Stabie Gason v Mangu Clan of Astrolabe Bay

• Jurisdiction: Papua New Guinea
• Judge: Cannings J
• Judgment Date: 15 January 2016
• Citation: (2016) N6163
• Court: National Court
• Year: 2016
• Judgement Number: N6163

Full : CIA No 106 of 2013; Stabie Gason, for himself and on behalf of Kurenduk Clan of Astrolabe Bay, Madang Province v Mangu Clan of Astrolabe Bay, Madang Province and Joseph Gabut, Benedict Batata & Kutt Paonga, comprising the Ramu Nickel/Cobalt Special Land Titles Commission and Ramu Nickel/Cobalt Special Land Titles Commission and the Independent State of Papua New Guinea (2016) N6163

National Court: Cannings J

Judgment Delivered: 15 January 2016

N6163

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CIA NO 106 OF 2013

STABIE GASON, FOR HIMSELF AND ON BEHALF OF KURENDUK CLAN OF ASTROLABE BAY, MADANG PROVINCE

Appellant

V

MANGU CLAN OF ASTROLABE BAY, MADANG PROVINCE

First Respondent

JOSEPH GABUT, BENEDICT BATATA & KUTT PAONGA, COMPRISING THE RAMU NICKEL/COBALT

SPECIAL LAND TITLES COMMISSION

Second Respondents

RAMU NICKEL/COBALT SPECIAL LAND TITLES COMMISSION

Third Respondent

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

Fourth Respondent

Madang: Cannings J

2016: 15 January

2015: 22 April

2014: 3 December

APPEALS – appeal against decision of Special Land Titles Commission regarding ownership of customary land – Land Titles Commission Act 1962, Section 38 (right of appeal) – limited grounds of appeal.

The appellant appealed against the decision of a Special Land Titles Commission declaring that a block of customary land was owned by the first respondent. The appeal was made under Section 38 of the Land Titles Commission Act, on two grounds: the decision was against the weight of the evidence and the hearings of the Commission were conducted in a manner contrary to natural justice. The second, third and fourth respondents argued as a preliminary point that the appellant was guilty of an abuse of process as he was not a party to the proceedings of the Commission and therefore had no standing to appeal against its decisions.

Held:

(1) A person does not have to have been a party to the proceedings of a Land Titles Commission to have standing as a “person aggrieved” by its decisions. However, an appellant who was not a party must present good reasons why he was not a party, and if no good reasons are presented, he will lack standing.

(2) Here, the appellant was not a party and failed to show good reasons why he was not a party. He lacked standing, so the appeal was an abuse of process and was dismissed for that reason.

(3) If the appeal had been considered on its merits, it would still have been dismissed as the appellant failed to demonstrate what evidence was before the Commission and was therefore unable to prove that the decision was against the weight of the evidence. Further there was no evidence of a denial of natural justice.

(4) The appeal was dismissed.

Cases cited

The following cases are cited in the judgment:

Dynasty Estates Ltd v Nambawan Super Ltd (2015) SC1427

Kitogara Holdings v NCDIC [1988–89] PNGLR 346

Re Wangaramut (No 2) [1969-70] PNGLR 410

APPEAL

This was an appeal by a person aggrieved by a decision of a Special Land Titles Commission as to ownership of customary land.

Counsel

G Pipike, for the Appellant

S Maliaki, for the Respondents

15 January, 2016

1. CANNINGS J: Stabie Gason of the Kurendek Clan of the Astrolabe Bay area of Rai Coast District, Madang Province, appeals against the decision of the Ramu Nickel-Cobalt Special Land Titles Commission regarding customary ownership of the area of land known as ‘Block 725, Mining Easement 75’.

2. The decision was made on 23 August 2013 and relevantly states:

1. The parcel or block of land, known as “MERAIKU” land and designated as Block No 725 inside Mining Easement No 75 is owned by MANGU Clan.

2. The MANGU Clan is the undisputed owner of “MERAIKU” land, and it is entitled to receive benefits or proceeds including benefits from the Ramu Nickel/Cobalt Project that emanate from the use of the said land.

3. The appeal is made under Section 38 of the Land Titles Commission Act, which allows a “person aggrieved by a decision of the Commission” to appeal to the National Court within 90 days after the decision. Two grounds of appeal are relied on: (a) that the decision was against the weight of the evidence and (b) that the hearings of the Commission were conducted in a manner contrary to natural justice. The appeal was filed on 18 October 2013, within the 90-day period, and the grounds of appeal are compliant with Section 38(2) of the Act, which restricts the grounds on which a person can appeal.

4. Mangu Clan was named as first respondent but did not appear at the hearing of the appeal. The three Commissioners, the Commission itself and the State were named as second, third and fourth respondents. They were represented by Ms Maliaki of the Office of Solicitor-General who has raised a preliminary point which, if upheld, would result in summary dismissal of the appeal.

PRELIMINARY POINT

5. Ms Maliaki submits that the appeal is incompetent and an abuse of process as the appellant was not a party to the Commission’s proceedings. As he took no part in the earlier proceedings, he cannot appeal against the Commission’s decision.

6. I largely uphold this submission. As to whether the appellant participated in the Commission’s proceedings, he has deposed in an affidavit in support of the appeal that Mr Hondu Bagen, on behalf of Kuren Tamo Clan of Bungu village, participated in the Commission’s proceedings and was an applicant for Block 725. The appellant describes Mr Bagen as his clan leader. However, the appellant does not explain the relationship between his clan – Kurenduk – and Mr Bagen’s clan – Kuren Tamo. Nor does he explain why Mr Bagen has not appealed against the decision. I find as a fact that the appellant was not a party to the Commission’s proceedings.

7. That does not necessarily disqualify him from appealing against the Commission’s decision. The right of appeal is given to a “person aggrieved” by a decision of the Commission, not to a party to the Commission’s proceedings. A person who was not a party might nevertheless be genuinely aggrieved by a decision of the Commission. However, an appellant who was not a party to the proceedings of the Commission must, in my view, present good reasons why he was not a party, and if no good reasons are presented, he will lack standing.

8. This is the approach that has been taken in the case of appeals from the National Court to the Supreme Court, which are governed by the Supreme Court Act. Section 14 simply provides that “an appeal lies from the National Court” and Section 17 refers to “a person who desires to appeal”. The general principle has been developed in cases such as Kitogara Holdings v NCDIC [1988–89] PNGLR 346 and Dynasty Estates Ltd v Nambawan Super Ltd (2015) SC1427 that a person who was not a party to the National Court proceedings will nevertheless have standing to appeal if he can show good reasons why he was not a party to the National Court proceedings and how his interests are affected by the decision he wishes to appeal against.

9. Here, the appellant was not a party to the proceedings of the Land Titles Commission and failed to show good reasons why he was not a party. Though he might say he is aggrieved by the...