Anis v Morissa [2011] PGNC 171; N4307 (3 June 2011)

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JOHN ANIS,
FOR AND ON BEHALF OF DUMUNA AKIKI CLAN
OF DAMAENDE VILLAGE, NAHU RAWA LLG,
RAI COAST DISTRICT, MADANG PROVINCE
First Applicant

SIMON T MACKERELL,
FOR AND ON BEHALF OF OIMOKU DUMNA TRIBE,
OF GOVIRO VILLAGE, NAHU RAWA LLG,
RAI COAST DISTRICT, MADANG PROVINCE
Second Applicant

SAWEN MOLI,
FOR AND ON BEHALF OF TAUPI CLAN
OF RAMU VILLAGE, WARD 1, RANARA, TAUTA SUB-DISTRICT,
RAI COAST DISTRICT, MADANG PROVINCE
Third Applicant

RUBEN TRAIVE,
FOR AND ON BEHALF OF RENOFI CLAN,
HENGANOFI DISTRICT, EASTERN HIGHLANDS PROVINCE
Fourth Applicant

NABURA MORISSA,
FOR AND ON BEHALF OF BUMBU, BOPIRUMPU, MUSUSAM
& SANKIANG VILLAGES,
USINO-BUNDI DISTRICT, MADANG PROVINCE
First Respondent

JUDICIAL REVIEW – review of proceedings of Provincial Land Court hearing appeal against decision of Local Land Court under Land Disputes Settlement Act Chapter No 45 – whether Provincial Land Court deliberated on grounds of appeal – whether Provincial Land Court erred in law in awarding ownership under Land Disputes Settlement Act, Section 67 (presumption as to vesting of interests) – whether Provincial Land Court decision unreasonable.

The applicants sought judicial review by the National Court of a decision of the Provincial Land Court, which had dismissed appeals by them against a decision of the Local Land Court, in favour of the first respondent. Three grounds of judicial review were pressed. It was argued that the Provincial Land Court erred in law by: (1) not determining the grounds of appeal before it; (2) misapplying Section 67 of the Land Disputes Settlement Act; and (3) making a decision that no court doing justice would make.

Commissioner General of Internal Revenue v Bougainville Copper Ltd (2008) SC920
Dale Christopher Smith v Minister for Lands (2009) SC973)
Dopsie v Tetaga (2009) N3722
Isaac Lupari v Sir Michael Somare (2008) N3476
Jack Afing v Martin Pari (2006) N3034
Jack Nou v Richard Cherake, Magistrate, Provincial Land Court, Port Moresby (2004) N2539
Martina Jimmy v Kevemuki Clan (2010) N4101
Mision Asiki v Manasupe Zurenuoc (2005) SC797
Papua Club Inc v Nusaum Holdings Ltd (2005) SC812
PNG Forestry Authority v Iare Tribe (2008) N4022
Re Hides Gas Project Land [1993] PNGLR 309
Ronny Wabia v BP Exploration Co Ltd [1998] PNGLR 8
Saboko v Commissioner of Police (2006) N2975
Tawindi Clan v Kaimari Clan (1998) N1775
The Application of Ambra Nii on behalf of Himself and Other Members of the Toisap Clan [1991] PNGLR 357
The State v District Land Court at Kimbe; ex parte Casper Nuli [1981] PNGLR 192

This was a review by the National Court of the decision of a Provincial Land Court sitting on appeal under the Land Disputes Settlement Act Chapter No 45 against a decision of the Local Land Court.

P K Kunai, for the first applicant
J Lai, for the second & third applicants
B Tabai, for the first respondent
T Anis, for the fourth respondent

1. CANNINGS J: This is a ruling on an application for judicial review of the decision of the Madang Provincial Land Court, constituted by his Worship, Mr Jeremiah Singomat, dated 1 September 2008, concerning ownership of customary land near the Ramu Sugar estate, Madang Province. The boundaries of the disputed land are not in question: south of the Gusap River, extending to the north of Surinam River, extending to the east up to the foot and on to the Naho Rawa Hills of the Finisterre Range. A small portion of the land has been under cultivation for 30 years.

2. The Provincial Land Court's decision was to dismiss appeals by the various clans and tribes represented by the four applicants, John Anis, Simon T Mackerell, Sawen Moli and Ruben Traive, against a decision of the Local Land Court, constituted by Local Land Court Magistrate his Worship, Mr Ignatius Kurei, and Land Mediators, Mr Anis Animor and Mr David Harry, dated 30 March 2007. The Local Land Court decision was in favour of the first respondent, Nabura Morissa, and various clans and tribes he represents, who are called the Mari people.

3. The appeal to the Provincial Land Court was made pursuant to Section 54 of the Land Disputes Settlement Act. Under Section 60 of that Act a decision of a Provincial Land Court on an appeal "is final and is not subject to appeal". However, that does not rule out a review. Under Section 155(3)(a) of the Constitution, the National Court "has an inherent power to review any exercise of judicial authority". It is well established that the National Court has power to review decisions of Provincial Land Courts (The State v District Land Court at Kimbe; ex parte Casper Nuli [1981] PNGLR 192; Jack Nou v Richard Cherake, Magistrate, Provincial Land Court, Port Moresby (2004) N2539; Jack Afing v Martin Pari (2006) N3034; Martina Jimmy v Kevemuki Clan (2010) N4101).

4. Leave was granted to argue seven grounds of review but at the hearing of the application for judicial review it was conceded by Mr Kunai, for the first applicant, that a number of them overlapped, so they were reduced to three. It was argued that the Provincial Land Court erred in law by:

5. If any of the grounds are upheld the applicants want the Court to quash the Provincial Land Court's order and to declare that they are the customary owners of the disputed land.

1 DID THE PROVINCIAL LAND COURT FAIL TO DETERMINE THE GROUNDS OF APPEAL BEFORE IT?

6. The applicants' notice of appeal against the decision of the Local Land Court raised three grounds of appeal:

7. The question that arises now is whether the Provincial Land Court determined those grounds of appeal.

8. Ground 1(a) – that the Local Land Court exceeded its jurisdiction by failing to eliminate third parties – was alluded to at page 4 of Mr Singomat's 16-page judgment. The question was posed 'Was it proper ... for the Court to allow third parties (Oimuku Dumuna, Soko Dumuna, Gambai, Sangan Sambiyal, Kogulari and Ranofi tribe and clans) to be parties to the Local Land Court proceedings?' His Worship determined this ground of appeal at page 12 by expressing the view that "it was remiss of the Local Land Court to have the third parties as named into its proceedings" and that the inclusion of those third parties "was a serious error in law". His Worship also states at page 14 that "From the many discussions advanced, I would answer to the three issues in the negative, needless to say the many reasons so given speak for themselves". The question of whether it was proper for the Local Land Court to allow third parties to join the proceedings was one of three issues identified at the beginning of the Provincial Land Court judgment (pages 3 and 4) as being the issues that were before the Provincial Land Court. So ground 1(a) was addressed and judicially determined.

9. Ground 1(b) – failing to acknowledge that the applicants were the original inhabitants of the disputed land – was alluded to at pages 8 and 9 of Mr Singomat's judgment. His Worship discussed the applicants' argument that they should be recognised as the owners of the disputed land as it was owned by their ancestors and that the first respondent – the Mari people – had only moved on to the land and established hamlets and gardens on it in recent times. His Worship's discussion of the issue was not, however, focussed on the ground of appeal that was in the notice of appeal. In fact, nowhere in the judgment do the applicants' grounds of appeal appear. So I must, with respect, conclude that ground of appeal 1(b), though it has been alluded to and to some extent addressed, has not been judicially determined. By 'not judicially determined' I mean that the assessment of the National Court, exercising its review jurisdiction under Section 155(3)(a) of the Constitution, is that the exercise of judicial authority by the Provincial Land Court was defective. The Provincial Land Court was exercising appellate jurisdiction and its primary duty was to address and determine the grounds of appeal before it. If an appellate court alludes to a ground of appeal or addresses it but fails to address it fully or addresses it in such a way as to demonstrate that it does not appreciate the ground of appeal, it will, have failed to act judicially; and 'not judicially determined' will be a proper description of how the ground of appeal was dealt with.

10. Ground 1(c) – giving priority to foreign concepts of land ownership – was also alluded to at pages 8-9 of Mr Singomat's judgment, but was not judicially determined.

11. Ground 2 – that the Local Land Court conducted its hearing contrary to the principles of natural justice – was, with respect, not considered at all by his Worship. None of sub-grounds 2 (a), (b) or (c) was addressed.

12. Ground 3(a) – that the Local Land Court made a decision that no court doing justice between the parties would have made – was alluded to at page 10, in these terms:

Some appellants had complaints about the Local Land Court decision. It seems (the parties claim) that the Land Mediators were coerced into signing the final decision which the Chairman handed down on behalf of the Coram on 30 March 2007 in Madang. This contention has no proof and is baseless. The findings of the Land Mediators (individually) were not the Local Land Court decision.

On cross-examination, the Mediators signed the final decision without hesitation. However, the Mediators said the decision was signed before the Chairman pronounced the written decision in the courtroom on the date of the order. There was nothing sinister in the manner the judgment was read out. Again there is little or no evidence of coercion for Mediators to sign the judgment.

13. The applicants' main concern was (and still is) that the two Land Mediators on the Local Land Court decided the case in favour of the applicants (in particular the Dumuna Akiki clan). They argue that under Section 23(3) of the Land Disputes Settlement Act the decision should have been recorded in their favour. Section 23 (constitution of Local Land Courts) is the provision that spells out the composition of a Local Land Court. Subsections (1) and (2) say that the Court shall be constituted by a Local Land Magistrate and two or four Land Mediators or other persons appointed by the Local Land Magistrate; and also prescribe criteria for appointment. 14. Section 23(3) provides how decisions of the Local Land Court are to be made:

A decision of a Local Land Court shall be by majority vote, and where there is an equality of votes on any matter before the Court, the Local Land Magistrate has a casting, as well as a deliberative, vote.

15. The argument of the applicants was that, as a matter of fact, the members of the Local Land Court voted 2:1 in favour of awarding ownership of the land to them. It appears to me that his Worship did not clearly appreciate the thrust of that argument. The argument was not that the Land Mediators were coerced into signing the judgment but that they were mistaken as to what it was that they were signing. I conclude that his Worship Mr Singomat did not determine this ground of appeal judicially.

16. Ground 3(b) – that the Local Land Court made a decision that no court doing justice between the parties would have made, in that the decisions of the two Land Mediators were not annexed to the decision of the Local Land Court, contrary to what the decision itself stated – was also, with respect, not appreciated by his Worship. It was not judicially determined.

17. My assessment of how the grounds of appeal were dealt with is summarised in the following table.

Ground	Description	Assessment
1(a)	Local Land Court (LLC) exceeded jurisdiction by failing to eliminate 3rd parties	Judicially determined
1(b)	LLC exceeded jurisdiction by failing to acknowledge that the applicants were the original inhabitants of the disputed land	Not judicially determined
1(c)	LLC exceeded jurisdiction by giving priority to foreign concepts of land ownership	Not judicially determined
2(a)	LLC acted contrary to natural justice by refusing to inspect the applicants' burial sites and villages	Not considered
2(b)	LLC acted contrary to natural justice by restricting rights of applicants to challenge evidence	Not considered
2(c)	LLC acted contrary to natural justice by unfairly allowing affidavits of witnesses to be admitted into evidence	Not considered
3(a)	LLC erred by making decisions no court doing justice could make by recording its decision contrary to Land Disputes Settlement Act, Section 23	Not judicially determined
3(b)	LLC erred by making decision no court doing justice could make by not annexing the decisions of two members of the court	Not judicially determined

18. Thus, of the three grounds of appeal, two were considered, but not judicially determined, and one was not considered at all. Looking at it another way, if the three sub-grounds comprising each of grounds 1 and 2 and the two sub-grounds comprising ground 3 are regarded as self-contained grounds of appeal (and this is a fair way of regarding them as they raise discrete questions of law or fact) there were, in effect, eight grounds of appeal, and of these:

19. Does that assessment mean that the applicants' first ground of review – that the Provincial Land Court did not determine the grounds of appeal before it – has been made out? Clearly, yes. The Provincial Land Court failed substantially to determine the grounds of appeal. To appreciate why this was an error of law I reiterate that the Provincial Land Court was exercising appellate judicial authority under Division V.3 (consisting of Sections 53 to 60) of the Land Disputes Settlement Act. Its powers, functions, duties and responsibilities are spelt out in the statute. It has no inherent powers. When determining an appeal the orders that it makes are confined to the powers conferred on it by Section 59 (powers on appeal) (PNG Forestry Authority v Iare Tribe (2008) N4022). Section 55(3) (notice of appeal) requires that the notice of appeal "state the grounds of appeal". Section 58 (grounds of appeal) limits the grounds of appeal on which a person aggrieved by a decision of the Local Land Court may rely. It states:

An appeal under this Division may be made only on one or more of the following grounds:—

(a) that the Local Land Court exceeded or refused to exercise its jurisdiction; or

(b) that the Local Land Court conducted its hearing in a manner contrary to natural justice; or

(c) that in the circumstances of the case no court doing justice between the parties would have made the decision appealed against; or

(d) that, in the case of an appeal against a decision given under Section 40, the order for the return of the interest or interests in land or the grant of another equivalent interest or interests was not supported on the facts.

20. In this case the applicants' three grounds of appeal complied with Section 58. Ground 1 – that the Local Land Court exceeded its jurisdiction in the three ways alleged – fell within Section 58(a). Ground 2 – the natural justice ground – fell within Section 58(b). Ground 3 – no court doing justice would have made the decision that the Local Land Court made – fell within Section 58(c). All grounds of appeal were properly before the Provincial Land Court and it was therefore incumbent on the Court to determine each of them. The mistake, I suggest, with respect, that the learned appellate Magistrate made, was to regard the appeal he was conducting as a de novo appeal, when what was required was a rehearing. The differences between these types of appeal were explained by the Supreme Court in Commissioner General of Internal Revenue v Bougainville Copper Ltd (2008) SC920. The Court (Injia DCJ, Lenalia J, Cannings J) noted that all appeals are creatures of the particular statute that creates the right of appeal. So it is difficult to generalise about how an appellate court or other appellate body is required to hear and determine an appeal. However, statutory appeals usually fall into one of three categories, which the Supreme Court described, at para 28, as follows:

21. The Court noted that appeals in the strict sense and de novo appeals are quite rare in PNG. Most statutory appeals are by way of rehearing. The Court gave examples of the different types of appeals and indicated, at paras 58 and 59, that an appeal from a Local Land Court to a Provincial Land Court was by way of rehearing:

The Land Disputes Settlement Act provides for appeals from a decision of the Local Land Court to the Provincial Land Court. The Act is silent on the appeal being by way of a rehearing. However, Section 38 provides for the Local Land Court to keep a written record of its proceedings including evidence taken, and to forward a certified copy of the record to the Provincial Land Court, as a matter of course, whether or not an appeal is filed. Section 58 which sets out the grounds of appeal that are open to be raised by an appellant, are the sorts of grounds that would be available to an appellant from errors which may be apparent from the face of the record and would require an examination of the records to resolve, eg excess of or refusal to exercise jurisdiction.

22. The best way for an appellate court to discharge its statutory responsibility of conducting an appeal by way of rehearing is to set out the grounds of appeal – which circumscribe the jurisdiction of the court in the case before it – and then proceed to address and determine each one (Papua Club Inc v Nusaum Holdings Ltd (2005) SC812). That did not happen here. The learned appellate Magistrate did not even mention the grounds of appeal. He addressed only one sub-ground (No 1(a)) fully. The rest of the judgment consisted of allusions to some grounds of appeal (without clearly identifying them as grounds of appeal) and a general discussion of issues that had arisen. By taking that approach his Worship gave the impression that he was conducting a de novo hearing rather than an appeal by way of rehearing.

23. I conclude that the Provincial Land Court failed to determine the grounds of appeal before it, thereby erring in law. The first ground of judicial review is therefore upheld.

2 DID THE PROVINCIAL LAND COURT MISAPPLY SECTION 67 OF THE LAND DISPUTES SETTLEMENT ACT?

24. Section 67 (presumption as to vesting of interests) of the Land Disputes Settlement Act states:

(1) Notwithstanding any other law, proof that a party to a dispute has exercised an interest over the land the subject of the dispute for not less than 12 years without the permission, agreement or approval of any other person sets up a presumption that that interest is vested in the first-mentioned party.

(2) Where a presumption is set up under Subsection (1), it may be rebutted only by evidence leading to clear proof that the interest is vested in some other person.

25. Since the landmark decision of Amet J, as he then was, sitting in the Land Titles Commission, in Re Hides Gas Project Land [1993] PNGLR 309 it has been generally accepted that entitlement to customary land depends not only on the question of which disputing party had the earliest claim to the land, by reason of genealogical or ancestral evidence, but also, and more importantly, which disputing party has actually possessed the land (without opposition) in recent years. His Honour stated:

As I have said, it is not sufficient to rely upon genealogical ancestral history and the supportive landmark descriptions by name as being conclusive evidence of ownership. If that oral history traces the origin of a particular tribe or a people back thousands of years or hundreds of years without taking into account many other factors since that time to the time of the dispute, it would make determination of ownership of land totally meaningless if there had been numerous other intervening factors between the origin of that group of people to what the present circumstances are. It is important to state what other factors ought to be taken into account in a changing, developing nation and land tenure system, such as is happening in Papua New Guinea at the present time. In my view, as a matter of principle, the tribunal determining disputes of this nature, such as land mediation tribunals, local and district land courts and, finally, superior judicial tribunals such as the courts and the Land Titles Commission ought to begin to develop a system of determining ownership of land which takes into account both the traditional values and methods of determining ownership as well as the developmental aspirations and interests of a wider provincial and national community to arrive at principles which will be uniformly utilised and applied, consistent with the Constitution's directive to develop a consistent and coherent system of indigenous jurisprudence. This means that the very traditional and ancestral methods and values are not to be exclusively relied on, but to take them into account together with what are required of the modern developmental interests of the local people as well as the provincial and national governments on behalf of the people of the nation as a whole.

26. Instances of the National Court adopting the Hides Gas principle in the course of determining judicial reviews of decisions of a Provincial Land Court include the decision of Woods J in The Application of Ambra Nii on behalf of Himself and Other Members of the Toisap Clan [1991] PNGLR 357 and the decision of Injia J, as he then was, in Tawindi Clan v Kaimari Clan (1998) N1775. In the latter case his Honour indicated that Section 67 was entrenching a principle of land ownership akin to the common law doctrine of adverse possession:

The principle of adverse possession under s 67 confers customary ownership right or title over the land by operation of law: Re Hides Gas Project Land [1993] PNGLR 309 at 316-317. It is not merely an "evidentiary aid" to the determination of title over land ... The use of the land over a period of more than 12 years without opposition confers that right of title by operation of law. Upon the expiration of 12 years, the person is the absolute owner of the land which includes all improvements on the land which they have erected. This process of acquisition of title by operation of law extinguishes any existing supposed propriety rights of any other party.

27. In the present case the applicants argue that the learned appellate Magistrate misapplied Section 67 by not taking into consideration the evidence that showed the applicants had longstanding ownership of the land, going back generations.

28. I reject this argument. His Worship cited the Hides Gas case at page 6 of his judgment, and quoted part of the same passage that I have quoted above. His Worship did not depart from the Hides Gas principles. I cannot agree, given that those principles have since 1993 been accepted as the correct way of determining ownership of customary land, that his Worship misinterpreted Section 67. I say this, even though earlier in this judgment I held that his Worship did not judicially determine ground 1(b) of the appeal that was before him, which was that the Local Land Court exceeded its jurisdiction by failing to acknowledge that the applicants were the original inhabitants of the disputed land and giving too much prominence to the concept of "interest" in land under Section 67 of the Land Disputes Settlement Act. The reason I concluded that his Worship exceeded his jurisdiction is that he did not acknowledge the argument raised by the applicants as a ground of appeal. He discussed the issues arising from the ground of appeal without squarely addressing and determining the ground of appeal. However, in the course of his discussion his Worship did not misinterpret Section 67. The second ground of judicial review is therefore dismissed.

3 DID THE PROVINCIAL LAND COURT MAKE A DECISION THAT NO COURT DOING JUSTICE WOULD MAKE?

29. Mr Kunai, for the applicants, clarified at the hearing of this matter that this third ground of review is best described as an unreasonableness ground. He submitted that the Provincial Land Court's decision to dismiss the appeal against the Local Land Court's decision was unreasonable 'in the Wednesbury sense'. He submitted that there was clear evidence that the decision of the Local Land Court that was formally recorded did not reflect the fact that the two Land Mediators, Mr Animor and Mr Harry, made decisions contrary to the formally recorded decision. By relying on the Wednesbury sense of unreasonableness Mr Kunai was referring to the principles laid down in the classic case of Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1947] EWCA Civ 1; [1948] 1 KB 223, which have long been regarded as forming part of the underlying law of Papua New Guinea. As I pointed out in Saboko v Commissioner of Police (2006) N2975 and Dopsie v Tetaga (2009) N3722, the test to apply is:

30. If the answer is yes, the decision involves an error of law, the decision-maker will have exceeded his or her jurisdiction and the decision is susceptible to judicial review. If the answer is no, there is no error of law, no excess of jurisdiction and this ground of review will fail. The decision will be lawful unless it is infected by some other error of law or procedure. The Wednesbury test of unreasonableness is most commonly applied in the course of judicial review of administrative decisions. It is unusual to see it argued as a ground of judicial review of a judicial decision. But I see no reason not to apply it in that context, so I will deal with it on its merits.

31. I consider that the test is satisfied in this case. There was compelling evidence before the Provincial Land Court that the two Land Mediators did not agree that the land be awarded to the first respondent, the Mari people. As I said when dealing with ground of review No 1, the learned appellate Magistrate alluded to this issue – which was one of the applicants' grounds of appeal – but did not clearly appreciate the thrust of the argument. As a result his Worship led himself into error and made a decision that can be properly regarded as irrational. No reasonable decision making body in the position of the Provincial Land Court would have made such a decision. It was an unreasonable decision. The third ground of judicial review is therefore upheld.

32. It is now time to take stock of what has been decided and to remember that this is a judicial review, which is a two-stage decision making process. First an applicant must establish one or more grounds of judicial review. If he succeeds, the second stage of the process is persuading the court that he should be granted a remedy (Mision Asiki v Manasupe Zurenuoc (2005) SC797; Dale Christopher Smith v Minister for Lands (2009) SC973). Deciding on what remedies should be granted is a matter of discretion (Isaac Lupari v Sir Michael Somare (2008) N3476).

33. Here, the applicants have argued three grounds of review. Two (Nos 1 and 3) have been upheld. One (No 2) has been dismissed. The two successful grounds have disclosed errors of law on the part of the Provincial Land Court. Its decision was made in excess of its jurisdiction. The first error is, I consider, particularly serious, as it has been shown, with respect, that the Provincial Land Court did not have a clear appreciation of the nature of its statutory function. The entire proceedings miscarried as a consequence.

34. I will therefore exercise the discretion of the National Court in favour of the applicants and quash the Provincial Land Court's decision. The applicants want me to go one step further to declare that they are the customary owners of the disputed land. I am not prepared to do that. I would be in danger of offending against the well-settled principle that the National Court, by virtue of the Land Titles Commission Act and the Land Disputes Settlement Act, has no jurisdiction to determine issues relating to ownership of customary land (Ronny Wabia v BP Exploration Co Ltd [1998] PNGLR 8). The appropriate remedy is an order that the applicants' appeal to the Provincial Land Court be reinstated and reheard before a differently constituted Provincial Land Court.

35. I will order that this matter be brought to the immediate attention of the Senior Provincial Magistrate for Madang, so that it can be given an urgent priority.

36. The fourth respondent, Ramu Agri Industries Ltd, which has adopted a neutral position in these proceedings, points out that it is holding a substantial amount of money in trust (relating to the part of the disputed land that has been under cultivation for 30 years). The distribution of this money will turn on the question of ownership of the land. Nothing in the order I am making affects that money, at this stage. An application as to what should happen to that money and to whom it should be distributed would be best made the subject of separate proceedings.

37. Costs normally 'follow the event', ie the party that loses a case has to pay the costs of the winning party. But this is always a matter of discretion. In view of the nature of this dispute and the circumstances of the case, I will order that all parties bear their own costs.

Kunai & Co Lawyers: Lawyers for the First Applicant
Thomas More Ilaisa Lawyers: Lawyers for the Second & Third Applicants
Tabai Lawyers: Lawyers for the First Respondent
Blake Dawson Lawyers: Lawyers for the Fourth Respondent

National Court of Papua New Guinea

Anis v Morissa [2011] PGNC 171; N4307 (3 June 2011)