Francis Karogo, representative of Kerakera Lololo Clan of Gavaiva Village v James Kave, representative of Kevemuki Clan of Gule Village and Paskalise Kupa, representative of Bualali Clan of Gavutu Village and Roy Mou, representative of Bobiso Clan of Koimumu Village and His Worship Regett Marum, Provincial Land Court Magistrate and the Independent State of Papua New Guinea (2019) N8134

• Jurisdiction: Papua New Guinea
• Judge: Cannings J
• Judgment Date: 27 November 2019
• Court: National Court
• Citation: (2019) N8134
• Docket Number: OS (JR) No 795 of 2011
• Year: 2019
• Judgement Number: N8134

Full Title: OS (JR) No 795 of 2011; Francis Karogo, representative of Kerakera Lololo Clan of Gavaiva Village v James Kave, representative of Kevemuki Clan of Gule Village and Paskalise Kupa, representative of Bualali Clan of Gavutu Village and Roy Mou, representative of Bobiso Clan of Koimumu Village and His Worship Regett Marum, Provincial Land Court Magistrate and the Independent State of Papua New Guinea (2019) N8134

National Court: Cannings J

Judgment Delivered: 27 November 2019

N8134

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

OS (JR) NO 795 OF 2011

FRANCIS KAROGO, REPRESENTATIVE OF

KERAKERA LOLOLO CLAN OF GAVAIVA VILLAGE

Plaintiff

V

JAMES KAVE, REPRESENTATIVE OF

KEVEMUKI CLAN OF GULE VILLAGE

First Defendant

PASKALISE KUPA, REPRESENTATIVE OF

BUALALI CLAN OF GAVUTU VILLAGE

Second Defendant

ROY MOU, REPRESENTATIVE OF

BOBISO CLAN OF KOIMUMU VILLAGE

Third Defendant

HIS WORSHIP REGETT MARUM,

PROVINCIAL LAND COURT MAGISTRATE

Fourth Defendant

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

Fifth Defendant

Kimbe: Cannings J

2019: 4th October, 27th November

JUDICIAL REVIEW – review of decision of Provincial Land Court, on appeal against decision of Local Land Court – Land Disputes Settlement Act Chapter No 45 – whether Provincial Land Court gave reasons for decision – whether Provincial Land Court decision made in accordance with principles of natural justice – procedural fairness – duty to give reasons – rule against bias.

The plaintiff applied for judicial review by the National Court of a decision of the Provincial Land Court, which had upheld an appeal by the defendants against a decision of the Local Land Court, in favour of the plaintiff’s clan. Two grounds of review were pressed, that the Provincial Land Court erred in law by: (1) not giving reasons for its decision; and (2) making a decision that was actually biased or in a way that gave rise to a reasonable apprehension of bias.

Held:

(1) A Provincial Land Court hearing an appeal against a decision of the Local Land Court under the Land Disputes Settlement Act has a duty to conduct its proceedings in accordance with the principles of natural justice, the minimum requirement of which under Section 59(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 failed to give good, proper and sufficient reasons for its decision. The first ground of review was upheld.

(3) The manner in which the presiding magistrate communicated with one of the parties to the appeal, to whom he was related, gave rise to a reasonable apprehension of bias, and failed to comply with the constitutional requirement that court proceedings be seen to be conducted fairly. The second ground of review was upheld.

(4) As both grounds of review were upheld, the Provincial Land Court decision was quashed and the decision of the Local Land Court restored.

Cases cited

The following cases are cited in the judgment:

Amet v Yama (2010) SC1064

Application by Herman Joseph Leahy (2006) SC981

Balus Tara v Rachel Gugu (1982) N374(M)

Bougainville Copper Foundation v Minister for Trade and Industry (1989) N747

Danny Yai v Joseph Pindu (2009) N3630

Giru v Edo (2007) N5032

Hami Yawari v Anderson Agiru (2008) SC939

Harbours Board v Breni Kora (2005) N2834

Jack Afing v Martin Pari (2006) N3034

Jack Nou v Richard Cherake, Magistrate, Provincial Land Court, Port Moresby (2004) N2539

John Mua Nilkare v Ombudsman Commission (1996) SC498

Kwame Okyere Boateng v The State [1990] PNGLR 342

Mision Asiki v Manasupe Zurenuoc (2005) SC797

Ombudsman Commission v Peter Yama (2004) SC747

Sela Gipe v The State [2000] PNGLR 271

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 against a decision of the Local Land Court.

Counsel

J Siki, for the Plaintiff

D Kari, for the First, Second & Third Defendants

T Mileng, for the Fourth & Fifth Defendants

27th November, 2019

1. CANNINGS J: Francis Karogo, representing the Kerakera Lololo clan of Gavaiva village, applies for judicial review of the decision of the West New Britain Provincial Land Court, constituted by his Worship, Mr Regett Marum, dated 20 November 2010, concerning customary ownership of land on which the Moramora Technical School is based, known as Moramora land, in the Hoskins area.

2. The Provincial Land Court’s decision was to uphold an appeal by Herman Sahale, representing Bualali, Kevemuki and Bobiso clans, against a decision of the Local Land Court, constituted by his Worship Mr Tera Dawai and Land Mediators Vincent Gala and Tobias Divu, dated 24 March 2009.

3. The Local Land Court order was that:

1 Kerakera Lololo clan is now the principal land owner.

2 The Mamapa, Ababe-Brakiko, Baubaku, Kurukuru and Kakea clans had acquired user rights over this land and they must continue to enjoy these rights to usage of the land but if usage is not possible due to development on the land then they be allowed to enjoy the economic benefit derived from the land with the principal landowner.

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).

5. Two grounds of review were pressed, that the Provincial Land Court erred in law by: (1) not giving reasons for its decision; and (2) making a decision that was actually biased or in a way that gave rise to a reasonable apprehension of bias. The plaintiff seeks various declarations and orders that would quash the Provincial Land Court’s order and reinstate the Local Land Court order. He also seeks damages.

PRELIMINARY ISSUE

6. Mr Mileng of the Office of Solicitor-General appeared for the Provincial Court Magistrate and the State. He submitted that the two grounds of review ought not be entertained as they were not pleaded in the plaintiff’s National Court Rules, Order 16, Rule 3(2)(a) statement, in which the grounds of review stated:

4.1 That the Provincial Land Court was conducted contrary to the requirements of S. 50 of the Land Disputes Settlement Act with no Court deposition and/or file and the decision has prejudiced the Applicants and is therefore null and void.

4.2 That his Worship Regget Marum wrongly ruled that before the substantive matter is heard, the LLC Magistrate must first bear and determine the Matrilineal Genealogy of the parties over the claim of interest in the Moramora land dispute, when it did, and is therefore null and void.

4.3 That His Worship wrongly ruled that the District Land Court revisit and consider the LTR and lease document, when it did, rendering the decision void.

4.4 That the Provincial Land Court Magistrate failed to ensure compliance of Section 47(2) of the Land Disputes Settlement Act in appointing and involving land mediators demonstrated that he was biased and has a conflicting interest in the case hence rendering his decisions void.

4.5 That the Provincial Land Court Orders of 20 November 2010 in quashing and redirecting the hearing back to the District Land Court to be heard before a new magistrate lacks substance, confusing and is only procrastinating, biased and invalid and ultra-virus, thereby rendering the decision of the Provincial Land Court null and void.

7. Mr Mileng has raised a valid issue. Under the National Court Rules, Order 16, Rule 6(1), an applicant for judicial review is restricted to arguing the grounds set out in the Order 16, Rule 3(2) (a) statement. The grounds of review that have been pressed at the trial of this application are not expressly found in the grounds of review.However, I consider that there is a sufficient connection between the first argument (about failure to give reasons) and ground 4.1 to allow the plaintiff to proceed. Likewise with the second argument (about bias). This has a sufficient connection with ground 4.4.

8. The defendants have been put on notice what the real arguments are for trial. There is no procedural unfairness, so I dismiss the preliminary argument of the defendants and will proceed to determine the two grounds of review that have been pressed, on their merits.

1 GROUND 1: ALLEGED...