SCM No. 38 OF 2015; David Kabomyap Allolim and His Worship, Frank Manue sitting as the Provincial Land Court Magistrate of Kiunga, Western Province. and The Independent State of Papua New Guinea v Biul Kirokim (2018) SC1735

• Jurisdiction: Papua New Guinea
• Judge: Batari J, David & Frank JJ
• Judgment Date: 16 May 2018
• Citation: (2018) SC1735
• Court: Supreme Court
• Year: 2018
• Judgement Number: SC1735

Full Title: SCM No. 38 OF 2015; David Kabomyap Allolim and His Worship, Frank Manue sitting as the Provincial Land Court Magistrate of Kiunga, Western Province. and The Independent State of Papua New Guinea v Biul Kirokim (2018) SC1735

Supreme Court: Batari J, David & Frank JJ

Judgment Delivered: 16 May 2018

SC1735

PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE]

SCM No. 38 OF 2015

BETWEEN:

DAVID KABOMYAP ALLOLIM

First Appellant

AND:

HIS WORSHIP, FRANK MANUE sitting as the Provincial Land Court Magistrate of Kiunga, Western Province.

Second Appellant

AND:

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

Third Appellant

AND:

BIUL KIROKIM

Respondent

Waigani: Batari J, David & Frank JJ

2016: 24 October

2018: 16 May

JUDICIAL REVIEW – whether judicial review remedies available – decision of District Land Court refusing to aside set ex parte orders dismissing respondent’s appeal against ex parte Local Land Court Orders – discretion to dismiss – whether properly exercised – standing – right of party to appeal or join an appeal - whether party has standing to join as a party – agreement on royalties sharing benefits – whether Local Land Court has power to approve agreement of commercial nature under s. 19 the Land Dispute Settlement Act.

Facts:

The National Court upheld a judicial review application and reversed the decision of the Kiunga Provincial Land Court which had dismissed an appeal from the Kiunga Local Land Court. The only issue for determination was whether the decisions of the Provincial Land Court could be the subject of judicial review by the National Court. The National Court ordered that the order of the Provincial Land Court refusing to set aside its ex parte order of the 20 September 2013 be quashed and that orders of the Kiunga Local Land Court of 21 April 2006 obtained and approved on 6 December 2006 converting agreements between the parties to Orders of the Court be quashed as being made ultra vires the powers of the Court under sections 3 and 19 of the Land Dispute Settlement Act. The appellant argued that the respondent was not a party to the appeal proceedings in the Provincial Land Court and should have no standing. The appellant also argued that OTML was not a party to the Local Land Court proceedings and should have no standing in the Provincial Land Court appeal.

Held:

1. The trial judge did not err in finding that the respondent was a party to the Land Court appeal proceedings, at [33-34];

2. The Provincial Land Court Magistrate erred in law in hearing argument on the merits of an appeal on an ex parte application and also, having dismissed that appeal on that ex parte application, having then held he did not have jurisdiction to set aside the order made on an ex parte basis, at [52-54];

3. The trial judge was correct in finding that the agreements approved by the Local Land Court did not relate to interests in land, but were commercial agreements, and Section 19 of the Land Dispute Settlement Act did not give jurisdiction, at [69-71];

4. The orders of the Local Land Court were also flawed because they were made on an ex parte application and consequently the Court could not be satisfied of the three conditions set out in Section 19(2) and (5) of the Land Dispute Settlement Act, at [72-75];

5. The appeal was dismissed, orders of the primary judge affirmed, liberty to the parties to apply to the appropriate court, with notice to the other party.

Cases Cited:

Eastern Highlands Savings v Nowek Ltd (2013) N5315

General Accident Fire & Life Assurance Corporation Limited v. Ilimo Farm Products Pty Ltd [1990] PNGLR 331;

Helifix Group of Companies v. Papua New Guinea Land Board (2012) SC 1150

James Aiwasi v Monty Derari (2017) N6602

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

Lepanding Singut v Kelly Kinamun (2003) N2499.

Mision Asiki v. Manasupe Zurenuoc (2005) SC797

Pais Wingti-v-Kala Rawali, Electoral Commission & Tom Olga (2008) N3285

Peter Malt v. Dean Queen & Christian Union Mission Inc. (2009) N3577

PNG Air Pilots Association v. Director of Civil Aviation & Anor [1983] PNGLR 1

Rangip v. Loko (2009) N3714

Re Piunde Ltd (2015) N6656;

Sandy Talita v Peter Ipatas (2016) SC1603

Steamships Trading Ltd v. Garamut Enterprises Ltd (2000) N1959

Counsel:

Ms M Kokiva, for the First Appellant

No Appearance for Second Appellant

No Appearance for the Third Appellant

Ms A. Kimbu, for the Respondent

JUDGMENT

16th May, 2018

1. BY THE COURT: On 05/11/2015 the National Court at Waigani upheld a judicial review application and reversed the decision of the Kiunga Provincial Land Court (KPLC) which dismissed the respondents’ appeal from Kiunga Local Land Court (KLLC). The facts are not in dispute – the issue for the Court concerns the application of legal principles by the primary Judge and whether the relevant decisions of the second appellant could properly be the subject of judicial review by the National Court.

A. Background

2. It is necessary to set out in some detail, the history to the ongoing saga between the parties to this appeal. The First Appellant, Kambomyap Allolim and the Respondent, Biul Kirokim are either land owners or have rights of use or both, over Mt. Fubilan land where OK Tedi Mining Limited (OTML) operates the giant Ok Tedi Gold Mine in Tabubil, Western Province.

3. The First Appellant representing his Kimka Sepiyan sub-clan members (the appellants) claims they are the true principal landowners of Mt Fubilan land and hence, the rightful beneficiaries to mining royalty payments and related benefits. The Respondent and his group (the respondents) makes the same claim they are the original traditional landowners of the gold and copper mine site.

4. A benefit sharing arrangement under the Memorandum of Agreement (the principal MOA) executed on 11/01/1991 between the State and OK Tedi landowners, offers some insight into the dispute between the two parties. It provided, inter alia, provisions for percentage (%) sharing benefits between two groups of landowners. The reviewed agreement of 29/10/2004 retained recognition of the two groups of OK Tedi landowners as;

(i) the members of any landowning clan represented in the Star Mountains Local Government Council and;

(ii) ‘Special Lease Mining Lease Landowners’ as being any member of Wopkaimin clan from Bultem, Finalbin, Atemkit and Kavorabip villages.

(See, Appeal Book pp. 103 -115 and 117 - 128)

5. The First Appellant is from Kavorabip village and the Respondent is from Finalbin village. The principal MOA recognises that both villages would have Wopkaimin clan members in them. As both parties are claiming to be principal land owners, they are possibly connected one way or another with Wopkaimin clan. Hence, as Wopkaimin clan members or descendants, both parties may be presumed beneficiaries under the principal MOA of 1991/2004.

6. Nevertheless, the issue of land ownership has been the underlying cause for animosity and disharmony between the two groups. The appellants are obstinate in their claim and grievance of being left out and unjustifiably excluded and dispossessed of mining royalties and equities being paid to the respondents. They have all along denied receiving any tangible benefit in any way, shape or form from the OTML mining activities.

7. So, during the currency of the principal MOA, the appellants purportedly reconciled with the respondents and executed a benefit sharing agreement styled, “Memorandum of Agreement Relating to Royalties Payment of Kimka Sepiyan Sub-Tribe – OK Tedi Mine Mt Fubilan” (the appellants’ MOA) on 06/07/2004. The respondents have supposedly conceded and acknowledged the appellants’ status as the principal landowners of the mine site and acceded to the terms of the appellants’ MOA to cooperate with the appellants in implementing the terms of the royalties payments under the new arrangement.

8. The appellants then initiated court proceedings to enforce the agreement. On 21/4/2006 they obtained ex parte orders from the KLLC, converting the agreement into Court Orders. The parties then allegedly entered into a second agreement on 09/11/2006 which allotted an unprecedented distribution benefit of 95% royalty payments to the appellants and 5% to the respondents. The appellants returned to the KLLC on 06/12/2006 and obtained an approval of the agreement as formal court orders.

9. Aggrieved by the two Local Land Court orders, the respondents lodged an appeal at the Waigani Provincial Land Court Registry. They also obtained stay orders against the KLLC orders. His Honour Batari, J dismissed that appeal for being filed outside court jurisdiction and therefore incompetent.

10. The OTML also lodged a separate appeal at the Kiunga Provincial Land Court registry against the same KLLC orders and granted leave to prosecute its appeal. Having lost their appeal, the respondents joined the OTML appeal.

B. Parties Positions in Summary

11. The matter...