Nathan Koti v David Susame

• Jurisdiction: Papua New Guinea
• Judge: Cannings J
• Judgment Date: 13 February 2015
• Citation: (2015) N5860
• Court: National Court
• Year: 2015
• Judgement Number: N5860

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 (2015) N5860

National Court: Cannings J

Judgment Delivered: 13 February 2015

N5860

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

2014: 2, 12 December,

2015: 13 February

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 decision unreasonable.

The applicants sought judicial review by the National Court of a decision of the Provincial Land Court, which had dismissed an appeal by the applicants against a decision of the Local Land Court, in favour of the second and fourth respondents. Two grounds of judicial review were pressed. It was argued that the Provincial Land Court erred in law by: (1) not judicially considering all grounds of appeal; and (2) making a decision that was so unreasonable, no reasonable court would have made it.

Held:

(1) The Provincial Land Court addressed and determined all grounds of appeal in the appeal against the decision of the Local Land Court. Ground 1 of the review was dismissed.

(2) The Provincial Land Court misapprehended the status of the “votes” of the two land mediators who, with the Local Land Magistrate, constituted the Local Land Court and overlooked the inherent uncertainty created by the two mediators giving written decisions contrary to the decision that was regarded as the decision of the Court. The Provincial Land Court’s decision, in that sense, was unreasonable. Ground 2 of the review was upheld.

(3) The error of law involved in ground 2 was serious and permeated the whole of the Provincial Land Court’s proceedings, the consequence being that it exceeded its jurisdiction. The National Court exercised its discretion to quash the decision of the Provincial Land Court.

(4) The question of what further relief should be granted was referred to mediation.

Cases cited

The following cases are cited in the judgment:

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

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

John Anis on behalf of Dumuna Akiki Clan v Nabura Morrisa on behalf of Mari Group & Ors (2011) N4307

John Anis on behalf of Dumuna Akiki Clan v Nabura Morrisa on behalf of Mari Group & his Worship Regget Marum OS 117 of 2004, 21.07.05 unreported

Martina Jimmy v Kevemuki Clan (2010) N4101

Mision Asiki v Manasupe Zurenuoc (2005) SC797

Saboko v Commissioner of Police (2006) N2975

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

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

G Pipike, for the first applicant

S Moli, the second applicant, in person

S T Mackerell, the third applicant, in person

W Akuani for the fourth applicant

D T Itano, the fifth applicant, in person

S Phannaphen, for the first and third respondents

B Tabai, for the second respondent

K Aisi, for the fourth respondent

13th February, 2015

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 David Susame, dated 16 August 2013, concerning ownership of customary land near the Ramu Sugar estate, Madang Province.

2. 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.

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).

LITIGATION HISTORY

4. The dispute over this area of customary land has a long and complex history. Mediations took place from 1996 to 2001 which were ultimately unsuccessful. Since then, the following litigation events have occurred:

17 December 2002	Decision of Local Land Court (his Worship A Kopi chairman and mediators Rudolf Teng and David Harry): Dumuna Akiki Clan (first applicant’s clan) is the rightful owner of the disputed land.
28 November 2003	Decision of Provincial Land Court (his Worship R Marum): appeal by Mari Group (second respondent’s group) against decision of Local Land Court of 17/12/02 allowed, decision of Local Land Court quashed and matter remitted to Local Land Court for re-hearing.
24 March 2004	Decision of National Court: leave granted, in OS 117 of 2004, to Dumuna Akiki Clan to apply for judicial review of the decision of the Provincial Land Court of 28/11/03, and decision of Provincial Land Court of 28/11/03 stayed.
21 July 2005	Decision of National Court (Sawong J): motion for dismissal of OS 117 of 2004, on competency grounds, upheld; decision of Provincial Land Court of 28/11/03 reinstated and matter remitted to Local Land Court (John Anis on behalf of Dumuna Akiki Clan v Nabura Morrisa on behalf of Mari Group & his Worship Regget Marum OS 117 of 2004, 21.07.05 unreported).
30 March 2007	Decision of Local Land Court (his Worship I Kurei chairman and mediators Anis Animor and David Harry): Mari Group (second respondent’s group) is the principal owner, subject to the secondary rights of Sangan Sambiyal Clan (fourth respondent’s clan).
1 September 2008	Decision of Provincial Land Court (his Worship J Singomat): appeal by Dumuna Akiki Clan (first applicant’s clan) against decision of Local Land Court of 30/3/07 dismissed, and Local Land Court decision of 30/3/07 confirmed.
11 June 2011	Decision of National Court (Cannings J): application for judicial review of decision of Provincial Land Court of 01/09/08 granted and Provincial...