Malewa v Marum [2024] PGNC 9; N10652 (22 January 2024)

N10652

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS (JR) No. 304 OF 2022

BETWEEN:
LARRY MALEWA
First Applicant

AND:
MONCHI BIGAN LAND GROUP INCORPORATED
Second Applicant

AND:
JIM MARUM, for himself and on behalf of Bagiwau Clan
First Respondent

AND:
HIS WORSHIP MR. NASILING BINGTAU, Presiding Magistrate, Lae District Court
Second Respondent

AND:
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Respondent

Lae: Dowa J
2023: 3^rd October
2024: 22^nd January

PRACTICE AND PROCEDURE- application for Judicial Review-whether District Court Magistrate has jurisdiction to hear and determine disputes over customary land in his civil jurisdiction-the exercise of jurisdiction depends on characterization of cause of action- determination of customary ownership necessary prior to grant of other reliefs-thus lacked jurisdiction and acted ultra vires -application for review granted.

Cases Cited:
Kekedo vs. Burns Philip (PNG) Ltd [1988-89] PNGLR 122
Corema -v- Ponjom (2019) N7996
Kimas v Oala (2015) SC1475
Katumani & Ors v Elijah Yawing & Ors (2020) N8481
Asofong Goranding v Jerry Mangkepe (2021) N10064
Waril Incorporated Land Group Inc v Morobe Provincial Government [2023] PGNC 21; N10108
Mala Stephen Ahi v John Bangkok and others (2024) N10646
Hegele v Kila (2012) SC1180

Counsel:
T. Berem, for the Applicant
K. Aisi, for the First Respondent
N Kibikibi, for Second & Third Respondents

DECISION

22nd January 2024

1. DOWA J: This is a decision on the Applicant’s application for judicial review of the decision of the second Respondent concerning customary land rights.
   
2. The Applicants apply for judicial review of the decision of the Second Respondent who sat as the Presiding Magistrate of the Lae District Court on 8^th May 2014 in proceeding entitled DC No. 83 of 2014, where he found the First Respondent was the owner of the "Wansiang" customary land, and consequently granted permanent restraining orders against the First Applicant's late father, namely Yawing Malewa and two others in planting oil palm on the subject land
   

Facts

3. The first Applicant, Larry Malewa is a member of the Moansi Bigan clan of Marawasa village, in Watarais, in the Markham District. He is the Secretary of the second applicant, Mochi Bigan Land Group Incorporated. The applicants claim they are the owners of customary land described as Wansiang. Their claim to the Wansiang land is disputed by Jim Marum of Bagiwau clan, the first Respondent.
   
4. On 8^th May 2014, the second Respondent presided in the District Court exercising civil jurisdiction in proceedings DCC No. 83 of 2014-Jim Marum v Yawing Malewa & 2 others, made the following orders:
   
   1. The Defendants are restrained from planting Oil Palm in the Wansiang customary land because the Oil Palm Project has planned to be planted in the Defendant’s “Wagasantan” customary land not the complainants Wansiang customary land.
   2. Parties meet their own costs.”
      
5. The Applicants allege they were not served the above orders until 15^th April 2022. Aggrieved by the decision, the Applicants seek judicial review alleging that the second Respondent did not have jurisdiction to decide on customary land ownership. Leave to apply for judicial review was granted on 17^th February 2023. This is now the decision on the Applicants’ substantive application for judicial review.
   

Evidence -Applicants

6. The Applicants rely on the Affidavits of:

1. Larry Malewa, filed on 6/12/2022 (doc 4).
2. Larry Malewa, filed on 16/2/2023 (doc 9).
3. Marae Samu, filed on 16/2/2023 (doc 10).
4. Larry Malewa, filed on 11/8/2023 (doc 23).
5. Marae Samu, filed on 11/8/2023 (doc 24).
6. Jessy Dawa, filed on 11/8/2023 (doc 25).
7. Ben Nafa, filed on 16/8/2023 (doc 27).
   

7. This is the summary of the Applicants evidence. That in the late 1990s, there was a dispute on the ownership of the Wansiang customary land within the large Wagashantan land area. There was no mediation on 19^th October 1992 as claimed by the First Respondent. The subject land is in Marawasa Village in the Umi/Atzera LLG, of Markham District, Morobe Province. In June 2003, some attempts for mediation were made, however, it did not proceed.

8. In 2007, the Applicants' Moansi Bigan Clan entered into an agreement with the Morobe Provincial Government, National Development Bank and Ramu Agro Industries (developer) for purposes of developing village oil palm ('VOP') projects on the Wagashantan land. The VOP project commenced in 2007 and continued peacefully until the First Respondent disputed the ownership of the Wansiang customary land in 2013 and issued proceeding entitled DC No. 706 of 2013 - Jim Marum v Yawing Malewa & Ramu Agri Industries. DC No. 706 of 2013 was, however, withdrawn and the court directed parties to go for mediation. The late Yawing Malewa and his Moansi Bigan Clan then continued with the VOP project when the First Respondent again issued another proceeding styled as DC No. 83 of 2014 seeking restraining orders against the late Yawing Malewa and his Moansi Bigan Clan.

9. The Second Respondent presiding as the Magistrate of the Lae District Court exercising civil jurisdiction heard DC No. 83 of 2014 and on 8/5/2014 made the decision ('the decision') granting the permanent restraining orders against the late Yawing Malewa and his Moansi Bigan Clan. The Second Respondent also made a finding that the VOP project was undertaken on the First Respondent's Wansiang customary land, which in effect, determined the ownership of the Wansiang customary land. The First Respondent failed to or did not serve or notify the Applicants' Moansi Bigan Clan of the decision as soon as it was made, until after eight (8) years when the decision was served on the First Applicant on 15^th April 2022 by the First Respondent's agent, namely, Abel Yaki.

The first Respondents Evidence

10. The First Respondent relies on his Affidavit, filed on 26^th June 2023. He deposes that he is the owner of the Wantsiang customary land. The ownership issued was resolved in a mediation order issued on 19^th October 1992 where the land was awarded to his late father Marum Agai of Bangiwau clan. The Records of Mediation (Form 7) and Approval of Agreement (Form 10) were signed by the Local Land Court, Lae on 9^th October 2013.

11. The Respondent argues he brought proceedings in DC No 83 of 2014 because of the involvement of Ramu Agro Industries Ltd in cultivating his land without his knowledge and consent. He was seeking restraining orders which was granted. He says the restraining orders served on the first Applicants father and Ramu Agro at that time. Ramu Agro has since stopped working on the land.

12. The State did not file any affidavits but supported the first Respondent submitting the learned Magistrate did have jurisdiction as the issue before him was for restraining order and not for determination of customary land ownership.

Issues

13. The issues for consideration are:

(1) Whether the Second Respondent erred in law to hear DC No. 83 of 2014 and grant permanent injunctive orders against the late Yawing Malewa and two others not to plant oil palm on the Wansiang customary land, as it was owned by the First Respondent?

(2) If so, whether the Second Respondent's decision made on 8/5/2014 should be quashed forthwith?

(3) What consequential orders should the Court make?

Grounds for Review

14. In the Statement in Support filed pursuant to Order 16 Rule 3 of the National Court Rules, the Plaintiff alleges five (5) grounds of review which can be categorized into the following two:
    
    1. Failing to consider that there was a customary land dispute to which he did not have jurisdiction to hear and determine the matter.
       
    2. Erred in law in proceeding to hear and determine the first Respondent’s application to which he did not have jurisdiction and acted ultra virus his powers.
       

Law on Judicial Review

15. The relevant rule governing 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.”

16. The law on application for Judicial Review is settled. In Kekedo vs. Burns Philip (PNG) Ltd [1988-1989] PNGLR 122, the Supreme Court said 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”.

17. 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.”

Whether the Court has jurisdiction to hear the case.

18. I now turn to the first issue; that is, whether the Second Respondent erred in law to hear DC No. 83 of 2014 and grant permanent injunctive orders against the late Yawing Malewa and two others not to plant oil palm on the Wansiang customary land, as it was owned by the First Respondent.
    
19. The Applicants submit that the Court did not have jurisdiction to hear the case because it involves consideration and determination of customary land ownership.
    
20. The Respondents submit that the Court had the jurisdiction to hear the case because the Respondent’s case did not involve determination of customary land ownership.
    
21. It is trite law that the National Court and District Courts do not have jurisdiction to deal with disputes over customary land. Only the Local Land Court has jurisdiction conferred on it by the Land Dispute Settlement Act. Such disputes can be dealt with in the first instance by following the procedures and processes set out in the Land Dispute Settlement Act. Refer: Kimas v Oala (2015) SC1475, Katumani & Ors v Elijah Yawing & Ors (2020) N8481, Asofong Goranding v Jerry Mangkepe (2021) N10064 and Waril Incorporated Land Group Inc v Morobe Provincial Government [2023] PGNC 21; N10108 and Mala Stephen Ahi v John Bangkok and others (2024) 10646 .
    
22. I am mindful of the Respondents’ submission that the question before the District Court was for the grant of restraining orders and not for determination of customary land ownership.
    
23. The issue of whether the Court had jurisdiction will depend very much on the characterization of the cause of action. The Supreme Court in Hegele v Kila (2012) SC1180 settled the law on this issue. The relevant part of the judgment in Hegele v Kila reads:

14. We agree that the question of jurisdiction was properly raised in view of the subject matter of the proceedings and the terms of the order of Salika DCJ of 13 October 2009. However, if in proceedings in the National Court a question arises whether the Court has jurisdiction due to the subject matter of the proceedings relating to ownership of customary land, the question of jurisdiction should be determined by characterisation of the cause of action.

15. If the cause of action requires the Court to determine ownership of customary land the Court will lack jurisdiction as it is a well settled principle that the National Court (and also the Supreme Court) has no jurisdiction to hear or determine disputes about ownership of customary land (The State v Lohia Sisia [1987] PNGLR 102; Sioti Bauf and Lavoi Nodai v Poliamba Pty Ltd [1990] PNGLR 278; Golpak v Kali [1993] PNGLR 491; Siaman Riri v Simion Nusai (1995) N1375; Ronny Wabia v BP Exploration Co Ltd [1998] PNGLR 8; Soso Tomu v The State (2002) N2190).

16. If some other cause of action is being prosecuted the proceedings will fall within jurisdiction as the National Court is generally by virtue of Section 166(1) of the Constitution a court of unlimited jurisdiction.

17. Regard to the statement of claim in WS 459 of 2008 discloses that no issue concerning land ownership is raised by the Yumbi Clan. Rather, what is alleged is that both the deed of release and the consent order were procured by fraud. The proceedings therefore fell within the jurisdiction of the National Court.

24. In the present case, the Respondent’s claim before the lower Court was premised on the basis that he is the owner of the land “Wantsiang” and that there was no dispute as to his proprietary rights. That is, however, not the case. The Respondents’ customary ownership over land, Wantsiang, was vigorously disputed by the Applicants. It required the Magistrate to take in evidence from the parties. The records show evidence was given including production of respective maps on the disputed portions of land by the parties. After examination and consideration of the evidence his Worship ruled that the first Respondent was the owner of Wansiang and thus granted the restraining orders.
    
25. I note the first Respondents contention that the issue of ownership was resolved in a mediation conducted on 19^th of October 1992 and approved by the Local Land Court on the 9^{th of} October 2013.The Applicants deny there was ever any mediation nor the existence of the Mediation Orders. There is no evidence to show that the mediation orders were produced `before the learned Magistrate during the hearing.
    
26. I am not satisfied that the mediation order produced before this Court by the first Respondent is a genuine and authentic record of orders made. If the mediation was conducted on 19^th October 1992, why wait for 21 long years to apply for approval on the 9^th of October 2013. No explanation was provided by the first Respondent for the delay in applying for the approval of the mediation agreement. Again, no records were provided showing disclosure of the mediation orders in the District Court proceedings in 2014. I prefer the evidence of the Applicants that there was no genuine mediation conducted on this land.
    
27. Turning to the issue under consideration, there is no dispute that the second Respondent in hearing the case, was exercising his District Court civil jurisdiction. During hearing, a dispute arose between the parties as to the boundary and ownership rights of the subject land. His Worship had to conduct a hearing in respect of the dispute prior to granting a permanent restraining order.
    
28. I accept the Applicants arguments that the learned Magistrate in his District Court civil jurisdiction did not have jurisdiction to hear the case because it involved the hearing and determination of customary land ownership.
    
29. In my view the learned Magistrate erred when he failed to consider that there was a dispute over the first Respondent’s customary land ownership over “Wansiang”, that the ownership was not resolved in accordance with the procedure under the Land Dispute Settlement Act, the issue must be settled before considering the first Respondents application and that he did not have jurisdiction to determine customary land ownership.
    
30. In proceeding with the hearing and determining customary ownership prior to the grant of the orders sought by the first Respondent, the second Respondent fell in error because he did not have the jurisdiction to continue the hearing. He was acting ultra vires his powers.
    

Conclusion

31. In conclusion, I find the second Respondent had no jurisdiction to hear the matter in DC No. 83 of 2014 and grant permanent injunctive orders against the late Yawing Malewa and two others from planting oil palm on the Wansiang customary land, after determining that the land was owned by the First Respondent.
    

What Orders should the Court make?

32. What orders should the Court make. In the statement and the substantive Notice of Motion, the Plaintiff seeks the following orders:
    

1) A Declaration that the decision of the second Respondent made on 8^th May 2014 is null and void.

2). Quash the decision of the second Respondent made on 8^th May 2014.

3) Restrain the first Respondent and his clan members from interfering, disturbing, and stopping the Applicants progress of the oil palm project on Wansiang customary land.

4) Cost of the proceedings

33. In my view reliefs 1 and 2 can be granted based on the findings by this Court. In respect of relief 3, this Court does not have jurisdiction to grant the orders for the same reasons discussed in this ruling. There is a clear dispute of customary ownership over the subject “Wansiang” land. The matter be referred to the Local Land Court to conduct a fresh and proper hearing to determine customary ownership. The Court directs a fresh hearing because of the previous questionable mediation orders produced by the first Respondent. For completeness and to give effect to the orders this Court will issue, the purported Mediation agreement reached on 19^th October 1992 and approved on 9^th October 2013 shall be brought up to this Court and quashed.
    

Costs

34. As for cost, the applicants failed to institute proceedings soon after the orders were made in May 2014 although they claim they were served the orders only recently. In my view it is not just to grant an order for cost against any party.
    

Orders

35. The Court orders:
    
    1. By way of Declaration that the second Respondents decision made on 8^th May 2014 in DC No 83 of 2014 restraining the first Applicant and two others from planting Oil Palm in the Wansiang customary land because the Oil Palm Project planned to be planted in the Applicants’ “Wagasantan” customary land not the first Respondents Wansiang customary land is null and void for lack of jurisdiction.
       
    2. By way of a writ of Certiorari is issued into this Court that the decision of the second Respondent made on 8^th May 2014 in proceedings entitled DC No 83 of 2014 be quashed.
       
    3. The dispute over the ownership of customary land described as “Wansiang” of Marawasa village, Watarais, Markham District is referred to the Local Land Court, Lae to conduct a fresh and proper mediation hearing to determine customary ownership.
       
    4. The purported Mediation agreement dated 19^th October 1992 (Form 7) and Approval of Agreement dated 9^th October 2013 (Form 10) is brought up to this Court and quashed to give effect to order 3 above.
       
    5. Pending determination of ownership, there shall be no planting of oil palm on the disputed Wansiang land.
       
    6. The parties shall bear their own costs.
    7. Time be abridged.

________________________________________________________________
Berem Lawyers: Lawyer for the Applicants
Kelly Naru Lawyers: Lawyers for the First Respondents
Solicitor General: Lawyer for Second and Third Respondents