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National Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
OS NO. 1123 OF 2005(JR)
BETWEEN:
PNG FOREST AUTHORITY
First plaintiff
AND:
TERRY WARA, MARK MARTIN, AMIN DANIEL AND MARK PETUEL
AS OFFICERS OF PNG FOREST AUTHORITY
Second plaintiffs
AND:
IARE TRIBE
First Defendant
AND:
MARTIN KOIVI, AKU LARE, PATRICK KAIRI AND MICHAEL KOVODUVIA
ON BEHALF OF THEMSELVES AND ON BEHALF OF THE KAURA TRIBE
Second defendants
Waigani: Injia, DCJ
2007: 15th October
2008: 27th June
JUDICIAL REVIEW – plaintiff seeking review of decision of Provincial Land Court – review of matters arising from appeal from Local Land Court – LLC declared first defendants as true customary land owners of land – second defendants appealed to PLC and first defendants also applied to same court for some interim orders – PLC magistrate determined appeal and all other interim applications – Order 16 rule 1 National Court Rules
JUDICIAL REVIEW – practice and procedure - review sought is in relation to certain matters on the PLC’s decision and orders on matters arising from its final decision on appeal - general issue - whether PLC had jurisdiction to vary its final orders after it had delivered its final decision on appeal – effect of - differences between orders on appeal and subsequent interim orders of PLC magistrate
JUDICIAL REVIEW – practice and procedure - PLC a creature of statute and court cannot assume power that it is not expressly conferred by statute - no express power given to PLC by Act to vary a final decision on an appeal made under s 59 of the Act – effect of - magistrate misconceived appellate powers - application for judicial review granted - order of certiorari issued quashing orders of Provincial Land Court - sections 59 & 60 Land Disputes Settlement Act
Cases Cited:
Pig and Masa Islands [1974] PNGLR 235
The State v Richard James Giddings, Magistrate of the District Court at Laigam [1981] PNGLR 423
Wena Kaigo v Siwi Kurundo [1976] PNGLR 34;
Counsel:
J Haiara, for the plaintiffs
C Kup-Ogut, for the respondents
27th June, 2008
1. INJIA, DCJ: This is an application for judicial review made under O16 of the National Court Rules. The plaintiff seeks review of a number of decisions made by the Provincial Land Court (PLC) sitting at Waigani in relation to matters arising from its final decision on an appeal from the Local Land Court (LLC) sitting at Kerema. The application is contested.
Grounds of review
2. There are seven (7) grounds of review as set out in the Statement filed under O 16 r 3, as follows:
"1. The decision or order of the Waigani Provincial Land Court in PLC No.1 of 2005 made on 12th December, 2005 especially Orders No. 1, 2,3,4 and 5 are ultra vires under the Land Dispute Settlement Act.
Issues for determination
3. The plaintiffs raise seven (7) issues for determination, which arise from the grounds of review, as follows:
Case background
4. In this application, the decisions of the LLC and PLC on appeal are not the subject of review. The review sought is in relation to certain matters on the PLC’s decision and orders on matters arising from its final decision on the appeal. The general issue is whether PLC had jurisdiction to vary its final orders after it had delivered its final decision on the appeal under s 59 of the Land Dispute Settlement Act (Ch 45).
5. It is necessary to trace the PLC’s decisions and such matters from the beginning in order to understand the context in which the grounds of review and issues are raised.
6. The land the subject of proceedings before the LLC and PLC is described as "Purari East and West Bank" land ("the land") which is situated in the Ihu District of the Gulf Province. The land is part of an area in which there is a timber project conducted by Rimbunan Hijau Ltd and Turama Forest Resources Ltd under certain timber permit issued under the Forest Act 1998. Royalty and other benefits due to forest resource owners are managed by the National Forest Authority (NFA) under this Act. Since the project commenced, the customary land owners of the land namely, the Kaura tribe and the Iare tribe (respondents in this application), were locked in a bitter dispute over ownership of the land in question. The resolution of the dispute was processed under provisions of the Land Dispute Settlement Act.
7. In 2001, the LLC sitting at Kerema heard the dispute. On 7th August 2004, the LLC pronounced its decision. The LLC declared the Iare Tribe to be the true customary landowners of the land. The LLC further ordered that "all timber and any other resource development royalties be paid to Iare tribe and not Kaura tribe".
8. The Kaura tribe appealed this decision. Pending determination of the appeal, the Iare tribe applied before the PLC at Waigani, for certain interim orders regarding the payment of timber royalty payments. The court heard the application and handed down its decision on 5th May 2005. Apparently, the PLC magistrate who heard and determined the application went on to hear and determine the appeal and all other related applications, the decisions of which are the subject of this application. The Court handed down a 6-page written ruling which appears on pages 17-22 of the Review Book. The Court granted the interim orders in the following terms:
"1. That all royalty monies due to the Landowners in the sum of K1,511,579.92 or a sum to be confirmed by the National Forest Authority and the Contractors to be held in Trust by the National Forest Authority. A Trust account is to be opened for this purpose.
9. When the matter returned on 24th May 2005, the Court made the following orders:
"1. The National Forest Authority make available funds out of the sum of K1,511,529.92 for the hire of a helicopter or whatever medium of transport for the party to formally view the entire Purari East and West Bank timber resources now being harvested by Rimbunan Hijau and Turama Forest Resources.
Court Order: Matter returnable within 7 days on 08/06/05-10am. Formal directions to National Forest Authority to fund inspection to be drawn up. Orders on my Interim Ruling also returnable on the same date."
10. The magistrate heard the appeal at Waigani. On 1st September 2005, the magistrate delivered a 15-page written judgment. The Court quashed the LLC decision and made orders which appear on the last page of the written judgment, as follows:
"1. The appellants are awarded what is generally known as the Purari East Bank and Vailala FMA 3 extension with certain exceptions.
11. On the same day, after handing down his decision, the magistrate issued a minute of the orders made under his hand. Apart from the different in structural format, some of the terms of this order are not in the same terms as the orders contained in the written judgment. I reproduce the terms of this order in full below and underline the parts which I consider to be materially new, as follows.
"Upon hearing the Appellants and Respondents in this appeal pertaining to customary land known as Vailala Block 2 and Block 3 and Purari East and West Bank of the Purari River landmass in the Ihu District of the Gulf Province.
AND FURTHER, upon being proved that the Kerema Local Land Court decision made ex parte of 7th May 2004 was against the principles of natural justice and therefore null and void.
The Provincial Land Court order that the appeal is affirmed and the decision of the Local Land Court is quashed and order in the opinion of the Court will dispose of the appeal and dispute, declare that the Kaura tribe are the genuine customary landowners of the whole of the Land (ie. Vailala Blocks 2 and 3 plus the East Banks and West Banks.
Except, "KAE VARIA" or "KAMUPENI" is owned by small group of Iares who live there. The boundary being 2km radius on both West and East Bank of small Purari. The rest is owned by the appellants. As well as a small village where the survey mark ends is owned by small group of Iares who live there. The boundary being 2km radius on both West and East Banks of small Purari. The rest is owned by the appellants at the point of boarder with neighbouring tribe.
I further declare Kauras are legitimate party to enter into Forest Management Agreement and they be paid outstanding royalties held in Trust. The court also revoke its previous interim orders.
It is not appropriate to levy costs in this type of proceedings.
The appeal deposit is refunded."
12. One of the material differences in the two orders is that in clause 1 of the order in the written judgment, the Kaura tribe was awarded Purari East Bank plus Vailala FMA 3, with the exception of the small villages of Kamupeni, situated along the small Purari and another village on the West bank, measuring 1km radius on all sides. In clause 2 of the order in the judgment, the Iare tribe was awarded Purari West Bank commencing from the airstrip down to Mapio village. In the minute of the order issued on the same day however, the Kaura tribe is declared the genuine customary landowners of the "whole of the land, that is, Vailala Blocks 1 and 3 plus the East and West Banks", with the exception of Kamupeni and Kae Vaira village lands. There is no mention of Iare tribe’s ownership of the West Bank awarded by clause 2 of the order in the written judgment. This order divested the Iare tribe of its rights over the West Bank as declared in the order contained in the written judgment.
13. On 6th September 2005, the respondent’s lawyer filed and took out another order purporting to be in terms of the orders made on 1st September, 2005, signed by the same Magistrate. But this order is dated 6th September and entered on 6th September. Some of the terms of the order are materially different to the order contained in the written judgment. I have chosen to compare this order with the orders stated in the written judgment because I am not fully appraised of the circumstances in which the minute of the orders issued by the Magistrate later. I have underlined those parts which are materially different. The order is in the following terms:
"THE COURT ORDERS THAT:
1. Appeal is allowed.
2. The decision of the Local Land Court is quashed.
3. The ownership of the West Bank is awarded to the Respondent Iare Tribe.
4. The ownership of Vailala Blocks 2, & 3 East Bank is awarded to the Appellants.
5. The (small) groups of Iare (Tribe) villagers Kae Varia or Kampeni (where Paul Omae was born) encompassing a two (2) kilometers radius, East, West, North and South to Aroia Kurua on the East Bank of Purari is awarded to Paul Omae of Iare Tribe.
6. Any monies held in trust to be paid to the Appellants with Paul Omae’s portion as per paragraph 5 of this order.
7. Each party to pay its own costs.
8. The interim orders of the Provincial Land Court dated 4th May and 24th May are discharged."
14. Three are three main material differences between this order and the first order set out in the written judgment. First, in order No.3, supra, West Bank is not defined as it was done in order No. 2 of the first order. The Iare tribe is awarded the whole of the West Bank without any boundary prescription. Second, in order No.4, supra, the Kaura tribe is awarded the land described as "Vailala Blocks 2 and 3 East Bank" which appears to be a description of one land, whereas in order No.1 of the first order, Kaura tribe was awarded "Purari East Bank and Vailala FM3 extension". The Kaura tribe was divested of its rights over the Purari East Bank given in the first order. Third, Order No. 5, supra, vests exclusive ownership of Ka Varia land and Kampeni land on Paul Omae. In the first order Paul Omae was given no such ownership rights; it was the Iare tribe which was vested with collective ownership rights.
15. On 5th December 2005, the respondents filed a Motion for contempt against the second plaintiffs for failing to comply with the orders of 1st September 2005. In the same notice of motion the respondents sought an alternative order that the magistrate revisit his decision made on 1st September 2005 "in awarding general payment and order specific lump sums payable to the party or parties through their lawyers". On 12th December, the Magistrate heard the parties on the first part of the orders sought in the Motion and delivered a 7-page written decision. The magistrate made orders as follows:
"1. All monies paid to Kaura Tribe from Orders of 1st September 2005, be equally paid to Iare tribe through Manu & Associates Lawyers Trust Account within 7 days.
2. All royalties premiums Agricultural levies and all other levies paid to Kaura Tribe be equally paid to Iare Tribe through Manu & Associates Lawyers Trust Account since inception of the Project to date of this judgment within 7 days.
3. The National Forest Service make available all records of all payments made to Kaura Tribe to the Lawyers of the Applicant/Respondents within 7 days.
4. The National Forest Service and the Developer, Frontier Holdings Ltd within 7 days convene a meeting with the Iare Tribe representatives with their Lawyers to review and draw up a new Project Agreement with a view of including the Iare Tribe in the FMA Agreement.
5. In the event the National Forest Service do not comply with the orders within 7 days the named National Forest Service Officers, Terry Wara, Mark Martin, Amen Daniel, and Mark Patueli appear before this Court to answer to charges of Contempt of Court Orders of 1st September 2005 and this Court Orders.
6. If the named National Forest Service Officers above comply with the above orders within 7 days, the officers provide proof of all royalty payments and records through the Respondent/Applicants Lawyers and there is no need for appearance in Court by those National Forest Officers.
7. Each party pay the costs."
16. On 12th December 2005, the magistrate dealt with the second part of the respondent’s Motion filed on 5th December 2005. The Court delivered a 3-page written decision which is found in pages 109 – 111 of the Review Book. The magistrate made certain observation which clarified certain aspects of his decision made on 1st September 2005 and then affirmed his earlier decision to find the said officers guilty of contempt and adjourned the matter to 19th December 2005.
17. On 19th December 2005, the magistrate found the officers had failed to comply with his orders and issued Warrants for their arrest.
18. On 20th January 2006, the matter returned before him once more because he wanted to finalize the matter. By this time the plaintiffs had appealed against his decision on the contempt charges and obtained a stay order. The magistrate delivered a 5-page written decision. The orders made on this day was a combination of the terms of the two orders made on 1st September 2005 and subsequent orders made plus some new orders. The orders are as follows:
"1. Appeal is allowed.
Crystallization of grounds and issues on review
19. In judicial review, only grounds pleaded in the Statement filed under O16 r 3 can be argued at the hearing of an application: O16 r 6(1). Therefore the issues raised and argued at the hearing are limited to issues raised in the grounds of review. The grounds must be clearly and sufficiently pleaded to raise those issues. The grounds should plead the error alleged and not contain mere statements of facts or the law.
20. Grounds No. 2 and 3 are duplications of ground 1 in respect of 1, 2, 5 and 6 which are already pleaded in ground 1. Therefore grounds 2 and 3 are struck out. Ground 7 is a mere statement of fact or law which can be considered under 6. Ground 7 of its own is not a proper ground and it is dismissed. That leaves only grounds 1, 4, 5 and 6 to be considered. The remaining grounds give rise to all seven issues identified by the plaintiffs.
Determination of issue No. 1
21. Mr Haiara submits the minute of the order taken out on 6th September is substantially different to the orders actually made on 1st September and he lists those parts of the order which are different. Mr Kup-Ogut submits the orders taken out are substantially the same as the orders given and if there is any variation, those were clarified by subsequent orders made on 8th December, 12th December, 19th December 2005 and 20th January 2006. He submits in the absence of any provision which allows the PLC to regulate its final decision, parties are at liberty to apply to the PLC to progressively interpret and apply its own decision and the Court has jurisdiction to do so.
22. In my view, one needs to go no further than the face of the two orders to resolve this issue. In my analysis of the two sets of orders, I have demonstrated there are material differences in the two orders in which the subsequent order altered the rights of the parties. I answer the first issue in the affirmative.
23. The second order issued by the Magistrate on 1st September 2005 obviously complicated the orders made in the judgment and it should be disregarded. The Magistrate on the same day issued a formal order which is formatted and worded differently, some of which alter the order in the judgment in material aspects. There is no evidence to show that the parties asked the Magistrate to clarify the orders contained in the judgment and issue a formal order on the same day. In the circumstances the second order should not have been issued.
Determination of issue No. 2
24. It is submitted by Mr Haiara that a PLC magistrate is given no jurisdiction to vary a final decision on an appeal made under s 59 of the Act. When he handed down his decision on 1st September 2005, he became functus officio.
25. Mr Kup –Ogup submitted that the PLC is given wide powers by s 50 and s 69 of the Act to do substantial justice between the parties without resort to rules of procedure and evidence: The State v Richard James Giddings, Magistrate of the District Court at Laigam [1981] PNGLR 423; Wena Kaigo v Siwi Kurundo [1976] PNGLR 34; Pig and Masa Islands [1974] PNGLR 235. Under these provisions, the Magistrate had jurisdiction to vary the previous orders of 1st September to do substantial justice to the parties by clarifying his orders and making further orders. In his written ruling made on 12th September 2005, 12th December 2005, 19th December 2005 and 20th January 2006, the Magistrate gave sufficient reasons for varying the orders of 1st September 2005.
26. In my view, the PLC is a creature of statute and the court cannot assume a power that it is not expressly conferred by statute. There is no express power given to the PLC by the Land Dispute Settlement Act to vary a final decision on an appeal made under s 59 of the Act. Sections 59 and 60 are clear on this. They provide as follows:
"59. Powers on appeal.
(1) In determining an appeal under this Division, a Provincial Land Court may—
(a) affirm the order; or
(b) quash the order and—
(i) make such other order as, in the opinion of the Court, will dispose of the appeal and the dispute; or
(ii) where, in the opinion of the Court, justice demands that the matter or part of the matter of the appeal be remitted to the Local Land Court, remit the matter, or that part of the matter to the Local Land Court.
(2) In remitting a matter to a Local Land Court under Subsection (1)(b)(ii), a Provincial Land Court may give such instructions, directions or guidelines to the Court as to the manner in which the matter remitted is to be dealt with as it thinks proper.
60. Effect of decision on appeal.
A decision of a Provincial Land Court on an appeal under this Part is final and is not subject to appeal."
27. In my view, the magistrate misconceived his appellate powers conferred by Div. 3, in particular under s 59 and 60, which led to this mess that he created for himself. First, he entertained an application for interim relief pending determination of the appeal and granted certain interim orders which affected legal rights and obligations of the parties under the Forest Act - rights and obligations which are enforceable in the civil courts under law. The PLC is given no such power to entertain and grant interim relief pending determination of the appeal. If Parliament intended to give such ancillary power, it would have expressly stated so. Second, the PLC is given no power to vary its decision or orders made under s 59 of the Act, as Parliament did in the case of LLC: see s 44 of the Act. Once a final decision is made, the magistrate is functus officio. He should leave the rest to the LLC or the civil process under general law to take its course. Third, he appears to have got himself confused with his original jurisdiction and appellate jurisdiction that is given to the PLC: see s 47 (1) of the Act. The provisions of Part V, Div. 1 and 2 apply to matters in its original jurisdiction. Division 3 applies to matters in its appellate jurisdiction. The LLC has some of the same powers that the PLC in dealing with original disputes. The PLC’s appellate jurisdiction is limited to hearing an appeal from a decision of the LLC. Those powers differ from its powers under its original jurisdiction. In this case, the appeal was allowed for the reason that the proceedings before the LLC were conducted ex parte and as a result, the appellant was denied natural justice. In those circumstances, it would have been more appropriate to remit the matter to LLC at Kerema for rehearing, inter partes. Instead the magistrate proceeded to determine the original dispute without a proper hearing on the original dispute, and determined the rights of parties. They found it difficult to comprehend some of the terms of the orders made and how those orders were to be interpreted on the ground in terms of defining boundaries over different parts of the land in dispute. The magistrate tried to clarify his decision by arranging a site visit to the site and facilitated it by court order but found it difficult to enforce it even with the aid of contempt orders.
28. It appears the magistrate relied on s 59 (1)(b)(i) to assume jurisdiction to rehear the matter and made findings and orders which determined the land and resource ownership rights and rights to timber royalty payments distribution rights. However those matters, in particular land ownership rights, can only be properly determined by the LLC or PLC exercising their original jurisdiction and not in an appeal. Section 59(1)(b)(i) does not confer a primary power on appeal. It is consequential power only, to be used in aid of the primary powers given by s 59 (1)(a) and (b). Another consequential power is given by s 59 (b)(ii) and that is to remit the matter to the LLC for a rehearing. When an appeal is allowed on the basis that proceedings before the LLC were conducted in the absence of an interested party and therefore denied natural justice, then the interest of justice demands that the matter be remitted to the LLC for a rehearing, as expressly stipulated by s 59 (1)(b)(ii).
29. The respondents rely on s 50 and s 69 but these provisions apply to the manner in which and the procedure by which a hearing is conducted by LLC or PLC. They have no application after these courts have discharged their functions in deciding the case before them. Besides, they cannot be interpreted to confer a power on such matters as power to grant interim relief and power to vary its final decisions or orders.
30. It follows from my conclusion in issue No.1 that the Magistrate had no jurisdiction to vary the orders made on 1st September on 6th September. His Worship acted ultra vires his powers. There is no provision in the Act which gives the PLC power to revisit and vary a final decision made on an appeal.
Determination of issue No. 3
31. It follows from my conclusions in issues 1 and 2 that when the PLC handed down his final decision, he was functus officio and lacked jurisdiction to deal with any matters arising under the terms of its final orders.
Determination of issue No. 4:
32. It follows from my decision in issues No. 1 and 2 that the PLC is not authorized by any law including the Land Dispute Settlement Act to review its own decision after final decision had been handed down. Only the National Court may review and vary the decision upon application under s 155(3) of the Constitution and/or under O 16 of the National Court Rules.
Determination of issue No. 5
33. It follows from my decisions in issues No.1 – 4 above that the Magistrate lacked jurisdiction to deal with the Motions filed on 5th September 2005, and the subsequent orders made pursuant to Motion filed on 8th December 2005, and orders made on 12th, and 19th December and 20th January 2006.
Determination of issues No. 6 & 7
34. No submissions are made by the plaintiff in relation to these issues specifically and I take it that they are not pursued.
Conclusion
35. For the foregoing reasons, I grant the application on costs, the plaintiff seeks costs on a solicitor client basis. I am not given a good reason why I should grant such order. I award costs on a party – party basis.
Formal Orders:
36. The formal orders of the Court are:
______________________________________________
Steeles Lawyers: Lawyer for the Plaintiffs
Manu & Associates Lawyers: Lawyer for the Respondents
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