judicial review proceedings and underlying disputes should be resolved. The first applicant applied for orders that the mediation be terminated and that the question of final orders to be made in the judicial review proceedings be set down for further hearing. The Court refused to make those orders and instead sought an opinion from the mediator as to the preferred course of action. The mediator responded that in his opinion the first applicant did not truly represent the people he was claiming to represent, and therefore the mediation had been concluded and should be given effect. The Court invited all parties to the judicial review to make submissions on the mediator’s opinion and the future course of the proceedings. The first applicant submitted that the mediator’s opinion should be rejected, the mediation should be terminated and the judicial review proceedings should proceed to finality. All other parties submitted that the mediator’s opinion should be endorsed and the mediated agreement should be given effect without further hearing.

Held:

(1) Though the conventional approach of the National Court in judicial review proceedings, upon finding legal error in the decision that has been reviewed, is to quash the decision and/or remit the decision for reconsideration and not to stand in the shoes of the original decision-maker or otherwise make a decision on the merits, the Court should in exceptional circumstances feel free to depart from convention and exercise the power available to it under Section 155(4) of the Constitution, to make such “such other orders as are necessary to do justice in the circumstances of a particular case”, even if that means making a decision on its merits and even where questions of customary land ownership are involved.

(2) There were exceptional circumstances in the present case as the disputes underlying the judicial review proceedings had continued on a course of mediation and litigation for a period in excess of 20 years, and the mediated agreement represented a consensus of all but one of the parties to the judicial review proceedings.

(3) It was necessary to do justice in the circumstances of this particular case to order, without further hearing, that the mediated agreement be given effect as an order of the National Court and that the judicial review proceedings be determined accordingly.

Cases cited

The following cases are cited in the judgment:

Chan v Ombudsman Commission [1998] PNGLR 171

Kekedo v Burns Philip (PNG) Ltd [1988-89] PNGLR 122

Koti v Susame (2015) N5860

DETERMINATION OF ORDERS

This was a determination of the appropriate orders to be made, after a successful application for judicial review.

Counsel:

G Pipike, for the first Applicant

S Moli, the second Applicant, in person

S T Mackerell, the third Applicant, in person

O Amesohafa, the fourth Applicant, in person

D T Itano, the fifth Applicant, in person

B Tabai, for the second Respondent

B Yaku, the fourth Respondent, in person

10th January, 2017

1. CANNINGS J: This is a determination of the question of what further orders should be made in these judicial review proceedings. The question has arisen in the following circumstances.

HISTORY

2. On 13 February 2015 I upheld an application by Nathan Koti (the first applicant) and four others for judicial review of a decision of the Madang Provincial Land Court, constituted by his Worship Mr David Susame, dated 16 August 2013, concerning ownership of customary land forming part of the Ramu Sugar estate, in the Ramu Valley of Madang Province (Koti v Susame (2015) N5860).

3. The Provincial Land Court’s decision was to dismiss appeals by the various clans and tribes represented by the five applicants, Nathan Koti, Sawen Moli, Simon T Mackerell, Opusie Amesohafa and David T Itano, 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 second respondent, Nabura Morissa, and various villages he represents, the Mari Group, and the fourth respondent, Bruce Yaku, and the group he represents, the Sangan Sambiyal Clan.

4. I upheld the applicants’ argument that the Provincial Land Court’s decision to dismiss the appeal against the Local Land Court’s decision was unreasonable. The Provincial Land Court had not adequately considered compelling evidence that the decision of the Local Land Court that was formally recorded did not reflect the fact that the two Land Mediators, Mr Animor and Mr Harry, made decisions contrary to the formally recorded decision.

OPTIONS

5. I quashed the Provincial Land Court’s decision and then addressed the question of what other orders should be made. I considered various options, including:

(a) remitting the matter to the Provincial Land Court for a rehearing of the appeal against the decision of the Local Land Court of 30 March 2007;

(b) remitting the matter to a freshly constituted Local Land Court;

(c) confirming what the applicants claim to be the majority decision of the Local Land Court.

6. I did not, however, favour any of them, for the following reasons:

(a) remitting the matter to the Provincial Land Court would lead to a third appeal against the decision of the Local Land Court, and this should be avoided;

(b) remitting the matter to a freshly constituted Local Land Court would lead to a third Local Land Court hearing and this should also be avoided;

(c) confirming what was alleged to be the majority decision of the Local Land Court was problematic as the decisions of the two Land Mediators, though contrary to the Chairman’s decision, were not expressed in the same terms, and the circumstances in which the judgment of 30 March 2007 was handed down were so unsatisfactory that it was unsafe to base any final decision on what actually transpired.

7. I considered referring the matter to the Chief Commissioner of the Land Titles Commission, so that a special Land Titles Commission might be set up under the Land Titles Commission Act. However, I decided that before going down that path, National Court-annexed mediation should be tried. I referred the question of what further orders should...