Okdiman v Firam [2016] PGNC 211; N6406 (17 June 2016)

N6406

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CIA No. 85 OF 2012

BETWEEN:

MERENG OKDIMAN AND JACK MAFU on behalf of themselves and on behalf of the NINGALIN CLAN
First Appellant

AND:
TIMOTHY JOHN and SEPIK KAMENSENG on behalf of themselves and on behalf of the AWONKALIM CLAN
Second Appellant

AND:
GEORGE FIRAM, OGI KULAYOK AND LEVI ATURAM and other members of THE WANANG SENGUN CLAN
Respondent

Waigani: Nablu, J
2015: 9^th December
2016: 17^th June

APPEAL – District Court – Land Court and Provincial Land Court – Magistrates Jurisdiction – Local Land Court – Error on the face of the record – Land Dispute Settlement Act ss. 53, 54 and 58.

Cases cited:
Agalu v. Eno [2005] N2904
Daniel Ronald Walus v. The State (2007)SC 882
Ronny Wabia v. BP Exploration Operating Co.& Others [1998] PNGLR 8
Wak v.Wia [2008] N3356

Counsel:
Mr Kaore G, for the First Appellant
Mr Nahupa B, for the Second Appellant
Mr Kolo J, for the Respondent

17^th June 2016
1. NABLU, J: This is an appeal to the National Court purportedly from the decision of the Tabubil District Court. The appellants are aggrieved by the decision of the Local Land Court Magistrate Frank Manue which was made on 30^th July 2012.

2. The background facts of the matter are not contentious. The respondent’s filed proceedings in the Local Land Court at Tabubil entitled LLC No. 1 of 2011. The respondent’s claimed that there was a dispute as to the customary land ownership of an area known as“Wangbir Lake” and the surrounding areas. The dispute was referred to the Local Land Court Magistrate Frank Manue to hear and determine the case. There appears to be consensus amongst the parties that the portion of the land under dispute is part of the parcel of land on which the Tabubil Township is located. The hearing of the matter commenced on 21^st May 2012. His worship delivered a written decision on 30^th July 2012.

3. The appellants challenge the decision on two main grounds. The first ground is based on a jurisdictional issue and that is whether the Magistrate had the jurisdiction to hear and determine a Customary Land Ownership dispute.

4. The second ground of appeal is based on the argument that the land subject of the decision was subject of a State Lease, therefore a Magistrate of the Local Land Court lacked the jurisdiction to hear and determine the dispute.

5. The grounds of appeal are set out as follows;

1. The District Court Magistrate erred in Law when he proceeded to hear and determine the customary land dispute in LLC No: 01 of 2011 because he lacked the jurisdiction as he was not a Magistrate of the Local Land Court appointed under Section 22 of the Land Disputes Settlement Act 1975.
   
2. The Magistrate erred in law when he claimed that the District Court sitting convened in Tabubil has jurisdiction to sit as a Local Land Court, and to hear and determine a dispute of ownership of customary land in LLC No: 01 of 2011.
   
3. The District Court Magistrate or the purported Local Land Court dealing with matter LLC No: 01 of 2011 committed an error in law when it proceeded to hear and determine the ownership of customary Land that included a piece of land known as Portion 1 Milinch: Deneb, Fourmil: Blucher in Western Province because the customary ownership issues of the said land was already determined in Native Land Dealing (N.L.D.- 4221) in 1981 and leased to the State of PNG for 99 years.

6. The transcript of the proceedings in the lower court was certified by the Clerk of Court for the Tabubil District Court and referred to the National Court on 4^th September 2012. The transcript is included in the Appeal Book Volume 1 (pages 34-53). The decision can be found at pages 143 – 163 of the Appeal Book.

7. The first issue for me to determine is whether this appeal is properly before this Court and whether this Court has the jurisdiction to hear this appeal.

8. The appellants main argument is that the District Court Magistrate exceeded his jurisdiction and sat as the Local Land Court. The learned Magistrate heard and determined the Customary Land dispute when it did not have jurisdiction to do so.The appellant argued that the Magistrate was not duly appointed a Local Land Court Magistrate and therefore he was not empowered to hear and determine the matter. The appellant also argued that in the event the Court found that the Magistrate was duly appointed the Gazette notice was flawed and published after the Magistrate heard and determined the matter.

9. On the other hand the respondent argued that the appellant’s did not follow the appeal process under the Land Dispute Settlement Act. The appeals were lodged with the Provincial Land Court and later discontinued without been determined. Further to that the respondent argued that the Magistrate was duly appointed the Local Land Court Magistrate and therefore was authorised and had the jurisdiction to hear and determine the matter.
10. After a careful examination of the court depositions, I am able to understand why the matter was appealed and allowed to progress this far. The appeal is before me because it is argued that the District Court made the decision. I have reviewed the decision and it is clear that there is an apparent error on the face of the record. The decision is entitled as been determined in the District Court, however, that is not the case. The title of the decision states that “In the District Court of Justice sitting in its Local Court jurisdiction”.

11. I find that there is an apparent error on the face of the record. It is clear that the title is incorrect and misleading. The case is entitled LLC 01 of 2011. The error is that the titeliture on the face of the record reads “IN THE DISTRICT COURT”. That in my view is incorrect. The matter relates to a customary land ownership dispute which is supposed to come within the Local Land Court’s jurisdiction.

12. Notwithstanding the apparent error on the face of the record, I am of the view that the error in the title is not detrimental or prejudicial to the appellants for the reason that it is a mere mistake or typographical error.

13. In cases where there are apparent errors on the face of the record, the Court has the inherent power pursuant to s. 155(4) of the Constitution to correct the errors prior to the withdrawal of an appeal; Daniel Ronald Walus v. The State (2007) SC 882.

14. The proper Court to hear and determine disputes such as customary land ownership is the Local Land Court. The District Court and Local Court are two different Courts. I adopt the views by his honour, Injia, DCJ (as he then was) in the case of Agaluv. Eno [2005] N2904 and apply it in this case as been the correct proposition of law relating to the separate duties and functions of the Local Land Court and the District Court. His Honour stated at page 3 of his judgement that;

“The Local Land Court on the one hand and the District Court on the other hand, are established under two different statutes. The Local Land Court (and the Provincial Land Court) is established under the Land Dispute Settlement Act (Ch. No. 45) and the District Court is established under the District Courts Act (Ch. No. 40). Their jurisdiction over subject matter and procedures for dealing with the matters within their respective jurisdictions are distinct and separate and they are prescribed by their own respective statutes.”

15. I also echo his honour’s comments about the confusion by counsel, parties and may I add the confusion also extends to the Local and District Courts. Because of the practise of appointing the District Court Magistrates to the Local Land Court means that the Magistrates preside on matters in both Courts. This may result in typographical errors and mistakes on the face of the record like in the present case. It is also highly possible that the inferior Court registry staff will also be confused as to which cases are pending before the Magistrate therefore contributing to the errors on the face of the record.
16. Notwithstanding, the apparent error as to the title of the Decision, it is clear from the evidence before me, that the purpose and intent of the ruling is related to a Local Land Court decision. I find that the Magistrate sat as the Local Land Court and not the District Court. The decision is for LLC No. 01 of 2011.

17. The coram is clearly described as the Magistrate as the Chairman and assisted by the Mediators. The Land Court stamp is also affixed along with a signature whom I assume belongs to the Clerk of Court. The reasons for the decision is also clearly shown to be that of the Local Land Court Magistrate.
18. I am not convinced that such an error is so severe and fatal to the decision. In other words, I am not convinced the error was so serious that it resulted in a serious miscarriage of justice for the appellants. The form and content of the decision is of that of a Local Land Court Magistrate exercising his jurisdiction. I see no exceptional reason to overturn his decision on what appears to be a typographical error.

19. Therefore this appeal is incompetent; the National Court does not have the jurisdiction to review the decision of the Local Land Court. The process is stipulated under the Land Dispute Settlement Act. An appeal should be made to the Provincial Land Court. Even the issue of whether the Magistrate had the jurisdiction to hear the application can still be raised before the Provincial Land Court for proper determination; see Ronny Wabia v. BP Exploration Operating Co. [1998] PNGLR 8; and Wakv.Wia [2008] N3356.

20. An appeal of this nature should be brought to the Provincial Land Court who is the appropriate Court of Law established and duly responsible to consider such appeals. Sections 53 and 54 of the Land Dispute Settlement Act states that;

53. JURISDICTION.

Subject to this Part, a Provincial Land Court has jurisdiction to hear and determine appeals from a decision of a Local Land Court where the land in dispute is situated wholly or partly within the area of the Provincial Land Court.

54. APPEAL AGAINST DECISION OF LOCAL LAND COURT.

1. Subject to this section, a person aggrieved by a decision of a Local Land Court may appeal within three months after the date of the decision to the Provincial Land Court.
   
2. Where the Provincial Land Court is of opinion that it is desireable in the interests of justice to do so, it may, whether or not the time fixed for appeal under Subsection (1) has expired, extend the time fixed for appeal, but leave shall not be granted after the end of the period of 12 months after the date of the decision appealed against.
   

21. I am of the view that, the question of whether the Local Land Court Magistrate was duly appointed should have been raised before the Provincial Land Court on appeal. The other issues raised in this appeal such whether the Local Land Court had the jurisdiction to determine ownership of customary land where the land is subject of a State lease; whether the Land is in fact subject to a State lease; whether customary ownership can be determined now? These issues should have been referred to the Provincial Land Court for determination. The Land Dispute Settlement Act provides for general grounds of appeal which provide adequate rights for aggrieved persons to utilize.

22. Section 58 of the Land Disputes Settlement Act states that:

“58. GROUNDS FOR APPEAL.

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

1. that the Local Land Court exceeded or refused to exercise its jurisdiction; or
   2. that the Local Land Court conducted its hearing in a manner contrary to natural justice; or
   100. that in the circumstances of the case no court doing justice between the parties would have made the decision appealed against; or
   4. that, in the case of a appeal against a decision given under Section 40, the order for the return of the interest of interests in land or the grant of another equivalent interest or interests was not supported on the facts.”

23. As stated earlier, this appeal is incompetent and that this Court does not have the jurisdiction to hear and determine this appeal. I find that there are no errors of law by the learned Magistrate which justify the need to review the decision of the lower Court.

24. For the foregoing reasons, I dismiss the appeal with costs to the Respondents.

25. I make the following orders;

1. The appeal is dismissed forthwith.
   
2. The first appellant is to pay 50% of the respondent’s costs and incidental to the proceedings to be taxed if not agreed upon.
   
3. The second appellant is to pay 50% of the respondent’s costs of and incidental to the proceedings to be taxed if not agreed upon.
   
4. Time is abridged.

________________________________________________________________
Kaore Lawyers : Lawyer for the First Appellant
Horizon Lawyers: Lawyers for the Second Appellant
Kolo & Associates: Lawyers for the Respondent: