Sehazuha Land Group Incorporated (ILG) v Rogakila [2019] PGNC 26; N7768 (14 March 2019)

N7768
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS (JR) NO. 448 OF 2018

BETWEEN
SEHAZUHA LAND GROUP INCORPORATED (ILG)
First Plaintiff

AND
SETH HUKE as the Chairman
Second Plaintiff

AND
IRUNA ROGAKILA as Registrar of Incorporated Land Groups
First Defendant

AND
DEPARTMENT OF LANDS AND PHYSICAL PLANNING
Second Defendant

AND
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Defendant

Waigani: Makail, J
2019: 13^th & 14^th March

JUDICIAL REVIEW – Incorporated Land Groups – Certificate of Recognition of Incorporated Land Group – Cancellation of Certificate by Registrar of Incorporated Land Groups – Power to cancel Certificate of Recognition of Incorporated Land Group – Land Groups Incorporation Act – Sections 5, 5A, 5B, 6, 9 & 33

Cases Cited:
Papua New Guinea Cases

Kanga Kawira v. Kepaya Bone (2017) N6802

Overseas Cases

Associated Picture Houses v. Wednesbury Corporation Ltd [1948] I KB 223

Counsel:

Mr. D. Wapu, for Plaintiffs
No appearance by Defendants

JUDGMENT

14^th March, 2019

1. MAKAIL, J: This application for judicial review has a fair bit of history going back a couple of years because of two telecommunication towers located on a mountain called Mount Otto in the Eastern Highlands Province.

2. Dispute over ownership between persons claiming to be traditional owners of the mountain and subsequently, benefits derived from the use of the land at the peak of the mountain protracted. It resulted in two separate proceedings being commenced in the National Court in 2011 in relation to entitlement to the monetary benefits derived from the use of Mount Otto land; that questions were raised in relation to the mandate and authority of those who claim to represent the landowners and also their management of monetary benefits. There were allegations of misuse and abuse of monetary benefits, in one instance, a sum of K71,670.00 was allegedly misappropriated.

3. As is not uncommon in Papua New Guinea, the conflict was between two groups of landowners, one led by the Second Plaintiff while the other led by a Veho Gaveveho Mohokule and James Lavito Aitapo. Sometimes after the commencement of the court proceedings, parties ended up in a mediation facilitated by a Judge of the National Court.

4. Five years after the commencement of court proceedings and mediation hearings, a mediation agreement was reached on 23^rd October 2016. One of the resolutions was for the disputing landowners to incorporate an Incorporated Land Group (ILG) to represent them. This would supersede all other previous arrangement and leadership issues including the ILG bearing the name of the First Plaintiff.

5. Pursuant to the resolution of the mediation agreement, a meeting was convened by landowners comprising of members of the Sehazuha clan. Veho Gaveveho Mohokule and James Lavito Aitapo did not attend. In that meeting of 13^th April 2017 at the Conference Room of Bird of Paradise Hotel in Goroka, the Second Plaintiff was elected as Chairman of the First Plaintiff along with five other members as other office bearers. They were Jimson Guluho as Deputy Chairman, Hiso Huhuvu as Secretary, Issacc Gumoko as Treasurer, Serah Polume Mohoke as first female representative and Julie Dyna Seth as second female representative.

6. According to Section 5 of the Land Groups Incorporation Act (ILG) amongst other things, the names of the new office bearers of the ILG were required to be submitted to the office of the First Defendant under an application for registration and issuance of a Certificate of Recognition of Incorporated Land Group. (Certificate of Recognition)

7. It was at the office of the First Defendant that it became a contentious matter. Due to different officers in the office of the First Defendant, it was uncertain to proceed with the application for registration and conflicting positions were taken. It was not until 5^th September 2017 that the acting Registrar of ILGs Mr. Judah Suka registered and issued a Certificate of Recognition in favour of the First Plaintiff. It was this Certificate of Recognition that recorded the Second Plaintiff and his office bearers as office bearers of the First Plaintiff. Significantly, it recorded the Second Plaintiff as Chairman of the First Plaintiff. These were the persons elected at the meeting of 13^th April 2017.

8. Then on 10^th January 2018 the First Defendant wrote to the Plaintiffs to surrender the Certificate of Recognition on the ground that it was issued by fraud. The Plaintiffs objected to the fraud claim through their lawyers and called upon the First Defendant to specify it. The First Defendant did not and instead send another letter dated 20^th March 2018 for the Plaintiffs to surrender the ILGG Certificate. He gave the Plaintiffs seven days to surrender it.

9. On 3^rd May 2018 the First Defendant cancelled the First Plaintiff’s Certificate of Recognition and issued another one, this time recognising Veho Gaveveho Mohokule as Chairman of the First Plaintiff. The other office bearers were James Lavito Aitapo as Deputy Chairman, Hatenava Hatex Mohoe as Secretary, James Veize Jasinaha as Treasurer, Serah Polume Mohokule as the first female representative and Julie Visaizo Makarai as second female representative.
10. The Plaintiffs contended that The First Defendant did not have the requisite authority to cancel the Certificate under the ILG Act. They also contended that was biased, in that he favoured the other group of landowners led by Mr. Mohokule and Mr. Aitapo and colluded with them to cancel the Certificate. This is evident from his letter dated 10^th Janauary 2018 wherein he copied it to Mr. Aitapo. Mr. Aitapo had no interest in the application because he ceased to be an office bearer or was not an office bearer of the First Defendant. Finally, it was unreasonable under the principles of unreasonableness in Associated Picture Houses v. Wednesbury Corporation Ltd [1948] I KB 223 because the First Defendant took into account irrelevant matters and failed to take into account relevant matters. In retrospect, there was no lawful basis for the First Defendant to issue another Certificate in the name of the First Plaintiff bearing different office bearers.

11. The setting up of the ILG for the members of the Sehazuha clan was based on the resolution of the mediation agreement of the disputing groups of landowners comprising of the Sehazuha clan. It was an agreement that the Second Plaintiff, Mr. Mohokule, Mr. Aitapo and other members of Sehazuha clan accepted and must honour. The meeting of 13^th April 2017 facilitated the decision to do away with all other arrangements including those set up by Mr. Mohokule and his group and establish the First Plaintiff and also election of the office bearers to manage it. That is what the Second Plaintiff and members of the Sehazuha clam did.
12. Notably, Mr. Mohokule and Mr. Aitapo did not participate in that meeting because they did not attend. In that meeting the Second Plaintiff and his office bearers were elected. It is unfortunate that the election of these office bearers was not well received at Waigani when the application for registration and issuance of a Certificate reached the office of the First Defendant. While the mediation agreement was intended to resolve the conflict, another conflict was created. It demonstrates the challenges that mediation is faced with in this country and if parties want a lasting solution and peace, it will come at a high price. I do acknowledge the hard work and effort put in by judges to encourage and promote mediation in dispute resolution like in the case of Kanga Kawira v. Kepaya Bone (2017) N6802. But it is no easy task and will require everyone to work together to reach an agreement.

13. The application by the Plaintiffs to the First Defendant under Section 5 of the ILG Act was sufficient for the First Defendant to approve and issue a Certificate. It had the backing of the mediation agreement and the resolution of the meeting of the members of Sehazuha clan.

14. If the First Defendant was uncertain or not satisfied with the information provided to him, he may set in motion and exercise his powers under Sections, 5A, 5B, 6 and 33 of the ILG Act. This is where he may ask for and collect further information from various sources including the Local Government Council to help him make a decision.

15. But such an exercise would bear in mind the mediation agreement where parties (landowners/members of Sehazuha clan) were bound to honour irrespective of their differences. In other words, if the mediation agreement is construed as a means towards resolving the question of an authentic ILG and leadership dispute, the First Defendant would no doubt give effect to it by implementing it. An issuance of a Certificate for the Second Plaintiff would be the natural consequence.

16. As noted earlier, it was not until 5^th September 2017 that the acting Registrar Mr. Suka recognised the importance of the mediation agreement and how it played a vital role in resolving the conflict and acted upon it to issue the Certificate to the Plaintiffs. It can hardly to be understood after what he did that the First Defendant decided to revoke the Certificate under the guise of a cancellation. Neither could the claim by the First Defendant that the Certificate was procured by fraud be upheld. Such finding would completely ignore the existence of the mediation agreement and the resolution by the landowners to call for a change in the leadership of the clan.

17. For odd reason, Mr. Mohokule and Mr. Aitapo did not attend the meeting of the clan. Now they contest the First Plaintiff’s Certificate of Recognition. This is evident from a letter by their lawyers (Public Solicitor) to the First Defendant dated 19^th September 2017 making so many allegations against the Plaintiffs. It was written two weeks after the issuance of the Certificate to the Plaintiffs. Then well after these two gentlemen did not get the endorsement of their clan members to lead them, the First Defendant continued to entertain them by copying them the letter of 10^th January 2018. It supports the Plaintiffs’ claim that the decision to cancel the Certificate was actuated by bias. But, surely there must be an end to this conflict. Otherwise, parties will be going in and out of the Court or the Registrar of ILGs’ office for the rest of their lives. For the First Defendant to overlook the mediation agreement and resolution of the meeting by the Sehazuha clan and entertain Mr. Mohokule and Mr. Aitapo’s request, the decision to cancel the Plaintiffs’ Certificate must be found wanting. It is unreasonable.

18. Finally, under Section 9 of the ILG Act, the Registrar of ILGs is conferred power to vary a Certificate of Recognition and issue an amended one. Such power may be exercised on application by an ILG and if the variation applied for is of no practical or legal significance, it may be granted. There is no mention that the Registrar may cancel a Certificate. The First Defendant may vary the Plaintiffs’ Certificate but has cancelled the Plaintiffs’ Certificate when he had no authority to do that. This is where he erred. If Mr. Mohokule and Mr. Aitapo had issues with the decision made by Mr. Suka in his capacity as the acting Registrar, they should appeal that decision to the Minister under Section 26 of the ILG Act. Even if it were done to vary the Certificate, the exercise of power was more than a variation and did not meet the conditions of variation. It had practical and legal significance because it changed the entire composition of the office bearers of the First Plaintiff and ignored the mediation agreement and the resolution of the meeting by the Sehazuha clan members.

19. The decision to cancel the First Plaintiff’s Certificate and subsequent decision to issue another Certificate in the name of the First Plaintiff with different office bearers must be found to be without the requisite authority of the First Defendant under Section 9 of the ILG Act, tainted with bias and unreasonable in the circumstances.

20. The orders are:

1. The application for judicial review is upheld.

2. An order in the nature of certiorari quashing the decision of the First Defendant dated 3^rd May 2018 to cancel the Certificate of Recognition of the First Plaintiff dated 5^th September 2017.
3. An order in the nature of certiorari quashing the decision of the First Defendant dated 3^rd May 2018 to issue a Certificate of Recognition of the First Plaintiff dated 3^rd May 2018.
4. A declaration that the decision of the First Defendant dated 3^rd May 2018 to cancel the Certificate of Recognition of the First Plaintiff dated 5^th September 2017 is unlawful, illegal, null and void.
5. A declaration that the Certificate of Recognition of the First Plaintiff dated 5^th September 2017 is valid for all intent and purposes.
6. The Defendants shall pay the costs of the proceedings, to be taxed, if not agreed.

________________________________________________________________
Don Wapu Lawyers : Lawyers for the Plaintiffs
Acting Solicitor-General : Lawyers for the Defendants