Goranding v Mangkepe [2022] PGNC 529; N10064 (11 May 2022)

N10064

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS (JR) No. 305 OF 2020

BETWEEN

NASOFONG GORANDING-Chairman of the Tongone (1) Clan for and on behalf of 7 clans of Yombong Village
-Plaintiff-

AND

JERRY MANGKEPE
-First Defendant-

AND

PIUS TAPIL-as Senior Provincial Land Court Magistrate
-Second Defendant-

AND

The Independent State of Papua New Guinea
-Third Defendant-

Lae : Dowa J
2022 : 11^th May
2021 : 28^th July

JUDICIAL REVIEW-application to review decision of local land court in circumstances where applicant lost right of appeal to the provincial land court-land mediation process under Land Disputes Settlement Act discussed- though main order for review refused, other appropriate orders granted.
PRACTICE AND PROCEDURE- application for dismissal of proceedings for disclosing no reasonable cause of action-on grounds of lack of jurisdiction, res judicata, and representative capacity.

Cases Cited:
PNG Forest Products vs. State [1992] PNGLR 85
Ronny Wabia vs. BP Exploration Co. Ltd [1998] PNGLR 8
Wabia vs. BP Petroleum (2019) N4337
Mt. Hagen Urban LLG vs. Sek No. 15 (2009) SC1007
National Provident Fund vs. Maladina & Others (2003) N2486
Wambunawa Holdings Ltd. vs. ANZ Bank (2020) N8310
Kekedo v Burns Philip (PNG) Ltd [1988-89] PNGLR 122

Counsel:
K. Kevere, for the Plaintiffs
S. Kesno, for the first Defendant
S. Maliaki, for the Defendants

DECISION

11^th May 2022

1. DOWA J: This is a decision on the Plaintiffs application for judicial review.
   
2. By a Substantive Notice of Motion, the Plaintiff seeks the following orders:
   
   1. Pursuant to Order 16 Rule 1 (1) and Rule 5 (1) of the National Court Rules, an Order in the Manner of Certiorari to bring up into this Court and quash the Decision/Approval of Agreement of the Local Land Court Magistrate dated 30^th March 2007 based on which Decision the First Defendant has been falsely claiming the ownership rights over the entire land mass within Yombong Village including the Plaintiff’s Tongone (1) Clan Land.
      
   2. A declaration that the decision or order issued by Finschaffen Local Land Court Magistrate Mr. Daniel Ainga, dated 28^th of April 2010 is deemed proper and effective for all purposes.
      
   3. An order in the Manner of Mandamus to compel the First Defendant and PNG Forest Authority-Lae Office to reimburse the two royalty payments, a sum of K64, 842.48 and 260,000.00 respectively and other payments subsequently obtained and which payments were for the logs harvested from the portions of land own by the Plaintiff and Seven (7) inter-clans of Yombong Village.
      
   4. An order that Low Impact Logging Limited and the PNG Forest Authority are stopped or refrained from conducting any land negotiations, executing any document pertaining to logging operations in Yombong Village with the First Defendant, and or paying any payment in the form of Royalty or access and Compensation to him........”
      

Background Facts

3. The case relates to ownership and distribution of logging royalty payments over customary land at Yombong village, Finschaffen District. The facts are disputed by the parties, as to customary land ownership, clan leadership, land mediation agreements and the engagement of the Logging Company and the Department of Forests.
   

The Plaintiff’ Claim

4. The Plaintiff, Nasofong Gorading alleges, he is the clan leader of Ofongsogo Tongone clan, and he represents seven other clan leaders of Yombong village who own land commonly known as Ofongsogo clan land. The Plaintiff alleges, only his and seven other clans are the true customary landowners. The Plaintiff alleges, the First Defendant, Jerry Mangkepe is not a clan leader, nor a genuine owner of the customary land in question.
   
5. The Plaintiff alleges that in a Land Mediation, conducted on 28^th April 2010, he was recognized as the true landowner and leader under an Approval of Agreement – Form 10 issued under the Land Disputes Settlement Act. The Plaintiff alleges, the First Defendant has in his possession one Approval of Agreement dated 30^th March 2007 which is not genuine, and not approved or agreed to by all clan members.
   
6. The Plaintiff alleges that the First Defendant used the Approval of Agreement dated 30^th March 2007 to deal with the Logging Company, and Office of Department of Forestry to collect and use royalties to the detriment of the other genuine landowners.
   
7. The Plaintiff says he has the consent and authority of the other seven (7) clan leaders to institute these proceedings.
   

The First Defendant

8. The First Defendant says, he is a genuine landowner of Togome Land. He was given recognition as leader, which was sealed in a Local Land Court Approval of Agreement (Form 10) and a Record of Mediation (Form 7) issued on 30th March 2007. The First Defendant says the Plaintiff is not a legally recognized leader. The Plaintiff’s Approval of Agreement dated 28th April 2010 was not properly sealed by the Local Land Court. The First Defendant alleges further that the Plaintiff does not represent all the seven (7) clan members.
   
9. The First Defendant alleges that since the Plaintiff is challenging the Court ordered Approval of Agreement of 30th March 2007, that would be a matter for appeal to the Provincial Land Court under the Land Disputes Settlement Act, and not the National Court in its review jurisdiction.
   

Preliminary Issues

10. At the hearing, the Defendant raised the following preliminary issues; that a) the National Court lacks jurisdiction. b) the Plaintiff lacks representative capacity and C) the proceedings are an abuse of the process based on res judicata

Issues
11. This gives rise to the following issues for consideration:

1. Whether the proceeding be dismissed for being frivolous and vexatious because of lack of jurisdiction and for being an abuse of the process.
   
2. Whether the decision of the Local Land Court dated 30^th March 2007 endorsing an application for Approval of Agreement over the Tongone land be brought into the National Court and quashed.
   

100. Whether the decision of the Local Land Court made on 28^th April 2010 approving the application for mediation Agreement over the Tongone Land be declared valid and proper for all purposes.
     

4. Whether the Court can order in Mandamus to compel the First Defendant, the PNG Forest Authority, to reimburse royalty payments paid to the first defendant.
   
5. Whether Low Impact Logging Limited and the PNG Forest Authority be restrained from conducting business with the First Defendant in respect of logging operations in Yombong Village.
   

Consideration of Preliminary Issues

12. Mr. Kesno of counsel for the First Defendant raises three preliminary issues. Firstly, he submits that the National Court does not have jurisdiction to hear the matter as it involves determining rights of customary land which jurisdiction is expressly given to the local and Provincial Land Courts under the Land Disputes Settlement Act. Secondly Mr. Kesno submits that the Plaintiff is estopped from prosecuting the action based on the common law principle of res judicata as the issues raised in the proceedings have been raised and determined in the previous action in OS 771 of 2019- Nasofong Gorangding v Jerry Mangkepe and 2 others. And thirdly it is submitted, the Plaintiff lacks authority to represent the seven other clans of Yombong village, as they have not given express authority to the Plaintiff to act on their behalf.

13. The defendant submits that the Court invoke its powers under Order 12 Rule 40 of the National Court Rules and dismiss the proceedings. Order 12 Rule 40 (1) states:

“Frivolity, etc. (13/5)

(1) Where in any proceedings it appears to the Court that in relation to the proceedings generally or in relation to any claim for relief in the proceedings

(a) no reasonable cause of action is disclosed; or

(b) the proceedings are frivolous or vexatious; or

(c) the proceedings are an abuse of the process of the Court,

the Court may order that the proceedings be stayed or dismissed generally or in relation to any claim for relief in the proceedings.”

14. The law on Order 12 Rule 40 of the National Court Rules is well settled. The Court cannot readily dismiss a case on poor pleading or for lack of disclosing a reasonable cause of action unless it is shown that the case is clearly frivolous or vexatious or an abuse of the process and that it is unlikely to succeed even it proceeds to trial. Refer: PNG Forest Products vs. State (1992) PNGLR 84–85, Ronny Wabia vs. BP Exploration Co. Ltd (1998) PNGLR 8, Wabia vs. BP Petroleum (2019)) N4337, Mt. Hagen Urban LLG vs. Sek No. 15 (2009) SC1007, National Provident Fund vs. Maladina & Others (2003) N2486; and Wambunawa Holdings Ltd. vs. ANZ Bank (2020) N8310.

Whether the Court has jurisdiction to hear the matter.

15. The Plaintiff is seeking orders of this Court to nullify the certification and approval of Forms 7 and 10 issued under sections 18 and 19 of the Land Disputes Settlement Act. The Land Disputes Settlement Act provides the framework and establishes the Local Land Court to mediate and settle disputes over rights and interests in customary land. Sections 17, 18, 19 and 20 of the Act provides for the mediation process culminating into the eventual approval of agreement. The Forms 7 and 10 are issued after a successful mediation. Once the Local Land Court approves the agreement, it has the effect of an order of the Court. If a party is not happy with the decision, he is entitled to appeal the decision to the Provincial Land Court under section 54 of the Land Disputes Settlement Act. The Provincial Land Court has wide powers to review the decision of the Local Land Court and conduct its own proceedings in the manner it deems just.

16. The jurisdictional basis of both the Local and Provincial Land Courts are set out in sections 26,53 and 54 of the Land Disputes Settlement Act. Sections 26, 53 and 54 read and I quote:

“26. GENERAL JURISDICTION OF LOCAL LAND COURTS.

Subject to Section 3 and 4 and to this Part, a Local Land Court has jurisdiction over and in relation to–

(a) a dispute as to an interest in land where the land in dispute is situated wholly or partly within the province for which the Court is established; and

(b) the approval of agreements under Section 19; and

(c) a dispute to which Section 29 applies; and

(d) any other action or decision that it may be required to take under this Act.

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. APPEALS 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 desirable 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.”

17. In the present case the relief sought in paragraph 1 is for the review of the order of the Local Land Court made on 30^th March 2007, in approving the terms of Agreement. The Plaintiff argues that there was no mediation, nor any settlement reached resulting in an approval by the Local Land Court on 30^th March 2007. It is alleged that the First defendant arranged and obtained these orders in suspicious manner without the knowledge and consent of the Plaintiff and other landowners.
    

18. It is worth noting that the Approval of Agreement once endorsed has the effect of an order of the Local Land Court made pursuant to section 19 of the Act. The only way to set the order aside is by way of appeal to the Provincial Land Court as provided for under section 54 of the Act. The National Court Rules do not give primary jurisdiction to the National Court to review a decision of a Local Land Court on appeal where an Act of Parliament has expressly given the appellate jurisdiction to the Provincial Land Court to exercise.

19. In this case, the Plaintiff has not exhausted the appeal process under section 54 of the Land Disputes Settlement Act. Clearly, the National Court would not have jurisdiction to hear this matter.

20. However, the Plaintiff explained he did not lodge an appeal pursuant to sections 54 of the Land Disputes Settlement Act within 3 months because he was not aware of the existence of the orders until the year 2018. Under section 54 (2) a Provincial Land Court can extend time provided that the appeal is lodged within 12 months. A Provincial Land Court has no power to grant further leave after the lapse of twelve months. The Plaintiff can not lodge an appeal now. He can only seek leave for an application for judicial review which has been granted. In the circumstances, the National Court has review powers under Order 16 of the National Court Rules to hear the application for review.
    

Lack of Representative Capacity.

21. The second competency issue raised relates to the Plaintiff’s representative capacity. Although the Plaintiff says he represents seven (7) other clans, the seven clans were not named in the proceeding. The seven clan leaders signed a resolution giving authority to the Plaintiff to represent them. However, in my view, it does not meet the requirements of Order 5 Rule 13 of the National Court Rules. Despite that, the proceedings should survive by reason of the fact that the Plaintiff, Nasofong Goranding, has capacity to maintain the proceedings for himself and on behalf of his own Tongone clan.
    

Res Judicata

22. The third issue is whether the proceedings are an abuse of the process under the common law principles of res judicata. Although the parties are the same and some of reliefs sought are identical to the earlier proceeding in OS No.771 of 2019, there is one major difference in relief no. 1. The present proceeding is issued pursuant to Order 16 of the National Court Rules and relief no. 1 is for the review of the Local Land Court decision of 30^th March 2007. The principles of res judicata, therefore do not apply and the proceeding is competent in so far as relief No. 1 is concerned.
    

Whether the decision of the Second Defendant made on 30^th March 2007 be brought into this Court and quashed.

23. I will now turn to the merits of the application. Relief No.1 is an application of the review of the Local Land Court decision made on 30^th March 2007 in favour of the First Defendant.
    
24. The relevant rule on application for judicial review is Order 16 Rule 1(1) of the National Court Rules, which provides:
    

“(1) An application for an order in the nature of mandamus, prohibition, certiorari or quo warranto shall be made by way of an application for judicial review in accordance with this Order.”

25. The law on application for judicial review is settled. In Kekedo v Burns Philip (PNG) Ltd [1988-1989] PNGLR 122, the Supreme Court stated that:
    

“The circumstances under which judicial review may be available are where the decision-making authority exceeds its powers, commits an error of law, commits a breach of natural justice, reaches a decision which no reasonable tribunal could have reached or abuses its powers”.

26. The Supreme Court in that case further stated that:
    

“The purpose of judicial review is not to examine the reasoning of the subordinate authority with the view to substituting its own opinion. Judicial review is concerned not with the decision but with the decision-making process.

27. The Plaintiff submits there was no mediation and subsequent approval of an agreement on 30^th March 2007. The Plaintiff alleges that the approval of Agreement endorsed by the Second Defendant and relied on by the First Defendant is illegally obtained. The Plaintiff alleges, they did not reach any settlement agreement, nor did they apply for approval of any agreement at all. They learnt of the existence of the Record of Mediation (Form 7) and Application of Approval of Agreement (Form 10) dated 30^th March 2007 only in December 2018.
    
28. The Land Disputes Settlement Act provides the framework and establishes the Local Land Court to mediate and settle disputes over rights and interests in customary land. Sections 17, 18, 19 and 20 of the Act provides for the mediation process culminating into the eventual approval of agreement.
    
29. The Forms 7 and 10 are issued only after a successful mediation. Once the Local Land Court approves the agreement, it has the effect of an order of the Court. The Record of Mediation (Form 7) shows two mediators namely, Sam Ruben and Kou Mabi conducted the mediation. However, the two mediators have now conceded in their respective Affidavits that the proceedings were not done properly. The Form 7 was signed by Sam Ruben only. Mr. Ruben has subsequently admitted in a handwritten letter in the Pidgin Language to the Lands Officer, the Court House and to the Senior Magistrate that he signed the Form7 at his house and not before the Court. He admitted, it was improper, and the documents should not be relied on.
    
30. The alleged mediation is also denied by the second Mediator, Kou Maby. By letter dated 4^th July 2020, Kou Maby denies preparing and certifying Forms 7 and 10. Mr. Maby says the forms were prepared and brought to him to sign by one John Lucas, but he refused to sign the said Forms.
    
31. There is another deficiency in the forms. The documents show that the dispute involves three clans namely Butala, Muigisong and Yombong and their common land boundaries. However, Forms 7 and 10, do not define or articulate the commonly disputed boundaries and the inter-clan land rights.
    
32. In the circumstances and based on evidence presented there is a clear inference that there was no mediation and agreement reached by the disputing parties. The documents were just prepared and signed without agreement and a proper hearing of the interested parties.
    
33. This leads to a conclusion that there was no compliance of sections 17, 18 and 19 of Land Disputes Settlement Act. It follows that the Record of Mediation (Form 7) and the Application for Approval of Agreement (Form 10) signed on 30^th March 2007 were done illegally.
    

Whether the Local Land Court of 28^th April 2010 in favour of the Plaintiff is valid and effective.

34. The second relief sought by the Plaintiff is for a declaration that the mediation orders Form 7 and 10 of 28 April 2010 issued in his favour are valid and effective for all intent and purpose. The Plaintiff submits that this Court declare the Local Land Court Orders of 28^th April 2010 (Form 7) and Form (10) made by Local Land Court Magistrate valid for all intent and purpose. This relief if granted will give recognition to the Plaintiff as the genuine landowner as against the First Defendant.
    
35. However, I note from the evidence that an appeal has been lodged against the orders of 28 April 2010 by the First Defendant in proceedings PLC No. 5 of 2010. This appeal appears to be pending hearing. Sections 26, 53 and 54 of the Land Disputes Settlement Act confers on the Local and the Provincial Land Courts the jurisdiction to deal with issues of customary land rights including appeals from the Local Land Court.
    
36. The National Court does not have jurisdiction to grant the orders sought by the Plaintiff. The relief sought by the Plaintiff is, therefore, not available as the Court lacks jurisdiction.
    

CONCLUSION

37. From the findings there are three competing orders given by the three different Local Land Court Magistrates over the same land to the disputing parties. The First order is dated 30^th March 2007, made in favor of the First Defendant which is not challenged in the Provincial Land Court. The evidence clearly shows the orders were obtained without complying with sections 17, 18 and 19 of the Land Disputes Settlement Act. In my view, this is a matter that Provincial Land Court should review in its appellate jurisdiction.
    
38. The second Order (Form 7 and 10) has been made in favor of the Plaintiff, dated 28^th April 1010 over the same land. This decision has been challenged by an appeal to the Provincial Land Court by the First Defendant which is pending hearing. The evidence shows the mediation may not have been concluded and the orders of 28^th April 2010 are disputed by the First Defendant and other parties. This will require a proper review of the decision by the Provincial Land Court.
    
39. In the related matter OS 95 0f 2021 Albert Nongone v Jerry Mangkepe and others, there is a third order (Forms 7 and 10) over the same land made on 5^th November 2019 from a mediation conducted on 2^nd and 3^rd April 2008. The orders were obtained by Albert Nongone and his clan. Mr. Nongone claims this is the only genuine order.
    

What Orders should the Court make

40. Although I have found the Court has jurisdiction to hear the matter in relation to the first relief sought by the Plaintiff, I am not prepared to grant the relief sought by the Plaintiff. There is in existence three different orders issued by differently constituted Local Land Courts over the same land. This is causing a lot of confusion. To resolve this issue once and for all and in the interest of justice, the matter be referred to the Provincial Land Court to review and hear all parties on the various decisions of the Local Land Court. The Provincial Land Court has powers in its appellate jurisdiction to hear and determine the matters as conferred by the Land Disputes Settlement Act.
    

Other Reliefs

41. In the light of orders proposed, it is not appropriate to grant orders sought in Reliefs 3 and 4 of the substantive Notice of Motion.
    

Cost

42. The Plaintiff has partial success of the application, although, all reliefs sought in the application are refused. In the exercise of my discretion. I will order that the parties bear their own cost.
    

Orders

43. The Court orders that:
    
    1. The reliefs sought by the Plaintiff in the proceeding is refused.
       
    2. The three orders for Approval of Agreement allegedly made by differently constituted Local Land Courts made on:
       
       1. 30^th March 2007, in favor of Jerry Mankepe, the First Defendant,
       2. 28^th April 2010, in favor of the Plaintiff, Nasafong Goranding, and
       3. 5^th November 2019 in favour of Albert Nongene

are referred to the Provincial Land Court, Lae to hear and review these decisions in its appeal jurisdiction under the Land Disputes Settlement Act, as soon as practicable but within three months from date of order.

3. The Plaintiff shall within 14 days from these orders take the necessary steps to comply with order No. 2.
   
4. The parties shall bear their own costs
   
5. Time be abridged.
   

Public Solicitor Lawyers: Lawyer for the Plaintiff
Kesno Lawyers: Lawyer or the First Defendant
Solicitor General: Lawyer for the Second & Third Defendants