PNG Forest Authority and Terry Wara, Mark Martin, Amin Daniel and Mark Petuel as Officers of PNG Forest Authority v Iare Tribe and Martin Koivi, Aku Lare, Patrick Kairi and Michael Kovoduvia on behalf of themselves and on behalf of the Kaura Tribe (2008) N4022

• Jurisdiction: Papua New Guinea
• Judge: Injia, DCJ
• Judgment Date: 27 June 2008
• Court: National Court
• Citation: (2008) N4022
• Docket Number: OS NO. 1123 OF 2005(JR)
• Year: 2008
• Judgement Number: N4022

Full Title: OS NO. 1123 OF 2005(JR); PNG Forest Authority and Terry Wara, Mark Martin, Amin Daniel and Mark Petuel as Officers of PNG Forest Authority v Iare Tribe and Martin Koivi, Aku Lare, Patrick Kairi and Michael Kovoduvia on behalf of themselves and on behalf of the Kaura Tribe (2008) N4022

National Court: Injia, DCJ

Judgment Delivered: 27 June 2008

N4022

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

OS NO. 1123 OF 2005(JR)

Between:

PNG FOREST AUTHORITY

First plaintiff

And:

TERRY WARA, MARK MARTIN, AMIN DANIEL AND MARK PETUEL AS OFFICERS

OF PNG FOREST AUTHORITY

Second plaintiffs

And:

IARE TRIBE

First Defendant

And:

MARTIN KOIVI, AKU LARE, PATRICK KAIRI AND MICHAEL KOVODUVIA ON BEHALF

OF THEMSELVES AND ON BEHALF OF THE KAURA TRIBE

Second defendants

Waigani: Injia, DCJ

2007: 15th October

2008: 27th June

JUDICIAL REVIEW – plaintiff seeking review of decision of Provincial Land Court – review of matters arising from appeal from Local Land Court – LLC declared first defendants as true customary land owners of land – second defendants appealed to PLC and first defendants also applied to same court for some interim orders – PLC magistrate determined appeal and all other interim applications – Order 16 rule 1 National Court Rules

JUDICIAL REVIEW – practice and procedure - review sought is in relation to certain matters on the PLC’s decision and orders on matters arising from its final decision on appeal - general issue - whether PLC had jurisdiction to vary its final orders after it had delivered its final decision on appeal – effect of - differences between orders on appeal and subsequent interim orders of PLC magistrate

JUDICIAL REVIEW – practice and procedure - PLC a creature of statute and court cannot assume power that it is not expressly conferred by statute - no express power given to PLC by Act to vary a final decision on an appeal made under s 59 of the Act – effect of - magistrate misconceived appellate powers - application for judicial review granted - order of certiorari issued quashing orders of Provincial Land Court - sections 59 & 60 Land Disputes Settlement Act

Cases Cited:

Pig and Masa Islands [1974] PNGLR 235

The State v Richard James Giddings, Magistrate of the District Court at Laigam [1981] PNGLR 423

Wena Kaigo v Siwi Kurundo [1976] PNGLR 34;

Counsel:

J Haiara, for the plaintiffs

C Kup-Ogut, for the respondents

27th June, 2008

1. INJIA, DCJ: This is an application for judicial review made under O16 of the National Court Rules. The plaintiff seeks review of a number of decisions made by the Provincial Land Court (PLC) sitting at Waigani in relation to matters arising from its final decision on an appeal from the Local Land Court (LLC) sitting at Kerema. The application is contested.

Grounds of review

2. There are seven (7) grounds of review as set out in the Statement filed under O 16 r 3, as follows:

“1. The decision or order of the Waigani Provincial Land Court in PLC No.1 of 2005 made on 12th December, 2005 especially Orders No. 1, 2,3,4 and 5 are ultra vires under the Land Dispute Settlement Act.

2. The decision or order of the Waigani Provincial Land Court in PLC No. 1 of 2005 made on 12th December 2005, especially Orders No.1 and 2 are ultra vires under the Land Dispute Settlement Act.

3. The decision or order of the Waigani Provincial Land Court in PLC No. 1 of 2005 made on 12th December 2005 especially Order No. 5 and 6 are ultra vires under the Land Dispute Settlement Act.

4. The appeal proceedings at the Provincial Land Court is a dispute between two tribes over ownership of customary land in Vailala, Ihu District, Gulf Province and the plaintiff and its officers are not parties to that appeal and therefore no interlocutory applications and orders can be brought or made against the plaintiff and its officers in the appeal proceedings PLC No. 1 of 2005.

5. The decision of the Provincial Land Court made on 1st September, 2005 does not provide any basis or jurisdiction for the First Respondent to bring a Notice of Motion seeking orders for the Officers of the Plaintiff/Applicant to be charged for contempt of court.

6. The Provincial Land Court Order of the 12th of December, 2005 directing all monies, royalties, premiums, agricultural levies and other levies paid to Kaura Tribe be equally paid to Iare Tribe is contrary or ultra vires to the jurisdiction or power of the Provincial Land Court under the Land Dispute Settlement Act.

7. The plaintiff has its own procedures and methods of royalty payments unless authorized or ordered & by a court of law.”

Issues for determination

3. The plaintiffs raise seven (7) issues for determination, which arise from the grounds of review, as follows:

1. Whether or not the PLC Orders of 1st September 2005 is substantially different from the minutes of orders taken out by Manu & Associates Lawyers on 6th September 2005, in that the minute of the Order of 6th September takes away rights created or determined by the Order of 1st September 2005 and creates a new right.

2. If the answer to question (1) is in the affirmative whether or not the PLC had jurisdiction to vary the Orders as it did in the absence of the Second Defendant and without their consent.

3. Whether PLC had jurisdiction as an Appellate Court under Division 3, Section 59 of the Land Dispute Settlement Act ended when it determined the PLC Appeal No. 1 of 2005 and pronounced its final decision on 1st September 2005.

4. If the answer to question 3 is in the affirmative whether or not the PLC is authorized by the District Court Act and the Land Dispute Settlement Act or any other law to review its own decision.

5. If the answer to question 4 is in the negative, whether any application for review sought by the First Defendant and the subsequent orders made by the PLC on 8th December, 12th December, 19th December 2005 and 20th January 2006 are invalid and void.

6. When no time limit for doing an act is stipulated by Court Orders, whether or not the person failing to comply with the Court Orders is guilty of contempt of the Court Orders.

7. If the 6 is answered in the negative, whether or not all the orders of the PLC made on 8th December 2005, 12th December 2005, 19th December 2005 and 20th January 2006, wherein the Second Plaintiffs were found guilty of Court Orders of 1st September 2005 are invalid and void.

Case background

4. In this application, the decisions of the LLC and PLC on appeal are not the subject of review. The review sought is in relation to certain matters on the PLC’s decision and orders on matters arising from its final decision on the appeal. The general issue is whether PLC had jurisdiction to vary its final orders after it had delivered its final decision on the appeal under s 59 of the Land Dispute Settlement Act (Ch 45).

5. It is necessary to trace the PLC’s decisions and such matters from the beginning in order to understand the context in which the grounds of review and issues are raised.

6. The land the subject of proceedings before the LLC and PLC is described as “Purari East and West Bank” land (“the land”) which is situated in the Ihu District of the Gulf Province. The land is part of an area in which there is a timber project conducted by Rimbunan Hijau Ltd and Turama Forest Resources Ltd under certain timber permit issued under the Forest Act 1998. Royalty and other benefits due to forest resource owners are managed by the National Forest Authority (NFA) under this Act. Since the project commenced, the customary land owners of the land namely, the Kaura tribe and the Iare tribe (respondents in this application), were locked in a bitter dispute over ownership of the land in question. The resolution of the dispute was processed under provisions of the Land Dispute Settlement Act.

7. In 2001, the LLC sitting at Kerema heard the dispute. On 7th August 2004, the LLC pronounced its decision. The LLC declared the Iare Tribe to be the true customary landowners of the land. The LLC further ordered that “all timber and any other resource development royalties be paid to Iare tribe and not Kaura tribe”.

8. The Kaura tribe appealed this decision. Pending determination of the appeal, the Iare tribe applied before the PLC at Waigani, for certain interim orders regarding the payment of timber royalty payments. The court heard the application and handed down its decision on 5th May 2005. Apparently, the PLC magistrate who heard and determined the application went on to hear and determine the appeal and all other related applications, the decisions of which are the subject of this application. The Court handed down a 6-page written ruling which appears on pages 17-22 of the Review Book. The Court granted the interim orders in the following terms:

“1. That all royalty monies due to the Landowners in the sum of K1,511,579.92 or a sum to be confirmed by the National Forest Authority and the Contractors to be held in Trust by the National Forest Authority. A Trust account is to be opened for this purpose.

2. That the parties consent to a sum of money to be paid in equal apportionment out of the sum of K1,511,529.92 or a sum to be confirmed by the National Forest Authority and the contractors to be paid into respective Landowner Companies for legal, administrative or court related expenses. I direct that parties be given five...