Application of Louise Autsila Ainie on behalf of the Rarai Village Ugauga Sub-Clan of Ikoiko Clan, Central Province for Leave for Judicial Review [2004] PGNC 235; N2533 (14 April 2004)

N2533

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

OS. NO. 332 OF 2001

BETWEEN:

IN THE MATTER OF APPLICATION OF LOUISE AUTSILA AINIE ON BEHALF OF THE RARAI VILLAGE UGAUGA SUB-CLAN OF IKOIKO CLAN, CENTRAL PROVINCE FOR LEAVE FOR JUDICIAL REVIEW

Plaintiff

AND:

IN THE MATTER OF ANDREW EKAKO AME AS REPRESENTATIVE OF MAUGE CLAN OR RARAI VILLAGE, CENTRAL PROVINCE

First Defendant

AND:

RICHARD CHERAKE,
PROVINCIAL LAND COURT MAGISTRATE

Second Defendant

WAIGANI: KANDAKASI, J.
2003: 12th November
2004: 14th April

ADMINISTRATIVE LAW – Judicial Review – Review of decision of Provincial Land Court – Nature of jurisdiction and manner of its exercise considered – Hearing on an appeal usually hearing de novo on the record – Where there is no record and no reasons, the matter ought to return to the Court of first instance – Appellate Court has no jurisdiction to assume the role of a trial court and conduct a fresh hearing – No reasons provided for decision the subject of review supports inference that no good reasons were provided for the decision - Judicial Review granted.

Cases Cited:
Peter Ipu Peipul v. Sheehan J, Mr Ori Karapo and Iova Geita (Consisting of the leadership Tribunal) & Ors. (Unreported judgment) N2096.
Pius Sankin & Ors v. Papua New Guinea Electricity Commission (Unreported judgement delivered on 19/07/02) N2257.
In the Matter of The Lawyers Act 1986 and In The Matter of an Application by Roger Gill Maguire for Admission as a Lawyer (Unreported judgement delivered on 07/10/03) N2466.
Lee & Song Timber (PNG) Co Limited v. Nathanael Burua as Chairman East New Britain Provincial Forest Management Committee & Ors. (Unreported judgement delivered on 21/07/03) N2404.
Sam Anonga & Anor v. Jack Were (Unreported judgement delivered on 25/05/01) N2149.
Kopore Munarewe v. Steven Kowingere (Unreported judgement delivered on 15/05/03) N2389.
Godfrey Niggints v. Tokam [1993] PNGLR 66.
Kelly Yawip v. Police Commissioner [1993] PNGLR 93.
Pierson Joe Kamagip v. Police Commissioner (Unreported judgement delivered on 20/04/99) N1853.
Acting Public Prosecutor v. Unama Aumane [1980] PNGLR 510.
Lee v. Lee [1973] PNGLR 89.
Bougainville Copper Limited v. Mathew Liu [1978] PNGLR 221.
Anton Angra & Another v. Tonny Ina [1996] PNGLR 303.
Kiau Nikints v. Moki Rumints [1990] PNGLR 123.
Samson Dacany v. Noah Taia of The National Fisheries Authority (Unreported judgement 13/12/02) N2316.
Curtain Brothers (Queensland) Pty Ltd and Kinhill Kramer Pty Ltd v. The State [1993] PNGLR 285.
Toby Bonggere v Papua New Guinea Law Society (Unreported judgement delivered on 21/03/03) N2361.
Abiari v. The State [1990] PNGLR 250.
Philip James Mamun v. The State(Unreported judgement delivered on 27/03/97) SC532.
Jimmy Ono v. The State (Unreported judgement delivered on 04/10/02) SC698.

Counsel:
Mr. G. Maki for the Plaintiff
Mr. L. Manua for the First Defendant

14th APRIL 2004

KANDAKASI, J: This is an application for judicial review after grant of leave. The application is for a review of a decision of Second Defendant as Provincial Land Court in its appellate jurisdiction under the Land Disputes Settlement Act.[1] In a purported exercise of that jurisdiction, the Second Defendant conducted a hearing. At the end of that process, he arrived at a decision to quash the decision of the Local Land Court of Bereina. He also made a number of orders including an awarding of a disputed customary land known as Fofoga Makapani, Aguauga and Inimo between Rarai and Amoamo villages to the first defendant and his clan.

It is not clear as to the reasons for His Worship’s decision, the subject of these proceedings. A copy of the decision is neither in evidence before this Court, nor do the parties make any reference to it.

Contention of the Parties

The Plaintiff’s contention is that, the learned magistrate erred in granting an extension of time to the First Defendant to appeal out of time, which was contrary to the principles of natural justice. He also contents that the learned magistrate erred in proceeding to deal with the purported appeal from the decision of the Bereina Local Land Court, when the pre-condition regarding deposits for such an appeal were not properly met. Further, the Plaintiff contents that the learned magistrate erred in allowing fresh evidence to be put before him, instead of making his decision on the basis of the evidence on the record of the proceedings before the Bereina Local Land Court.

There is no representation and hence there are no submissions for and on behalf of the Second Defendant. However, the First Defendant argues that, the learned magistrate did not fall into any error. In particular, he submits that the Plaintiff was given an opportunity to be heard and was heard before arriving at the decision in question. As for allowing the appeal out of time and the deposit requirements, he submits first that, he lodged his appeal within time with the Bereina Local Land Court but that Court failed to have the notice of appeal and its records conveyed to the Provincial Land. Given that, the learned magistrate did not err in allowing him to proceed with his appeal out of time. Secondly, in relation to the deposit requirements, he says he paid the required fees, the prove of which was with the Local Land Court records, but were not provided. In the circumstances, he submits it was not necessary for him to make a further deposit. Accordingly, he argues that the Second Defendant was right in waiving the deposit requirements in the exercise of his powers under s.57(2) of the Act.

With regard to the argument on fresh evidence, the First Defendant relies on s.50 of the Act and argues that, the learned magistrate was empowered to allow fresh evidence to do justice. In the absence of the records of the proceedings of the Local Land Court, it warranted a reception of fresh evidence. Therefore, the learned magistrate did not err in allowing fresh evidence in the way he did.

Issues

The parties agree that these contentions give rise to a number of issues for this Court to resolve. These are:

1. Whether the Plaintiff was denied the principles of natural justice before the decision to allow the purported appeal out of time and waive the condition precedent of a deposit?
2. Was the purported appeal by the First Defendant correctly before the second defendant in view of appeal provisions under the Land Dispute Settlement Act?
3. Did the Second Defendant err in the exercise of his discretion to allow the appeal out of time, waive the requirements for deposit and allow for purported fresh evidence and grant the relief sought?
   

The Evidence and Relevant Facts

In order to appreciate the contentions and the issues and then properly determine the issues, we need to take into account the facts giving rise to them. The relevant facts are set out in a number of affidavits by agreement of the parties. The Plaintiff has filed only one affidavit. The First Defendant filed two affidavits and nothing by the Second Defendant.

The Plaintiff’s only affidavit is the one deposed to by Louis Autsila Ainie on 18th October and filed on the same day. From this affidavit, the plaintiff’s evidence is this. The deponent is the leader and representative of the members of the Ungaunga sub-clan of Ikoiko, who was granted the land known as Omanga Land by the Bereina Local Land Court and is the subject of these proceedings. The decision granting the land to the Plaintiff and his clan was made in November 1995.

Following that decision and it seems as far as he is able to recall, the First Defendant filed a motion in the Provincial Land Court for extension of time. The motion was served on him on the 13th August 2000 and was returnable on 17th August 2000. On the 17th he turned up in Court. The first respondent to that motion did not turn up but the mover of the motion (the First Defendant in these proceedings) turned up with his lawyer. Mr. Ainie says he was confused as to what was happening and thought that the Court will not hear the matter because the first respondent to the motion did not turn up. But it seems the Court appears to have proceeded to hear the matter and reserved its ruling to the 20th of September 2000.

By the 20th of September 2000, the Plaintiff secured the services of his present lawyers and turned up in Court. He proceeded to point out to the Court that the purported appeal was not properly on foot and as such he was opposing the purported appeal and the motion. However, the magistrate cut his lawyer short by saying, he had already made an order granting the then appellant now First Defendant permission to appeal.

The First Defendant used different names to confuse or mislead the tribunal dealing with the dispute over the subject land. This resulted in a persuasion of the Second Defendant to make a decision in the First Defendant’s favour. He claims however, that he is the legitimate owner of the land the subject of these proceedings, as he and his uncle and their people have being occupying the land for a very long time. There has been no dispute on the land until 1992 when his uncle passed away. That is when the First Defendant started the dispute with him. Before the Local Land Court made the decision in his favour, it visited the disputed land and saw for itself the relevant boundaries. After the Bereina Local Land Court made its decision in favour of the Plaintiff, the opposing parties wrote to the Ombudsman Commission and he responded to that by putting his side of the story to the Ombudsman on 6th July 2000.

The Plaintiff was aggrieved by the decision of the Provincial Land Court because of the way in which that decision was arrived at, including a failure to take a visit of the disputed land and establish the boundaries before arriving at its decision.

For the First Defendant is an affidavit by Andrew Ekako Ame. That affidavit was filed on the 10th October 2002. He says that, at the time of hearing of his purported appeal, both the First Defendant and the Plaintiff were legally represented. Witnesses were called and cross-examined by both the Plaintiff and the First Defendant at the hearing and submissions were filed and the decision was made.

Mr. Ame says that a Peter Afa and himself on behalf of their clan lodged an appeal on the 11th March 1996 to the Regional (Provincial) Land Court at Port Moresby against the Bereina Local Land Court’s decision, which decision was delivered on 16th February 1996. He says there was some delay progressing the appeal as the relevant records were not conveyed to the Provincial Land Court. On his follow up, it seems he was given a copy of a minute from the Clerk of Provincial Land Court and the original to deliver to the Clerk of Court at Bereina Courthouse. He delivered the original minute to the Clerk of Court at Bereina and kept the copy. The minute required the records concerning the subject of the appeal to be sent to the Provincial Land Court to progress the purported appeal.

Despite these efforts, the record of the proceedings before the Local Land Court were not sent to and received by the Provincial Land Court, as there was no record except for a note of the decision to be forwarded. In the process, the notice of appeal was misplaced and was not heard by reason of which, the Second Defendant decided to conduct a hearing. This was despite objections from the plaintiff. The Second Defendant reasoned that the appeal was lodged in 1996. As for the deposit requirements, he decided to waive it because he found that the First Defendant paid a sum of K360 at the time of lodging his appeal.

In accordance with the second defendant’s ruling, the First Defendant produced fresh evidence for the purpose of appeal and so did the Plaintiff. These evidence were called because of the failure by the Bereina Local Land Court to produce its transcript or the Court File and record of the proceedings relating to this matter. The fresh evidence then formed the foundation for the Provincial Land Court to arrive at the decision, the subject of the proceedings now before this Court.

From these evidence, it is clear that there is no challenge to the Plaintiff’s claim that, he was not given an opportunity to be heard on the application by the First Defendant for leave to appeal out of time and to waive the pre-condition of deposit on the appeal. I therefore find that the Plaintiff was denied his right to be heard before the decision on this matter.

Also, it is clear from this evidence that the Provincial Land Court decided to conduct a hearing to receive the relevant evidence for it to decide the issues raised in the purported appeal, in view of the fact that the relevant Local Land Court records with the transcript of proceedings were irretrievably lost or were not available. Further, it is also clear that, the reasons for the Second Defendant’s decision for allowing the appeal to proceed out of time and a waiver of the deposit requirements, as well as the decision on the purported appeal with the relevant transcript of evidence before him are not in evidence before this Court. The same goes for a copy of the purported notice of appeal by the First Defendant. The Court is therefore not able to work out the reasons for the Second Defendant’s decision and place them in the context of the grounds of the purported appeal.

However, it is submitted for the First Defendant that, the hearing conducted by the Second Defendant was in effect a calling of fresh evidence under s. 50 of the Land Dispute Settlement Act, which the Second Defendant was empowered to do in the circumstances. The circumstances where that the appeal was lodged within time, the required deposits were met but the Local Land Court file was irretrievably lost.

The Law

As I said in Peter Ipu Peipul v. Sheehan J, Mr Ori Karapo and Iova Geita (Consisting the leadership Tribunal) & Ors:[2]

"It is well settled law now that, the purpose of judicial review is not to examine the reasoning of the subordinate authority with the view to substituting, with the Court’s own decision. Instead, judicial review is concerned with the decision making process, not the decision itself. The circumstances under which judicial review may be available are, whether decision making authority lacks, exceeds or abuses its powers, commits an error of law, breaches the principles of natural justice and reaches a decision, which a reasonable tribunal could have not reached. This position has been made clear in a large number of cases, decided by both this and the Supreme Court. A recent example of that, is the case of John Nemembo –v- Peter Peipul and the State SC 475, a decision of the Supreme Court, delivered on the 21st December 1994. See also the case of Kekedo –v- Burns Philip (1998-99) PNG LR 122 DCJ at 124."[3]

In so far as is relevant for our purposes, it is also a well-settled principle of law that a person, authority or an administrative or judicial tribunal, who is vested with a discretion or jurisdiction to make a decision, is obliged to give reasons for his decision. For there is no such a thing called unfettered discretion or power without limit or conditions, the minimum of which is the requirement to give reasons. The requirement to give reasons is an important requirement in our system of justice and more so in the judicial decision making process. I alluded to this in Pius Sankin & Ors v. Papua New Guinea Electricity Commission[4] and several other cases.[5] My brothers, Injia J. (as he then was) and Kirriwom J. have expressed similar views in there respective judgments in Sam Anonga & Anor v. Jack Were[6] and Kopore Munarewe v. Steven Kowingere.[7]

Given this, I agree with Injia J. that "it is inconceivable that a District Court making a substantial determination, decision, order or adjudication" cannot be supported by any reason for it.[8] This is particularly so when the higher up this Court and the Supreme Court have required administrative tribunals and other public authorities to provide reasons for their decisions.[9]

A failure to provide reasons for judgement or a decision, inevitably results in the judgment or the decision being treated as unreasonable and having been arrived at without good reason, by reason of which it should not be allowed to stand.[10] For such a failure amounts to a substantial miscarriage of justice warranting a re-trial.[11] Indeed re-retrials were ordered in Sam Anonga & Anor v. Jack Were[12] and Kopore Munarewe v. Steven Kowingere.[13] In both of these cases, there were at least some records of the proceedings but no good reasons were provided in support of them. In the circumstances, the re-trials were ordered.

Present Case

In the present case, the First Defendant submits that the Plaintiff has failed to demonstrate by appropriate evidence, a case of the Provincial Land Court lacking in jurisdiction, exceeding its jurisdiction, an abuse of it, having committed an error of law or having breached the principles of natural justice.

This submission with respect fails to acknowledge the fact that there is no evidence rebutting the plaintiff’s evidence that he was not given any opportunity to be heard in respect of the First Defendant’s application for leave to appeal out of time and for a waiver of the deposit requirements. In the absence of any evidence to the contrary, I am of the view that there can be no argument that the plaintiff was denied his natural justice. This is very critical because the decision on that application laid the foundation for the appeal to proceed on its merits.

As already noted, the reasons for the Second Defendant’s decisions both in relation to the application for leave to appeal out of time and for waiver of the deposit requirements and the decision on the substantive appeal are not in evidence before this Court. The records of the relevant proceedings from which the claims of the parties could be checked against to arrive at the truth are also not in evidence before this Court. Interestingly, I observe this was the very reason why the Second Defendant appears to have allowed the appeal in the way he did. It was therefore, reasonable to expect the Second Defendant to provide reasons for his own decision both in relation to the decision to allow the appeal out of time and the subsequent decision on the substantive appeal. Unfortunately, this reasonable expectation has not being met. It is therefore, difficult to tell whether the requirements under s. 54 were met before allowing the appeal outside the prescribed time limits and s. 57 for waiving the condition precedent of deposit requirements on the purported appeal. There are simply no reasons for the decisions of the Second Defendant for the purpose of these proceedings.

In these circumstances, there is only one inevitable inference and conclusion. That inference and conclusion is that, the decision, the subject of these proceedings, was not correctly arrived at in terms of the relevant procedure and or requirements setout under ss.54 and 57 of the Land Dispute Settlement Act, in relation to the first part of the decision. It should therefore be not allowed to stand.

A similar inference and conclusion is inevitable for the second part of the decision, because the same circumstances exist in respect of that part. There is a further reason why that part of the decision can not stand. That goes into the jurisdiction of the Second Defendant.

The Provincial Land Court is a creature of statute. As such, it has such powers and functions as are vested in it by its enabling legislation and can only act within the ambit of the powers and functions that are vested in it. Any act outside the scope of its powers and or functions would be an act that is ultra vires and would lay the foundation for a set aside or a quashing of it. This consequence has been markedly pronounced in the context of the powers of the District Courts under the District Courts Act. An example of a case on point is Kiau Nikints v. Moki Rumints,[14] which has been followed in a number of subsequent cases, including my judgment in Samson Dacany v. Noah Taia of The National Fisheries Authority.[15]

Sections 45 to 49 of the Act provide as to the establishment, composition or constitution, keeping of records and time and place of sittings of the Provincial Land Court. The next provision, s.50 provides as to the practice and procedure before that Court, and stipulates that, the Court is bound only by the provisions of the Act and none other. It is therefore necessary to note what the relevant provision provides for. The most relevant one is s.50. That provision reads:

50. Practice, procedure and powers of Provincial Land Courts.

(1) Subject to this Part, the practice and procedure of a Provincial Land Court are as prescribed.

(2) Subject to this Part and the regulations, a Provincial Land Court—

(a) is not bound by any law or rule of law, evidence, practice or procedure other than this Act; and

(b) may call and examine, or permit the parties to call and examine, such witnesses as it thinks fit; and

(c) may receive fresh evidence; and

(d) may otherwise inform itself on any question before it in such manner as it thinks proper; and

(e) subject to any guidelines laid down in the regulations, shall endeavour to do substantial justice between all persons interested, in accordance with this Act and any relevant custom.

(3) Where a Provincial Land Court informs itself on any question in accordance with Subsection (2)(d), it shall—

(a) make the information available to the parties; and

(b) call for and hear argument on the information.

(4) A Provincial Land Court may, where in its opinion it is necessary to do so, inspect the land in dispute before or during a hearing."
(Emphasis supplied)

This provision makes it clear that, the Provincial Land Court is bound only by the provisions of the Act and none other. As such, it is free to call such witnesses, evidence, including fresh evidence as it considers fit. But this is subject to the other provisions of the Act. Of more direct relevance, in my view, are s. 51, as to the calling of witnesses and fresh evidence, s. 53 as to the jurisdiction of the Court and s.59 as to the powers of the Court.

Section 51 stipulates a qualification to the persons that may be called as witnesses. It provides that the only persons who may be called as witnesses are those that are in the Court’s opinion, "may be a party, or a member of a party to a dispute; or one who may be able to give any relevant information, documents or other things that are relevant to the proceedings in his possession." It must then be remembered that, these powers are exercisable in the context of the Courts appellate jurisdiction as prescribed by s.53 and that the kind of powers it can exercise are as set out in s.59.

Usually, an appellate court has power to affirm, quash or remit a matter back to the trial Court for trial with appropriate directions or guidelines. Depending on the enabling legislation, the power to quash necessarily includes the power to substitute the decision appealed against by the appellate court’s own decision or order. Also depending on its enabling legislation, an appellate court may also have the power to call such witnesses, as it considers appropriate and receive fresh evidence in some cases.

Section 59 provides:

"59. Powers on appeal.

(1) In determining an appeal under this Division, a Provincial Land Court may—

(a) affirm the order; or

(b) quash the order and—

(i) make such other order as, in the opinion of the Court, will dispose of the appeal and the dispute; or

(ii) where, in the opinion of the Court, justice demands that the matter or part of the matter of the appeal be remitted to the Local Land Court, remit the matter, or that part of the matter to the Local Land Court.

(2) In remitting a matter to a Local Land Court under Subsection (1)(b)(ii), a Provincial Land Court may give such instructions, directions or guidelines to the Court as to the manner in which the matter remitted is to be dealt with as it thinks proper."

This provision is not a unique one. It has counterparts in other legislation such as the District Courts Act[16], s.230 and the Supreme Court Act,[17] s. 16. As far as I am able to gather, although a few judgements of the National Court have made reference to s. 59 Land Dispute Settlement Act, there has been no detailed discussion or a consideration of this provision. There is, however, a good number of judgements of both the Supreme and National Court’s as to the kind of orders or a decision an appellate court can arrive at in an appeal. Most of these authorities point out that an appeal involves a hearing de novo (anew) but restrict to the records of the proceedings the subject of an appeal. A clearest statement of that is in Curtain Brothers (Queensland) Pty Ltd and Kinhill Kramer Pty Ltd v. The State[18] in these terms:

"An appeal to this Court is by way of a rehearing on the evidence given in the court below (see s 6 of the Supreme Court Act (ch 37)). This Court can deal with the issues on the basis of the evidence presented in the court below."[19]

A careful consideration of the judgements and the provisions of the equivalent of Section 59 of the Land Dispute Settlement Act make it clear that in appropriate cases, the Provincial Land Court can decide in deliberate judgement to go outside the record of the proceedings appealed against. But that is restricted to the qualifications set out in s.50 (2), (3) and (4) in order to do justice and within the context of its appellate jurisdiction in s.53.

In the present case, the First Defendant claims that the Second Defendant decided to allow fresh evidence under s. 50(2) (c) and in so doing, allowed for the calling of witnesses and evidence. So in actual fact, the learned magistrate appears to have acted under s.50 (2)(b) (c). As already noted, there is no record of the proceedings before the Second Defendant in evidence before me. It is therefore difficult to tell what were the reasons for the Second Defendant’s decision and more importantly, whether it was a proper exercise of the powers vested in the Provincial Land Court under s. 50 (2)(b) and (c).

In any case, it is trite law that fresh evidence can only be allowed where the evidence in question could not by reasonable means have come to the knowledge of the appellant, until after the trial.[20] Once this test is met, the evidence in question must be credible.[21] In other words, as the Supreme Court said in Jimmy Ono v. The State (Unreported judgement delivered on 04/10/02) SC698:

"... fresh evidence, is evidence not available at the time of the trial and that could not be secured at the time of the trial with the exercise of reasonable care."

Clearly, therefore, in order for there to be a proper decision to allow fresh evidence, the Court must first be satisfied that the evidence in question could not have been ascertained and produced at the trial with the exercise of reasonable care and attention by the party seeking to adduce it. Secondly, the Court must be satisfied that the evidence came into existence and came to the knowledge of the party applying for its allowance after the trial.

In the present case, the First Defendant has not demonstrated, in the absence of the reasons for the Second Defendant’s reason for decision, that the evidence allowed was fresh within the meaning of "fresh evidence" and that they were credible. What is very clear, however, is that, the Second Defendant decided to conduct a fresh hearing into the matter as if it was the trial court. In so doing, it forgot that it was sitting as an appellate court, with the powers vested in him under ss.53, 50 and 59 as discussed above. The best he could have done was to order a mistrial of the proceedings before the Local Land Court and remit the matter back to the Local Land Court for a rehearing. That would have accorded well with the law and practice as represented by cases like that of Sam Anonga & Anor v. Jack Were[22] and Kopore Munarewe v. Steven Kowingere.[23]

In these circumstances, I find that the learned magistrate exceeded his jurisdiction when he decided to and did conduct a hearing into the dispute between the parties, independent of the records of the proceedings before the Local Land Court, the then subject of the proceedings before him on appeal. In so doing, he failed to come within the ambit of ss.50, 51, 53 and 59 of the Act.

For these reasons, I would uphold the Plaintiff’s application for a review of the decisions of the 24th of January 2001. I would then make such orders as necessary to help the parties to resolve their dispute without further delay, given the fact that this case has a history that goes back to 1995. In this regard, I remind myself again that, it is not for this Court to step into the shoes of the Provincial Land Court and make a decision on the merits of the case. It can only say whether or not the relevant procedural requirements were met before arriving at the decision in question by the decision-making authority.

Whilst appreciating that position, I note in this case that, the parties are agreed that the record of proceedings before the Local Land Court, the subject of the proceedings before the Provincial Land Court, were irretrievably lost. Given that, I have already expressed the view that, the only decision open to the Provincial Land Court was for that Court to remit the matter back to the Local Land Court for a re-trial of the dispute between the parties.

If I order a remittance of the preliminary applications to the Provincial Land Court and subject to a determination of those applications in favour of the First Defendant, also the substantive appeal, it will only result in unnecessary costs, delay and inconvenience for the parties. Further, the only likely decision for the Provincial Land Court is an order remitting the matter back to the Local Land Court for a rehearing and determination of the dispute between the parties. Section 155 (4) of the Constitution empowers this and the Supreme Court to make such orders as necessary in the circumstances of a case to do justice. I would therefore order that, the dispute between the parties go back to the Local Land Court for a full rehearing in accordance with the provisions of the Land Dispute Settlement Act.

I consider these proposed orders appropriate in the circumstance in the interest of doing justice to both the disputing parties. Accordingly, I make those orders, with costs against the defendants.
________________________________________________________________________
Lawyers for the Plaintiff: Maki & Associates Lawyers.
Lawyers for the First Defendants: Harricknene Lawyers.

---

^[1] Chp. 45.
^[2] (Unreported judgment delivered 25/05/01) N2096 at p.6. The outcome was reversed by the Supreme Court, which has not yet provided its reasons. But in it subsequent judgement after the grant of leave by the Supreme Court, the Court upheld most of the reasons for the National Court’s decision in the Context of an appeal against a decision of her Honour Justice Davani.
^[3] I applied these principles in the subsequent cases of Aloysius Eviaisa v. Sir Mekere Morauta Prime Minister & Ors (09/11/01) N2144 (result overturned by the Supreme Court in Sir Mekere Morauta v. Aloysius Eviaisa & Ors, (08/05/02) SC 685, but the principles affirmed in effect); Lee & Song Timber (PNG) Co Ltd v. Nathanael Burua & Ors (21/07/03)N2404 and several others.
^[4] (Unreported judgement delivered on 19/07/02) N2257.
^[5] Namely, In the Matter of The Lawyers Act 1986 and In The Matter of an Application by Roger Gill Maguire for Admission as a Lawyer (Unreported judgement delivered on 07/10/03) N2466 and Lee & Song Timber (PNG) Co Limited v. Nathanael Burua as Chairman East New Britain Provincial Forest Management Committee & Ors. (Unreported judgement delivered on 21/07/03) N2404.
^[6] (Unreported judgement delivered 25/05/01) N2149.
^[7] (Unreported judgement delivered on 15/05/03) N2389.
^[8] In Sam Anonga & Anor v. Jack Were (Ibid).
^[9] see Godfrey Niggints v. Tokam [1993] PNGLR 66; Kelly Yawip v. Police Commissioner [1993] PNGLR 93; Pierson Joe Kamagip v. Police Commissioner (Unreported judgement delivered on 20/04/99) N1853.
^[10] See Acting Public Prosecutor v. Unama Aumane [1980] PNGLR 510 at 539 and Niggints v. Tokam supra note 9, at pp. 71-72.
^[11] see Lee v. Lee [1973] PNGLR 89; Bougainville Copper Limited v. Mathew Liu [1978] PNGLR 221; Anton Angra & Another v. Tonny Ina [1996] PNGLR 303 and Kopore Munarewe v. Steven Kowingere (supra note 7).
^[12] Supra note 6.
^[13] Supra note 7.
^[14] [1990] PNGLR 123.
^[15] (Unreported judgement 13/12/02) N2316.

^[16] Chp.40.
^[17] Chp.37.
^[18] [1993] PNGLR 285 at p.295.
^[19] I cited these principle in Toby Bonggere v Papua New Guinea Law Society (Unreported judgement delivered on 21/03/03) N2361.
^[20] See Abiari v. The State [1990] PNGLR 250 and Philip James Mamun v. The State
(Unreported judgement delivered on 27/03/97) SC532
^[21] Philip James Mamun v. The State (supra note 20).
^[22] Supra note 6.
^[23] Supra note 7.