Yamin v Zambu [2006] PGNC 34; N3038 (15 February 2006)

N3038

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

OS. 940 OF 2005

IN THE MATTER OF CHUAM LAND and IN THE MATTER OF APPLICATION SEEKING LEAVE TO APPLY FOR JUDICIAL REVIEW OF A DECISION OF THE LOCAL LAND COURT dated 17 December 2002

BETWEEN:

TUGU YAMIN

(Plaintiff)

AND:

CHARLIE ZAMBU

(First Defendant)

AND:

HOSEA WAYU and SILAS SIBISA as Land Mediators
(Second Defendants)

AND:

PATRICK BAIWAN as Local Land Court Magistrate
(Third Defendant)

LAE: Kirriwom, J
2005: 20th December
2006: 15th February

JUDICIAL REVIEW – Application for leave to apply for judicial review of Local Land Court decision – Mediation Agreement – Agreement reached contrary to law – Leave granted – Land Dispute Settlement Act, ss. 18 & 19

Counsel:

K. Aisi for the Plaintiff/Applicant

15th February 2006

RULING

KIRRIWOM, J:

1. This is an application for Leave to apply for judicial review. Leave is sought for the review of the decision of the Local Land Court dated 17 December 2002.
   
2. The law on application for leave to apply for judicial review is amply demonstrated in the numerous caselaw authorities in this jurisdiction, many of which have been usefully discussed by Michael Ntumy in his book ‘Leave Applications for Judicial Review, Law and Practice printed and published by Universal Press Port Moresby in 1996. In the introductory chapter the learned author succinctly sets out at p.15 summary of the main pre-requisites for leave to apply for judicial review as determined by caselaw. They are:
   
   1. Standing or locus standi of the applicant. This involves the question of whether the applicant has sufficient interest to bring an action in Court.
      
   2. An arguable case whether the applicant’s concerns raise any serious or fundamental legal issues.
      
   3. Exhaustion of administrative remedies whether the applicant pursued all available remedies and is now pursuing judicial review as the last resort.
      
   4. Delay – whether the application is made without undue delay or within reasonable time.
      
3. The Plaintiff had not exhausted the remedies available to him under the Land Dispute Settlement Act where he must appeal the Local Land Court decision to the District Land Court or Provincial Land Court. However he had delayed in exercising that right of appeal and lost that right years ago. Under sections 54 and 55 he had three months to lodge his appeal with the Provincial Land Court or the Local Land Magistrate who presided at the hearing of the dispute the decision in relation to which is appealed against. At the time these proceedings were filed close to three years had lapsed which is already well and truly outside the time period stipulated for appeal. The Plaintiff therefore invokes this special process which requires him to fulfil certain qualifications and substantial merits for leave to be given to him to review the decision of the Local Land Court in question.
   
4. The application is made ex parte which is consistent with the Rules O.16 r.3(2) National Court Rules and is pursued by way of Originating Summons, Statement in Support, Affidavit verifying Statement in Support and a Notice of Motion. Usually where the Plaintiff also seeks injunctive orders ex parte, he must give a usual undertaking as to damages by filing an appropriate instrument stating to that effect.
   
5. In this case after almost three years of the Local Land Court decision being in force the Plaintiff seeks orders from this Court: (1) leave to apply for judicial review of that decision (2) stay of enforcement of that decision (3) restraining the First Defendant from utilizing or otherwise dealing with the land known as "Chuam" Land, Yatsing village Markham District and (4) costs to be paid by the Defendants.
   
6. Appropriate notice of the application has been given to the Attorney General and upon perusal of the Statement in Support besides the Originating Summons, I am satisfied that the Plaintiff has sufficient interest in the matter although he is well and truly late in coming to the Court. This factor needs to be weighed very carefully in the light of the merits of his case and whether justice required granting leave or refusing leave, given the fact that at both ends of the equilibrium of the scale of justice there are human beings as beneficiaries of this balancing act.
   
7. After several mediations between 31 May 2001 and 6 November 2002 over the land known as ‘Chuam’ Yatsing village, an agreement was purportedly reached between the disputing parties which was subsequently approved by the Local Land Court on 17th December 2002. However the Plaintiff claims that he was not a party to that agreement if there was one, and his views were not obtained by the Local Land Court Magistrate prior to approving such an agreement that did not have his signature on it.
   
8. The Plaintiff contends that the parties were still in the mediation stage and were still trying to understand the minutes of the earlier meetings which he did not agree with when the First Defendant took it upon himself to fast-track the mediation into an agreement without him and others. In doing so the First Defendant breached section 18 of the Land Dispute Settlement Act and the Third Defendant likewise breached section 19(2) of the said Act because he was not notified.
   
9. In the substantive hearing of the judicial review if granted leave, the Plaintiff is seeking an order in the nature of certiorari to bring before this Court the decision of the Local Land Court of 17 December 2002 which approved the Land Mediation Agreement pursuant to section 19(1) with a

view to having it quashed on the basis that it was made in breach of section 19(2) and (5) Land Dispute Settlement Act as there was no Agreement between the parties by mediation for approval to occur and as such the matter must return to the Local Land Court for fresh hearing.

10. In order to appreciate the importance of the law relating to mediation agreements, I set out the relevant provisions below which succinctly spell out the requirements as stipulated therein:
    

"18. Agreements.

(1) If an agreement is reached between the parties to a dispute as to the whole or part of the dispute, the Land Mediator shall-

(a) record that an agreement has been reached; and

(b) unless he thinks it inappropriate to do so—record the terms of the agreement; and

(c) ensure that the terms of the agreement are understood by the parties and are formally and publicly acknowledged by or on behalf of the parties; and

(d) where the terms of the agreement are recorded—forward a copy of the record to the nearest Local Land Court.

(2) Where the terms of an agreement include agreement as to the location of a boundary, the Land Mediator shall—

(a) as far as practicable, walk the boundary with the parties; and

(b) unless he thinks it impracticable to do so, direct the parties-

(i) to inform him of all prominent natural features located on the boundary; or

(ii) to mark the boundary in such manner and with such marks as he thinks appropriate; and

(c) record the boundary in such manner as he thinks will enable it to be readily identified; and

(d) record the names of not less than three witnesses who are prepared to testify to the position of the boundary as determined in the agreement.

(3) A Local Land Court to which a record is forwarded under Subsection (1) shall forward copies of the record—

(a) to the Provincial Land Court for the province in which the land is wholly or partly situated; and

(b) on request, to any Local-level Government in whose area the land in dispute is wholly or partly situated; and

(c) on request, to the parties to the dispute or any of them.

19. Approval of agreements.

(1) The parties to an agreement may apply to a Local Land Court to have the agreement approved.

(2) On receiving an application under Subsection (1), the Court shall make such inquiries as it thinks necessary to ensure that-

(a) the terms of the agreement are fully understood by the parties; and

(b) where a party to the agreement consists of more than one person, a substantial majority of the persons comprising the party concur with the terms of the agreement; and

(c) the agreement is not in breach of any law, or contrary to natural justice or public policy.

(3) Where the Court is not satisfied as to any matter specified in Subsection (2), it may-

(a) mediate between the parties in order to reach a satisfactory agreement; or

(b) by order direct the Land Mediator who mediated the dispute or another Land Mediator specified in the order to conduct further mediation, with, if it thinks fit, a direction as to how any defect in the original agreement might be overcome.

(4) Where further mediation has been carried out under Subsection (3)(b) and an agreement has been reached and recorded, the parties may re-apply to the Court to have the agreement approved in accordance with this section.

(5) Where the Court is satisfied as to the matters specified in Subsection (2), it may approve the agreement.

(6) An agreement approved under Subsection (5) has effect as an order of a Local Land Court made under this Act.

20. Effect of agreements.

Until approved under Section 19—

(a) an agreement is, in any legal proceedings, evidence of the interests of the parties to the agreement in the land in dispute as at the date of the agreement; but

(b) the agreement or any admission or concession made by a party in arriving at the agreement, is not binding on a party, his heirs, successors or assigns."

11. The purported mediation agreement is worded in these terms:
    

‘We, Yatsing Clan the Parties to a dispute over interests in Land known as ‘Chuam’ hereby make approval of agreement reached by us after mediation on the 6th November 2002.

The Terms of the Agreement are:

Ownership of the land Chuam now shall rest upon the said Charlie Zampu and his family members to take all according to the mediation minutes above.

Signed Signed

Parties to the Dispute

Dated 6th November 2002.’

Certified by Hosea Wayu and Silas Sisiba Land Mediators, both of whom also signed.

12. In support of this application the Plaintiff relies on the affidavits deposed to by himself sworn 1st October 2005 and Adam Alari sworn 30th August 2005.
    
13. I have read and studied both affidavits. I am particularly impressed by the evidence placed before the Court and I believe they raise very substantial issues which clearly demonstrate that the Plaintiff has an arguable case as much as there were clear breaches of the law if the Plaintiff were believed.
    
14. I reproduce below the affidavit of Adam Alari I alluded to earlier wherein he states:
    
    1. I am the Patrol Officer of Markham District and I am the Officer in Charge of all Land Mediations taking place within Markhma District, Morobe Province
       
    2. I am aware of the matter relating to the land dispute relating to the "Chuam" land between the Plaintiff and the First Defendant.
       
    3. There were two mediations over "Chuam" land by the Land Mediators. The First mediation was held on the 31st of may 2001. the second Mediation was convened on the 6th November 2002, where I was involved as the secretary responsible for taking all the minutes.
       
    4. Although, the Second Mediation was completed, thee were disagreements raised over the mediation minutes by the parties by saying that the minutes do not correspond exactly as the words they said in the course of mediation proceedings. I therefore, advised the parties that thee will be a third and final Mediation to set by my office sometimes in the year 2003 in my letter dated 22nd November 2002.
       

Annexed hereto and marked with the letter "A is the true copy of my letter.

5. By letter of 29th of November 2002, His Worship Sasa Inkung, a District Court Magistrate in Lae, wrote to the District Administrator of Markham District and queried as to why there was a delay in the Approval of Agreement between the parties in this matter.

Annexed hereto and marked with the letter "B" is the true copy of the letter dated 29th November 2002.

6. I therefore, as the officer in charge of Land matters in and around the Markham District, replied to His Worship, Sasa Inkung’s letter advising him that I had no power to make a decision. The parties had to agree so that the matter can be resolved quickly. If not, than the mater has to be referred to the higher Court for further hearing.
   

Annexed hereto and marked with letter "C" is the true copy of the letter.

7. However, on the 20th August 2003, I was surprised to receive a copy of a sealed Approval of Agreement (Form 10), pursuant to Land Dispute & Settlement Act Chapter 45 from the Local Land Court, Lae. The land was awarded to the First Defendant by the Local Land Court.
   

Annexed hereto and marked with the letter "D" is the true copy of the sealed Approval of Agreement (Form 10).

8. Furthermore, I note that the Approval of Agreement was signed on the date of the second Mediation in which I in fact deny any knowledge of or any witness to this fact. This Approval of Agreement was endorsed and sealed by the Local Land Court, Lae on the 17th of November 2002, without scrutinizing carefully and determining the facts whether or not the disputing parties have agreed and consented to the Application for Approval of Agreement. The Court can not approve an agreement when there is no agreement made.
   

Annexed hereto and marked with letter "E" is a true copy of Approval of Agreement.

9. I immediately wrote a letter on the 28th of August 2003 and advised the parties that there has been Approval of Agreement endorsed and sealed by Local Land Court, Lae. I further, advised them to come to my office for advice so that the matter can be taken to the higher Court.
   

Annexed hereto and marked with the letter "F" is a true copy of my letter.

10. In fact, to the best of my knowledge and belief the parties have not consented to the signing and sealing of Approval of Agreement pursuant to Form 10 of the Land Dispute & Settlement Act, Chapter 45.
    
11. Furthermore, the matter, was supposed to be mediated for the third time before any referral to the Local Land Court because of the fact that the parties have not agreed to the minutes of the Mediation.
    
12. Sometime in September 2003, I attended the District Court, Lae, and enquired with His Worship Roap Gemung whether or not this matter can be appealed. He advised that the appeal period has lapsed. This therefore, left the Plaintiff with no hope as to whether or not this matter can be pursued in the higher court.
    
13. I am surprised that the Local Land Court saw fit to endorse the Application for Approval without the consent of the parties in the Land Mediation.
    
15. I must say that I am somewhat flabbergasted by the four-paged hand-written letter signed by the Magistrate from the Lae Court Box 414 Lae dated 29th November 2002 and addressed to the District Secretary Mutzing Station Kaiapit District with the subject heading ‘ALLEGATION CONCERNING CHUAM LAND DISPUTE’ where he accused the Kiap Adam Alari who was very heavily involved in the mediation process as an officer of the State of unduly interfering with due process of mediation. This is referred to in paragraph 5 of Adam Alari’s affidavit and which accusation Mr Alari refuted by letter addressed to the Senior Magistrate Court House PO Box 414 Lae. The letter was sent under the letterhead of Morobe Provincial Administration Division of Provincial & Local Level Government Affairs dated 16 December 2002 and signed by Adam Alari, Patrol Officer – Lands.
    
16. The letter from the Magistrate to the District Secretary, Mutzing Station referred to above read in part as follows:
    

"It is becoming too obvious that there is some foul play in avoiding the implementation of the decision of land mediators concerning the above named land.

Firstly, it was a majority decision in the declaration of ownership to Mr Charlie Zampu (Yatsing Clan) on understanding that the Form 10 – Approval of Agreement is to be taken place. The Kiap concerned, Mr Adam was present when majority of other clans confirmed Mr Charlie Zampu as the owner.

However on Friday 15th of November 2002, the losing parties were at Mutsing Station from morning till late 5 pm. This visit is very suspicious and the result of that meeting is a letter from Mr. Adam nullifying the decision with a view of having another dispute (3rd mediation). Why is this sudden recommendation made without the presence of Mr. C. Zampu? This meeting do not make sense because it is done with no concern for the principle of natural justice. Secondly, Mr Adam is making a mockery of the decision of the mediators. As far as I am concern Mr Adam has no power to intervene on the very declaration made by the mediators within the provisions of Land Dispute Settlement Act.

Another suspicion is the continuous visits by the relatives of Mr Bayu Ibrang to Mediator – Hosea’s village. This become too obvious on Saturday 16th and Sunday 17th of November 2002. This visit is also unnecessary and is open to be investigated.

It is quite obvious that what derived from the mediation at Yatsing is seen to be a complete chaos with no respect for the constituted mediation process.

Mr C. Zampu question the lengthy visits of Mr Bayu with Adam on the 15th November and the continuation of visits to Mr. Oscar’s village as of 16th and 17th November 2002. All this factors then pointed to the visit of Mr Hosea for the signing of the Agreement. Whilst in here Mr Adam once again display his interference by stopping Mr Hosea in carrying out his job. Why is Mr Adam so heavily involved in the interference of the process of signing? Has he got any interest on this land, and if so he needs to explain the visit of Mr Bayu to his office from morning till late 5-00pm likewise Mr Hosea needs to explain why he is accepting the continuos visit of Mr Bayu’s relatives as of 16th and 17th of November 2002.

I view this events as another set back to the interests of mediation as allowed by law. The events of 15th, 16th and 17th of November 2002 to Mr Adam and Mr Hosea needs to be investigated simply because their dealings with the other party without the presence of Mr. C. Zampu is questionable".

17. The reply from the Kiap Adam Alari to the Magistrate also referred to earlier state in part, the following:
    

"I refer to your letter of the above reference to the District Administrator, Mutzing dating 29th November,2002. Please find below my comments in brief.

Dispute/disagreement was raised in the District Lands Office straight after the release of the mediation minute of Chaum Land as attended on the 06th November, 2002.

The arguments in office by Mr. Tugu, Mr Bayu and their party were heated and accused the land mediators and myself of being under bribery to be in favour of Mr. Charlie.

Their complaints had been stated on my letter to all parties on the 22nd November, 2002 with my recommendations at the conclusion of the letter.

As only a junior officer, I appreciate your concern towards this disputed land. I am not a Morobean and am not interested in a land ownership title as you are claiming in your letter because I will never be given one, no matter how hard I try. I also understand that in a mediation, the disputing parties have the power to make a decision and the land Mediators does not have the power in an unsuccessful mediation, this also applies to the lands officers. If the mediation is unsuccessful or if there is still complaints, the matter is to be referred to further mediation or to the higher Courts of which land Magistrates like you who have jurisdiction may make your decision.

The continual visits by Mr Tugu and Mr Bayu’s party to my office is to the fact that they were not too happy with the outcome of the mediation minute, which had been explained.

You mentioned about the Form 10 which, I would not allow at this stage is simply due to the fact that all partiesinthat particular land dispute have to sign together to effect the agreement since all parties are registered parties to this land Dispute. This is self-explanatory in the Land dispute Settlement Act, Chapter 45, section 19.

You mentioned for me and my land mediator, Mr Hosea Wayu to be investigated due to continual visit by the other parties without Mr. Charlies Zampus concern. Be informed that this office here is a public office of which we are paid by the Government of the day to serve the public who come to our presence seeking assistance. I see all my clients in office and not in a corner somewhere. If you still insist to have us investigated, please do not hesitate to do so.

Otherwise, I appreciate your involvement in this matter and I am looking forward in co-operating with you to sort this matter out amicably".

18. Such inflammatory correspondence from Court officials to Government officers whose involvement in the judicial process are mandatory by operation of the relevant statute (ie Land Dispute Settlement Act) can only produce negative results than find solution between the parties in dispute.
    
19. It is clear that the author of the letter from the District Court to the District Manager of Mutzing District was pursuing an outcome in a mediation agreement that clearly did not meet the requirement of section 18(1) and (2) of the Land Dispute Settlement Act as the parties were still disagreed as to the Minutes of the Mediation Meeting. Approval of Agreements under section 19 only apply when requirements of section 18 have been fulfilled. On the evidence before me, that is not the case.
    
20. This is a classical example of judicial impropriety where a Magistrate is sticking his neck out in a land dispute that was subject of mediation hearing under the Land Dispute Settlement Act in favour of one party to that dispute. Judicial officers must avoid where possible, responding or reacting to parties’ or litigants’ on-going disputes that are subject of judicial inquiry before the court other than in their judicial capacities so as to avoid accusations of possible conflicts of interest.
    
21. In the midst of these disagreements between these two officers of the State in their endeavours to bring speedy and at the same time just and fair disposition of the dispute between the parties, some form of mediation agreement gets the approval of the Local Land Court which is now the subject of this judicial review application.
    
22. I am convinced that the Plaintiff has sufficiently demonstrated an arguable case and despite the delay I grant him leave to apply for judicial review. Apart from serving the documents in this proceeding on the parties named herein, the Plaintiff is reminded of the requirement of O.16 r.5(4) National Court Rules in that he must set this review down for hearing within twenty-one (21) days from today.
    
23. I make no order as to costs because under O.16 r.3 this application is meant to be made ex parte and none of the parties named herein is present to be heard on costs. Costs for this hearing shall be costs in the cause.
    

Lawyer for the Plaintiff: Steeles Lawyers