Kevau v Penny [2020] PGDC 46; DC5034 (13 November 2020)

DC5034

PAPUA NEW GUINEA

IN THE FAMILY COURT OF JUSTICE

HELD AT

PORT MORESBY DISTRICT COURT

In the Matter of APPEAL OF VILLAGE COURT ORDERS

VCA NO. 16 of 2020

Between:

VAGI GAUDI KEVAU ON BEHALF OF AEGU KEVAU AND KEVAU MATAGU

Complainant

And:

FLORA PENNY

First Defendant

JOHN MASE MOMORO – CHAIRMAN OF PARI VILLAGE COURT

Second Defendant

TUBUMAGA LAURINA INCORPORATED LAND GROUP (ILG)

His Worship Mr. E. Komia

13^th November 2020

Counsels for the Complainant: in person

Counsels for the Defendants: in person

Appeal from the Village Court – dispute pursuant to Land Group Incorporation (2009) Amendment Act –dispute between a non-member of an ILG and a member – whether dispute settlement authority has jurisdiction – court’s jurisdiction in such disputes

Legislations Cited

Land Group Incorporation (2009) Amendment Act

Case Laws

Goru v. Sima [2018] PGNC 380; N7462 (14 September 2018)

Job v. Tori [2020] PGNC 62; N8254

1. INTRODUCTION
   

1. The Appellant had instituted an eviction proceeding against the first defendant at the Pari Village Court. The Pari Village Court in its decision on the 03^rd of March, 2020 made orders for the dispute between the appellant and the first respondent to be referred to the third defendant ILG’s Land Dispute Settlement Committee. The appellant being aggrieved with the decision, appealed to this Court; hence, this determination.
   

2. FACTS.
   

2. The facts of the cases are summarized as follows:
   
   • 2.1 The appellant is a member of the third defendant ILG whilst the first respondent is the first cousin of the appellant, and is a non - member of the ILG.
     
   • 2.2 In 2012, the appellants brother, one Aegu Kevau, entered into an agreement to sell a portion of land 30m x 30m to the first respondent, and her late husband. An initial payment of K1000.00 was made, in early 2012, and later, on 10^th April 2012, made the balance payment of K9000.00 to same Aegu Kevau to complete the purchase price.
     
   • 2.3 It was agreed that the K10, 000.00 was for the initial settlement and a rental fee would be later agreed to in a tenancy agreement, which was to be signed at a later date. That agreement was never held, and parties never signed.
     
   • 2.4 A dispute then arose between the Appellant, Aegu Kevau, Vagi Kevau, and the first respondents over the lease agreement for the land, and rentals for the land on which the first respondents were residing on.
     
   • 2.5 The appellants summoned the first respondent to Pari Village Court on 03^rd of March 2020, and it was at that time, the Pari Village Court dealt with the matter and decided to refer the matter to the Dispute Settlement Authority of the Tubumaga Laurina Incorporated Land Group.
     
   • 2.6 The appellants were aggrieved by that decision and filed this appeal on 03^rd August 2020, claiming that the Pari Village Court was not properly constituted, and the parties were never given any opportunity to be heard, and finally claiming that the chairman of the Pari Village Court had a conflict of interest in the proceeding, and should have disqualified himself from presiding over that matter during the Village Court hearing.
     

100. ISSUE
     

3. The appellants seek to quash the decision of the Pari Village Court in having the matter referred to the Dispute Settlement Authority. The issue that would ultimately be deliberated by this Court is:
   
   • 3.1 Whether the Pari Village Court erred in referring the matter to the Dispute Settlement Authority?
     

4. EVIDENCE
   

4. The appellant and the respondents filed their affidavits respectively. The appellant relies on the following affidavits:
   
   • - Affidavit In Support of Objection sworn by Vagi Gaudi Kevau, on 03 September 2020 and filed the same date.
   • - Affidavit sworn by Guba Kevau on 06 November 2020, and filed on the same date.
   • - Affidavit of Aegu Kevausworn on 05 November 2020, and filed 06 November 2020.
   • - Affidavit of Huraga Morea Taboro sworn 05 November 2020, and filed 06 November 2020.
     
5. The respondents rely on the following affidavit:
   
   • - Affidavit of Flor Peni sworn 05 November 2020, and filed 06 November 2020
   • - Affidavit of John Mase Momoru sworn and filed on 06 November 2020.
   • -

5. DISCUSSIONS ON FACTS AND LAW
   

6. The appellants in their submission, state that the matter that was in contention at the village court was concerning an alleged claim of non-payment of rentals, and they had instituted the complaint at Pari Village Court to evict the first respondent from the land she was residing on. The Pari Village Court in dealing with that complaint decided to cease jurisdiction over that dispute and made orders for the issue to be determined by the Tubumaga Laurina Incorporated Land Group (herein after ‘ILG’).
   
7. The second and third respondents argue that the dispute concerns land that is found within the jurisdictional boundary of the ILG, and as such, the ILG’s dispute settlement authority should be he one deciding over the matters concerning the land within the ILG. The appellants argue otherwise, and say that the Village Court was wrong in making that decision.
   
8. The appellant raises three fundamental grounds of appeal from that village court decision, which are as follows:
   
   1. The court was not properly constituted.
   2. They were not given the opportunity to be hear (principles of natural justice were not observed)
   3. There was a conflict of interest on the part of the chairman of the village court and his decision was biased.
      
9. The first respondent contends otherwise, and says that the village court did not err in making such decision because the Land Group Incorporation Act (Amendment) 2009 allowed for such disputes to be referred to the dispute settlement committee. This argument was supported by the first and second respondent.
10. During the course of the hearing, the court requested parties to make submissions on the customs, norm or practices within the Motu Koitabu community on how land is distributed, the customs surrounding user rights, possessory rights, and residual rights associated with such practice. Although parties made submissions, this Court notes that the crux of the issue in the appeal require an interpretation of Part IV of the Land Group Incorporation (2009) Amendment Act, hence; I find the custom applicable at another time.
    
11. The establishment of ILG, management and operation are governed by the Land Group Incorporation Act which was initially enacted in 1974, and later amended to the current version of the Land Group Incorporation (Amendment) Act 2009.
    
12. For the purposes of this appeal, the court will deal with PART IV of the Act which establishes the Dispute Settlement Authority of the ILG, and the jurisdictional basis of the dispute settlement committee. The purpose of the dispute settlement authority is provided for under interpretation clause in, s.2, which states that “in relation to the incorporated land group, means the dispute settlement authority for the group.”
    
13. In order to understand the mechanics of how a dispute settlement authority in an ILG operates, it is proper for this court to delve into discussions for provisions under PART IV.
    

PART IV.—DISPUTE SETTLEMENT.

20. Application and interpretation of Part IV.
(1) This Part applies to disputes between—

(a) an incorporated land group and a member of the group; or

(b) members of an incorporated land group,

concerning the property or the affairs of the group, including—

(c) the distribution or disposal of any property or income of the

group, and

(d) any transaction between the group and any of its members,

but, except by agreement, does not apply to any dispute between the group, or a member of the group, and a non-member.

(2) This Part also applies to disputes as to membership of, or the right to membership in, an incorporated land group.

(3) In this Part, a reference to a party to, or to a person interested in, a dispute includes a reference to a person whose interest in the dispute is real, though not necessarily or immediately financial.

21. Dispute-settlement authorities.

(1) In order to be recognized under this Act, each group must have at least

one dispute-settlement authority.

(2) A dispute-settlement authority may be a person or a number of persons—

(a) specified by name; or

(b) specified by office or position; or

(c) determined in the manner specified,

in the constitution of the group, or a combination of any such persons.

(2) Notwithstanding Subsection (2), the parties to a dispute to which this

part applies may, with the consent of the group, agree on an ad hoc dispute-settlement authority in relation to the dispute.

22. Settlement of disputes.

All disputes to which this Part applies shall be dealt with, in accordance with Sections 23 and 24, by the dispute-settlement authority or a court having jurisdiction under Section 23.

23. Jurisdiction of courts.

(1) No court has jurisdiction over a dispute to which this Part applies

unless—

(a) all parties agree that it should be referred to the court; or

(b) the constitution of the incorporated land group concerned so

provides; or

(c) any relevant agreement between the group and a party so

provides; or

(d) the dispute-settlement authority thinks that—

(i) it cannot satisfactorily settle the dispute; and

(ii) the court may be able to do so.

(2) The dispute-settlement authority has jurisdiction to decide any matter

referred to in Subsection (1) and its decision is not open to challenge in any court.

(3) Where under Subsection (1) a dispute may be referred to a court—

(a) subject to Subsection (4), the court must be a Village Court or a

Local Court that has, apart from the effect of this Part,

jurisdiction in the matter; and

(b) it shall be referred, in the prescribed manner, by the dispute-

settlement authority; and

(c) the dispute-settlement authority is entitled to act, and if the court

or a person interested so asks shall act, as an assessor on

matters of custom and as to matters of common knowledge

within the group, but—

(i) its advice shall be given in open court and is

open to challenge; and

(ii) if for good reason the court thinks it proper to

do otherwise, the court is not bound to accept the advice.

(4) For the purposes of Subsection (3)(a), each Village Court and each

Local Court has jurisdiction over disputes as to land (other than disputes as to registered interests in land).

24. Law to be applied.
A dispute-settlement authority or a court dealing, under Section 23, with a
dispute to which this Part applies—

(a) is not bound by any law or rule of law, practice

or procedure other than this Act; and

(b) may inform itself on any matter in such manner

as it thinks proper; and

(c) shall not make a decision about any matter

without calling for argument and hearing any argument made on the matter; and

(d) shall endeavor to do substantial justice

between all persons interested, in accordance with this Act, the constitution and any relevant custom.

25. Appeal and review under ^[1]Part IV.

(1) Subject to this section, no proceedings or decision under this Part,

whether before or by a dispute-settlement authority or by a court, are or is subject to appeal or review in any way.

(2) A person aggrieved by a decision of a dispute-settlement authority or a

court under this Part may require that the decision be reviewed and, if necessary, the matter be reopened in accordance with this section.

(3) Subject to Subsection (4), the decision shall be reviewed in the first

instance, as if the grievance were the subject matter of a new dispute, by an ad hoc dispute-settlement authority appointed in accordance with Section 21(3).

(4) If—

(a) an ad hoc dispute-settlement authority cannot be agreed on; or

(b) the decision on the review differs from the original decision and

a person aggrieved by the difference so requires, the matter shall be reviewed by a Village Court consisting of not less than three Village Magistrates having jurisdiction over the members of the group, sitting with—

(c) the members of the original dispute-settlement authority; and

(d) the members of the ad hoc dispute-settlement authority (if any);

and

(e) such other customary authorities having customary jurisdiction

over the members of the group as the Village Court thinks appropriate, but the decision of the Village Court is the decision on the review.

(5) If in a case to which Subsection (4)(a) or (b) applies there is no Village

Court referred to in Subsection (4), the jurisdiction of the Village Court under that subsection shall be exercised by a customary authority having customary jurisdiction over the members of the group, nominated by the Registrar after due inquiry and consultation with the members of the group.

14. It is clear from the schemes of provision within PART IV of the Act that the dispute settlement committee is intended to ensure that issues within the ILG remain within the ILG, and to be amicably discussed and settled to the exclusion of the courts, unless parties agree that the matter cannot be resolved by the dispute settlement committee and have the matter referred to court for deliberation.
    
15. In the case of Goru v. Sima [2018] PGNC 380; N7462 (14 September 2018) Miviri (AJ) stated;
    

...“and section 23 of the Act establishes that a court does not have jurisdiction unless and until all parties agree that it should be referred to court.

16. What this basically indicates is that, the Courts will seize jurisdiction, if the parties agree that the matter cannot be resolved by the dispute settlement committee and that the proper body to resolve the issue would be either a village court or a local court.
    
17. Similarly, in the case of Job v. Tori [2020] PGNC 62; N8254, His Honor, Anis J said:

“the dispute is subject to the LGI Act and should be brought before the dispute settlement authority. Section 23 and 24 of the Act, however restrict disputes that arise, that is within the confines of PART IV of the LGI Act, and in particular, the dispute settlement authority.

18. Nevertheless, it is a different scenario when it comes to disputes between a member of an ILG, or an ILG itself and a non-member. Section 20 (1) applies in this instance where the dispute is between the appellant who is a member of the ILG and the first respondent, who is a non-member of the ILG. This court construes the said provision to mean that; if there is a dispute between members of the ILG and the ILG, or amongst the ILG members themselves which concerns property and income associated with the properties, and other things, then the dispute settlement authority is utilized.
    
19. The final clause of s.20 gives a rather contrasting landscape in which, the provision does not allow for disputes between, either the ILG and a non-member, or an ILG member and a non-member, to be dealt with by the dispute settlement committee. Furthermore, it is only exceptional where there is an agreement that the dispute settlement authority should deal with the issue. Where there is disagreement, it must be referred to the courts.
    
20. An important consideration I also note is that, given the manner in which the Chairman of Pari Village Court gave his evidence and made submissions, even if the matter goes before the dispute settlement authority, the respondents have already had a premeditated outcome of the decision, and it was not proper for the dispute settlement authority to deal with the matter. It would be only fair for another village court official to deal with the matter.
    
21. So the pertinent question is that, given the fact that the issues in contention at the Village Courts were between a member of the ILG, and a non-member, was it proper for the Village Court to have made an order to refer the matter to the Dispute Settlement Authority? In my view, I think the village court had the proper jurisdiction to deal with the matter, as it was not a matter that concerned an issue between the ILG, and its members, or dispute between members of the ILG, rather was between a non-member and a member of the ILG.
    
22. In noting the grounds of appeal, I will disallow the first two grounds of appeal given that, there were opportunities given to both parties to make submissions and both parties did put forward their case to the village. The principle of natural justice was observed. With respect to the grounds of appeal stating the village court was not properly constituted is also wrong, as the village court did have the proper persons dealing with the issue.
    
23. The third ground of appeal showing a substantial conflict of interest is a ground which I think should be allowed. the court noted during the course of the appeal and also when parties made submissions, is that the second respondent and the third respondent appear to be supporting the first respondent in their entire submission. This I find would amount to a substantial miscarriage of justice, and the matter would not be unbiasedly decided. I uphold this ground of appeal.
    
24. In conclusion I find that the matter was properly before the village court, and the decision by Pari Village Court, but the village court erred when it decided to refer the matter to the dispute settlement authority, which was irregular in that, the dispute as I alluded to above is between a member of the ILG and a non-member, the first respondent. The village court was properly seized with the jurisdiction, and should have been allowed to deal with the matter.
    
25. In the light of the above, I am minded to uphold the appeal and make the following orders:
    

THE COURT THERFORE ORDERS THAT:

1. The Orders of 03 March 2020, made by the Pari Village Court to refer the matter to the Dispute Settlement Authority of Laurina Tubumaga Incorporated Land Group is quashed.
2. The appellants are at liberty to pursue their complaint either at Pari Village Court, or in the District Courts.
3. Cost of the proceeding to be borne by parties.
4. Time is abridged.
   

By The Court.

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