N4775

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS (JR) NO 593 OF 2010

GALEM FALIDE, BILL HOHEG, DEB ABEIG & HANS YOB
FOR THEMSELVES AND ON BEHALF OF MAHOBAN TRIBE
Plaintiffs

V

REGISTRAR OF TITLES
First Defendant

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Second Defendant

WILLIE MANES
Third Defendant

Madang: Cannings J
2011: 23 September, 18 November,
2012: 23 March, 24 August

JUDICIAL REVIEW – alleged failure of Registrar of Titles to give effect to 1932 court decision that recognised the plaintiffs' tribe's interest in land – whether error of law established – undue delay.

The plaintiffs applied for judicial review of the alleged failure of the Registrar of Titles to give effect to a decision made in 1932 by the Central Court of the Territory of New Guinea that recognised that their tribe was the customary owner of land. The application was opposed by members of other tribes who argued that the National Court had no jurisdiction as the subject matter of the dispute was ownership of customary land, and that if the National Court had jurisdiction no error had been made in failing to recognise the plaintiffs' tribe's interest in the land as they (the defendants) were the proper customary landowners and the 1932 decision had been made in error and that there had been undue delay in applying for judicial review.

Held:

(1)	The National Court has no jurisdiction to determine ownership of customary land. But, here, it was not being asked to determine ownership as that question had been determined in the 1932 proceedings; it was being asked to enforce an earlier judicial decision and it had jurisdiction to do so.

(2)	The plaintiffs failed to establish any proper ground of judicial review as they failed to show the existence of any statutory or other duty on the part of the Registrar of Titles to give effect to the 1932 decision.

(3)	If a ground of judicial review had been established the relief sought would have been refused as a matter of discretion due to the undue delay in seeking it and the lack of a satisfactory explanation for the delay and the substantial hardship that would likely be caused to the defendants and others with competing claims to ownership of the land and because it would be detrimental to good administration to allow 80 years to pass before enforcing a judicial decision.

(4)	The application for judicial review was refused.

Cases cited

The following cases are cited in the judgment:

Custodian of Expropriated Property v Commissioner of Native Affairs (Re Jomba Plain) [1971-72] PNGLR 501
Dale Christopher Smith v Minister for Lands (2009) SC973
Dominica Philip v National Education Board (2008) N4024
Eddie Tarsie v Dr Wari Iamo (2010) N4033
Lavu v Thompson & NBPOL, WS No 780 of 2005, 26.07.07
Mision Asiki v Manasupe Zurenuoc (2005) SC797
Nakun Pipoi v Viviso Seravo (2008) SC909
Roderick Tovo Bibilo v Gerard Balbagara (2008) N3291
Shaw v Commonwealth of Australia [1963] PNGLR 119
Supreme Court Reference No 4 of 1980 [1982] PNGLR 65
The State v Lohia Sisia [1987] PNGLR 102
Yap v Tan [1987] PNGLR 227

Counsel

B Meten, for the plaintiff
W Mapiso, for the first and second defendants
B Tabai, for the third defendant

24 August, 2012 

1. CANNINGS J: This case is about a tract of customary land to the south of Madang town, known as the Jomba Plain land, formally described as Portions 71, 71A and 72. The plaintiffs, Galem Falide, Bill Hoheg, Deb Abeing and Hans Yob, representing the Mahoban Tribe, are applying for judicial review of the alleged failure of the first defendant, the Registrar of Titles, to give effect to a decision made on 25 May 1932 by the Central Court of the Territory of New Guinea, constituted by Justice Phillips, that, they claim, recognised that their tribe was the customary owner of particular parts of the Jomba Plain land. This land does not fall within the area of Madang town land that was declared by the Minister for Lands in 1988 under the National Land Registration Act Chapter No 357 to be National Land, which became the subject of the Supreme Court case of Nakun Pipoi v Viviso Seravo (2008) SC909.

2. The application was generally opposed by the first and second defendants, the Registrar of Titles and the State, who were represented by the Solicitor-General but unfortunately failed to take an active part in the proceedings, and strongly opposed by the third defendant, Willie Manes, a clan leader of Yabob village, who was represented by Mr Tabai of Tabai Lawyers who tendered by consent a bundle of affidavit evidence of representatives of various tribes who live and have established food gardens and economic activities on the land. Mr Tabai submitted that the National Court has no jurisdiction as the subject matter of the dispute is ownership of customary land, but if the National Court has jurisdiction no error had been made in failing to recognise the plaintiffs' tribe's interest in the land as the Yabob clans are the proper customary landowners and the 1932 decision was made in error and that there had been undue delay in applying for judicial review. Three issues arise:

1	Does the National Court have jurisdiction?

2	Has error of law been established by the plaintiffs?

3	What declarations or orders should the Court make?

1	DOES THE NATIONAL COURT HAVE JURISIDICTION?

3. Mr Tabai submitted that the application for judicial review should not be entertained as the National Court has no jurisdiction regarding customary land disputes, which must be determined by the Land Titles Commission or the Local Land Court under the Land Titles Commission Act 1962 or the Land Disputes Settlement Act Chapter No 45.

4. Mr Tabai is right to suggest that the National Court must tread warily when dealing with customary land. In The State v Lohia Sisia [1987] PNGLR 102 the Supreme Court ruled the National Court has no jurisdiction to hear or determine disputes about whether land is customary land or about competing claims to ownership of customary land. That principle has been applied in numerous other cases, eg Lavu v Thompson & NBPOL, WS No 780 of 2005, 26.07.07. However, as I indicated in Roderick Tovo Bibilo v Gerard Balbagara (2008) N3291 a distinction must be drawn between cases in which there is a dispute about whether land is customary land or competing claims to ownership of customary land and cases in which the dispute centres on interpretation or application of a previous court decision as to the status of land or its customary ownership. Only in the former category of cases does the National Court lack jurisdiction. The present case falls into the latter category and the National Court has jurisdiction.

2	HAS ERROR OF LAW BEEN ESTABLISHED?

5. To appreciate the plaintiffs' case it is necessary to look at the context in which Phillips J's decision was made, which is explained in the judgment that was published in the 1972 volume of the Papua New Guinea Law Reports, 40 years after the decision was made (Custodian of Expropriated Property v Commissioner of Native Affairs (Re Jomba Plain) [1971-72] PNGLR 501). His Honour was determining the question of "possible native rights" over four pieces of land situated in the administrative district of Madang in the Territory of New Guinea known as:

•	Jomba Plain, portions 71, 71A and 72 (having an area of 4,604 hectares);

•	Modilon-Jomba, portion 37 (613 hectares);

•	Wagol, portion 50 (164 hectares); and

•	Wagol Reserve, portion 51 (53 hectares).

6. In the late 1800s that land, a total of 5,434 hectares, had been the subject of two purchase agreements between various persons who held themselves out as the customary landowners and the New Guinea Company. Draft certificates of title were issued to the Custodian of Expropriated Property as successor in title to the New Guinea Company but the questions later arose whether the agreements were fairly entered into and whether those who agreed to sell the land were the true customary owners. The Commissioner of Native Affairs referred various questions to the Central Court for determination. Phillips J inquired into the matters at Madang on 56 sitting days from 16 November 1931 to 21 April 1932 and handed down his decision on 25 May 1932. His Honour ruled that the bulk of the land was indeed "native owned" and that native rights should be protected by necessary entries in the Register Book and on the certificates of title under the Lands Registration Ordinance 1924-1931. Specifically, in relation to the Jomba Plain land (Portions 71, 71A and 72), part of which is the subject of the present judicial review, his Honour ruled as follows:

For the reasons given in this judgment, in particular for the reason that none of this land was ever sold by the rightful native owners thereof, I find that the whole of this land is native owned: that is to say:

(a) 	As to that portion of this land which lies between the Gum and Gogol Rivers and comprises portion 72 aforesaid: I find that the natives of the tribes of Yo, Sein, Marip, Aguru-Main, Aguru, Deiwol, Meltab, Mihilon, Meritab, Yagom, Onuru-Mamandaru, Omuru-Dele, Aua-Iaum, Aua-Heb, Aua-Lanu, Taitab, Maim, Naido, Bag, Mahor, Wabar, Gudine, Salalo, Battan, Wasuk, Gagalu, Ssa-Gala, Sso proper, Sso-Helna, Gesup, Gun, Unuina, Nagi, Bahor, Mahoban and Od have free and unrestricted rights to ownership over respective parts thereof which together make up the whole of portion 72 aforesaid, except the piece of land known as Maguin, as to which piece of land I find that the rights of the natives of Bahor tribe above-mentioned to the ownership of that piece of land are subject, and subject only, to the right of the natives of the Bilibili tribe to have access thereto to take clay therefrom. Particulars of the individual pieces of land within portion 72 aforesaid, which were claimed by each of the thirty-six above-mentioned tribes and which I now find they own have already been given in an earlier portion of this judgment.
 
(b) 	As to that portion of the Jomba Plain which lies to the north of the Gum River and comprises portions 71a (the so-called "Jabob reserve") and 71 in the district of Madang: I find that the natives of the Gesup, Sisiak, and Mahoban tribes have free and unrestricted rights over respective parts thereof which together make up the whole of portions 71a and 71 aforesaid; that is to say: the natives of the Gesup tribe over the pieces of land known as Alal, Banat, Wamali, Wabali and Waseihena: the natives of the Sisiak tribe over the piece of land known as Iawot; and the natives of the Mahoban tribe over the pieces of land known as Gauwan, Unek, Lantibut, Patalan, Belhon, Paridamon, Wagerim, Tutum, Gagahoe, Tutuholo, Palatek, Sekualihan, Bagelaho, Bebehulum, Uri and those parts of Yoamalan, of Balasgo and of Wasalna that lie within portions 71a and 71 aforesaid. [Emphasis added.]

(c) 	And I direct that the native rights which this Court has found to exist over portions 71a, 71 and 72 aforesaid shall be protected by the necessary entries in the Register Book and on the certificate of title.

7. His Honour thus identified the following pieces of land lying within Portions 71 and 71A as those to which the Mahoban tribe should have free and unrestricted rights:

1	Gauwan,
2	Unek,
3	Lantibut,
4	Patalan,
5	Belhon,
6	Paridamon,
7	Wagerim,
8	Tutum,
9	Gagahoe,
10	Tutuholo,
11	Palatek,
12	Sekualihan,
13	Bagelaho,
14	Bebehulum,
15	Uri.

8. The plaintiffs argue firstly that the actual pieces of land described can be readily identified by reference to his Honour's judgment, which runs for 89 pages, and secondly that, as his Honour directed that "the native rights which this Court has found to exist … shall be protected by the necessary entries in the Register Book and on the certificate of title", the Registrar of Titles is obliged to give effect to his Honour's decision.

9. I accept the first part of that argument without difficulty. Phillips J was clearly determining that the Mahoban tribe was the customary owner of the 15 pieces of land. That was the decision of a lawfully constituted court, which has not been set aside and it should be given effect (Yap v Tan [1987] PNGLR 227). But how, and by whom? The decision does not make it clear who was obliged to give effect to it. The plaintiffs presume that it is the duty of the Registrar of Titles to give it effect but have not articulated this critical part of their case. The Registrar of Titles is appointed by the Minister for Lands and Physical Planning under Section 4 of the Land Registration Act Chapter No 191. It is not clear from the material before this court that the office of Registrar of Titles existed in 1932 or if it did that the holder of that office was obliged to give effect to Phillips J's decision. If the office did not exist then, does the Registrar of Titles have some statutory obligation to give effect to it, 80 years after it was made? Is the Registrar obliged to comb through the records of court decisions on land matters going back more than 80 years to ensure that all have been given effect? Is this duty imposed on some other public official such as the Director of Customary Land Registration (who is responsible for customary land registration under Part IIIA of the Land Registration Act)? I don't have the answers to those questions at my fingertips and the plaintiffs have not provided them, and nor has the Registrar of Titles or the Solicitor-General.

10. This is a fatal flaw in the plaintiffs' case. They have fallen foul of a basic principle of litigation: he who asserts must prove (Supreme Court Reference No 4 of 1980 [1982] PNGLR 65, Shaw v Commonwealth of Australia [1963] PNGLR 119). They seek relief in the nature of mandamus, which traditionally was a prerogative writ issued by a superior court commanding a public official to perform a public or statutory duty according to law, but have failed to articulate the precise nature and source of the duty and have failed to show how the public official (the Registrar of Titles) has failed to perform it. What has the Registrar done wrong? Has he ever been asked to issue a certificate of title to the plaintiffs? Has he refused? Did he say why he refused? There is no evidence on these matters. I conclude that no error of law or failure to perform any duty has been established against the Registrar of Titles or any other person.

3	WHAT DECLARATIONS OR ORDERS SHOULD THE COURT MAKE?

11. An application for judicial review is intended to proceed in two stages. First the applicant must establish grounds for judicial review, eg an error of law or denial of natural justice or excess of jurisdiction. Next, the applicant must make a case for a remedy, which is a matter of discretion (Mision Asiki v Manasupe Zurenuoc (2005) SC797, Dale Christopher Smith v Minister for Lands (2009) SC973). The question of whether a remedy such as an order in the nature of mandamus should be granted only arises if at least one ground of judicial review is established. Here none has been established so no relief can be granted (Dominica Philip v National Education Board (2008) N4024).

12. I point out that if a ground of judicial review had been established the relief sought would have been refused as a matter of discretion, in light of the requirements of Order 16, Rule 4(1)(b) of the National Court Rules, which relevantly provides:

… where in any case the Court considers that there has been undue delay in making an application for judicial review … the Court may refuse to grant … relief sought on the application, if, in the opinion of the Court, the granting of the relief sought would be likely to cause substantial hardship to, or substantially prejudice to the rights of, any person or would be detrimental to good administration.

13. Phillips J's decision was made on 25 May 1932. The application for leave to seek judicial review, the purpose of which was to enforce the decision, was not filed until 78 years later, on 13 October 2010. That amounts to undue delay. So, as pointed out in Eddie Tarsie v Dr Wari Iamo (2010) N4033, three considerations arise. Would granting the relief sought be:

•	likely to cause substantial hardship to any person?

•	likely to substantially prejudice the rights of any person? or

•	detrimental to good administration?

14. Having regard to the bundle of nine affidavits tendered in support of the third defendant's case I am satisfied that the first two considerations are satisfied. Ordering the Registrar of Titles to issue a certificate of title over the disputed land to give effect to a court decision which is now more than 80 years old would cause substantial hardship to many persons and substantially prejudice their rights. I use the words "disputed land" advisedly as it is clear that many people who live on and around the land, especially clans centred on Yabob village, genuinely believe that the 1932 case was wrongly decided. One of the affidavits admitted into evidence without objection is by Beya Male, Chief Of Madib Clan Elders, Mareg Island, Yabob village, who deposed on 20 February 2011 that he was 99 years old, and that when he was 20 years old he attended the hearings conducted by Phillips J and that many of his Honour's findings were based on false testimony. He deposes that his clan was one of those considered hostile to the German administration as they had spearheaded an uprising in 1904 and if the British had not won the Great War they would have been banished forever. He claims that the plaintiffs are not genuine customary landowners. They hail from Hilu in the Amele Local level Government area, about 16 km inland.

15. I am in no position to say who is right and who is wrong or express any doubt on the correctness of Phillips J's decision, which appears to have been the product of an exceedingly thorough and painstakingly detailed forensic inquiry, conducted with extraordinary efficiency. However, the depth of feeling in the bundle of affidavits is palpable and I consider that in these circumstances it would not be in the interests of justice to implement an 80 year old court decision. It would be detrimental to good administration to do so.

16. In my view the best and fairest way of determining the question of ownership of the customary land that is at the centre of this case and other customary land in the vicinity of Madang town would be to establish a special Land Titles Commission under the Land Titles Commission Act 1962.

17. The relief sought by the plaintiffs will be refused. Costs will follow the event except that the first and second defendants, who provided little assistance in resolving these complex issues, will not get their costs.

ORDER

(1)	The application for judicial review is refused.

(2)	Costs of these proceedings shall be paid by the plaintiffs to the third defendant on a party-party basis, to be taxed if not agreed; and the first and second defendants will bear their own costs.

(3)	Time for entry of the order is abridged to the date of settlement by the Registrar which shall take place forthwith.

Judgment accordingly.
____________________________

Meten Lawyers: Lawyers for the Plaintiff
Solicitor-General: Lawyer for the First & Second Defendants
Tabai Lawyers: Lawyers for the Third Defendant