Gabi v Nate [2006] PGNC 178; N4020 (30 November 2006)

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(1) OS 11 of 2001 - Sao Gabi & State v Kasup Nate & Ors;
(2) OS 304 of 2004 - John Yamai v Thaddeus Kambanei & Ors;
(3) OS 412 of 2003 -Asaruifa Clans –v- Thaddeus Kambanei & State;
(4) OS 620 of 2004 - The State –v- John Yamai & Ors;
(5) OS 642 of 2004 -The State –v- Madu Geita & Ors;
(6) OS 643 of 2004 - The State –v- David R. Maipson & Ors;
(7) OS 645 of 2004 -The State –v- Moku Masa & Ors;
(8) OS 646 of 2004 - The State –v- Robert Wayne & Ors;
(9) OS 648 of 2004 - The State –v- Robert Wayne & Ors;
(10) OS 649 of 2004 - The State –v- Robert Wayne & Ors;
(11) OS 651 of 2004 - The State –v- Michael Pa & Ors;
(12) OS 652 of 2004 - The State –v- John Mong & Ors;
(13) OS 654 of 2004 - The State –v- Matare Miru & Ors;
(14) OS 653 of 2004 - The State –v- Jonathan Wayne Kupini & Ors;
(15) OS 655 of 2004 - The State –v- Gabriel Yomba & Others;
(16) OS 660 of 2004 - The State –v- Anton Alu & Ors;
(17) OS 662 of 2004 - The State –v- John Poro & Ors;
(18) OS 633 of 2004 - The State –v- Stanley Awa & ors;
(19) OS 664 of 2004 - The state –v- Joe Kagl & Ors;
(20) OS 666 of 2004 - The State –v- Malika Kakle & Ors;
(21) OS 667 of 2004 - The State –v- George Pidi & Or;
(22) OS 668 of 2004 - The State –v- Milan Kove & Ors;
(23) OS 669 of 2004 - The State –v- Aris Rank & Ors;
(24) OS 670 of 2004 - The State –v- Lucas Roika & Ors;
(25) OS 671 of 2004 - The State –v- Bob Kerua & Ors;
(26) OS 672 of 2004 - The State –v- Philip Num Maipson & Ors;
(27) OS 673 of 2004 - The State –v- Double U Square & Ors;
(28) OS 675 of 2004 - The State –v- Double U Square & Ors;
(29) OS 676 of 2004 - The State –v- Double U Square & Ors;
(30) OS 677 of 2004 - The State –v- Double U Square & Ors;
(31) OS 678 of 2004 - The State –v- Double U Square & Ors;
(32) OS 707 of 2004 - The State –v- Double U Square & Ors;
(33) OS 708 of 2004 - The State –v- Double U Square & Ors;
(34) OS 709 of 2004 - The State –v- Double U Square & Ors;
(35) OS 710 of 2004 - The State –v- Paul Timbi & Ors;
(36) OS 711 of 2004 - The State –v- Double U Square & Ors;
(37) OS 714 of 2004 - The State –v- Robert Wayne & Ors;
(38) OS 715 of 2004 - The State –v- Peter Keli & Ors;
(39) OS 716 of 2004 - The State –v- Wanis Penu & Ors;
(40) OS 717 of 2004 - The State –v- Mogei Andakalimb Clan Ass. & Ors;
(41) OS 718 of 2004 - The State –v- Ronald Janis & Ors;
(42) OS 719 of 2004 - The State –v- Paul Timbi & Ors;
(43) OS 720 of 2004 - The State –v- Lucas Roika & Ors;
(44) OS 721 of 2004 - The State –v- Andrew Terry & Ors;
(45) OS 731 of 2004 - The State –v- Raphael Digi & Ors;
(46) OS 733 of 2004 - The State –v- Paru Tukundu & Ors;
(47) OS 734 of 2004 - The State –v- Pam McKenzie & Ors;
(48) OS 766 of 2004 - The State –v- Niel Baru & Ors;
(49) OS 36 of 2005 - The State –v- NLC, Brian Neke & Ors;
(50) OS 37 of 2005 - The State –v- Patoro Ako & Ors;
(51) OS 38 of 2005 -The State –v- Peter Lee & Ors;
(52) OS 101 of 2005 - Andakilimb Ass. & Ors –v- The State: Arnold Ulg & Ors.

JUDICIAL REVIEW – application relate to various decisions of National Lands Commission – NLC awarding sums of money as compensation – Order 16. rr 1& 3 NCR – S45 (1) National Land Registration Act

JUDICIAL REVIEW – competency issues raised –whether application is in excess of jurisdiction and ultra vires – issue of undue delay, equitable estoppel and res judicata raised – whether deed of release legal -

JUDICIAL REVIEW - competency issues still open to be addressed by Court - application made under NCR and not s.155 Constitution – issue of undue delay appropriately considered under O.16 r. 4 - Deed of Release declared void for illegality – equity cannot override statutory law, therefore argument on equitable estoppel dismissed –issue of res judicata discussed and decided in favour of respondents - application for Judicial Review granted – decision of NLC to award compensation quashed – matter remitted for rehearing by new Chief Commissioner

J. Nalawaku, (lead Counsel) and others for the Plaintiffs
M. Murray, (lead Counsel) and others for the Respondents

1. INJIA, DCJ: These are applications for judicial review made under O.16 of the National Court Rules. Leave in each matter were granted at different times. The applications relate to various decisions of the National Land Commission (NLC) chaired by Commissioner Nathaniel Marum, made between 1999 – 2000, in which NLC awarded various sums of money as compensation under s.45(1) and Schedule 2 of the National Land Registration Act 1977.

2. The background of the various awards in the 52 cases are set out at pages 38 – 85 hereof.

3. The hearing of the applications were consolidated because they raise similar issues. The case from each party was presented by lead Counsel on the main issues with different counsel making appearances for purpose of cross-examination and submissions on issues peculiar to their respective cases. Particulars of the issues raised in the grounds of review contained the statement filed under O.16 r.3 and additional issues raised by various respondents and the affidavit evidence relied upon by each party are set out in Schedule "A" hereto. In addition, the applicant’s key witnesses Mr Luke Kwago and Mr Thaddeus Kambanei were also cross-examined on his affidavit. All other affidavits were admitted into evidence by consent, with objection to certain parts of the affidavits of Mr Kwago which I ruled upon. All parties represented filed written submissions and presented oral arguments. Extensive arguments were made by all parties with many cases cited.

4. The main issues raised by the grounds of the application and those raised by the respondents as argued at the hearing are as follows:-

5. All the above issues were argued fully and many of the issues raise important legal and procedural issues which warrant consideration. Without understating the importance of the other issues raised, it is my view that the fourth issue is an important one because it challenges the power or jurisdiction of the NLC conferred by statute to make an award. Therefore, I deal with this issue first. If I find that NLC exceeded its jurisdiction or acted ultra vires s.45(1) and Schedule 2 of the Act, then the discretionary arguments raised under issues No. 9, 11 and 13 will be considered. The issue then will be whether as a matter of judicial discretion, notwithstanding that it was made without jurisdiction or ultra vires, the award should be upheld either under O.16 r.4(1) or on some other discretionary grounds. The issues raised in No. 1, 2 and 3 are competency issues and they are dealt with separately. Issues No. 5, 6, 7, and 8 raise distinct issues and they are dealt with separately.

7. Issues No. 1 and 3 are normally dealt with at the leave stage but because the respondents were not heard, I granted to them leave to make those arguments, on the basis that the competency issues remain open to be addressed by the Court until final disposition.

8. The Respondents’ first submission is that the plaintiffs were notified by the Commissioner through the office of the Solicitor-General of the hearing and even extract of submissions were forwarded but the plaintiffs failed to appear. This is evident from the decision of the NLC and Mr Kwago’s evidence. Further, even when a decision was made, they failed to appeal the decision on the grounds of breach of natural justice. It is not open for them to challenge the award by judicial review. Therefore, they lack standing to bring these proceedings.

"Subject to Section 155 (the National Judicial System) of the Constitution, and to Section 41, no appeal lies against any decision of the Commission under this Act, otherwise then on the ground of a failure to comply with the principles of natural justice as required by Section 34(2)."

10. The plaintiff’s counsel submits s.46 does not restrict the National Court’s exercise of inherent power under s.155 of the Constitution as expressly provided in s.46 and Order 16 of NCR. A party aggrieved by a decision of the NLC on grounds other than breach of natural justice can seek judicial review. The plaintiff’s grounds of review do not include breach of principles of natural justice. The grounds are confined to excess of jurisdiction or ultra vires, res judicata or duplication and breach of prescribed procedure. These grounds are proper grounds for judicial review and not prohibited by s.46. Further, the plaintiff as the party who is bound to satisfy the awards, has sufficient interest or locus standi to challenge the NLC awards by judicial review, irrespective of whether the State failed to attend the NLC hearings.

11. I accept the plaintiff’s submissions. The grounds of review are not to do with breach of natural justice. This issue was raised by various respondents and the State was responding to the arguments. The issue of natural justice does not apply to the State. The Supreme Court has held that provisions in statutes such as s.46 of the Act do not restrict the inherent power of the National Court and Supreme Court given in s.155 of the Constitution to review exercise of judicial or quasi-judicial authority of the Courts or statutory tribunals; see Avia Aihi v The State (No. 2) [1982] PNGLR 44.

12. In relation to Locus Standi, this issue is normally open at the leave stage. It is not open to be raised in a substantive application. In any event, I accept the Plaintiff’s submission that the State being the institution responsible for setting the awards from public funds is an interested or aggrieved party and it has sufficient interest or standing to challenge the awards.

13. The Respondents then submit that there has been undue delay in making the application. After the NLC decisions were brought to the Solicitor-General’s attention, some 3½ years passed without any action to appeal the awards. Various decisions of this Court and the Supreme Court are cited to support this submission.

14. The Respondents also submit leave for judicial review should not have been granted due to the undue delay. In my view however, the issue of leave does not arise. The Respondents should raise the issue of leave in an appeal under O.16 r.11. The case of Ombudsman Commission v Peter Yama, (2004) SC 747 is cited in support but that case is distinguished for the present case on the basis that the Ombudsman Commission appealed from a decision granting leave for judicial review.

15. I accept that procedural issue of undue delay remains open to be considered but in the appropriate context. As the present application is made under O.16 of NCR and not under s.155 of the Constitution, this issue is appropriately considered under O.16 r.4.

16. The respondents submit there is no evidence of NEC instructing the Attorney-General to institute these proceedings. In my view, the Attorney General has authority to institute proceedings on behalf of the State. The Attorney General may itself institute the proceedings or instruct the Solicitor General or other lawyers to file proceedings on its behalf: The State v Gelu & Another, Unreported Supreme Court Judgment, in SCA 116/02 dated 15/8/03. In the present case, the Attorney General filed affidavit and instructed Paraka lawyers to make the application. Evidence of express instruction of the NEC to Attorney General or Attorney General to the lawyer concerned is not a requirement. It is sufficient that Paraka lawyers filed these proceedings on behalf of the State.

17. Another issue is the appropriateness of the procedure under O.16 NCR and s.155(4) of the Constitution. However, my reading of the proceedings is that the application has been brought under O.16 NCR and not under s.155(4) which is relied upon to seek appropriate consequential orders only.

18. For these reasons, I reject all the arguments on competency of the proceedings made by the Respondents.

19. The NLC is a creature of statute. Its powers and the extent or limits of those powers are prescribed by the Act. The Act provides a procedure for determining compensation payable to traditional landowners of land acquired by the Government either prior to or after independence for public purposes. Since the acquisition, the land were either developed by the State or State leaseholders, or undeveloped. It is clear from the evidence that whilst the value of the land at the time of acquisition under-valued by the Colonial administration or the national government and quite low, their value has increased over the years.

*Land in Towns—*	K
*Not exceeding 1 ha*	*500.00*
*Exceeding 1 ha but not exceeding 2 ha*	*950.00*
*Exceeding 2 ha but not exceeding 3 ha*	*1,350.00*
*Exceeding 3 ha but not exceeding 4 ha*	*1,700.00*
*Exceeding 4 ha but not exceeding 5 ha*	*2,000.00*
*Exceeding 5 ha but not exceeding 6 ha*	*2,250.00*
*Exceeding 6 ha but not exceeding 7 ha*	*2,450.00*
*Exceeding 7 ha but not exceeding 8 ha*	*2,600.00*
*Exceeding 8 ha but not exceeding 9 ha*	*2,700.00*
*Exceeding 9 ha but not exceeding 10 ha*	*2,800.00*
*Exceeding 10 ha but not exceeding 50 ha*	*2,800.00 plus 75.00 per ha or part of a ha in excess of 10*
*Exceeding 50 ha but not exc Exceeding 500 ha*	*5,800.00 plus 50.00 per ha or part of a ha in excess of 50*
*Exceeding 500 ha*	*28,300.00 plus 10.00 per ha or part of a ha in excess of 500*

*Land Outside Towns—*	K
*Not exceeding 5 ha*	*100.00 per ha or part of a ha*
*Exceeding 5 ha but not exceeding 10 ha*	*500.00 plus 50.00 per ha or part of a ha in excess of 5*
*Exceeding 10 ha*	*750.00 plus 10.00 per ha or part of a ha in excess of 10.*

22. In respect of the awards the subject of these proceedings, there is evidence from Mr Kwago that the NLC made awards in excess of the prescribed limit. Particulars of description and size of land in respect of each OS proceeding, the correct amount under s.45(1) and Schedule 2 of the Act, the excess amount awarded by NLC and the difference in excess payments is set out in Schedule "B" hereto (see pages 92 – 94 hereof). The total figures are as follows:-

23. The plaintiff’s evidence as to the conduct of the NLC proceedings resulting in these figures being arrived at was given by Mr Luke Kwago. At the material time, Mr Kwago was the Executive Officer of NLC. He is now an Assistant Commissioner. His evidence is critical to the application. Mr Kambanei, Secretary for Finance, also gave evidence. His evidence is supportive of the primary evidence given by Mr Kwago. Mr Kambanei’s evidence will fall or stand with Mr Kwago’s evidence. The admissibility of Mr Kwago’s evidence was objected to on the basis that as subordinate officer of NLC, he could not give evidence prejudicial to the NLC and that his evidence was tainted with bias. I ruled that his evidence was admissible. It remains for me to decide whether Mr Kwago is a credible witness whose evidence should be accepted as evidence of the truth. If I find that he is not a witness of the truth, the entirety of his evidence, both affidavit and oral, will be rejected. This will leave the plaintiff with no evidence to support the application, hence the proceedings will be dismissed.

24. Mr Kwago was cross-examined on his affidavit evidence, in particular the procedure used in obtaining his sworn affidavits. It was put to him that the affidavits were prepared by Paraka Lawyers in pretty standard format without his instructions, and that he signed them without reading and understanding the content on those. I have no reason to doubt his evidence. He denied this and said they were prepared on his instructions, that he read the contents and agreed to the contents and signed the affidavits. I accept Mr Kwago’s evidence. It is not shown by the respondents of any real improper motive for lying or fabricating evidence. I accept his evidence as set out in the various affidavits.

25. The Act prescribes the formula for calculating compensation payable, in mandatory terms. The NLC must calculate the compensation payable in accordance with s.45(1) and Schedule 2. There is a discretion in the NLC to recommend to the Minister to increase the total award calculated under s.45(1), by up to 50%. The NLC is not given any power under s.45 or Schedule 2 to increase the award beyond the prescribed limit. This is the main contention of the plaintiff.

26. I am referred to at least two decisions of the National Court in which Los, J strictly applied s.45(1) and Schedule 2 formula. Apparently, the decisions were of the same Commissioner Marum sitting on the NLC. In that case, the National Court granted application for certiorari to review of decision of NLC and quashed the decisions: see OS No. 752/98 PNG Waterboard v Nathaniel Marum (the National Land Commissioner sitting as the Commissioner at Mt. Hagen) & 2 others, Unreported & Unnumbered National Court judgment of Los, J, Waigani, 8 February 2002; OS No. 148/00 Sao Gabi Attorney General v Nathias Marum sitting as the National Land Commissioner & Another Unreported & Unnumbered National Court judgment dated 20 October 2000 at Waigani. I have read His Honour’s brief reasons for decision and I am in total agreement with His Honour’s views.

27. The Chief Commissioner well understood the limits of his power and instead, resorted to s.53 of the Constitution. The Commissioners gave similar reasons for increasing amount in each case. An example of reasons given in a fresh claim is OS 72/04 The State v. Andrew Terry Roika & Others where Commissioner Marum states:

That to apply Schedule 2 of National Land Registration Act for basic amount of settlement payment is to defeat the purpose of Section 53(2) of Papua New Guinea Constitution which amongst other things provide for just compensation must be made on just terms by expropriating authority, giving full weight to the National Goals and Directive Principles and having due regard to the National interest for protection from unjust deprivation of interest and right of ownership to the property.

This is an area of land which is represented by a large proportion of the total land available for use to the owners, relatively to their likely future needs as such Section 45(3) of National Land Registration Act must be invoked to increase the amount.

That based on the conservative valuation formula and makes it more relevant to today’s realities, which I believe to be on conservative estimate.

The amount to be paid is Three Million Eight Hundred Thousand Kina (K3.8 million) for Land Compensation under National Land Registration Act as settlement payment to the claimants.

The payment shall be made payable to MR ANDREW TERRY of Kukundi Trading as consultant who shall cause the sum distributed accordingly to the Customary Land Tenure System practiced locally and agreement made in accordance to Power of Attorney."

28. An example of reasons given in a case where a new award replaced an existing award is OS 709/04 - State v. Lucas Roika & Ors, where Commissioner Marum states:

That this fresh order supercedes previous order dated 9/9/83 and to apply Schedule 2 of National Land Registration Act for basic settlement payment is to defeat the purpose of Section 53(2) of PNG Constitution which amongst other things provide for just compensation must be made on just terms by expropriating authority, giving full weight to the National goals and directive principles and having due regard to the National interest for protection from unjust deprivation of interest and the right of ownership to the property.

The parties agree to the amount of settlement payment and Commission endorsed and formalized the agreement as being claim under National Land Registration Act by the Landowners.

This is an area of land which represents a proportion of the total land available for use to the owners relatively to their then likely future needs as such Section 45(3) must be invoked to increase the amount.

That based on the current conservative valuation formula and makes it to more relevant to today’s realities, which I believe to e on conservative estimate.

The amount to be paid is Nine Hundred Thousand Kina (K900,000.00) for Land Compensation under National Land Registration Act as settlement payment to the claimants.

The payment shall be made in this manner as subject to Section 44 of National Land Registration Act. Therefore Commission further order that payment shall be payable to MR. LUCAS ROIKA of ANGIMP & ADAKILIMP SUB CLANS of MOGEI TRIBE who shall cause the sum distributed accordingly to the Customary Land Tenure System practiced locally."

29. Another example of a written decision which gave detailed reasons is the decision given in No. (19) OS 664/04 - The State v Milan Kove & Others:

The spokesman/claimants appeared in persons and tendered written submission to the Commission.

The Commission adjourned its hearing to allow State Lawyers to reply to the claimant’s submission as usual as provided under the National Land Registration Act.

The photocopies of original written submissions by claimants were forwarded to Solicitor General on 6th June, 2000. It is over one (1) months period has lapsed and no response to date.

Thus, Commission will no longer allow any further adjournment if State has no interest in this case and will proceed to decide on this matter accordingly.

The Commission is very concerned that State representatives are not being very prompt and genuine about attending to this very sensitive National Land issues.

However, claims lodged by Mr Andres Meibok and Mr Godfried Koroma are dismissed as their claims relate to an area known as Gavien Resettlement land and it is not outside of Angoram Township boundary.

And the claim lodged by MR KUKURAI LUIMEK JOHNSON is hereby dismissed due to non-compliance or not satisfying the requirements stipulated under the National Land Registration Act.

The Commission is left with only five (5) claims to be entertained for consideration which are submitted by Messrs. RAPHAEL DIGI, MOSES GAVI, MARIA TAN, JOE AUN, MALIKA KAKLE, BILL NOKI & WESLEY LAIA have to be entertained by this Commission for the purpose of Land Compensation under National Land Registration Act and the claims are consolidated.

There are certain elements under National Land Registration Act to be fulfilled before a claim for settlement payment is admitted.

Having gone through the claimants joint submissions, it is hereby established that Section 40(1) and (2)(b) have been adhered too, however not adhered to Section 20(2)(a), (3), (4) of the National Land Registration Act.

The claimants do not fully have standard of proof for what necessary elements they should utilize to prove their case. Though, ignorance of law is not an excuse but how can a non lawyer or a villager accept that wholeheartedly, the result is that more problems will be encountered if adhered to the strict rules of law.

The lodgement of claims before Independence Day of Papua New Guinea. I can only take i6t that, now they (claimants) known about such existence of the law because the Commission came into operation after Independence Day of Papua New Guinea.

It would be unjust to penalize them in this area and this would mean to deprive them of the legal Constitutional rights. Also, claimants made reference to the PNG Constitution of Section 53 & 54 to be considered in dealing with this matter.

Therefore, I strongly believe that State had acquired the land unfairly and not in accordance with the provision of Section 54 of the PNG Constitution.

In light of Section 53 of PNG Constitution, it talks about protection of from unjust deprivation of property and talks about just Compensation must be made on just terms by expropriating authority, giving full weight to the National goals and directive principles and have due regard to the National interest by PNG Parliament as well as to the persons affected.

The authorities in dealing with land problems in Papua New Guinea have overlooked the abovementioned provisions whilst addressing State Land issues.

The Commission believes that there has been violation of the provision and therefore a just compensation must be awarded here.

Although, it is not my duty to change the Law but I am bound to determine the case and the claimants must not be deprived of being given the fair hearing and natural justice must be given to the claimants affected.

Therefore, the Commission hereby admits claimants claim and order the State to pay Land Compensation as provided under Section 44 of National Land Registration Act."

30. The Respondents’ counsel made lengthy submissions and cited many cases on this issue. They sought to draw an analogy between s.22(1) and s.23 of the Land Acquisition Act 1974 (as Amended) and relied on the reasoning of Kapi DCJ (as he then was) in Minister for Lands v William Robert Frame [1980] PNGLR 437. They submitted that the NLC’s power to assess and award reasonable compensation for land under s.53 of the Constitution in an assessment under that Act is analogous to the Minister’s power to assess just, fair or reasonable compensation under s.52 of the Land Acquisition Act. The NLC’s power is an additional power derived from s.53 of the Constitution. They submit the NLC was correct in applying s.53 of the Constitution and not s.45(1) and Schedule 2 of the Act. The plaintiffs’ counsel argued that the NLC is not given express power to assess and award compensation under s.53 of the Constitution.

31. In my view, the procedure under s.22(1) and s.23 of the Land Acquisition Act considered in Frame’s case is different to the procedure under the present Act. The Land Acquisition Act provides for assessment of compensation for land acquired under compulsory acquisition process for public purposes. Section 22(1) gives the Minister power to assess and award just, fair or reasonable compensation in accordance with principles or prescribed factors set out in s.19. Valuation of the land by the Valuer General was required to ascertain the value of production for the five years preceding the acquisition. Under s.23, a person aggrieved by the Minister’s decision could appeal to the National Court. The Supreme Court held that by implication, s.53 of the Constitution was to be read into the Act in respect of acquisition of land from citizens.

32. In respect to the National Land Registration Act, similar provisions do not exist. Compensation under this Act is calculated at a fixed rate, irrespective of the value of the land; improved or unimproved. This may no doubt sound arbitrary and oppressive to traditional landowners but that is the law and it has its own good policy reasons for it. Section 45(1) may as well be inconsistent with s.53(2) of the Constitution. But the issue of constitutional validity of s.45(1) and Schedule 2 of the Act was not advanced in these proceedings. If parties, in particular the respondents wish to challenge the constitutional validity of s.45(1), that is a matter for them. Under s.45, NLC is not given any power to assess compensation which is "just, fair or reasonable" in accordance with any prescribed principles or factors. Therefore, s.53(2) or any other provision of the Constitution cannot be read into the Act. The NLC powers are prescribed by s.45 and Schedule 2 and the NLC must accept the limits of its power.

33. For these reasons, I find that the Commissioner or NLC acted ultra vires its powers or exceeded its jurisdiction conferred by s.45(1) and Schedule 2 of the Act in awarding compensation far beyond the statutory limit.

34. Further in my view, all arguments on discretionary procedural matters must be read and interpreted subject to this finding and conclusion which is based on the clear statutory mandate. Discretionary matters cannot override mandatory statutory jurisdictional mandate expressed in mandatory terms.

35. The Respondents’ arguments on undue delay is based on an application under s.155(2)(b) of the Constitution and Order 16 rule 4(1) of the National Court Rules. The Constitutional argument is based on the principles enunciated in Avia Aihi’s case and cases which follow or amplify those principles. In my view, the constitutional argument is not applicable to the present case because the present applications are not made under s.155(2)(b) as was the case in Avia Aihi. The present applications are made under Order 16. Order 16 is exhaustive and a comprehensive procedural Code on judicial review: Attorney General Michael Gene v.Hamidan Radz [1999] PNGLR 444; Francis Kaware v. Solicitor General (1999) N1875; Aiten Waniho v. Luther Wenge [1999] PNGLR 472; Fredrick Martin Punangi v. Sinai Brown (2004) N2661; Mision Asiki v. Manasupe Zurenuoc (2005) SC 797. However, the arguments on undue delay made under the Constitution may be relevant to those made under Order 16 and can be considered under O.16 r.4 because O.16 r.4(1) is broadly worded to encompass not only question of delay but the practical consequences of undue delay which warrants the Court to refuse any relief sought in an application. The respondents address this issue partly as a competency issue in relation to the grant of leave as well, however since the question of leave does not arise, it can more appropriately address in the substantive application under O.16 r.4(1). There is no question that questions of undue delay arises under O.16 r.4(1). This is clear from O.16 r.4(1). I reject the plaintiffs’ submission that the issue of delay is irrelevant for purposes of the substantive review.

if, in the opinion of he Court, the granting of he relief sought would be likely to cause substantial hardship to, or substantially prejudice the rights of, any person or would be detrimental to good administration.

37. The two matters to consider under r.4(1) are – (1) undue delay; (2) consequences of undue delay. The respondents submits there was undue delay in making the substantive application. Some 4 years 2 months 38 days passed after the awards were brought to the attention of the Attorney-General, without the plaintiff seeking judicial review. The plaintiff cited a number of cases in which application for judicial review was refused because of the long period of delay. In The State v District Court; Ex parte Caspar Nuli [1981] PNGLR 192, application was made promptly after 6 weeks from the decision of the District Land Court. In State v Giddings [1981] PNGLR 423, (20 months), NTN Pty Ltd v The Board of PTC [1987] PNGLR 70 (16 months), Arthur Ageva v Bobby Gaigo [1987] PNGLR 12 (15 months of delay in prosecuting appeal from Land Titles Commission decision), The State v Lohia Sisia [1987] PNGLR 333 (5½ years from decision of Minister to declare National Land).

38. There is little or no evidence from the plaintiffs as to when the Attorney-General or Solicitor General became aware of the various awards. There is evidence from Mr Kwago, in some respects conflicting though, that the awards were sent to the Attorney-General or Solicitor General’s Department for settlement soon after the awards were made. Mr Kambanei’s evidence on this is also scanty. In the circumstances, the exact time the awards in various claims were sent to the Attorney-General or Finance Department for Settlement is uncertain. I would infer however that it would be unusual for monetary awards to be left lying idle for an unusually long time. Either the NLC or the claimants would have taken some steps to deliver, serve or bring to the attention of the relevant State authorities to settle the award promptly. Whether that authority was the Finance Department or Attorney-General is of no real significance, suffice that they were brought to the attention of the appropriate State agency.

39. There is no question that a delay of some 3½ years is a long delay or undue delay. The next question to consider whether the consequences of undue delay are such that "in the opinion of the Court, the granting of an order in the nature of certiorari, would be likely to cause substantial hardship to, or substantially prejudice the rights of any interested parties, or would be detrimental to good administration."

40. It is submitted for the respondents that the undue delay in making the application has resulted in –

(3) The excess of power or error of jurisdiction so fundamental that the public interest in good administration of the Act by NLC required the obvious error of law to be corrected in the interest of justice or to do justice to the parties: Isidore Kaseng & Others v The State & Others, Unnumbered and Unpublished National Court Judgment delivered on 24/11/04 is relied upon.

42. I accept the plaintiffs’ submissions. I consider that the nature of the decision the subject of this review is one which in no way seriously or substantially affects the right to compensation for land under the Act because as a matter of law, the respondents have no right to receive the amount of compensation made in excess of the statutory limit in the first place. The hardship and costs incurred by the respondents are normal costs incurred by parties to proceedings, which are recoverable by an order for costs.

43. It is further submitted by counsel for the Third Respondent in Case No. 1 that the application should be dismissed for failure to serve the application and supporting affidavits on the Respondents. Certiorari should not be granted in the circumstances because to do so would be to "make a mockery of this particular process, if not, a mockery of the entire judicial system, to the extent of placing this Honourable Court in a cross-road in trying to balance the need to enforce adherence to the procedure abided over time whereby justice is ensures to not only prevail but must be seen to prevail and the Plaintiff’s grievance".

44. However, justice must be done according to law. In my view, the delay in bringing the application is outweighed by the NLC’s breach of s.45(1) and Schedule 2 of the Act. The Respondents have no right to receive the excessive amount of award, therefore there is no question of prejudice or substantial hardship.

45. What is at stake here is the public interest in the good and proper administration of the Act and the NLC in conducting a public hearing and making an award in compliance with the provisions of the Act. It would set the wrong precedent and send the wrong message to the public if this Court were to allow NLC to exceed its power, avoid the prescribed formula for calculating compensation and use its own discretion to fix amounts it considers fit. It is utterly mischievous, gross abuse of law or the process of NLC, an act of arrogance and unbecoming of a quasi-judicial officer for a Commissioner to depart from the mandatory statutory limits and make awards in exorbitant and astronomical figures, thereby unnecessarily raising false hopes, expectations and anxiety and pain amongst claimants that they are entitled to those excess amounts – claimants who are ordinary Papua New Guinean traditional landowners of little means. The State and even the Courts have unnecessarily wasted a lot of precious time, energy, resources to claimants to having attend these judicial review proceedings to review these awards which clearly should not have been made in the first place by NLC. It is my firm belief that the public interest in good administration of the Act and the proper functioning of NLC, favours the grant of the relief sought rather than refuse the relief sought.

46. In respect of a number of claims, including the State through the Solicitor-General’s office entered into a Deed of Release for the payment of the award. For instance, in OS 721/04, it was the outright settlement of K3,800,000 award whereas in OS 664/04, the initial award of K950,000 was superseded by an "ex gratia" amount of K600,000 offered to be paid by the State.

47. The main arguments for the Respondents is made by Mr Kandi who appears for the Third Respondent in OS 664/04. He submits the Deed of Release gave rise to a new cause of action and the appropriate cause of action is by Writ of Summons challenging the Deed of Release. A number of cases were cited including NCDC v. Yama Security Services Pty Ltd (2003) SC 707. The State failed to do this. The Deed drawn up by the Solicitor General upon instruction by the Attorney General was valid and enforceable on its own terms. The State is estopped from raising the issue at all. Alternatively the Plaintiff has utilized the wrong procedure to challenge the Deed of Release. Reliance is placed on the evidence advanced by the Third Respondent as to valuation of the land, etc. He and the plaintiffs submits the evidence in this respect is unreliable and lack credibility and weight.

48. The plaintiffs’ counsel submits the Deed of Release is invalid because it failed to comply with s.13 of the Attorney General’s Act and s.59 and 61 of the Public Finance Management Act: Fly River Provincial Government v. Pioneer Health Services Ltd (2003) SC 705. More specifically in respect of OS 721/01, it is submitted the Deed of Release relates to the NLC award of K950,000 which was reduced to K600,000 for purpose of settlement. The Deed was to settle the award and not ex gratia payment. There is no evidence of State offering ex gratia payment under s.7(i) of the Attorney-General Act.

49. One of the plaintiff’s counsel Mr Baniyamai, in OS 670/94 and OS 720/04 submits that a Deed of Release can be challenged on its own and if found there was a fundamental mistake, it can be set aside: PNGFA v Concord Pacific Ltd & others (2003) N2465. Technically, a challenge to NLC award can proceed unaffected by the Deed.

50. In my view, the two Deeds of Release or any other Deed of Release entered into, clearly was founded on an award that was made outside the limit placed by the Act and therefore unlawful or illegal. The action giving rise to Third Respondent’s claim for the amount was the NLC award which was compounded by the parties was a fundamental, if not the most important or fundamental term of contract. Therefore, the Deed of Release stood liable to be declared void for illegality: Andrew Wag v. Mt. Hagen Town Authority [1996] PNGLR 385.

51. A contract founded on a fundamental term which is an illegality renders a contract invalid. A Court of equity cannot ignore an illegality once the illegality is clearly established. The illegal award is the subject of these judicial review proceedings. It has been clearly established or proven by the plaintiffs. This Court therefore will not recognize these Deeds of Release.

52. I accept my own authoritative statement on the proper procedure to be followed in challenging a Deed of Release in NCDC v Yama Security Services. That is the correct procedure, however, once a fundamental term of the Deed is established to be illegal. The whole Deed is flawed and a Court of equity whilst not invalidating the Contract, can refuse to recognize or give effect to the Deed of Release as I have done in these cases.

53. The Respondents submit the State had settled similar awards made in this period. It had also failed to appeal the decision. By its conduct, the State had waived its right to contest the awards and in fact settled some of the awards. By such conduct, the State is estopped from contesting the awards. It is grossly unfair to the Respondents for the State not to settle the awards in respect of the other matters. Extensive submissions are made on the law on equitable estoppel.

54. There is evidence that the State settled in part or in full some of the awards which were made in excess of the prescribed limit.

55. The plaintiffs submit the equitable doctrine of estoppel cannot be used to validate or sanction an illegal act, illegal action, illegal deed, illegal contract or transaction. A number of cases are cited including Rawson Construction Ltd & Ors v. The State (2004) SC 777.

56. Various cases are cited to support the principle that no one can gain from an illegal act. This is consistent with the equitable principle that he who seeks equity must come with clean hands: Rawson Construction Ltd & Ors v The State SC 777; John Kanekane & Ors v Patilius Gamato (2004) N2512 and Jamie Muhammed Abdullah v Dr. Igbal Yaseer (2001) N2195.

57. In my view, the law is very well settled in this jurisdiction that the equitable doctrine of estoppel cannot override clear mandate of statutory law. Equity cannot override statutory law. Equity simply follows the law. For this reasons, whilst it is true that the State had settled a number of NLC awards made without jurisdiction; a Court of law cannot ignore clear breaches of the law once the breach is brought to its attention. For this reason, I dismiss the respondent’s arguments on estoppel.

58. The plaintiff has identified a number of claims in which NLC awarded amounts in excess of the prescribed limit, even though the NLC had made previous awards within the prescribed limit. These include K2 million in OS 707/04, K2.5 million in OS 676/04. K10 million in OS 675/04, K3 million in OS 673/04, K3.5 million in OS 709/04, K3 million in OS 678/04, K5 million in OS 708/04, K2.33 million in OS 671/04, K0.85 million in OS 670/04, K7 million in OS 672/04 AND K0.8 million in OS 669/04. The plaintiff submits the NLC having made previous awards in respect of the same land, had no power under the Act to review or revisit its earlier award. It was not open and made new Awards which exceeded the prescribed limit. It is also submitted the issue is res judicata and it was not open for the NLC to make a fresh determination/award. A number of cases, both local and overseas cases were cited.

59. The Respondents submit there is no duplication of proceedings. The previous awards by NLC were made in respect of a certain portion of the land. The latter award was made in relation to other portion of the same land which is not the subject of the earlier award. For instance in OS 676/04, the NLC in September awarded K4,762.50 for 14 hectres of land within UAL 2, which covers ¼ of Mt. Hagen city. On 13/7/01, Double U Square lodged a new claim in respect of Section 16, Allotment 15 which was not part of the 1983 award. The amount awarded is K2.5 million.

60. In my view, it is clear in many cases that the NLC re-visited the first awards in respect of the same land to the same parties. In other cases, there appears to be a duplication of awards to different groups over the same land or different parts of the same land. In a good number of cases, it is not clear if the awards were a duplication because of the multiplicity of claims lodged with vague descriptions of the different portions of land within the declared land. In all these cases, what is clear and beyond question is that all these awards were made in excess of the statutory limit. They cannot stand in law for this reason alone. Also in these cases where the NLC revisited the awards made to the same parties or different parties over the same subject land, the NLC lacked power or jurisdiction under the Act to review or revisit its earlier award.

61. The Respondents submit that NLC had wide procedural powers given to it by the preamble to the Act and s.34(4) to determine its own procedure and award just compensation. This included revisiting its earlier awards for purpose of making just awards.

62. In my view, NLC is not given any power under the Act to revisit its earlier award. Once an award is made, it is final unless set aside by a Court of competent jurisdiction either on appeal under s.46 or upon a successful application for judicial review in the National Court. In many cases, the awards amounted to double awards and they cannot be allowed to stand.

63. The plaintiffs submit these decisions are covered by the principle of res judicata. This principle which normally applies to judicial proceedings applies equally to quasi-judicial proceedings. I accept this submission. The awards which replaced earlier awards over the same land are clearly res judicata and should not have been made.

64. The plaintiffs submit in many cases, the claims were conflicting and raised issues of customary ownerships which the NLC should have referred to the Land Courts under the Land Dispute Settlement Act and stayed its proceedings until the ownership issue was resolved, as provided for by s.43(2).

65. In my view, in the absence of a certified record of proceedings of NLC, in respect of each matter, I am unable to determine conclusively, if the conflicting ownership issue was properly raised and determined. I am also unable to determine other procedural determination such as whether the conflicting claims were properly admitted.

66. For this reason, I will give the benefit of the doubt to the Respondents to find that the conflicting issues of customary land ownership were properly dealt with by NLC, except in those clear cases such as Case No. 48.

67. This issue is not raised by the plaintiffs but by a number of other interested parties who were joined in various proceedings, who support the plaintiff. The basis of this application is the principles of common law adopted under s.59 of the Constitution and s.34(2) of the Act which expressly requires the NLC to observe principles of natural justice. Section 34(3) is also a natural justice provision in terms of NLC conducting a public hearing therefore enabling interested landowner groups to attend the hearing and present their case. Arguments advanced under s.34(3) are also considered under natural justice.

68. The Second plaintiff in Case No. 22 and 33, the Fifth Respondent in No. 39 and the Fourth Respondent in No. 48 submit that the NLC failed to conduct a public hearing and deprived interested parties from applying before the NLC to present their cases. In other words, the proceedings were conducted in breach of principles of natural justice expressly stipulated in s.34(2) and (3).
Section 34 states:

69. Section 35 empowers NLC to Commission to call evidence and taken evidence on other.

70. In my view, s.34(2) and (3) are natural justice provisions. They require a public hearing by a Commissioner at a public venue which is accessible to the public. Hearing entails admitting a claim, calling or receiving "evidence" from the claimants and interested persons, making findings and reaching a decision on the awards. The principles of natural justice embodies in s.34(2) and (3) entails opportunity given to interested persons to support, oppose or advance their own interests, NLC and be heard on their claim before an award is made. It also entails conducting a hearing at a public venue which is accessible to the general public, usually at a location within or close to the location where the land the subject of the claim is situated, to enable ordinary people who are the traditional landowners to attend the hearing. Section 34(3) speaks of a "hearing" – a public hearing involving giving or receiving oral evidence, on oath. Further in order for ordinary traditional landowners who are ordinary village-based people to attend the hearing, sufficient and appropriate notice of the hearing must be given to ordinary people. It is the duty of the NLC to employ the most appropriate medium of communicating information to inform the public of the hearing, adopting procedures that it considers appropriate and sufficient. Such procedures are not prescribed in s.34 and the Regulations. But some guidance is gained from s.52 which prescribes the method of publication of a notice issued by the Minister under s.7 or 11 or a declaration under s.9 or as follows:-

to act as his agent in giving notice in any of the forms under Subsection (1).

71. In the present case there is evidence in the cases referred to that some of the hearings were conducted away from the provincial locations in which the land were situated, and in not at public venues, such as the Conference Room of the Attorney-General’s office at Waigani. As a result, people from the provinces in which the land was situated were unable to attend the hearing. There is also evidence that public hearings were conducted in Mt. Hagen in the Council Chambers. That may be so, but what notice was given to all other interested parties of the hearing is not known. This to me is a serious breach of procedural requirements of a "public hearing" which is accessible and open to the public, in particular interested persons. As a result, the Respondents in these cases who have been joined in the proceedings and missed out on the awards were denied natural justice.

72. In my view, s.34(1) and (4) must be read subject to s.34(2) and (3) as expressly stated in s.34(1). The procedures adopted by NLC must be subject to the principle of natural justice. Section 34(1) and (4) cannot override principles of natural justice.

73. This ground does not form part of the statement filed by the plaintiff and therefore not open to be raised in this review, if one applies O.16 r.6 (1) strictly. But in the exercise of my discretion, I have allowed the issue to be argued by the Respondents, in order to accord them their rights under O.16 r.5(2). Now that the issue has been argued by all interested parties, I am able to determine the issues.

74. The principal basis is the NLC’s exceeded, acted ultra vires or lacked jurisdiction to make an award in excess of the money limit placed by s.45(1) and Schedule 2. I have already determined this issue. One issue raised is that in a number of cases, the claims were lodged outside of the 60 days time limit prescribed by s.9 and s.39(1) of the Act and Regulation, s.7 and these claims should not have been considered by NLC. The NLC therefore lacked jurisdiction to deal with them.

76. The argument is that s.34(4) and s.39(2) allows the claimant to lodge a claim. The Commission is not bound by technical rules of procedure. Section 39(2) gives the Commission wide powers to investigate, admit and consider relevant information. Section 39(2) gives the Commission wide powers to accept a notice or further particulars of a claim and this includes a claim made outside the time limit prescribed by s.39(1) and Regulation, s.7.

77. The plaintiffs submit s.39(1) makes it clear that the claim must be considered within the time limit perused by s.9 or within such time as allowed by the Commission. The phrase "in the prescribed manner" does not include the time limit in s.9 but as to the form and particulars supplied in a notice of claim.

78. I accept the plaintiffs’ submissions in part. There is evidence that the claim in these cases were made outside the time limit. However, there is no evidence before me to show that the NLC exercised its discretion to extend time under the exception in s.39(1). I am unable to decide this issue in the absence of complete certified records of the proceedings of the NLC in each matter. The onus is on the plaintiff to produce the records to show that that discretion was not exercised in favour of the 3rd respondent, or any other claimant who lodged their claim late. For this reasons, I will give the benefit of the doubt to the respondent. I find that the claims in each matter were properly admitted under s.39(1).

79. On 26/11/97, the Minister declared national land, Goroka Township land contained in UAL 5, 33, 65, 94, 97, 148, 162, 258, 268, 269, 310, 400, 527 and 631 NLD No. 4, 42, 132, 283, 284, 492, 512, 513, 622, 904, 1425, 1446, 1477, 1598, 1618, 1702, 1899, 1922, 2186, 2373, 2441, 2976, 3010, 5011 and 3343, Portions 310, 365, 583 and 409. On 29/9/91, NLC awarded K28,796 to some 23 named individuals to distribute to members of various groups. Not being satisfied, they sought a review by NLC of the award. On 12/4/2000, NLC replaced the previous award with the amount of K23 million.

In my view, the issue of filing of motion under O.16 r.5 and service of the documents have been overcome by the fact that no such competency issue was raised earlier on in the pre-trial stage and also, the Respondents have been given the opportunity to be heard and they have been heard in this application. Any procedural breaches, if any, alone are not sufficient to disturb the clear excess of statutory authority by the Commissioner and I would waive or dispense with those procedural requirements. For these reasons, I reject this argument.

81. On 27/3/80, the Minister declared national land, the land contained in UAL 2. On 6/11/80, various claims were lodged by various traditional landowners. On 9/9/83, NLC awarded K3,175.00 payments for 434 hectares of land situated in UAL 2, to the 3rd Respondent and Ambrose Mong and Canisius Casey jointly. On 9/9/83, NLC increased the award to K4,462.50. On 3/8/01, following fresh claim lodged, the amount was increased to K7 Million by Commissioner Marum. Other awards were also made in respect of land within UAL 2. New issues raised by the plaintiff are:

82. What I have said under breach of prescribed procedure, supra, equally applies here. In my view, in the absence of a full certified record of proceedings of NLC, I am unable to determine these two related issues. The onus is on the plaintiff to ensure the record of proceedings are provided to this Court. For this reason, I reject these arguments.

83. On 11/12/97, the Minister declared national land described as DA 2522, Milinch of Granville, Fourmil of Moresby, NCD. Two claimants lodged claims. On 14/10/99, the Third Respondent lodged its claim on 10/7/2000, NLC awarded K108,000. On 4/12/98, NLC of K6,280 then recommended 50% increase to K9,420. On 10/7/2000, NLC made fresh award of K108,000. No new issues are raised.

84. Land part of Portion 3, Rabiamul, was declared National Land on 15/4/99. Six claimants lodged claim. Third Respondent was awarded K600,000 and Alphonse Pawa awarded K850,000. No new issued are raised.

85. On 2/12/93, Minister declared Portion 732 and 733 Kavieng, National Land. Three claimants lodged claim. Third Respondent’s initial claim was dismissed by NLC 19/10/85 who re-lodged claim on 25/3/99. NLC awarded K60,000 on 21/7/99. On 16/7/01, NLC further awarded K300,000 to Third Respondent as settlement payment for Portion 317 – DA 1529.

86. The First and Third Respondent joined submissions. They submit the Commissioner determines its own procedures. Its powers under s.34(1) are broad: Toane Kerakera, as Leader of Luipi Clan v. The State [1986] PNGLR 186. NLC unfettered discretion. Section 45 and Schedule 2 set out principles of determining just compensation for land acquired by Government for public purposes: Section 53(2) of the Constitution does likewise. Commissioner had wide powers to make the award, which it did and it should not be disturbed.

87. These submissions have been dealt with under excess of jurisdiction and ultra vires.

Completed matter. Consent order entered in terms of substantive relief. NLC award quashed and matter remitted to NLC for rehearing.

Consent order. Completed matter. NLC award quashed and matter remitted to NLC for rehearing.

Completed matter. Consent order. NLC award quashed and matter remitted to NLC for rehearing.

88. On 22/5/97 the Minister declared Kunjip Township land in No. 12 below - National Land on Portion 88. On 23/3/98, NLC made award of K37,778.90. Third Respondents sought review of award. On 7/3/00, Commissioner Marum awarded K4,850,250 in favour of William Ekip Wii. On 16/10/2000, NLC made a further award of K950,000 for Portion 410 & 411, which formed part of Kunjip Township Land. Upon application by W.R. Carpenters (PNG) Ltd for judicial review in proceedings OS 795/2000, on 2/10/01 National Court at Mt. Hagen quashed the award and remitted matter back to the NLC for rehearing. In these proceedings the award of K950,000 is challenged by the plaintiff.

89. The First Respondent supports the plaintiff. Mr Korowi for the First Respondent submits that only Courts can award compensation under s.53 of the Constitution. NLC lacked jurisdiction or exceeded its jurisdiction prescribed by s.45 and Schedule 2. The same argument is made for No. – 4, 8. 9, 10, 11, 12, 16, 17, 19, 20, 22, 37, 39, 41 and 48. These submissions are dealt with under excess of jurisdiction and ultra vires.

90. On 22/5/97, the Minister declared national land, the land described as Kudjip township land contained in portions 65, 73, 74, 77, 78, 88, 148, 158, 161, 245, 257, 272, 295, 335, 356, 410, 411, 534, 535, 546, 554, 651, 652, 653, 655, 565, 657, 658, 659, 660, 661, 662 and 740, Milinch of Minj, Fourmil of Ramu, WHP, entered as UAL 271, 328, 361, 425 and NLC 31, 121, 380, 491, 818, 910.

100. The Plaintiff in Notice of Motion filed on 18/7/05 seeks review of NLC award made on 16/10/00 which awarded K500,000 to Third Respondent for Portion 682 and 88, Minj. (Kudjip Township Land). Earlier, on 7/3/00, NLC had awarded K4,850,250 to Mr William Ekip Wii for same land replacing an earlier award of K39,778.90 on 23/3/98. No new issues are raised.

101. On 11/6/98, Minister declared Portions 208 – 213, Kambanagil, Milinch of Mendi, Fourmil Luloton, SHP, National Land. Third Respondent lodged a claim and on 7/6/00, awarded K300,000.

102. On 28/5/98, Portions 28, 32 and 889 known as Madina High School, Primary School and Aid Post, New Ireland was declared National Land. Three claimants lodged claim, amongst them 3rd Respondent. On 22/9/99, NLC awarded K20,000.

103. On 13/8/92, the Minister declared Portions 37 – 38 Migende, Milinch of Minj, Fourmil of Ramu, Simbu Province, National Land. The Third Respondent made a claim. On 3/2/94, NLC awarded K1,688.10 for Portion 37 & 38 and recommended 50% increased up to K2,532.15, Payment to be made to Yembe Taia. On 8/1/01, one Anton Wena, Boi Gabriel, Gaie Alois and Gaglu Franz, lodged fresh award for Portion 38 of K700,000 to be paid to Anton Wena. In OS 309/01, the National Court at Waigan on 25/5/01, endorsed Consent Order that the 3rd Respondent is the lawful beneficiary of the NLC. The present application seeks a review of the NLC award.

104. The First Respondents submission is that the NLC award is unlawful, illegal, improper and made without jurisdiction. The NLC has no jurisdiction to interpret and apply s.53(2) of the Constitution. Also it exceeded its limit placed by s.45(1) and (3) and Schedule 2 of the Act.

105. The First Respondent also raises public policy argument. The awards made do not correspond to the actual land mass area. The awards are exorbitant made to individuals or minority group of people. They should not unjustly enrich themselves.

107. On 28/2/99, Minister declared national land Portion 9 Extension 588, Milinch of Minj, Fourmil Ramu, QHP known as "Keramal Plantation". On 5/7/99, NLC awarded K1.175 to Third Respondents which Whagi Mek Plantation was to pay K881,250 and the State to pay K293,750. On 24/8/99, WHPG paid the State’s share. Following a judicial review application by Whagi Mek Plantation, the National Court in OS 588/99 quashed the award and referred the matter back to the NLC for rehearing. On 27/2/01, NLC confirmed its award but this time ordered the Plaintiff to pay the K881,250.

108. The plaintiffs submit NLC failed to comply with paragraph 2 of the National Court order by failing to conduct a fresh hearing. Instead it simply confirmed the previous award that had been quashed and only substituted the State for Wahgi Mek Plantation. This is evident by the fact that no reference is made in the National Court decision requiring a fresh hearing.

109. The Third Respondent submits the present application is a gross abuse because a judicial review proceeding on the same award was concluded and the matter was reheard by NLC and fresh award made. The application should be dismissed: Brechweldt & Co. (N.G) Pty Ltd v. Gronyke [1974] PNGLR 106 and some old English cases referred to. Also the issue of res judicata and equitable estoppel.

110. I accept the plaintiffs’ submission. A fresh and proper hearing if conducted should have resulted in award of compensation within the statutory limit prescribed by s.45(1) and Schedule 2.

Consent order entered. NLC award quashed and matter remitted to NLC for rehearing.

111. On 12/2/87, the Minister declared national land Portion 317-DA 1529, Milinch of Ihu, Fourmil of Kikuri, Gulf Province "Auma Land." Third Respondent lodged their claims on 15/7/88. On 24/6/91 NLC awarded Third Respondent K100. On 16/7/01, NLC revisited award and increased award to K300,000.

112. On 5/9/96, the Minister declared national land Portion 39 & 40, Kondiu, Milinch of Minj, Fourmil of Ramu, Simbu Province. A number of claimants including Third Respondent lodged claims. On 2/4/97, NLC awarded K2,204.80 plus recommendation for 50% increase. Upon protest by the Third Respondent of the award as being inadequate, on 31/10/2000, NLC increased the award to K950,000 to be apportioned in fixed rates between four claimants.

113. The Plaintiff submits, there was conflicting claims over customary land ownership of the subject land. The Commissioner did not refer the land ownership issue to be first determined by land courts under the Land Dispute Settlement Act. The Commissioner acted ultra vires its powers in resolving the ownership issue by apportioning the award between the 4 clients.

114. The Respondents submit the Attorney-General advised the Prime Minister to offer K600,000 as ex gratia payment. A valuation of the land commissioned by Mr Damem carried out by L.J. Hooker Real Estate showed value to be K430,000. The parties then entered into a Deed of Settlement to settle the K600,000 on 24/6/04. This Deed remains valid and enforceable. If the Plaintiff disputes the Deed of Settlement, it should file separate proceedings. Also, the Court lacks jurisdiction to review the NLC decision which has been superceded by the ex gratia award made by the Attorney-General under s.79(i) of the Attorney-General Act 1989 which itself was not challenged: A number of overseas cases are cited including NCDC v Yama Security Services Pty Ltd (2003) SC 707.

115. The Solicitor General enforced the Attorney-General’s award by entering into a Deed of Release as required by law. The State v Zachary Gelu (2000) SC 716. Therefore, Mr Damem is estopped from questioning the Deed by affidavit evidence: Igeseng Investment Ltd v Sterwart Construction Ltd (2003) N2498. The Attorney-General’s inconsistency indicates lack of credibility of the plaintiff’s evidence and it must be rejected.

116. I have already dealt with these issues arising from these arguments under breach of prescribed procedure, estoppel and duplication/res judicata.

117. On 16/3/95, the Minister declared "Angoram Township" land, East Sepik Province, as national land. Eight groups lodged claims. The hearing of 8 claims were consolidated. On 20/7/2000, NLC dismissed 3 of the claims and admitted 5 of the claims and made two separate sets of awards at payable to two different groups at K950,000 each. The present proceeding covers the award made to the Third Respondent.

118. On 7/12/78, the Minister declared National land DA 1047 Part of Port Moresby City Land. The Third Respondent lodged claim in November 1982 which was dismissed by the Commission on 16/3/83. A total of some 8 different groups lodged claims, many of which conflicted over customary land ownership issues. A new claim was lodged on 17/8/2000 by the Third Respondents on behalf of Idibana Clan. NLC awarded K921,000 to the Third Respondent.

119. The Plaintiff submits the issue of customary land ownership should have been referred for resolution to the Land Courts under the Land Dispute Settlement Act before awarding the compensation to the Third Respondent.

120. The Third Respondent submits mainly on the delay in making the application, and fairness and reasonableness of the plaintiff’s decision to challenge the award.

121. On ultra vires, the Act does not stipulate the Commissioner’s functions are governed by this Act and no other Act. Section 33 and 34 of the Act and s.60 of the Constitution, give the Commissioner wide powers to determine claims following flexible rules of procedure and evidence. Section 4 and 34 import the rules of natural justice. In this case, the landowners were denied an opportunity to state their case when the land was first acquired and deprived of their land. This time they were heard and fair compensation was awarded. It should not be disturbed.

122. The Third respondent submits it has not been shown by the Plaintiff that the NLC award/decision was irrational as being so absurd or "outrageous" in defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided would have arrived at it. Council of Civil Service Unions v Minister for Civil Service [1985] AC 374 at 410G; Associated Provincial Picture House v Wednesbury Corporation [1947] EWCA Civ 1; [1948] 1 KB 223.

123. The first and second matters are dealt with under competency, excess of jurisdiction and ultra vires. In relation to unreasonableness of the decision under the Wednesbury principles, it is my view that this common law principle has no implication to the question of lack of or excess of jurisdiction, as in this case. It applies to cases which involves exercise of discretion by statutory tribunals.

124. On 8/12/88, Minister declared national land "Mori-Bouguina-Moreguina Government Station and Manako Community Centre Land. The Third Respondent lodged their claim on 28/7/99. On 12/10/99, NLC awarded K921,000. In these proceedings another group, Ukandi Clan represented by Aiado Darei and Alphonse Sumam, had claimed interest in the land and were joined as party to these proceedings, as Second Plaintiffs.

125. The First Plaintiff submits 8 conflicting claims were lodged raising issues of customary land ownership and the dispute should have been referred to the Land Courts for resolution under the Land Disputes Settlement Act and not awarded the compensation to the Third Respondents. I have dealt with this submission under duplicating.

126. Mr Parkop for the Second Plaintiff submits based on the evidence provided by them, the Court should find that they are the correct beneficiaries of the award, an award was made by NLC in 1988 and it was not open to the NLC to revisit that award except by appeal or review to the National Court, and fairly based on a decision of the NLC made on 12/10/99, the Third Respondents had no connection to the land and they lodged false claims. The Court should therefore quash the NLC award. I have dealt with these submissions under competency, duplication and res judicata.

127. At the hearing, whilst other affidavits from the First Plaintiff and Third Respondent were formerly admitted, Mr. Parkop was not in attendance and the affidavit sworn by Alphonse Suman and filed on 6/12/05 was not formally admitted into evidence. Therefore, that affidavit is not evidence before me. During submissions though, Mr Parkop did file written submissions but did not appear at the hearing but his client did and confirmed with the Court his lawyer’s submission. And so to the extent that Mr Parkop’s submission rely on facts deposed to by Mr Suman. Without relying on Mr Suman’s affidavit, I will accept the general position that Mr Suman supports the First Plaintiff’s case for quashing the award.

128. Mr Saulep for the Third Respondents submits, the Attorney-General approved the NLC award and on 17/3/00, wrote to the Finance Secretary to settle the award. The State is estopped for hacking back on its commitment to settle the award. The State also having settled other awards made in excess of statutory limit is estopped from disputing this award. I have dealt with the issues arising from these submissions, under estoppel.

129. On 27/3/80, the Minister declared National land the whole of Portion 420 and 479, town of Mt. Hagen. A number of traditional land owners lodged claims. On 27/3/80, NLC awarded K3,175 in respect of 14.103 ha of land and recommended an increase of 50%, up to K4,762.50. On 1/8/2000, NLC revisited its earlier award and awarded to the Third Respondents K800,000 over portions 23, 24, 35, 33, 41 – 44, 52, 61, 64, 65, 66, 93 and 94 of the Mt. Hagen Township which superceded the pervious award.

130. The Plaintiff raises issues of duplication of award and res judicata which I have dealt with under those headings.

131. The First Respondents counsel Mr. Nii submits the award should be quashed because NLC lacked jurisdiction. The NLC erred in law when it relied on s.53(2) of the Constitution and interpreted and applied that section which is the function of the Supreme Court under s.18(1) of the Constitution. The award made in excess of the limit placed by the Act is "unlawful, illegal and improper". The principle of estoppel is inapplicable.

132. I have dealt with these submissions under excess of jurisdiction or ultra vires and estoppel.

133. On 27/3/80, the Minister declared National land situated on Portions 420, 479 and UAL 2, 363, 411, 735, 1194, 1462 and 1516, Mt. Hagen Township. The Third Respondent filed a claim. On 11/8/2000, NLC awarded K900,000.

134. Mr Furingi for the Plaintiff submits NLC has no powers to revisit and review its earlier award made on 9/9/83, in the absence of any express provision. Also there were conflicting claims by 3 claimants which was not resolved through the Land Dispute Settlement Act. The Commissioner has no power to make an award outside the limit placed by s.45(1) and (3). The State never consented to the settlement payment and NLC’s statement to that effect was incorrect. The award should be quashed.

135. I have addressed these submissions under excess of jurisdiction/ultra vires, duplication and res judicata.

136. On 27/3/80, the Minister declared national land Part of Mt. Hagen township being the whole of NLD No. 341, 476,, 1454, the whole of unregistered Administration land No. 2, 363, 411, 735, 1194, 1462 and 1516 and the whole of Portions 420 and 479, Mt. Hagen Township. A number of claimants lodged claims. On 7/9/83m, NLC awarded K3,175.00 for 14.103 ha of the land situated in NLD 1454 and UAL 2. On 8/3/01, NLC awarded K2.33 million for same land to the Third Respondent. The Plaintiff raises issues of duplication or res judicata which I have dealt with.

137. Mr Kaore for the Third Respondents submit the Solicitor General was served notice of the NLC hearing but failed to attend. The NLC under s.33, 34(4) and s.39(2) of the Act and s.53 of the Constitution, have wide discretionary and procedural powers to admit the claim and make an award it considered just and fair. New awards were made after the State opened its doors for re-negotiations: Michael Nali v. Minsiter for Lands (N1568). Also s.36(2) of the Act which gives protection to Commissioner Marum which is equivalent to that of a judge and s.19 of the Land Act which says the Land Titles Commissioner has the same jurisdiction as that of the National Court. When the award is made under s.45 and Schedule 2, no valuation was done, the livelihood of future generations not considered because customary landowners are totally alienated from the use of the land. Therefore to do justice, under s.53 of the Constitution and as a matter of public policy, the award must be upheld.

138. I have dealt with all these issues under excess of jurisdiction/ultra vires. Further, the Commissioner, regardless of the position he employs as a judge, has no more powers than what is prescribed by the Act.

139. Mr. Simbala for the First Respondent makes similar submissions to those made in Case No. 23 which I have dealt with under excess of jurisdiction/ultra vires and estoppel.

140. On 27/3/80, the Minister declared national land "Part of Mt. Hagen Township" comprising of 434 hectres, "being the whole of National Land Dealings (NLD) No. 341, 476, 1454, the whole of Unregistered Administration Land No. 2, 363, 411, 735, 1194, 1462 and 1516 and the whole of Portions 420 and 479." A number of traditional landowners lodged their claims. On 7/9/83m, NLC awarded K3,175 for 14.103 ha of land. Of land situated between NLD C 1454 and UAL 2 with recommendation for increase by 50% to K4,762.50. On 12/6/2000, NLC made another award for the same land of K7 million to be paid to the Third Respondent. The NLC also awarded to 11 other claimants’ claim over parts of the same land awards ranging from K800,00 to K10 million, a total of around K35 million. These awards are also subject of application for review in these proceedings (see No. 27 – 34).

141. The Plaintiff raises issues of res judicata and duplication. On duplication, under s.43, should have referred the dispute of ownership to the Land Courts under the Land Dispute Settlement Act which I have already dealt with.

142. Mr Koare for the Third Respondent makes submissions similar to those he made in matter No. 25 which I have already dealt with under Case 25 and excess of jurisdiction/ultra vires.

143. On 27/3/80, the Minister declared National land "Part of Mt. Hagen Township land comprising of some 434 ha. The description of the land was "the whole of National Land Dealings (NLD) No. 341, 476 and 1454; and the whole of Unregistered Administration Land No. 2, 363, 411, 735, 1194, 1462 and 1516; and the whole of Portions 420 and 479 Mt. Hagen Township. Various traditional landowners filed claims. On 9/9/83, NLC awarded K3,175 and recommended increase by 50%, up to K4762.50. On 3/8/01, NLC awarded K3 million to the Third Respondent for land UAL 2, 19, 27, 28, 20 and 50, Mt. Hagen Township land.

144. The plaintiff raises issues of duplication, res judicata and estoppel. I have dealt with these issues.

145. Mr Simbala for the First Respondent makes submissions similar to those made in No. 23. I have dealt with those submissions under excess of jurisdiction/ultra vires and estoppel.

146. On 27/3/80, the Minister declared of national land, the land described in No. 27, and the same award made referred to in No. 27 on 9/9/83. On 3/8/01, NLC revisited the award in respect of UAL 2 – Sections 9, 11, 34, 6, 60, 15, 88, 89 and 17, Mt. Hagen Township and awarded K10 million to the Third Respondent.

148. Mr Simbala for the First Respondent makes submission similar to those made in No. 25.

149. Mr. Hagahuno for the Second Plaintiff, Mr Joachim Eka, supports the Plaintiffs. He relies on the affidavit of Joachim Eka (Ex. "I") and submits his client being a member of the Moga Nambunga Clan is the principal owner of Section 15/UAL 2. He submits his client was not informed of the NLC hearings and was unable to register his claim or interest at the NLC hearings. Hence they were denied natural justice. He submits his clients dispute ownership with other claimants so the dispute should have been referred to the Land Courts for resolution under the Land Disputed Settlement Act. Neither the NLC nor this Court has jurisdiction to determine this issue. NLC hearing was conducted in breach of s.34(2) (natural justice), no notice of hearing was given to interested parties (s.34(2). They seek the same orders sought by the plaintiff to quash the order and remit the matter back to NLC for rehearing, to his clients case to be heard.

150. In my view, it appears the Second Plaintiff did not lodge their claim within time. But as interested landowners of the subject Land, they may have a right to be heard before the NLC under s.34(2) and (3). The NLC should hear from them and make a determination itself or refer the dispute, if any, to the Courts. This should happen when the NLC award is quashed and the matter is reheard. What I have said in relation to breach of prescribed procedure equally applies here.

151. On 27/3/80, the Minister declared national land the same land referred to in No. 27. Various landowner groups lodged claims. On 7/9/83, NLC made the award referred to in No. 27. On 3/8/01, NLC revisited the earlier award and awarded K2.5 million in respect of NLD 1454 – Sections 55, 56, 57 and 58. The Plaintiff raises issues of duplication and res judicata which I have dealt with.

152. Mr John Poro for the Third Respondent submits on denial of natural justice the Plaintiffs were given notice of the hearing and they failed to attend. Copies of written submissions of the Third Respondents represented by Mr Wandaki, were forwarded to the Solicitor General but failed to respond. He submits the plaintiff was not denied natural justice. I have dealt with this issue under excess of jurisdiction and ultra vires.

153. In relation to the Third Respondent, Mr. Poro submits the Mogi Paumb Land Groups Inc. should be recognized as the rightful beneficiaries of the award pursuant to an Agreement signed between it and William Wandaki, Principal of Double U Square Consultants.

154. In my view, this is a matter the Third Respondent should raise for determination by the NLC when the matter is reheard. This Court has no jurisdiction to determine who is the rightful beneficiaries of the award.

155. Mr. Simbala for the First Respondent makes submission similar to those made in No. 24 and 25. I have already dealt with them.

156. On 27/3/80, the Minister declared national land the same land referred to in No. 25. Various landowner groups filed claims, some of which conflicted. On 3/8/01, NLC awarded K2.5 Million for NLD 341 – Sections 47, 48, 49 and 53, the same award of K3,175 to be increased by 50% to K4,762.50. On 3/8/01, NLC revisited the previous award and make fresh award of K2.5 million to the Third Respondent. The plaintiffs raised issues of duplication and res judicata. I have already dealt with these issues.

157. Mr. Simbala for the First Respondent made submissions similar to those made in No. 25. I have already dealt with the issues raised by him.

158. Mr. Kaore for the Third Respondent relies on the affidavit of Mr. William Kunjil Keteha and submits the evidence of Luke Kwago shows the two parcel of land, one of 11.9 ha and another of 2.203 ha was not purchased by the colonial administration. The initial NLC proceedings on 9/9/83 did not involve these two (2) lands which was owned by the landowners represented by the Third Respondent. Therefore, NLC was not wrong in awarding the K10 million.

159. Mr. Poro for the Third Respondents makes submission similar to those he made in No.29 (that Moge Pangump Land Group Inc. be paid the money pursuant to agreement between William Wandaki representing the Third Respondent and the ILG).

160. On 27/3/80, the Minister declared national land the land referred to in No. 25. Various traditional landowners lodged claims. On 7/9/83, NLC awarded K3,175.00 and recommended 50% increase up to K4,762.50. On 3/8/01, NLC revisited the award and increased it to K3 Million payable to the Third Respondent, in respect of NLD 341, Portion 946, Section 45, 46, 47 and 49.

161. The Plaintiff submits proper procedure to challenge NLC award is by appeal on grounds of breach of natural justice. However, s.46 does say "subject to the Courts provision under s.155 of the Constitution. Also grounds such as excess or lack of jurisdiction can only be brought by way of judicial review under s.155 of the Constitution.

163. Issues of duplication and res judicata are also raised by the plaintiff. These arguments have been dealt with.

164. Mr Simbala for the First Respondent makes submissions similar to those he made in No. 27. These arguments have also been dealt with.

165. Mr Meten for the Third Respondent contests the orders sought in the Notice of Motion filed under O.16 r.5 and submits the orders are either not available in judicial review or available but the basis for that is not spelt out in the application. In my view, the order sought in para. 2 which is certiorari, is available in judicial review as the primary relief: O.16 r.1(1). Orders sought in para 1, 3 and 4 are consequential orders which can be sought upon grant of certiorari. For these reasons, I reject this argument.

166. Mr. Meten then sets out the procedure in s.33 and 34 as a 5 step procedure as follows:

"Step 1 – Making a claim to the Commissioner and the definition of the admissible claim: Section 39 & 40 of the NLRA.

Step 2 - The Commissioner making a preliminary decision on the admissibility of claims: Section 41 of the NLRA.

Step 3 – The Commissioner assesses claims and makes decision that a person or group who did not make a claim but were entitle to make a claim be joined to make a claim: Section 42 of the NLRA.

Step 4 – The Commissioner’s power of dealing with conflicting claim which essentially involves referring the matter to be dealt with in accordance with provision of the Land Dispute Settlement Act on the issue of customary ownership of the land: Section 42 of the NLRA.

Step 5 – The Commissioner then makes a decision for payment by the State a settlement payment in accordance with section 45 of the NLRA (Amount of Settlement Payment): Section 44 of the NLRA."

167. He submits the plaintiff has failed to identify the decision-making process which was flawed. The Court cannot review the decision itself but the decision-making process: Kekedo v Burns Philp.

168. Further the arguments made by the plaintiff should have been made before the NLC but the State failed to defend the claim after it was given notice of the hearing. For these reasons, the application should be dismissed.

169. I have already dealt with this submission. That is, although the records showed that the State failed to appear, it is entitled to contest the decision or award if it is made without or in excess of jurisdiction or ultra vires. I also reject this argument.

170. In my view, it is sufficient that a decision made under step 5 above, can be challenged on its own on the basis of ultra vires or excess of jurisdiction alone, evident on the face of the record of the decision, as in this case. There is no requirement that such decisions must be made through a decision-making process before it can be reviewed on the grounds of excess of jurisdiction or ultra vires. It is sufficient that the erroneous decision is apparent on the face of the decision itself. For this reason, I reject this argument.

171. On 27/3/80, the Minister declared national land the same land described in No. 27. Various claims were lodged by traditional landowner groups. On 9/9/83, NLC awarded K3,175 with recommendations for increase by 50%, up to K476.50, for NLD 1454 and UAL 2 – Section 35, allotment 14, Section 33 and Portion 668. On 3/8/01, NLC revisited the earlier award and awarded K2 million for the same land.

172. The plaintiff raises issues of duplication and res judicata. I have already dealt with these issues.

173. Mr. Simbala for the First Respondent makes submissions similar to those made in No. 27. I have already dealt these issues under excess of jurisdiction/ultra vires.

174. On 27/3/80, the Minister declared national land the land referred to in No. 27. Various traditional landowners lodged claims, some of which conflicted. On 7/9/83, NLC awarded compensation for land, NLD 1454 and UAL 2 of 14.103 ha in the sum of K3,175 plus 50% recommendation for increase of K4,762.50. On 3/8/01, NLC revisited decision and awarded K5 million.

175. The plaintiff raises res judicata and duplication. It also raised competency arguments it raised in No. 31. These issues have been dealt with.

176. Mr Hagahuno for the Third Plaintiff (Joachim Eka) makes submissions similar to those made in Case No. 28. He further submits his client was not given notice of the hearing. He submits NLC breached s.34(3)(a) of the Act and s.59 of the Constitution by conducting proceedings at Waigani in the Conference Room of the Attorney General’s office, which were not public hearings. As such suspicion and bias surrounds the decision.

177. In my view, what I have said in Case No. 28 and breach of principle of natural justice generally also applies.

178. Mr. Waifaf for Plaintiffs John Anis Molga, John Raina Molga and William Wur Kup Molga of the Unduklimb sub-clan of the Moge tribe relies on various affidavits filed and submits his clients are the undisputed traditional owners of Sections 1, 2, 21, 22, 26 and UAL 2 Section 27. They were not aware of the hearings and awards until 3/8/01 when the Plaintiffs’ Lawyers published notices challenging the awards. As such they were denied natural justice accorded to them under s.34(2) and s.59 of the Constitution. They support the plaintiffs’ application to quash the awards and remit the matter to NLC for re-hearing with opportunity given to them to be heard.

179. In my view, what I have said in relation to Case No. 28 and breach of natural justice generally also applies here.

180. Mr Poro for the Third Respondents makes submissions similar to those he made in matter No. 29. What I have said in Case No. 29 also applies here.

181. Mr Tuva for the Fifth Respondents relies on the uncontested affidavit of Mr Philip Kindi. He submits that the State failed to follow the procedure prescribed by ss.6, 7, 8 and 52 in declaring the land national land. Reference is made to certain record of proceedings of NLC of 7/9/83 which show Mr O’Connor raised issue that the declaration was not made in accordance with s.8(1)(b). This issue was not resolved by NLC. That is, the Minister would satisfy himself that a genuine dispute as to whether the land was validly acquired by the colonial administration, from the customary landowners, before a notice of the declaration is published. Therefore, the subsequent publication of the notice under s.8 was invalid. Since the State breached the law, they have not come with clean hands. He submits the purchasers were not done by the Colonial-administration properly with fair compensation given as directed by the Colonial office. Now that NLC awarded fair compensation that under s.53 of the Constitution, the award should not be disturbed.

182. What I have said under breach of prescribed procedure and excess of jurisdiction/ultra vires also applies to these arguments.

183. On 27/3/80, the Minister declared national land the same land referred to in No. 27. Various traditional landowner groups filed claims. On 7/9/83, NLC made awards in respect of UAL 735, Portion 54, Sections 36, 37, 38 and 18, the sums of K3175 plus recommendation for increase by 50% up to K4,762.50. On 3/8/01, NLC revisited the decision and awarded K3.5 million.

185. Mr Simbala for the First Respondent made submissions similar to those in Case No. 27. What I have said in Case No. 27 also applies here.

186. Mr Poro for the Third Respondents made submissions similar to those he made in Case No. 29. What I have said in relation to Case No. 29 also applies here.

188. On 15/4/99, the Minister declared national land the Rabiamul land (Portions 2, 3, 105, 1044, 1034 and 1055, VAL 89, Rabiamul, Mt. Hagen. Various traditional landowners lodged their claims some of which conflicted. On 18/8/2001, NLC awarded K950,000 to the Third Respondents for land described as Portion 2 and part portion 3, Rabiamul. There is evidence from Mr Kwago that K733,000 was awarded to Double – U Square Consultant Services over the same land on 3/8/01.

189. The Plaintiff submits there was double payment, duplication and res judicata. It is also submitted these were different claims which raised conflicting claims of land ownership which should have been referred to the Land Courts.

191. Mr Simbala for the First Respondent submits the award was made in excess of s.45(1) and Schedule 2 and therefore illegal, improper and invalid.

192. Mr Mawa for the Third Respondents relies on the Third Respondents affidavit and submits the Solicitor General executed Deed of Release with the Third Respondents. The arguments made by various counsel on Deed of Release applies equally to this case. What I have said under Deed of Release also applies here.

193. On 15/4/99, the Minister declared national land Rabiamul land described as UAL 89, Portions 2, 3, 107, 1044, 1054 and 1055. A number of traditional landowners lodged their claims. On 3/8/01, NLC awarded K733,000 over portions 2 and 3.

194. The plaintiff raises issues of duplication raised and res judicata raised. Previously NLC awarded K950,000 to Paul Timbi over Portions 2 and 3, Rabiamul. This is double compensation and res judicata also applies. I have dealt with these submissions under duplication and res judicata.

195. Mr Simbala for the First Respondents makes submissions similar to those made in Case No. 26.

196. Mr Mawa for Third Respondent adopts previous respondent’s submissions on breach of prescribed procedure, excess of jurisdiction and lack of probative value of Mr Kwago’s evidence.

197. What I have said in relation to breach of prescribed Procedure/Ultra vires and the evidence of Mr Kwago equally applies to the submissions by Mr Nii and Mr Mawa.

Settled by Consent order. NLC decision quashed. Matter remitted to NLC for rehearing.

198. On 22/4/82, the Minister declared national land, Dobel land – Portions 838 – 850, 863 and 892. On 18/9/2001, NLC awarded the Third Respondent claimant K3 million over Portions 844 – 850 and 863.

200. On 14/1/99, the Minister declared national land, Koban UAL Portion 373, Mt. Hagen Township, national land. On 2/11/99, the NLC awarded the Third Respondent claimant K800,000 for Koban UAL 373, Portion 413. On 15/11/2001, NLC made fresh order of K6 million to Third Respondent to replace the award of 2/11/99.

201. The plaintiff raises issues of res judicata and duplication raised. What I have said in relation to duplication and res judicata also applies here.

203. What I have said in relation to excess of jurisdiction/ulta vires also equally applies to all these arguments. Further, no constitutional issue arises in relation to Schedule 2.

204. Mr Mambei for the Fifth Respondent, Thomas Manga on behalf of Dupanga Meive clan, relies on Mr Manga’s affidavit and submits the issue of ownership of the subject land is the subject of a judicial review proceeding in OS 708/99 at Mt. Hagen and SCA 109/04 which are still pending. There is evidence that on 6/1/00, the National Court in Mt. Hagen in OS 708/99 ordered that leave be granted to the plaintiff to seek review of the decision by "the Second Defendant" (Nathanias Marum, Commissioner of the National Land Commission) to grant to the First Defendant (Wanis Pem) in respect of property described as Koban – UAL 373 – Portion 413, Western Highlands Province which was declared National land in Gazette No. 141 of 14th October 1999, whereby the commissioner ordered the State to pay the claimants of Koban-UAL 373, Portion 413 – a sum of K800,000.00 as compensation for the said land under the National Land Registration Act." The Court also issued interim orders on 13 November 1999, which was extended on 6/1/2000, restraining the parties from taking any actions under the award until the substitute application for judicial review was determined. Mr Manga says the review has been heard and a decision is pending. He says the award made by NLC on 15/11/2000 was made in "contempt of Court order."

205. On the face of the evidence before me, I accept Mr Mambei’s submission under the other submission. The NLC should not have proceeded to deal with the new application. The award is also invalid for this reason.

206. Mr Mambei submits lack of adequate notice to lodge claim was given (only 15 days given to file claim under s.8), his clients were not aware of the two NLC hearings and was denied natural justice. What I said in relation to breach of natural justice and breach of prescribed procedure also applies to this argument.

207. On 27/3/80, Minister declared national land Part of Mt. Hagen Township land, NLD. Nos 341, 476, 1454, Unregistered Administration Land No. 2, 363, 411, 735, 1194, 1462 and 1516, the whole of Portions 420 and 479. On 11/8/2000, NLC already made an award of K900,000 to the Third Respondent. It appears there was a previous NLC award made in 1983 because according to the NLC decision, it says "this fresh order supercedes previous order dated 9/9/82." Particulars of those proceedings and award is unavailable.

208. The plaintiff raises issue of res judicata and duplication. What I have said under duplication/res judicata also applies here.

209. Mr Yandeken for the Third Respondent refers to the affidavit of John Pori sworn on 13/10/05 and submits:-

210. He also raises similar arguments on estoppel, Locus Standi and excess of jurisdiction. Section 10 of the Act says the provisions of the Act must be read and construed subject to the Constitution and that is what NLC did.

211. In relation to Locus Standi he submits the applicants bring these proceedings under s.155(4) of the Constitution, but it lacks power to review its own decision by reasons of s.36(1) and (2) of the Act and s.1(6) of the Wrongs Miscellaneous Provisions Act (Ch. No. 297). The entire proceedings must be dismissed for lack of jurisdiction.

212. What I have said in relation to excess of jurisdiction/ultra vires also applies to these arguments. The issue of Locus Standi is not open to be raised-in the substantive application. What I have said under competency issues also applies here.

213. On 26/11/87, the Minister declared national land Goroka Township, Section 39 and 102. On 17/7/01, NLC awarded to the Third Respondent claimant K2.6 million.

215. On 27/3/80, Minister declared national land Mt. Hagen Township land, Sections 60, 88, 15, 17, 6, 34, & 10, contained in NLD Nos. 341, 476, and 1454, whole of Unregistered Administration Land Nos. 2, 363, 411, 635 1194, 1462 & 1516 the whole of Portions 420 and 479. On 19/9/2000, NLC awarded the Third Respondent claimant K900,000 in respect of Sections 60, 88, 15, 17, 6, 34 and 10.

216. Mr Mawa for the Third Respondent relies on the affidavit of Paul Timbi sworn 12/10/05 and submits a Deed of Release was executed between the Third Respondent and the Solicitor General on 4/8/04. Submissions made by Mr Kandi and Mr. Murray are adopted. I have already dealt with these issues under Deed of Release.

217. On 27/3/90, Minister declared "Part of Mt. Hagen Township" national land, that is land contested in NLD No. 341, 476 and 1454, the whole of Unregistered Administration Land No. 2, 363, 411, 735, 1194, 1462 and 1526, whole of Portions 420 and 479.

218. On 15/8/00, the Third Respondent lodged its claim. On 11/8/2000, NLC awarded K900,000 to the Third Respondents over land described in the Order as "Part of Mt. Hagen Township" which implies Sections 19, 22, 25 and 50, for which the Third Respondent lodged his claim.

219. Mr Furingi for the Plaintiff submits the Third Respondent lodged his claim outside the time allowed by s.39 and Regulation Section 7. The NLC had no jurisdiction to deal with the claim. It also exceeded its jurisdiction by awarding in excess of the statutory limit placed by s.45(1) and Schedule 2. He also submits there was in existence an award over the same land made in 1983 by NLC. Reference is made to the NLC order of 11/8/00 where it says "that this fresh order supercedes previous order dated 9/9/83." Details of this earlier award are not available. He also submits the State did not agree to the settlement as noted by NLC because it did not appear before the NLC to state its position.

220. What I have said in relation to breach of prescribed procedure and duplication/res judicata also applies to these arguments. I also accept the argument that there was no evidence before the NLC that the State agreed to settle the compensation award sought and/or awarded.

221. Mr Kingal for the Respondent relies on the affidavit of Mr Lucas Roika sworn on 19/5/05 but raises no new issues.

222. On 15/4/99, the Minister declared national land Rebiamul land situated on Portion 2, 3, 105, 1044, 1054 and 1055 of Mt. Hagen. On 5/7/01, NLC made award of K2.8 Million in favour of the Third Respondent in respect of "Part Portion 3 – Rebiamul" land.

224. On 16/3/95, the Minister declared national land whole of the land on which the Township of Angoram is situated. Some 8 claims were lodged by different claimants including the Third Respondent which included Malika Kakle Case No. 20. On 20/2/2000, NLC dismissed 3 claims. Of the five claims, two awards were made for K950,000 to the Third Respondent and K950,000 to Malike Kakle and others. In OS 666/04, the award to Mr Kakle is challenged.

226. Mr Simbala for the First Respondent supports the plaintiff’s action and make submissions similar to those made in No. 27 which I have dealt with.

227. Mr Nidue appears for the Third Respondent and relies on the affidavits of Raphael Digi and Marie Tan. He submits the Third Respondents are not aware of the awards made to other claimants and there is no duplication of awards with OS 731/04. He submits there has been gross negligence on the part of State Lawyers whose duties are governed by the PSM Act in delaying these proceedings. The delay is inexcusable and their negligence cannot be raised as a defence: Rundle v MVIL [1987] PNGLR 44. Proper procedures were followed by NLC in dealing with claims including dismissal of conflicting claims and only admitted 2 of the claims. The application should be dismissed.

228. On the evidence before me, when this case is considered together with Case No. 20, it is clear that the two awards were made in respect of the same land. I am satisfied there was duplication in the two awards. As to the negligence of State Lawyers in prosecuting this application, what I have said under undue delay also applies.

230. On 25/4/91, the Minister declared national land Portions 200 and 201, VAL 51, Kainantu, EHP. On 22/6/01, NLC awarded K1 million to the Third Respondent.

232. Mr Simbala for the First Respondent makes submissions similar to those made in No. 27(?)

233. Mr Jovati for the Second Plaintiff (Ruba Ariku) Neo on behalf of the Tonkera clan, relies on the affidavit of Mr Neo (Exhibit "B") and submits the Towika clan which live in Aiyura Valley, is the traditional owners of the land but issues of ownership have still remained unresolved. They were not made aware of the NLC hearings which resulted in the award. The declaration under ss.7, 8 and 9 were also not brought to their notice. They were denied natural justice, no proper investigation of the Third Respondent’s claim was carried out by NLC in breach of s.l34(4)(b)(i). In any case, the Third Respondents are not the traditional landowners because they do not live in the Aiyura Valley where the subject land is situated. The award was made to the wrong group. He submits the award should be quashed and the matter remitted back to NLC for rehearing.

234. In view of my decision to quash the NLC award and remit the matter to the NLC for rehearing under the main heads of arguments, it is not necessary to deal with the issues raised above. Mr Jovati’s clients can advance their arguments on ownership before the NLC at the rehearing.

235. There was no appearance for the Third Respondent although Mr Paru Tukundu filed an affidavit on 7/12/05 which was not admitted into evidence.

236. On 26/11/87, the Minister declared national land, land entered and numbered 5, 33, 50, 65, 94, 97, 148, 162, 242, 258, 268, 269, 310, 400, 527 and 631 in index Unregistered Administration Land and being the whole of NLD numbers 4, 42, 132, 283, 284, 492, 512, 513, 622, 904, 1425, 1426, 1477, 1598, 1618, 1702, 1899, 1922, 2186, 2373, 2441, 2976, 3010, 3011 and 3343 being part of Goroka and being Portions 310, 365, 383 and 409, Goroka. Thirteen years later, the Third Respondent lodged a claim and he was awarded K350,000 on 12/8/2000. The NLC order states "That this order supercedes previous order of 23-09-1991".

237. The plaintiff raises issues of notice outside the limit and res judicata or duplication.

238. Mr Simbala for the First Respondent supports the plaintiff’s submissions and make arguments similar to those made in No. 29.

240. The Third Respondent did not make an appearance and did not file any affidavit.

241. On 14/12/89, the Minister declared Portion 69. RGM 402, 417, 421 and 642 UAL, Milinch of Bulolo, Fourmil Wau, Morobe Province known as Bulolo Township, national land. On 5/7/99, NLC awarded K800,000 to the Third Respondent and recommended increase by 50% taking the total to K1.2 million.

243. Mr Kaule for the Third Respondent relies on the two affidavits of Niel Baru. He submits:-

244. Mr Muroa for the Fourth Respondent (Gewasa Tuk and Mark Jimmy on behalf of Leklu clan of Bulolo relies on the affidavit of Gewasa Tuk. He submits the evidence shows that the National Lands Commission in 1956 conducted a full hearing into the customary ownership issue of the subject land and determined that the Leklu clan was the traditional land owners. As such they have rights over royalty compensation and other benefits. The Fourth Respondent has been receiving royalty payments over the land following an agreement entered into between PNG Forest Products Ltd and the Fourth Respondent. The Land Courts in the area have recognized the decision of the National Land Commission. The Third Respondent is not the traditional landowner of the land. The Fourth Respondent was not aware of the Minister’s declaration and the proceedings before the NLC. NLC did not give notice of the hearing to the Fourth Respondent and other interested groups. Notice of the hearing to interested parties is a pre-requisite of any hearing involving land: PNG Ready Mixed Pty Ltd v The State & Ors [1981] PNGLR 396. The Third Respondent secretly lodged its claim, the NLC hearings were secretly conducted in Port Moresby and its decision/award was not published to the Fourth Respondent or any other interested groups. A meeting was conducted of all interested groups and their objection was communicated to NLC on 18/3/00, supported by the District Administration of Bulolo. The Third Respondent knew or ought to have known of the National Land Commission decision.

245. Mr Muroa submits the NLLC decision is res judicata, resulted in denial of natural justice under s.34(2) and s.59 of the Constitution, the award is in excess of its jurisdiction. On estoppel, the Fourth Respondents protested the award as soon as it came to its attention therefore, it does not apply to it.

246. He submits the Fourth Respondent would have equally appealed the NLC decision based on denial of natural justice but decided to join the Plaintiff in this application and seek the same orders as the Plaintiff.

247. Mr Hampaleke for the Fifth Respondent (Robert Kakoven on behalf Dangolai Clan of Sambio, Bulolo) relies on the affidavit of Robert Kakoven who says in 1992 thirteen (13) groups including the Fifth Respondents claimed ownership of Bulolo Township Land. The dispute went to the Local land Courts which decided the land belonged to the Mangi Clan. The Fifth Respondent appealed to the Provincial Land Court which quashed the decision and remitted the matter to the Local Land Court for rehearing. The matter is pending hearing by the Local Land Court. In the meantime, the Third Respondents lodged a claim and NLC conducted its hearings. The Fifth Respondent was not notified of the NLC hearing.

248. He submits NLC breached s.34(2), 52, 43 of the Land Registration Act in failing to notify the Fifth Respondent of the NLC hearings and consequently, they were denied natural justice. Also, when the issue of ownership was still pending determination before the Local Land Court, NLC breached s.43 by making an award to the Third Respondent.

249. It is clear from the evidence and submissions made on behalf of the various Respondents that there is a dispute as to the ownership of Bulolo Township Land the subject of the award made by NLC on 5/7/99 is still pending rehearing by the Land Courts pursuant to order made by Provincial Land Court. The NLC proceedings therefore were conducted in breach of s.43(2) of the Act when the Local Land Court convenes to re-hear the dispute, all interested parties who have been joined in these proceedings should be given an opportunity to be heard on their claims. In the meantime, for reasons given already, the NLC award will be quashed and the matter referred to NLC for rehearing. The re-hearing by NLC will be put on hold until the issue of land ownership is determined by the Local Land Court.

250. On 16/12/84, the Minister declared national land, the Kiunga Township Land. On 23/11/99, the Third Respondent lodged his claim. On 12/1/2000, NLC awarded K108,000.

251. Mr Furingi for the First and Second Respondents does not rely on any affidavits but submits the NLC award should be affirmed. He submits the terms of s.45 and Sch. 2 "are wholly inadequate and the results of calculations derived from the formulas do not justify the purpose of the Act." The issue is one of just compensation for the land. The NLC was correct in applying s.53(2) of the Constitution. The NLC determined the procedure for calculating compensation to be under s.53(2) of the Constitution. The NLC determine the procedure for calculating compensation by s.34; it had broad powers in determining the claim based on flexible rules of procedure and evidence. The award should therefore not be disturbed.

252. What I have said under Excess of jurisdiction and Ultra vires also applies here.

253. On 6/12/84, the Minister declared national land the Kiunga Township Land described in DA 1749 and 1955. On 23/11/2000, the Third Respondent was among 3 claimants who lodged its claims. On 22/12/2000, NLC awarded K108,000 to the Third Respondent.

254. Conflicts of claim was not resolved by resort to s.43. Also submit this award is a duplication with No. 49 because two awards were made over the same land. It also raises res judicata.

255. Mr Furingi for the First and Second Respondents does not rely on any affidavit but submits NLC decision should be affirmed for similar reasons given in No. 49.

256. Mr Iduhu for the Third Respondents relies on two affidavits of Patoro Ako. On undue delay, he submits there has been an undue delay in making the application. In the meantime, the Third Respondent was paid part of the award of K60,000 on 1/12/04. The State has not made part payments of awards to other groups (OS 38/05, OS 662/04, (full award settled). It would prejudice the rights and cause financial hardships to the Third Respondent if the balance is not paid: O.4(1), NCR.

257. On equitable estoppel, it is submitted it is grossly unfair for the State to deny the Third Respondent of the balance of the award because the plaintiff in OS 662/04 settled an award of K950,000 and withdrawn the application. By its conduct it should be estoppel for contesting this award.

258. On excess of jurisdiction or ultra vires, he submits NLC had broad powers to determine its own procedures and its decision to apply s.53 of the Constitution was with its powers.

259. In relation to arguments over s.7-9 notice and lodgment of claims and conflicting claim, these issues are irrelevant to the proceedings.

260. On denial of natural justice, he submits this ground can only be raised in an appeal under s.46 and not in a judicial review.

261. What I have said in relation to excess of jurisdiction, ultra vires and equitable estoppel and breach of prescribed procedure also applies to these submissions. In relation to the unfairness of withholding the balance of the award, the result of allowing the balance to be paid is to exceed the prescribed limit and this should not be permitted. In relation to s.46 argument, breach of natural justice is traditionally a ground upon which a decision of the tribunal can be quashed on judicial review. It is open to the State to raise it on review but in this particular case, the State has not raised it as a ground.

262. On 6/12/84, the Minister declared Kiunga Township Land described in DA 1749 and 1955, national land. The Third Respondent lodged his claim on 23/11/2000. On 22/12/2000, NLC awarded K108,000.

264. Mr Iduhu for the Third Respondent makes submissions similar to those made in No. 50. The Third Respondent received part payment of some K24,000 on 1/12/04 and 20/5/05.

267. Before I hear parties on costs, let me say that it is apparent from my criticism of the NLC as then constituted by Commissioner Marum, that the NLC must pay for the costs of all parties and lawyers who have appeared before this Court. This kind of behaviour must not go unpunished by an order for costs. If it was not for s.36 of the Act which confers to Commissioners the same immunity accorded to judges, I would have not hesitated to apportion part of the costs to be personally met by Commissioner Marum. It is worth noting that the NLC, I presume headed by the new Chief Commissioner has been courageous in taking the right step to support the plaintiff in these applications.

268. In my view, it is only fair that the State as the nominal defendant, in these proceedings must pay the taxed costs, of all respondents including those parties who were later joined, either as plaintiffs or respondents, but not the costs of the First, Second and Third Respondents. Costs include costs awarded in the course of the proceedings. Costs must be paid on a Solicitor-Client basis. I will now hear any counsel who may wish to be heard on whether I should exercise my discretion on costs differently.

Having heard counsel appearing for the parties, I make the following order on costs:

"The plaintiff shall pay the costs, if not agreed then to be taxed, of all respondents including those who were later joined, either as plaintiffs or respondents, but not the costs of the First and Fourth Respondents. Costs includes incidental costs incurred by all respondents and other plaintiffs, except the First and Fourth Respondents. The plaintiff shall also pay the Second Respondent’s costs. Costs must be paid on a solicitor-client basis."

National Court of Papua New Guinea

Gabi v Nate [2006] PGNC 178; N4020 (30 November 2006)