Ako v Wia [2013] PGNC 85; N5100 (1 March 2013)

N5100

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CIA. 176 OF 2010

BETWEEN:

ARU AKO & KOMEN ERE
Appellants

AND:

LESSIE BEN WIA
Respondent

Wabag: Gauli, AJ
2012: 17th December
2013: 1st March

CIVIL APPEAL – Decision from the District Court – Village Court decision awarded ownership on customary land – Village Courts jurisdiction in disposing customary land – Village Court lacks jurisdiction – Land Act s. 132 and Village Courts Act ss. 43, 48 – Jurisdiction of District Court on hearing appeals from Village Court decision – No power to make substituted orders – Village Courts Act, s. 92 – Appeal allowed in part – Orders from Village Court and District Court quashed – The relief for the National Court to fully hear substantive matter is refused – Matter referred back to Village Court with directions.

Cases Cited:

Commission General of Internal Revenue & Chief Collector of Taxes -v- Bouganville Copper Ltd (2008) SC920.
In the Matter of Organic Law on National Election & in the Matter of Returns for Southern Highlands Provincial Electorate; Dick Mune -v- Paul Poto (1996) SC508
Reva Mase v- The State (1980) N260.
Application of Ambra Nii [1991] PNGLR 357

Counsel

Komen Ere (Second Appellant) in Person
Respondent in Person

DECISION OF THE COURT

1. GAULI AJ: This is a decision on appeal against the decision of the Wabag District Court that ordered the Appellants to repossess their own customary land after making the necessary repayments to the Respondent of her expenses. I heard the appeal on the 17th December 2012 in the absence of the Respondent and I reserved my decision since the Appellant Komen Ere will be away on duty in Lihir Gold Mine until the 1st of March 2013.
   
2. To appreciate the full scenario of the case, I need to state the brief background. This case involved the sale of a certain unnamed customary land to two different purchasers. The subject land was sold by late Aru Ako to one Mr. Komen Ere (the co-appellant) for K9,000.00. There was another sale of the subject land to the respondent Mrs. Lessi Ben Wia by one Yakari Aru (or Ak) for K8,000.00. These transactions took place at different times and the sequence in which they occurred is not known. The subject customary land is located in Teremanda village just outside the township of Wabag.
   
3. The dispute was first dealt with by the OMS Wabag Joint Village Court sitting on the 2nd of June 2008 between Mr. Aru Ako (Complainant) and Yakari Aru (Defendant), as per the ORDER NO. E 57462 dated 02/06/08. The said Village Court found or recognized late Aru Ako, as the customary land owner and not Yakari Aru.
   
4. The decision of the OMS Joint Village Court was appealed by Yakari Aru to Wabag District Court, registered as VCA No. 78/2008. On 29 September 2008, His Worship Magistrate Edward Beib quashed the Village Court order and made a substituted order that the ownership of the subject land remains with one Yakari Aru. The matter was later referred to another Magistrate. On 10th March 2009, Her Worship Magistrate Jopet Valvona confirmed the said Village Court order dated the 2nd of June 2008 and ordered that Mr. Aru Ako as the owner can dispose of the land. That decision was referred to a Grade 5 Court for review and His Worship Principle Magistrate Jeffers Wia dismissed the review on the 1st of October 2009 for want of prosecution.
   
5. The matter was later brought before Mr. Anthony Willie, a Grade Four Magistrate in Wabag District Court, by Mrs. Lessie Ben Wia, which was registered as: COMPLAINT NO. 488/09 Between: LESSIE BEN WIA –v- YAKARI ARU, ENO ARU & ARU AKO (Defendants). The complainant Lessie Ben Wia sought for interim injunction orders. And His Worship's decision made on the 6th of May 2010 was that:
   
   • though Lessie Ben Wia (Complainant) as the bona fide purchaser, the sale was not in accordance to Section 132 of the Land Act for disposal of customary land, as such it prohibits both purchasers Mr. Lessie Ben Wia (Complainant) and Mr. Komen Ere (Defendant) and the land remained the property of Mr. Aru Ako (Co-Defendant), but he cannot repossess the land as the complainant had spent time and money improving the land.
     
   • AND if he intends to dispose of the land he must first reimburse her expenses ... he and his family and relatives are granted within one year to consider her improvement claims and if the customary owners do not take steps within the given period towards reimbursing her expenses and the purchase price, the Complainant (Lessie Ben Wia) is at liberty to pursue legal avenues of settling the matter lawfully.
     
6. It is against this latter decision of His Worship that the Appellant appealed to this Court. And the GROUNDS of the appeal are that:
   

The Presiding Magistrate erred in law in that:

(a) The findings and orders were against the weight of the evidence.

(b) He failed to properly weigh the evidence of the Defendant's case.

(c) He failed to fully examine the affidavit filed at the National and District Court.

7. And the appellants sought the following relief:
   
   1. The findings and orders be quashed or dismissed as it has no basis in law.
      
   2. The case be fully heard in the National Court.
      
   3. May make other orders this Honourable Court deems fit to make.
      
8. The appropriate issues for this Court to determine are:
   
   1. Whether the National Court has jurisdiction to hear an appeal over the ownership of customary land?
      
   2. Whether the appellant Komen Ere can instigate the appeal?
      
   3. Whether the customary land owner has the power to dispose of the land?
      
   4. Whether the Village Court has the power to award ownership over customary land?
      
   5. Whether the District Court has the powers to make orders substituting the Village Court orders on appeal?
      
   6. Should the matter be heard by another Magistrate of the District Court when the earlier decision of the District Court still exists?
      
   7. Whether the Presiding Magistrate erred in law in making the injunctive orders he made?
      
   8. Whether the reliefs sought by the Appellants be granted?
      

ISSUE 1: Whether the National Court has the jurisdiction to hear an appeal over the ownership of a customary land?

9. Does the National Court have the jurisdiction to determine an appeal over a decision concerning the ownership of a customary land? The Supreme Court in Commission General of Internal Revenue & Chief Collector of Taxes -v- Bouganville Copper Ltd (2008) SC920, said at paragraph 60 and I quote:
   

"A hearing de novo in respect of an appeal from a Court is very rare. Indeed we are unaware of any appeal provisions that could reasonably be regarded as conferring de novo appellant authority in the National Court in such circumstances."

10. The National Court's power to review the decisions from the inferior tribunals, such as the appeals from the Village Courts under the Village Courts Act and or the Local Land Court under the Land Dispute Settlement Act, are either removed or restricted by Section 155(3)(e) of the Constitution to review such decisions. Nevertheless, the National Court has powers under Section 155(5) of the Constitution to review such decisions in appropriate cases where there is a clear substantial miscarriage of justice done by the inferior courts: see In the Matter of the Organic Law on National Election and In the Matter of Returns for Southern Highlands Provincial Electorate; Dick Mune -v-Paul Pato (1996) SC508; Reva Mase -v-The State (1980) N260; Application of Ambra Nii [1991] PNGLR 357.
    
11. In the Application of Ambra Nii [1991] PNGLR 357, the application was made to the National Court by way of writ of certiorari for review over the decision of the District Land Court that quashed the Local Land Court decision. In making an order that the decision of the District Land Court be removed into the National Court and quashed the orders of the District Land Court and restored the orders of the Local Land Court, His Honour Woods J (as he then was) held that:
    

"In so far as the National Court has power to review decisions of District Land Courts and the Local Land Courts made under the Land Disputes Settlement Act (Ch. No.45) in respect of ownership of customary, the power is to be exercised with care in a manner which does not defeat the purpose of the Act 'to do substantial justice between all persons interested in accordance with this Act and any custom', accordingly the National Court should interfere only where there is a clear disregard of substantial justice."

12. Based on the decisions in the above decided case laws, the National Court has the power to interfere with the decisions of the District Court hearing the appeal from the Village Court, where the National Court finds that substantial miscarriage of justice has been done to one or to all the interested parties. I find that in the present case, there exist miscarriage of justice by both the Village Court and the District Courts in the circumstances. Accordingly I consider that it is appropriate for me to proceed and determine this appeal.
    

ISSUE 2: Whether the appellant Komen Ere can bring the appeal?

13. This appeal is from the decision of the District Court in a COMPLAINT NO. 488 OF 2009 Between Lessie Ben Wia -v- Yakari Aru, Eno Aru & Aru Ako. The appellant Komen Ere is not a party in that proceeding before the District Court. There is nothing before me to suggest that he is appealing for and on behalf of those named defendants. And he has not applied for the leave of this Court to be included as a party in the proceedings. The general law is that only a person who is a party can bring an appeal to the higher court. Since the appellant Mr. Komen Ere was not a party in the proceeding before the District Court in a "COMPLAINT NO. 488 OF 2009", he does not have the standing to bring the appeal to the National Court.
    

ISSUE 3: Whether the customary land owner has power to dispose of the land?

14. The sale or disposal of customary land is governed by Section 132 of the Land Act 1996, which states:
    

"Subject to Sections 10 and 11, a customary landowner has no power to sell, lease or otherwise dispose of customary land or customary rights otherwise than to citizens in according with custom, and a contract of agreement made by him to do so is void."

15. Under the Section 10 of the Land Act, only the Minister, on behalf of the State, may approve the acquisition of the customary land on satisfaction upon reasonable inquiry that the customary landowner does not require the land for a certain period of time, then the State may lease the customary land. While under Section 11 of the Land Act, the Minister may grant the lease over the customary land for agricultural or business lease purposes only. In either case, such agreement shall be authenticated by an instrument of lease.
    
16. The Section 132 of the Land Act requires two things that need to be satisfied in disposing of a customary land. The customary land owner has power to dispose of the land only to citizens and such disposal is to be done in accordance with custom. The custom, that is more relevant, is the custom and or the practices of the people where the subject land is situated. And in the present case, it would be the custom of Wabag District or otherwise the custom of Enga Province if the custom is common throughout the province and none other.
    
17. And so the question to be asked is: What is the custom of Engans in disposing customary land? The appellant Mr. Komen Ere in his affidavit filed on 04/05/11 stated that he purchased the land from the customary owner, the late Mr. Aru Ako. He did not state his relationship with the late Aru Ako. He did not state if the sale and purchase of the land was done in accordance with their Engan custom. It is vital that the appellant must prove that such purchase was done in accordance to their relevant custom. In the absence of such vital evidence, it would appear that the requirement under Section 132 of the Land Act, had not been satisfied. That been the situation as it may, I could not be satisfied that the sale and purchase between the appellants Komen Ere and late Aru Ako was done in accordance with the custom of Engans. And I find that such sale and purchase to be null and void and therefore unenforceable.
    

ISSUE 4: Whether the Village Court has powers to award ownership over customary land?

18. The jurisdictions of a Village Court, in relation to dealing with the customary land, are stipulated in Sections 43 and 48 of the Village Courts Act 1989. These provisions are stated in these terms as below:
    

43 Disputes in respect of land

"A Village Court that has jurisdiction over an area in which there is situated any land that is the subject of a dispute as to –

(a) its ownership by custom; or

(b) the right by custom to its use,

may on the application of a party to a dispute, make an order –

(c) authorizing the use or occupation of the land by one of the parties to the dispute for such purposes and subject to such conditions as are set out in the order; and

(d) where appropriate, prohibit the use or occupation of the land referred to in paragraph (c) except in accordance with an order referred to in that paragraph; and

(e) restrain the other party to the dispute from interfering with the authorized use or occupation,

or for any other purpose, pending the decision by the Local Land Court or the Provincial Land Court."

48 Limits of civil jurisdiction

(1) A Village Court has no jurisdiction under this Division in relation to-

• (a) Subject to Section 43, a matter involving the ownership of land;
  
• (b) A dispute involving the driving of a motor vehicle.
  

19. It is without doubt that under Section 43 of the Village Courts Act, the Village Court has power over the customary land dispute but it has limited or restricted powers in respect to making orders. And its powers are limited only to the authorize use or occupation or prohibiting the use or occupation of the customary land, and or restraining the other party from interfering with the authorized use or occupation by the other party. And the Section 48 made it even more clearer, that the Village Court has no powers to award ownership of customary land. When the Village Court awarded or recognized the ownership of the customary land to late Aru Ako, as per the ORDER E 57462, it exceeded its jurisdiction. The Village Court has erred in law in awarding ownership or even recognizing a person to be the customary owner of the land.
    
20. The power to award ownership over customary land rests in the Local Land Court and the Provincial Land Court established under the Land Dispute Settlement Act, (Part IV and V). When the Village Court is faced with the question on the ownership of the customary land, the orders the Village Court has to impose are those stipulated under Section 43 (c)(d)&(e) of the Village Courts Act. But the ownership issue had to be referred to the Local Land Court for its deliberations. The Village Court has no power to award ownership of land or even to recognize a person as the customary land owner. When it awarded ownership to late Aru Ako, the Village Court acted outside of its jurisdiction, therefore the Village Court has erred in law.
    

ISSUE 5: Whether the District Court has the powers to make orders substituting the Village Court orders on appeal?

21. When the Village Court ORDER E 57462 was appealed to the District Court, His Worship Edward Deib made the following orders:
    
    • - Village Court order quashed.
    • - Land remains Yakari Aru's.
      
22. That decision of the District Court was never referred to the Provincial Supervising Magistrate for review, under Section 94 of the Village Courts Act. The proceedings before the Provincial Supervising Magistrate is by way of a review upon the receipt of the records from the Magistrate hearing the appeal or the review under Section 93 of the Village Courts Act.
    
23. Since there are evidence of the laws been flawed by the inferior courts, I considered that it is appropriate that I should consider this issue here in passing. An order of the District Court that the "land remains Yakari Aru's", in my view is obviously an order substituting the earlier order of the Village Court that recognized late Aru Ako as the customary landowner. The District Court in hearing an appeal from the decision of a Village Court has no powers to substitute the orders of the Village Court. Under Section 92 (1) of the Village Courts Act, the District Court has powers only to either – confirm or quash the decision of the Village Court. And where the District Court quashed the decision of the Village Court, the matter must be referred back to a respective Village Court for re-hearing. The District Court has no powers to make substituted orders. In having quashed the decision of the Village Court, and then making a substituted order as to the ownership of the land, His Worship has erred in law. The District Court has over exercised its jurisdiction. For the reasons as I have alluded above, I make an order that the substituted order of the District Court as null and void and of no effect.
    

ISSUE 6: Should the matter be heard by another Magistrate of the District Court when the earlier decision of the District Court still exists?

24. There is no evidence from the appellant that the earlier decision of the District Court dated the 29th of September 2008, that determined the appeal over the decision of the Village Court, was reviewed by the Provincial Supervising Magistrate. When the District Court Magistrate hears the appeal from the decision of the Village Court, the District Court Magistrate must forward the copy of the record of his decision and his reasons to the Provincial Supervising Magistrate, (or the Senior Provincial Magistrate), pursuant to Section 93 of the Village Courts Act. And upon receiving that record, under Section 94 of the Village Courts Act, the Provincial Supervising Magistrate reviews that decision. There is no evidence before me that this process had been followed.
    
25. Unless and otherwise that earlier decision of the District Court was dismissed or quashed by the Provincial Supervising Magistrate on review, any later decisions from the District Court, based on the same decision from the same Village Court or from a different decision by the same Village Court but involving the same parties on the same customary land, would be considered as null and void and having no effect. Since the decision of the District Court on the 29th September 2009 had not been reviewed by the Provincial Supervising Magistrate, it is inappropriate to refer the matter before another Magistrate of the District Court. And any later decisions of the District Court are considered to be null and void and are of no effect.
    

ISSUE 7: Whether the presiding Magistrate erred in law in making the injunctive orders he made?

26. This issue refers to the interim orders made by His Worship Anthony Willie on the 6th of May 2010, which the appellant has appealed against it to this Court. That order was made before the Grade Five (5) Magistrate His Worship Jeffers Wia dismissed the review in the proceedings between YAKARI ARU (Appellant) -v- ARU AKO (Respondent) on the 1st of October 2010. It is not clear whether that review was made following the decision of District Court on appeal on the 29th of September 2008 by Magistrate Edward Deib who quashed the Village Court order that awarded the ownership of the land to the appellant Yakari Aru or whether the review was that of the decision on the 10th of March 2010 by Her Worship Magistrate Jopet Valvona that confirmed the Village Court order and awarded the ownership of the land to late Aru Ako. Both appeals were in respect of the same decision of the Village Court dated 2nd of June 2008 between Aru Ako -v- Yakari Aru.
    
27. The proceedings before His Worship Anthony Willie were for the interim injunctive orders and not for the review or an appeal against the decision from the Village Court. That proceeding was registered in the District Court at Wabag as "COMPLAINT NO. 488/09: Between LESSIE BEN WIA -v- YAKARI ARU, ENO ARU & ARU AKO". It is obvious that the Appellant Mr. Komen Ere was not a party in that proceedings. He is not appealing for and on behalf of those named defendants, therefore he has no standing to appeal against the decision of the District Court.
    
28. The interim orders are normally made pending the hearing of a substantive cause of action. There is no evidence suggesting that there was a substantive matter pending in the District Court between the said parties at the relevant time. The interim orders are in the nature of injunctive or restraining orders pending the hearing of the substantive matter. As there was no substantive matter pending before the District Court at the time, I find that the Presiding Magistrate has erred in law in issuing the injunctive orders.
    

ISSUE 8: Whether the reliefs sought by the Appellant be granted?

29. The appellant has sought two reliefs in this appeal and these are:
    
    1. That the findings and orders be quashed or dismissed for having no basis in law.
       
    2. The case be fully heard in the National Court.
       
30. I have found above that the appellant has no standing in bringing the appeal for the reason that he was not a party in the proceeding before the District Court. In considering the entire proceedings from the decision of the Village Court and a number of decisions from the District Court, it is evidence that they have all erred in law and that both the Village Court and the District Court Magistrates have all acted outside of their jurisdictions.
    
31. In exercising the inherent powers of the National Court as vested under Section 155 (5) of the Constitution, I proceed to consider whether or not I should grant the reliefs being sought by the appellant. I find that both the Village Court and the District Courts have erred in law in the orders they imposed. Accordingly, I will grant the first relief. And I quash the orders from both the Village Court dated 2nd of June 2008 and all the subsequent orders from the District Court Magistrates that followed thereafter.
    
32. I turn to the second relief, that is, for the National Court to fully hear and determine the whole matter. I considered that the subject matter or issue is one of the ownership over a customary land. The appropriate forum to determine the ownership is the Local Land Court. If a party is aggrieved by the decision of the Local Land Court, he can appeal to the Provincial Land Court then to the National Court, by way of a review under Section 155 (5) of the Constitution, even though the decision of the Provincial Land Court is final and not subject to appeal, pursuant to Section 60 of the Land Dispute Settlement Act.
    
33. Although the National Court is the Court having the inherent powers, pursuant to Section 155 (4) of the Constitution, to make orders in the nature of prerogative writs and such other orders that it seems necessary in order to do justice, the National Court only has the inherent power to review over any exercise of a judicial authority, where it considered that there are over-riding considerations of public policy, pursuant to Section 155 (3) & (5) of the Constitution. The National Court cannot play the jurisdictions of the inferior courts, such as the Local Land Court or the Village Court. There are legal mechanisms already put in place that must be used before the National Court can come in either by way of appeal or review. Accordingly this Court refuses to grant the second relief sought by the appellant.
    

CONCLUSION

34. In conclusion, this Court having made the findings and being satisfied that:
    
    1. The customary land owner has no powers to dispose of his customary land by any agreement for sale except in accordance with the custom, pursuant to Section 132 of the Land Act 1996; and
       
    2. The Village Court has exceeded its jurisdiction in awarding or recognising customary ownership of the land, pursuant to Sections 43 & 48 of the Village Courts Act; and
       
    3. The District Court had erred in law in substituting the order after it quashed the order of the Village Court during the appeal hearing; and
       
    4. The District Court had erred in law in making injunctive orders when there was no substantive matter pending in court for determination; and
       
    5. The proper forum to determine the ownership of a customary land being the Local Land Court and not the Village Court nor the District Court for that matter.
       
35. Based on the above findings, I made the orders as below, which, in my view are just and appropriate in the circumstances.
    

ORDERS OF THE COURT

1. That the decisions and the orders of the District Court and the Village Court be removed into the National Court and I make Orders that –
   
   • 1.1 The orders of the Village Court dated the 2nd of June 2008 are quashed.
     
   • 1.2 The orders of the District Courts dated 29th September 2008, 10th March 2009 and 6th May 2010 are quashed.
     
   • 1.3 The matter referred back to the Village Court to determine making orders under Section 43 of the Village Court Act only, that is –
     
     • (a) to authorize a party to use or to occupy the land; or
       
     • (b) to prohibit a party from using or occupying the land; or
       
     • (c) to restrain a party from interfering with the authorized use of the land.
       
2. The question of ownership of the customary land be referred to the Local Land Court for its determination.
   
3. Regarding the monies expanded on the purchase of the land, parties may pursue those under the appropriate legal avenues to settle them lawfully.
   
4. That no costs be awarded to the appellant.
   

Ordered Accordingly.
_______________________________________________________
First Appellant: Deceased.
Second Appellant in Person
No Appearance by Respondent