Pepi Kimas, Secretary for Lands & Physical Planning and Benjamin Samson, Deputy Registrar of Titles and Hon Dr Puka Temu, Minister for Lands and Physical Planning and The Independent State of Papua New Guinea v Arua Loa, Areni Igo & Lakani Oala (2015) SC1475

• Jurisdiction: Papua New Guinea
• Judge: Cannings J, Kangwia J, Bona J
• Judgment Date: 17 December 2015
• Court: Supreme Court
• Citation: (2015) SC1475
• Docket Number: SCM NO 7 OF 2015
• Year: 2015
• Judgement Number: SC1475

Full Title: SCM NO 7 OF 2015; Pepi Kimas, Secretary for Lands & Physical Planning and Benjamin Samson, Deputy Registrar of Titles and Hon Dr Puka Temu, Minister for Lands and Physical Planning and The Independent State of Papua New Guinea v Arua Loa, Areni Igo & Lakani Oala (2015) SC1475

Supreme Court: Cannings J, Kangwia J, Bona J

Judgment Delivered: 17 December 2015

SC1475

PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE]

SCM NO 7 OF 2015

PEPI KIMAS, SECRETARY FOR LANDS & PHYSICAL PLANNING

First Appellant

BENJAMIN SAMSON, DEPUTY REGISTRAR OF TITLES

Second Appellant

HON DR PUKA TEMU,

MINISTER FOR LANDS & PHYSICAL PLANNING

Third Appellant

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

Fourth Appellant

V

ARUA LOA, ARENI IGO & LAKANI OALA

Respondents

Waigani: Cannings J, Kangwia J, Bona J

2015: 27th October, 17th December

LAND – customary land – whether National Court has jurisdiction to hear and determine a dispute as to whether land is customary land – whether judicial review proceedings in which the applicants sought orders as to a Special Agricultural and Business Lease constituted a dispute as to whether land was customary land.

The respondents applied to the National Court for judicial review of two decisions of the appellants (the Secretary for Lands and Physical Planning and other State parties) regarding a portion of land, of which the respondents claimed customary ownership. First, the appellants’ decision to grant an Urban Development Lease (UDL) over the land to a third party. Secondly, the appellants’ decision to cancel a Special Agricultural and Business Lease (SABL), which the respondents held over the land. In upholding the judicial review, the National Court quashed both decisions under review and declared that the land was customary land owned by the respondents, the UDL granted to the third party was null and void, the SABL (granted to the respondents, but cancelled) was restored and the grant of any interests in the land without the express consent of the respondents was null and void. The appellants appealed against the order of the National Court on 25 grounds, which fell into two categories: (1) excess of jurisdiction as the subject matter of the National Court proceedings was a dispute about whether the land was customary land; (2) errors of fact and law in finding that the land was customary land. The appellants contended before the National Court and the Supreme Court that the land had been acquired by the pre-Independence administration, so it was Government land and no longer customary land.

Held:

(1) The National Court has no jurisdiction to hear and determine disputes concerning ownership by custom of any land, including a dispute as to whether any land is or is not customary land. Such disputes fall within the exclusive jurisdiction of the Land Titles Commission under s15 of the Land Titles Commission Act.

(2) At the centre of the judicial review proceedings was a dispute about whether the land was customary land. The National Court exceeded its jurisdiction by hearing and determining the dispute.

(3) The first category of grounds of appeal was upheld. It was unnecessary to determine any other grounds.

(4) The appeal was upheld. The order of the National Court was quashed and the National Court proceedings were dismissed.

Cases cited

The following cases are cited in the judgment:

Anton Lavu v Nicholas Mark Thompson (2007) N5018

Arua Loa v Pepi Kimas (2014) N5849

Doriga Mahuru v Hon Lucas Dekena (2013) N5305

Golpak v Kali [1993] PNGLR 491

Musa Valley Management Company Ltd v Pepi Kimas (2010) N3827

Roderick Tovo Bibilo v Gerard Balbagara (2008) N3291

Ronny Wabia v BP Exploration Co Ltd [1998] PNGLR 8

Siaman Riri v Simion Nusai (1995) N1375

Sioti Bauf and Lavoi Nodai v Poliamba Pty Ltd [1990] PNGLR 278

Soso Tumu v The State [2002] PNGLR 250

The Administration v Blasius Tirupia (Re Vunapaladig and Japalik Land) [1971-72] PNGLR 229

The State v Lohia Sisia [1987] PNGLR 102

Thomas Taiya Ambi v Exxon Mobil Ltd (2012) N4844

Wak v John Wia (2008) N3356

APPEAL

This was an appeal against the granting by the National Court of an application for judicial review by persons claiming customary ownership of a portion of land.

Counsel

I Molloy & I R Shepherd, for the Appellants

Z G Gelu, for the Respondents

17th December, 2015

1. BY THE COURT: The Secretary for Lands and Physical Planning and other State parties appeal against the decision of the National Court in proceedings involving a piece of land in the National Capital District.

2. The land, Portion 2585, also known as Portion 2585C, lies between the top of the Poreporena Freeway, near Burn’s Peak, and Murray Barracks in the Hohola area. Its traditional name is “Gagoramani”. It has an area of 18.49 hectares. The respondents are three men from nearby Hanuabada village, Arua Loa, Areni Igo and Lakani Oala, who have for many years claimed customary ownership of the land.

NATIONAL COURT PROCEEDINGS

3. The respondents were the plaintiffs in the National Court. They applied for judicial review of two decisions of the appellants regarding Portion 2585:

· First, the decision of the Minister for Lands and Physical Planning to, on 4th August 2008, without their consent, grant an Urban Development Lease (UDL) over the land to a third party, Garamut Enterprises Ltd. (Garamut was originally a defendant in the National Court proceedings but ceased to be a party, evidently as its UDL expired in early 2014 and it no longer had any interest in the land.)

· Secondly, the decision of the Deputy Registrar of Titles to, on 5 November 2010, cancel a Special Agricultural and Business Lease (SABL) over the land, which had, only the previous month, on 7 October 2010, been granted to the respondents.

4. The National Court, constituted by Justice Kandakasi, on 29 December 2014, upheld the respondents’ application for judicial review (Arua Loa v Pepi Kimas (2014) N5849). His Honour quashed both decisions under review and declared that:

· the land was customary land owned by the respondents and the Geakone Laurina sub-clan of Hohodae, Hanuabada;

· the State had never acquired the land from its customary owners;

· the UDL granted to Garamut was null and void;

· the SABL granted to the respondents, then cancelled, was restored;

· the grant of any interests in the land without the express consent of the respondents was null and void.

THE APPEAL

5. The appellants appeal against those orders and declarations on 25 grounds, which fall into two categories:

(1) Excess of jurisdiction as the subject matter of the National Court proceedings was a dispute about whether the land was customary land (ground (e)). The appellants argue that the primary Judge had no jurisdiction to determine customary ownership of the land.

(2) Errors of fact and law in finding that the land was customary land (grounds (a)-(d), (f)-(y)). The appellants argue that the evidence showed that the pre-Independence administration acquired the land from the customary landowners in 1957, and that it was no longer customary land and that the primary Judge erred in drawing the opposite conclusion. They argue that the primary Judge should have found that:

· Portion 2585 has been Government land since 1957;

· it was properly made the subject of the State Lease to Garamut in 2008;

· it was improperly made the subject of the SABL to the respondents in October 2010;

· the SABL was properly cancelled in November 2010, as an SABL can only be granted over customary land (Musa Valley Management Company Ltd v Pepi Kimas (2010) N3827).

EXCESS OF JURISDICTION

6. It is settled law that the National Court has no jurisdiction to hear and determine disputes concerning ownership by custom of any land, including a dispute as to whether any land is or is not customary land. Such disputes fall within the exclusive jurisdiction of the Land Titles Commission under Section 15 (determination of disputes) of the Land Titles Commission Act, which states:

The Commission has, subject to this Act, exclusive jurisdiction to hear and determine all disputes concerning and claims to the ownership by custom of, or the right by custom to use, any land, water or reef, including a dispute as to whether any land is or is not customary land and may make all such preliminary inquiries and investigations as it deems necessary for the purpose of hearing and determining the disputes and claims. [Emphasis added.]

7. Section 15 has been given full effect by the courts over many years. As soon as it becomes apparent that a case involves a dispute about whether land is or is not customary land, the Court should divest itself of jurisdiction. Such disputes fall within the exclusive domain of the Land Titles Commission.

8. The leading case is The State v Lohia Sisia [1987] PNGLR 102. The Supreme Court stated clearly that because of Section 15 of the Land Titles Commission Act neither the National Court nor the Supreme Court has power to...