Application by Lamius Niligur for Judicial Review, Joachim v Linge [2001] PGNC 41; N2165 (21 December 2001)

N2165

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

OS. NO. 25 OF 1998

BETWEEN:
IN THE MATTER OF AN APPLICATION BY LAMIUS NILIGUR OF TAVUILIU IN EAST NEW BRITAIN PROVINCE FOR JUDICIAL REVIEW.
Plaintiff

AND:

IN THE MATTER OF JACINTA JOACHIM OF TAVUILIU VILLAGE IN EAST NEW BRITAIN PROVINCE FOR JUDICIAL REVIEW.
First Defendant

AND:

VINCENT LINGE PROVINCIAL LAND COURT MAGISTRATE KOKOPO.
Second Defendant

KOKOPO : LENALIA, J.
2001 : 19 October, 21 December

ADMINISTRATIVE LAW – Judicial Review – Judicial Review of Provincial Land Court Decision – Judicial Review not alternative to Appeal – Natural Justice – Infringement of – Must be clear from records.

JUDICIAL REVIEW – Evidence in support – Must be related to where the tribunal acted ultra vires its powers – Procedure on Appeal from decision of Local Land Court - Provincial Land Court sitting without assessors – Assessors required – Miscarriage of justice – Orders refused.

The Land Dispute Settlement Act Ch. No. 45 s. 47 (1) and (2) provides.

"47. Constitution of Provincial Land Courts.

(1) A Provincial Land Court shall be constituted by a Provincial Land Magistrate.

(2) Subject to Subsection (1), a Provincial Land Magistrate may, where he considers it appropriate to do so, request one or more Land Mediators for the Land Mediation Divisions in which the land in dispute is wholly or partly situated to sit with the Court as an assessor or assessors to advise it on any matter on which it requests his or their advice."

Both the Local and Provincial Land Courts are required to determine custom by virtue of s. 68 of the Land Dispute Settlement Act. This section is also quoted below in the following terms:

"68. Determination of custom.

(1) Subject to this section, in all matters before a Provincial Land Court or a Local Land Court the Court shall determine, on the evidence before it, the relevant customs of any group appearing or represented before it.

(2) In applying custom the Court shall have regard to any guidelines laid down in the regulations, and may modify custom to give effect to the guidelines.

(3) The Customs (Recognition) Act 1963 does not apply to the determination or application of custom by a Provincial Land Court or a Local Land Court.

(4) The power to make laws conferred on a Local Government Council, by the Local Government Act extends to the making of rules declaring what is to be taken to be the custom relating to any matter, any such rule is evidence in any Provincial Land Court or Local Land Court of the matters set out in the rules."

The last provision may have not been amended to date in accordance with the Organic Law on Local Level Governments.

CASES CITED:

The following cases are cited.
Kekedo -v- Burns Philp (PNG) Ltd and Others [1988-89] PNGLR 122
Tandali -v- The State [1990] PNGLR 170

The State –v- Giddings [1981] PNGLR 423

Temu -v- Wani [1993] SCA. 96

Counsel:
No appearance for Defendants.
N. Kubak, for the Plaintiff

6 Nov. 2001

DECISION

LENALIA, J. The Plaintiff commenced proceedings on an originating summons filed on 26th of January 1998. Such proceedings were filed in Waigani in the National Capital District and were transferred on Application by Kubak Lawyers to Kokopo on 27th of May the same year. Service of the process was effected on the Second Defendant on 12th of February 1998. A Notice of Intention to Defend was filed on 15th of April still in that same year. No Defence had then been filed. From then onward the matter had been adjourned awaiting trial when the matter was heard before me on 19th of October, 2001.

In these proceedings, the plaintiff seeks orders in the nature of certiorari to remove to this Court and quash the decision of the Kokopo Provincial Land Court made on 10th of December in 1997. Leave for Judicial Review was granted way back on 13th of February 1998.

The Originating Summons seeks the following orders:

1. An Order of Certiorari to remove into this Honourable Court and quash the decision of the Kokopo Provincial Land Court made on 10th December 1997.
   
2. An Order that Jacinta Joachim and other members of her traditional linage be restrained by Injunction from moving onto and building or cultivating on the land known as "Takel", the subject of the ownership dispute to which the decision of the Kokopo Provincial Land Court refers until this matter is determined by this Honourable Court;
   
3. An order for the stay of any eviction proceedings or action against Lamius Niligur and his traditional linage from the land known as "Takel" until this Honourable Court has determined the substantive cause before it.
   
4. Such further or other orders as the Court deems fit.
   
5. Costs.
   

To comprehend the historical background fully, I set out the disputed facts briefly as follows.

The Plaintiff commenced proceedings in the Local Land Court against the First Defendant well before 1994 and by 13th of May that year, the Rabaul Local Land Court pronounced it’s decision on 13th of May in 1994. The decision was in favour of the First Defendant. In it’s decision the Local Land Court ordered that the land known as Madapai "Takel" belonged to Jacinta Joachim and her clan. On the second order the Plaintiff and his relatives, agents and other lineal descendents who then resided on the Madapai Takel were ordered to peacefully be removed from the disputed land within three months from the date of it’s pronouncement of the orders or to be forcefully removed in case of non-compliance.

The Plaintiff appealed from that decision to the Provincial Land Court at Kokopo on the 20th of March 1995 within the prescribed period of three months provided for by s. 54 of the Land Dispute Settlement Act. The appeal was prolonged for sometime until the Provincial Land Court picked the case up in 1997. On appeal the Provincial Land Court at Kokopo confirmed the decision of the Local Land Court. The Provincial Land Court delivered it’s decision on 10th of December 1997.

The review being sought now is in relation to that decision by the Kokopo Provincial Land Court claiming that the decision of that Court was unfair and made contrary to the principles of natural justice. Evidence relied on in this review come from two persons in the form of affidavits. First that of Joseph Taupa. He simply deposes that Lamius Niligur is the brother of late Beno Kepas. The deponent is a nephew of late Kepas and Lamius Niligur. He says, he had been constantly attending the proceedings since it’s commencement in the Local Land Court right up to appeal in the Provincial Land Court.

Joseph Taupa recalls that before the Local Land Court handed down it’s determination, the Court party and the parties paid a visit to the disputed land. That was in compliance with s. 36 of the Land Dispute Settlement Act. Joseph also recalls that when the decision of either the Local Land Court or the Provincial Land Court were pronounced, no mention was made in reference to the monument erected upon Takel.

Joseph says, the monument erected at Takel was built at great cost. He himself and his mother had to complete labour cost left uncompleted by his late uncle Beno Kepas. He does not recall when the payments were fully realised.

It is evident from this witness that late Beno Kepas could not be buried on Takel where the monument was built. He does not specify why or was it because their custom could not allow for him to be buried on Takel. The only reason Joseph gives is that a Catholic Priest Father Brant objected to burying Beno Kepas on the disputed land.

This piece of evidence leaves a vacuum in the case of the plaintiff before the Local Land Court and even before the Provincial Land Court. The result of the objection to burry late Kepas on Takel was that he was then buried at the common village cemetery. Joseph attached to his affidavit four annexures showing late Beno Kepas standing beside the monument.

The second and last witness Mary Papala Nelson an employee of Papua New Guinea Banking Corporation by then was based in Waigani filed her affidavit back on 22nd of January 1998. She is a close relative of Lamius Niligur and Beno Kepas. She calls them uncles. Mary recalls the dispute actually dates back to 1961. The parties had attempted settlement before the Land Titles Demarcation Commission but, without success and does not elaborate further as to any determination being reached by that Commission. Being a customary land dispute I would assume from Mary’s evidence that no resolution was ever made by the Land titles commission, otherwise parties would have copies available at the Local Land Court hearing.

Mary Papala further recalls that when she was a girl about 7 or 8 years old, she understood from her mother certain discussions on the disputed land. She gives a brief genealogical background history of her elders whom she qualifies to have resided on Takel. At paragraph 12 of her affidavit she recalls now that several customs ceremonies were performed on the land known as "Madapai". In 1971, the ToKubak clan erected a monument called "VATNAIM" on the land as evidence that land is not transferable. The erection of the vatnaim was for commemoration of their dead relatives buried on that land.

Mary further recollects that during erection of such landmark, sacred Tolai Tubuan ceremonies were performed in accordance with the Tolai traditions. During these ceremonies, distribution of shell money, pigs and bananas were observed as part of their claim that the disputed land was theirs.

The rest of Mary Papala Nelson’s evidence seems to this court to be the type of evidence she should have put before the Local Land Court or even before the Provincial Land Court. Unfortunately as it is, the review file does not contain the full record of proceedings to enable the Court to assess if there was an error on the face of the records or ever if the Provincial Land Court acted ultra vires its powers.

Another aspect of Mary’s evidence is, she deposes that when the decision of the Local Land Court was announced on 30th of January 1995, Lamius Niligur was not present and three days prior to the pronouncement of it’s decision, a younger brother of the plaintiff was sent to inform the Local Land Court Magistrate requesting for the decision to be deferred until Niligur was well. I cannot reconcile the date she gives in her evidence namely 30th January 1995 with the dates on the face of the decision of the Provincial Land Court hearing being 3rd, 5th and 10th December 1997 and the Local Land Court being 13th May 1994. Anyway, Mary says the decision was announced in absence of the plaintiff.

This argument does not have any merits. If it was only for pronouncement of the decision, anyone of the clan members could be present to receive judgment on behalf of Lamius. I do not think it was all necessary for the plaintiff to be presented when the decision was made. This argument cannot be advanced and accepted as infringement of the principles of natural justice. Hearing of all evidence had been recorded and may have been typed prior to pronouncement of the decision. This was a clear case where all evidence had been received and the only thing left on the part of the Local Land Court was for the decision to be announced.

In arguing this review, Mr. Kubak of counsel for the Plaintiff submits that ss. 36 and 68 of the Land Dispute Settlement Act may have been breached. The earlier section provides for a mandatory requirement for the Local Land Court party and the parties to the dispute to inspect the disputed land. The section concern provides:

36. Inspection of land in dispute.

(1) A Local Land Court to which an application has been made under this Part, shall, before giving a decision on the matter, inspect, with the parties to the dispute, the land in dispute and shall satisfy itself as to—

(a) the scope and extent of the land, where the dispute concerns interests in the use or possession of the land; and

(b) the scope and nature of the produce of or improvements to the land, where the dispute concerns the produce or improvements; and

(c) the location of alleged boundaries, where the dispute concerns a boundary to land; and

(d) any other aspect of the land that will assist the Court in reaching a just decision,

as the case requires.

(2) Subject to Subsection (3), all the members of the Court shall inspect the land in accordance with Subsection (1) except where the land in dispute is situated in a place to which access is difficult, in which case it shall be a sufficient compliance with Subsection (1) if one of the members of the Court inspects the land.

(3) Subsection (2) does not apply to a member of the Court suffering from any physical disability, and an inspection by all the other members shall be deemed to be an inspection for the purposes of that subsection."

Mr. Kubak also argued that s. 68 of the Act imposes an obligation on both the Local Land Court and Provincial Land Court to determine custom on whatever evidence is before the Land Court, be it a Local or Provincial Land Court.

Following are grounds relied on in this review.

(a) Provincial Land Court Magistrate made an error on the face of the records in not deciding that there was a breach of the principles of Natural Justice by the Local Land Court in delivering a decision in the absence of the appellant on the 30th January 1995 which was different in terms from that contained in the written decision of the same court dated the 13th May 1994, and which now had the additional term for vacation of the subject land within three (3) months without giving him the opportunity to address the court on the sufficiency of the 3 months notice period, particularly when there appeared to be four different mediators who had variously sat on the same appeal at different times.

(b) The Provincial Land court did not determine and apply custom as required by Section 39 (2) and Section 68 of the Land Dispute Settlement Act Chapter 45;

(c) The Provincial Land Court Magistrate made an error in placing little weight on the evidence of the Appellant and his sisters because of their supposed "intimate relationship" and in accepting that the Respondent’s witnesses were "independent" when in actual fact they were mostly her relatives (uncles).

(d) The Provincial Land Court was wrong in accepting the document produced into evidence by witness Thomas Waninara in the Local Land Court as not showing the names of the Appellant’s Ancestors’ names, without making a finding as to who the Appellant’s ancestors were and who the Respondent’s ancestors were, particularly when both parties clearly appeared to make claim to the same persons as ancestors and an appropriate determination on the matter would have done justice in the case.

(e) The Provincial Land Court made an error in not allowing the appeal when the over all circumstances of the case before the Local Land Court were such that no court doing justice could have reached the decision appealed against particularly, when there were clearly inconsistencies through out the evidence of all witnesses.

The power to review a decision of a lower Court or a decision of an administrative body comes from several sources. First, the Constitution s. 59 (1)(2) stipulates that the principles of natural justice are the rules of underlying law to be developed for control of judicial and administrative authorities. Further s. 60 of the Constitution requires that the rules of natural justice be developed taking into account the national goals and directive principles. This section makes reference to "Schedule 2" which specifically adopted the common law rules of natural justice as of 16 of September 1975.

Further to the above, the Constitution s. 155 (3) and (4) provide:

"(3) The National Court –

(a) has an inherent power to review any exercise of judicial authority; and

(b) has such other jurisdiction and powers as are conferred on it by this Constitution or any law,

except where –

(c) jurisdiction is conferred upon the Supreme Court to the exclusion of the National Court; or

(d) the Supreme Court assumes jurisdiction under Subsection (4); or

(e) the power of review is removed or restricted by a Constitutional Law or an Act of the Parliament.

(4) Both the Supreme Court and the National Court have an inherent power to make in such circumstances as seem to them proper, orders in the nature of prerogative writs and such other orders as are necessary to do justice in the circumstances of a particular case."

As can be seen, Subsections (3)(a)(b) and (4) of S. 155 of the Constitution do not say what the legal principles are in relation to prerogative writs. Two other constitutional provisos ss. 162 and 166 give the National and Supreme Courts respectively the powers to review exercises of judicial authority. The detail principles are not even given. Thus s. 59 of the Constitution when referring to "Schedule 2" must mean resort must be had to the common law rules of natural justice adopted by virtue of Schedule 2.2 as of 16th September 1975.

Thus Order 16 of the National Court Rules sets out the administrative procedures to be taken in judicial review under Order 16 of the National Court Rules, the National Court has a discretionary power to grant or refuse relief arising at the two different stages of judicial review. The first stage is where an application for review is made and when the leave is granted, the eventual hearing of the application see O.16 rr. 1.3 and 5. At both stages broad principles on conduct of an application, the availability of alternative remedies and the effect of these remedies sought are similar.

In all cases, the courts discretion ought to be exercised judicially and in accordance with the rules laid down by Order 16 and precedents set in decided cases. Thus the principles relative to judicial review of decisions judicial authorities or administrative bodies have been stated and re-stated in this jurisdiction. The principles enunciated in the case of Kekedo -v- Burns Philp (PNG) Ltd and Others [1988-89] PNGLR 122 at 124 the Court there said:

"The circumstances under which judicial review may be available are where the decision-making authority exceeds its powers, commits an error of law, commits a breach of natural justice, reaches a decision which no reasonable tribunal could have reached or abuses its powers".

It has also been stated that the Court’s powers of review is only available to determine the validity of a decision of a tribunal and to interfere with that decision only if it can be demonstrated that such decision was made unlawful or was unfair or that it was made contrary to the principles of natural justice: Tandali -v- The State [1990] PNGLR 170.

By the principles of natural justice, it is thought that where a tribunal or authority exceeded its powers or where there is an error or errors on the face of the records or where an authority breaches the natural justice principles or where there is an error of law because an authority acted in breach of or there was failure to perform a statutory duty, it is said that it amounts to substantial miscarriage of justice. In brief the principles enunciated over the past years and which have been adopted from common law jurisdictions can be summarised into the following categories.

(a) where a tribunal acts ultra vires it’s powers
(b) where there is error or errors on the face of the records
(c) where a decision was made contrary to natural justice
(d) where there is evidence of improper use of powers; or
(e) where a decision was made outside the authority’s area of jurisdiction.

Applying the above principles to the material evidence put before this Court, does the plaintiff’s cause qualifies to be reviewed or to put it another way, did the judicial authority below exceeded it’s powers, or is there an error or errors on the face of it’s record or did it breach the principles of natural justice which if proved on the balance of probabilities would amount to substantial miscarriage of justice.

This Court has carefully explored the decision of the Kokopo Provincial Land Court. The Land Magistrate refers to the evidence received by the Local Land Court from pages 4 to 6 of it’s judgment. At page 7 he warns himself of the duty to act fairly in accordance wit the Constitution s. 59 (2). He also warned himself against the warnings stated in the case of The State -v- Giddings [1981] PNGLR 432 and at pages 428 to 429 where the Court there sets out what would amount to breaches under s. 59 (2) of the Constitution.

The Provincial Land Court being a creature of statute is required to observe the rules of natural justice when conducting it’s hearings. The minimum requirement of the principles of natural justice is set out in s. 59 (2) of the constitution "to act fairly and in principle, to be seen to act fairly." Had there been failure to allow the disputing parties to put their respective cases in each others presence would have amounted to breaches of those envisaged in s. 59 (2) of the Constitution.

The presiding Provincial Land Court Magistrate gave a detail analysis of the proceedings before him at pages 7 and 8 of his judgment.

Be that as it may, the Record of Proceedings of the Provincial Land Court and the front page of the judgment bearing the intitulation show that no assessors or in other words land mediators sat with the Provincial Land Court. Although this fact is relied on as ground 2 of this review, I thought this point was not seriously pressed or contented if this error was tantamount to "procedural ultra vires" whereupon the Provincial Land Court Magistrate had failed to comply with conditions or requirements prescribed by legislation. This in fact raises the serious issue of whether or not there was at all any determination of customs and how possible was it for the Provincial Land Court Magistrate sitting alone without assessors to properly form his opinion on the customary usages and practices in relation to ownership of land in the Tolai Community.

The Local and Provincial Land Courts are established pursuant to ss. 21 and 45 of the Land Dispute Settlement Act. Ch. No. 45 respectively. In both cases, the Minister responsible makes appointments of Magistrate to be Local and Provincial Land Court Magistrate. See ss. 22 & 46 of the Act.

It is interesting to note from the preamble of the Land Dispute Settlement Act the purposes for which the Act was enacted is to provide for settlement of disputes in relation to interests in customary land and other related purposes. The purposes of the Act is defined in s.1 in the following terms:

"1. Purpose of this Act.

The purpose of this Act is to provide a just, efficient and effective machinery for the settlement of disputes in relation to interests in customary land by—

(a) encouraging self-reliance through the involvement of the people in the settlement of their own disputes; and

(b) the use of the principles underlying traditional dispute settlement processes".

The above intention is portrait right throughout the Act by first providing for the mediation processes and where mediation fails, the dispute is registered with the Local Land Court in the Province. When a party is not satisfied with the decision of the Local Land Court he then appeals to the Provincial Land Court. See ss. 9 – 20 on the Mediation processes, 21 – 44 Local Land Courts, 45 – 60 Provincial Land Courts.

The Land Court system dealing with customary land tenure in Papua New Guinea is almost akin to the Village Court System established by the Village Courts Act 1989. The Village Court System was established in the Village Courts Act to resolve disputes by applying relevant customs, but at the same time expressly denied jurisdiction over disputes involving the ownership of land under the general law, see s.20 Village Courts Act. They however do have jurisdiction to hear disputes concerning customary land and may make interim orders pending substantive hearing in the Local Land Court.

A universal and essential characteristic of Customary Land tenure in this jurisdiction is it’s use control corporately and communally by clans or groups of people, because land is an ancestral trust committed to the living and their benefits and for their future generations. Thus involvement of land mediators or assessors is an obligation on the parts of the Local and Provincial Land Court proceedings.

Provincial Land Courts are established under s. 45 of the Land Dispute Settlement Act. On appeal, a Provincial Land Court is given powers to affirm, quash a decision of the Local Land Court or even may remit the matter on appeal to the Local Land Court with directions, instructions or guidelines as to what the Court thinks would be proper and appropriate to the circumstance of a particular case.

The Constitution of Provincial Land Courts are defined by s. 47 of the Land Dispute Settlement Act. The section concern says:

"47. Constitution of Provincial Land Courts.

(1) A Provincial Land Court shall be constituted by a Provincial Land Magistrate.

(2) Subject to Subsection (1), a Provincial Land Magistrate may, where he considers it appropriate to do so, request one or more Land Mediators for the Land Mediation Divisions in which the land in dispute is wholly or partly situated to sit with the Court as an assessor or assessors to advise it on any matter on which it requests his or their advice".

It would seem from reading s. 47 (2) of the Act that, involvement or engagement of assessors may involve exercise of discretion on the part of a Provincial Land Court Magistrate where he or she considers it necessary or appropriate to do so. Thus it would seem that it may have been open for the Provincial Land Court Magistrate to choose to sit with assessors or not.

However, Mr. Kubak raised concern that s. 68 of the Land Dispute Settlement Act was not complied with. In fact s. 68 of the Act deals with the requirement to consider custom on the evidence before it. The terms of that provision are as follows:

"68. Determination of custom.

(1) Subject to this section, in all matters before a Provincial Land Court or a Local Land Court the Court shall determine, on the evidence before it, the relevant customs of any group appearing or represented before it.

(2) In applying custom the Court shall have regard to any guidelines laid down in the regulations, and may modify custom to give effect to the guidelines.

(3) The Customs (Recognition) Act 1963 does not apply to the determination or application of custom by a Provincial Land Court or a Local Land Court.

(4) In so far as the power to make laws conferred on a Local-level Government by the Organic Law on Provincial Governments and Local-level Governments extends to the making of laws declaring what is to be taken to be the custom relating to any matter, any such law is evidence in any Provincial Land Court or Local Land Court of the matters set out in the rule." (emphasis added)

In fact this Court is not left in darkness in relation to the interpretation of s. 47 (2). Further enlightenment can be obtained from Subsection (1) of Section 68 of the Act. It says that in "all matters before a Provincial Land Court or a Local Land Court" the two Courts "shall determine on the evidence before it the relevant customs".

The "Selected Laws of Papua New Guinea" has an inclusion of an amendment to s. 47 of the Act, the Land Dispute Settlement (Amendment) Act No. 75 of 1976 but the footnote indicates that by January the 1st of 2000, the amending provision had not been promulgated. Under the amending provision, it will be a requirement for assessors to sit with a Provincial Land Court Magistrate. The amendment would also dispense with any ambiguity created by the current relaxed wording of s. 47 (2). The un-promulgated provision reads:

"47. Constitution of Provincial Land Courts.

(1) A Provincial Land Court shall be constituted by –

• (a) One Provincial Magistrate the mater is brought directly to it as original; and
  
• (b) three Provincial Magistrates where the matter is brought by way of an appeal from the Local Land Court.
  

(2) Where under Subsection (1) (a) a Provincial Land Magistrate is constituted by one Magistrate only that Magistrate shall request one or more Land Mediators for the Land Mediation Area in which the land dispute is wholly or partly located to sit with the Court as assessor or assessors to advise it on any matter on which it request his advice". (emphasis added)

It is the intention of the parliament that customary land dispute must be expeditiously resolved and the Act provides for just, efficient and effective machinery for settlement of dispute resolution by means of involving village elders to sit as assessors to advise the magistrate on custom.

I am more than compelled to the view that once the Provincial Land Court Magistrate is in receipt of evidence, it becomes evidence for purposes of determination of all relevant customs and practices intended by ss. 35 and 53 –59 of the Land Dispute Settlement Act. This proposition may even be in the case where, the Provincial Land Court decided not to call any further witnesses as required by s. 59 of the Act.

I am further of the view that both the Land and Provincial Land Courts being creatures of statute are obliged to comply with the requirement of the Land Dispute Settlement Act. One of such requirements is determination of custom as laid down in s. 68. Any disputes coming up to the Provincial Land Court whether by original hearing of by appellate jurisdiction, that Court is required to consider custom. All evidence taken at a hearing or if it was a mere review of the evidence taken at the Local Land Court, must be considered in accordance with customs and usages of prevailing circumstances at any particular locality at any given time.

Thus on examination of the judgments of both the Local and Provincial Land Court dated 13th May 1994 and 3rd, 5th, 10th December 1997 respectively, I find the Provincial Land Court sitting in it’s appellate jurisdiction did not sit with assessors. Though it may be said the learned Provincial Land Court Magistrate assessed the evidence well, there was no body, to advise him on custom. What is evident from pages 6 to 7 of the Provincial Land Court Magistrate decision, is he properly assessed the evidence of all parties. However in terms of s. 68 of the Land Dispute Settlement Act, he was required to consider custom, as how on earth else could the learned Magistrate consider customs by himself alone when no assessors sat with him.

By the wording of s. 68, in all matters that come before the Local and Provincial Land Court, they are bound by the phrase "shall" to determine custom. Apparently the word custom is not defined in the Land Dispute Settlement Act, but the Act defines "land" to mean customary land including reef, banks or a house built on the land or over the water and things growing on the land or in the water and includes minerals under the land.

The term "custom" is however defined in the Interpretation Act Ch. No. 2 to mean "customs and usages of indigenous inhabitants of the country existing in relation to the matter in question at the time when and the place in relation to which the matter arises, regardless of whether or not the custom or usage has existed from time immemorial".

I hold the view that in order for the Provincial Land Court Magistrate to properly take account of relevant customs in relation to customary practices and usages prevailing in the Tolai Community at the time the decision of the Provincial Land Court was made it was incumbent upon the said Court to have engaged one or more than two assessors to preside with him to properly assess the issue of custom.

On the face of the record, I find therefore that there was an error which must be corrected which has the effect of removing it’s records to this Court to quash the orders made by the Provincial Land Court.

What concerns this Court though is, apart from ground (b) of this review, grounds (a)(c)(d) and (e) attack the decision making processes of the Local and Provincial Land Courts. Those four (4) grounds (a)(c)(d) and (e) defeat the purposes of judicial review as defined by decided cases such as Kekedo -v- Burns Philp (supra). Indeed, the National and supreme Courts have always insisted that the object of judicial review is not suppose to enquire into whether the decision was right or wrong. For each authority has it’s own administrative settlement scheme built as components into those public bodies.

Obvious examples are as in the instant review, the appeal process provided for under ss. 54 – 60 of the Land Dispute Settlement Act. Other examples include officers of the Public Service under the Public Service (Management) Act 1995, the Police Appeal Tribunal constituted under the Police Force Act, or the Teaching Service Commission provided for by the Teaching Service Commission Act.

The Supreme Court said in Temu -v- Wani (1993) SCA 96 an aggrieved employee at page 3 – 4.

"... Courts should not interfere with the decisions of properly constituted national bodies of this nature when a person aggrieved comes before the court seeking another result, not because of any failings in the decision – making process but rather because he seeks to fashion and appeal as it were from such decision."

This I find to be in the case of grounds (a), (c)(d) and (e) where the applicant has obviously fashioned his argument in the way directly attaching the evidence received in the Local Land Court particularly as those matters were opened for the consideration of the Provincial Land Court.

I would uphold ground (b) of this review and make orders in terms of the originating summons. The parties shall meet their own costs.

Lawyer for the Applicant : Kubak Lawyers
No Lawyer appeared for the First and Second Defendants.