Martina Jimmy, for Herself and on behalf of Bualali Clan and Kabulubulu Clan v Kevemuki Clan (2010) N4101
Jurisdiction | Papua New Guinea |
Date | 25 June 2010 |
Citation | (2010) N4101 |
Docket Number | OS NO 92 OF 2009 |
Court | National Court |
Year | 2010 |
Full Title: OS NO 92 OF 2009; Martina Jimmy, for Herself and on behalf of Bualali Clan and Kabulubulu Clan v Kevemuki Clan (2010) N4101
National Court: Cannings J
Judgment Delivered: 25 June 2010
JUDGMENT
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 proceedings conducted contrary to principles of natural justice—whether Provincial Land Magistrate obliged to walk boundaries of disputed land.
The plaintiffs sought judicial review by the National Court of a decision of the Provincial Land Court, which had dismissed appeals by the plaintiffs against a decision of the Local Land Court, which was in favour of the defendant. The two grounds of review were that the plaintiffs were denied natural justice by the Provincial Land Court and that the Provincial Land Court did not “walk the boundaries” of the disputed land and decided the case on the evidence of mediators and the defendant’s witnesses.
Held:
(1) A Provincial Land Court hearing an appeal against a decision of the Local Land Court under the Land Disputes Settlement Act Chapter No 45 has a duty to conduct its proceedings in accordance with the principles of natural justice, the minimum requirement of which under s59(2) of the Constitution is the duty to act fairly and, in principle, to be seen to act fairly.
(2) The Provincial Land Court failed to comply with the principles of natural justice in that it did not address the plaintiffs’ grounds of appeal, failed to give the plaintiffs the opportunity to make submissions on the evidence and failed to give good, proper and sufficient reasons for its decision. The first ground of judicial review was upheld.
(3) The Provincial Land Court did not err by failing to walk the boundaries of the land; and it was not sufficiently clear that it decided the case improperly by relying unduly on the evidence of mediators and the defendant’s witnesses. The second ground of judicial review was dismissed.
(4) The question of what remedies should be granted is a matter of discretion. As the proceedings of the Provincial Land Court were conducted unfairly, it follows that its decision should be quashed and that the plaintiffs’ appeals against the Local Land Court should be reinstated and re-heard by a differently constituted Provincial Land Court as soon as practicable. Orders made accordingly.
Cases cited
The following cases are cited in the judgment:
Balus Tara v Rachel Gugu (1982) N374(M)
Bougainville Copper Foundation v Minister for Trade and Industry (1989) N747
Jack Afing v Martin Pari (2006) N3034
Jack Nou v Richard Cherake, Magistrate, Provincial Land Court, Port Moresby (2004) N2539
Kely Kerua v Council Appeal Committee of the University of Papua New Guinea and University of Papua New Guinea (2004) N2534
Mision Asiki v Manasupe Zurenuoc (2005) SC797
Ombudsman Commission v Peter Yama (2004) SC747
The State v District Land Court at Kimbe; ex parte Casper Nuli [1981] PNGLR 192
Thomas Kavali v Thomas Hoihoi [1984] PNGLR 182
Wohengu v Hickey (2009) N3721
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.
25 June, 2010
1. CANNINGS J: This is a ruling on an application for judicial review of the decision of the West New Britain Provincial Land Court, constituted by his Worship, Mr Luke Vava, dated 27 June 2008, concerning ownership of customary land known as “Mutoko”, near Karapi village, in the Hoskins area.
2. The Provincial Land Court’s decision was to dismiss appeals by Martina Jimmy of Bualali clan (the first plaintiff) and representatives of the Kabulubulu clan against a decision of the Local Land Court, constituted by his Worship Mr Tera Dawai, dated 18 December 2007.
3. The Local Land Court order was that:
1 Kevemuki clan [the defendant] is the principal owner of the land.
2 Both Bualali and Kabulubulu clans have an equal interest in the land, in common with Kevemuki, provided that they respect Kevemuki as the principal landowner.
3 All monetary benefits arising from the use of the land be divided equally amongst the parties.
4. 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).
THE GROUNDS OF REVIEW AND THE RELIEF SOUGHT
5. Leave was granted to argue two grounds of review:
• that the first plaintiff was...
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