Gason v Mangu Clan of Astrolabe Bay [2016] PGNC 4; N6163 (15 January 2016)

N6163

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CIA NO 106 OF 2013

STABIE GASON, FOR HIMSELF AND ON BEHALF OF KURENDUK CLAN OF ASTROLABE BAY, MADANG PROVINCE
Appellant

V

MANGU CLAN OF ASTROLABE BAY, MADANG PROVINCE
First Respondent

JOSEPH GABUT, BENEDICT BATATA & KUTT PAONGA, COMPRISING THE RAMU NICKEL/COBALT SPECIAL LAND TITLES COMMISSION
Second Respondents

RAMU NICKEL/COBALT SPECIAL LAND TITLES COMMISSION
Third Respondent

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Fourth Respondent

Madang: Cannings J
2016: 15 January
2015: 22 April
2014: 3 December

APPEALS – appeal against decision of Special Land Titles Commission regarding ownership of customary land – Land Titles Commission Act 1962, Section 38 (right of appeal) – limited grounds of appeal.

The appellant appealed against the decision of a Special Land Titles Commission declaring that a block of customary land was owned by the first respondent. The appeal was made under Section 38 of the Land Titles Commission Act, on two grounds: the decision was against the weight of the evidence and the hearings of the Commission were conducted in a manner contrary to natural justice. The second, third and fourth respondents argued as a preliminary point that the appellant was guilty of an abuse of process as he was not a party to the proceedings of the Commission and therefore had no standing to appeal against its decisions.

Held:

(1) A person does not have to have been a party to the proceedings of a Land Titles Commission to have standing as a "person aggrieved" by its decisions. However, an appellant who was not a party must present good reasons why he was not a party, and if no good reasons are presented, he will lack standing.

(2) Here, the appellant was not a party and failed to show good reasons why he was not a party. He lacked standing, so the appeal was an abuse of process and was dismissed for that reason.

(3) If the appeal had been considered on its merits, it would still have been dismissed as the appellant failed to demonstrate what evidence was before the Commission and was therefore unable to prove that the decision was against the weight of the evidence. Further there was no evidence of a denial of natural justice.

(4) The appeal was dismissed.

Cases cited

The following cases are cited in the judgment:

Dynasty Estates Ltd v Nambawan Super Ltd (2015) SC1427
Kitogara Holdings v NCDIC [1988–89] PNGLR 346
Re Wangaramut (No 2) [1969-70] PNGLR 410

APPEAL

This was an appeal by a person aggrieved by a decision of a Special Land Titles Commission as to ownership of customary land.

Counsel

G Pipike, for the Appellant
S Maliaki, for the Respondents

15 January, 2016

1. CANNINGS J: Stabie Gason of the Kurendek Clan of the Astrolabe Bay area of Rai Coast District, Madang Province, appeals against the decision of the Ramu Nickel-Cobalt Special Land Titles Commission regarding customary ownership of the area of land known as 'Block 725, Mining Easement 75'.

2. The decision was made on 23 August 2013 and relevantly states:

1. The parcel or block of land, known as "MERAIKU" land and designated as Block No 725 inside Mining Easement No 75 is owned by MANGU Clan.

2. The MANGU Clan is the undisputed owner of "MERAIKU" land, and it is entitled to receive benefits or proceeds including benefits from the Ramu Nickel/Cobalt Project that emanate from the use of the said land.

3. The appeal is made under Section 38 of the Land Titles Commission Act, which allows a "person aggrieved by a decision of the Commission" to appeal to the National Court within 90 days after the decision. Two grounds of appeal are relied on: (a) that the decision was against the weight of the evidence and (b) that the hearings of the Commission were conducted in a manner contrary to natural justice. The appeal was filed on 18 October 2013, within the 90-day period, and the grounds of appeal are compliant with Section 38(2) of the Act, which restricts the grounds on which a person can appeal.

4. Mangu Clan was named as first respondent but did not appear at the hearing of the appeal. The three Commissioners, the Commission itself and the State were named as second, third and fourth respondents. They were represented by Ms Maliaki of the Office of Solicitor-General who has raised a preliminary point which, if upheld, would result in summary dismissal of the appeal.

PRELIMINARY POINT

5. Ms Maliaki submits that the appeal is incompetent and an abuse of process as the appellant was not a party to the Commission's proceedings. As he took no part in the earlier proceedings, he cannot appeal against the Commission's decision.

6. I largely uphold this submission. As to whether the appellant participated in the Commission's proceedings, he has deposed in an affidavit in support of the appeal that Mr Hondu Bagen, on behalf of Kuren Tamo Clan of Bungu village, participated in the Commission's proceedings and was an applicant for Block 725. The appellant describes Mr Bagen as his clan leader. However, the appellant does not explain the relationship between his clan – Kurenduk – and Mr Bagen's clan – Kuren Tamo. Nor does he explain why Mr Bagen has not appealed against the decision. I find as a fact that the appellant was not a party to the Commission's proceedings.

7. That does not necessarily disqualify him from appealing against the Commission's decision. The right of appeal is given to a "person aggrieved" by a decision of the Commission, not to a party to the Commission's proceedings. A person who was not a party might nevertheless be genuinely aggrieved by a decision of the Commission. However, an appellant who was not a party to the proceedings of the Commission must, in my view, present good reasons why he was not a party, and if no good reasons are presented, he will lack standing.

8. This is the approach that has been taken in the case of appeals from the National Court to the Supreme Court, which are governed by the Supreme Court Act. Section 14 simply provides that "an appeal lies from the National Court" and Section 17 refers to "a person who desires to appeal". The general principle has been developed in cases such as Kitogara Holdings v NCDIC [1988–89] PNGLR 346 and Dynasty Estates Ltd v Nambawan Super Ltd (2015) SC1427 that a person who was not a party to the National Court proceedings will nevertheless have standing to appeal if he can show good reasons why he was not a party to the National Court proceedings and how his interests are affected by the decision he wishes to appeal against.

9. Here, the appellant was not a party to the proceedings of the Land Titles Commission and failed to show good reasons why he was not a party. Though he might say he is aggrieved by the Commission's decision, he has not shown that he is genuinely aggrieved. He therefore lacks standing, so the appeal is an abuse of process and will be dismissed for that reason alone.

GROUNDS OF APPEAL

10. I will now briefly, though it is not necessary to do so, comment on the grounds of appeal. As to ground (a), I would have applied the general principles emerging from the decision of the pre-Independence Supreme Court in Re Wangaramut (No 2) [1969-70] PNGLR 410. If an appellant wishes to argue that a decision of the Land Titles Commission was against the weight of the evidence, the appellant is obliged to:

• put before the National Court the evidence that was before the Commission,
  
• show how the Commission misconstrued the probative value of the evidence or drew unjustified inferences or failed to draw reasonable inferences from the evidence; and
  
• show why the decision appealed against is wrong and cannot be supported by the evidence or by any proper inferences to be drawn therefrom or from the relevant law.
  

11. In determining an appeal the National Court must bear in mind that it is not in the same position as that of a specialist tribunal which has dealt with a matter peculiarly within its knowledge. The task of an appellate court is not simply to substitute its own conclusions for those of the decision under appeal if it disagrees with them.

12. This appeal pays no regard to any of the above principles. The argument of the appellant is a very simple one. He wants to argue that the Commission misread a map of the route of the slurry pipeline that runs from the mine-site at Kurumbukari to the refinery at Basamuk and through Block 725. He argues that the traditional name of Block 725 is "Barami", not "Meraiku", as it has been described by the Commission. The Commission, according to the appellant, has made a simple mistake of fact, which must be corrected.

13. The appellant wants to argue the alleged mistake made by the Commission was against the weight of the evidence, but he has not put that evidence before the Court, let alone explained how it was misconstrued by the Commission. He has only given the Court a copy of the Commission's decision and an affidavit, which appears to be fresh evidence, of how he believes the mistake of the Commission might have been made. So ground (a) would have been dismissed.

14. Ground (b) would have been dismissed for much the same reason. There is no evidence to support the argument that the Commission failed to give the appellant the opportunity to be heard or otherwise conducted its hearings contrary to the principles of natural justice.

CONCLUSION

15. The appeal is an abuse of process as the appellant has no standing and for that reason the appeal will be dismissed. If the grounds of appeal had been addressed on their merits, neither would have been upheld as there is insufficient evidence before the Court and the appeal would still be dismissed. Costs will follow the event.

ORDER

(1) The appeal is dismissed as an abuse of process.

(2) The appellant shall pay the costs of the appeal to the second, third and fourth respondents, on a party-party basis, which shall if not agreed be taxed.

(3) The file is closed.

Judgment accordingly,

______________________________________________________________
GP Lawyers: Lawyers for the appellant
Solicitor-General: Lawyer for the respondents