N11319
PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

OS (JR) NO. 969 OF 2018

BETWEEN
CHARLES AKI
Plaintiff/Applicant

AND
JIM MEK SETH
First Defendant/Respondent

AND
FRANK MANUE - AS PRESIDING MAGISTRATE, MOUNT HAGEN PROVINCIAL LAND COURT
Second Defendant/Respondent

AND
INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Defendant/Respondent

WAIGANI: COATES J
6 JUNE 2025

JUDICIAL REVIEW – Review decisions of Provincial and Local Land Court over ownership of land after death of owner.  

Facts
In a judicial review application the plaintiff/applicant contended that the decision on customary land in the court below was tainted by absurd or unreasonable decision-making and sought orders for the matter to be removed from the District Court to the National Court, the decision quashed and either the decision reversed in the plaintiff’s favour, or remitted.

Held
The decision in the court below was properly made.

Cases cited
Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223
Ikian Lyanga v The Independent State of Papua New Guina (2017) SC1635
Kekedo v Burns Philip (PNG) Ltd & Others [1988-89] PNGLR 122
Minister for Immigration and Border Protection v SZVFW [2018] HCA 30
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 
Re Hides Gas Project Land [1993] PNGLR 309

Counsel
V Palts for plaintiff in first instance
J Be’soer for plaintiff in interim 
C Kos for first defendant in first instance

DECISION 

1.	COATES J: The following decision follows the procedure laid down in Ikian Lyanga v The Independent State of Papua New Guina (2017) SC 1635, for the delivery of judgment in circumstances where the trial judge has become incapacitated or has died.

2.	His Honour Justice Lindsay heard this matter on 22 July 2021.

3.	He died before he could deliver his decision. 

4.	The Lyanga decision considers and sets out a procedure to determine such matters so that justice according to law is accorded to the parties.

5.	The decision states that parties must be afforded natural justice, or procedural fairness, when a matter has been heard and there is an impossibility of the primary judge delivering a decision.

6.	As required by the Lyanga decision, I raised with the parties whether they sought a new hearing or whether they would consent to me listening to the recording or reading the transcript, with of course the filed material relied on, and deliver judgment. 

7.	I sought any new evidence or submissions as well.

8.	Both counsel agreed that I should proceed to listen to the recording or read the transcript and court file and deliver judgement.

APPLICATION

9.	This proceeding is a judicial review application of a decision made by the Mount Hagen Provincial Land Court in relation to land when the owner had died.

10.	On 6 April 2017 the Mount Hagen Local Land Court (the local court) awarded customary land known as Raglamp (variations of this place-name were used by lawyers in this matter being: Raglaimp, Raglamp, & Raglimb) to the plaintiff here, Mr Charlie Aki.

11.	On 11 October 2018 the Provincial Land Court (the provincial court) upheld an appeal and reversed the decision and awarded the land to the first defendant here, Mr Jim Mek Seth.

12.	The learned magistrate in the Provincial Court, who is the second defendant, gave written reasons for his decision reversing the decision below.

13.	His reasons refer to the evidence he considered and referred to provisions of the Land Disputes Settlement Act 1977 as well as the Constitution which he then applied to the facts to arrive at his decision.

14.	The scheme of his decision reveals that His Worship analysed the evidence and stated the facts not in contention, listed the facts in dispute and more particularly the claims by the parties as to their alleged interest in the land, listed the competing claims as to who can inherit customary land, examined the heritage rights by custom and the application of custom under the Wills Probate and Administration Act 1966.

15.	He gave reasons in line with his identification of the issues.

16.	His decision is challenged by an Originating Summons being filed 19 December 2018, where the plaintiff seeks orders for:

a)	Removal of the matter from the court below to the National Court;
b)	Judicial review of the decision, and
c)	Quashing of the decision below and either a finding as to the customary ownership or remitting the matter back to the local court.

17.	Judicial review is open to customary land decisions, but that is all as the higher courts have no jurisdiction to make decisions as to rights and interests in customary land. 

18.	As background, the disputed portion of land is located at Mount Hagen, Western Highlands Province. The parties are cousins as the written reasons note, an issue of prime importance because the decision was based on inheritance of customary land.

19.	A Notice of Intention to Defend this action was filed.

20.	The Originating Summons stated numerous alleged errors within the decision.

21.	The plaintiff alleges numerous grounds, but argued before His Honour that the decisions below were absurd or unreasonable or in breach of natural justice in respect of:

a)	Customary inheritance – pp.5 and 6 of the decision;
b)	That the principle of adverse possession was disregarded – see Re Hides Gas Project Land [1993] PNGLR 309 – p.6 of the decision;
c)	That the matter should have been remitted back to the Local Land Court – p.6 of the decision;
d)	That no time frame was given for the land to be vacated – p.7 of the decision, and
e)	That the plaintiff was actually living on the land – p.8 of the decision.

22.	The law on judicial review is settled. The Supreme Court in Kekedo v Burns Philip (PNG) Ltd & Others [1988-89] PNGLR 122 stated:

“...the circumstances under which judicial review may be available are where the decision making authority exceeds its power, 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.

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.”

23.	The plaintiff will have to show in relation to each of the points of review how they were absurd, unreasonable or in breach of natural justice.

24.	A claim of unreasonableness can be a difficult legal concept to progress as unreasonableness is not what the ordinary person may think is unreasonable, and if that were the measure, there would be no end to litigation.

25.	 In an Australian High Court case, Minister for Immigration and Border Protection v SZVFW [2018] HCA 30 (8 August 2018), Kiefel CJ stated: 

9.	“It is difficult to see how it might be concluded that the decision that the Tribunal then made – not to make further contact with the respondents and adjourn its hearing for that purpose – was unreasonable. To the contrary, it was perfectly explicable given the history of the respondents' non-responsiveness. It is to be inferred that a conclusion that it was unreasonable must involve some misapprehension of what is comprehended by the legal standard of unreasonableness.

10.	In the joint judgment in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at 367, it was explained that a decision made in the exercise of a statutory power is unreasonable in a legal sense when it lacked an evident and intelligible justification. That may be so where a decision is one which no reasonable person could have arrived at - Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 at 230, although an inference of unreasonableness is not to be drawn only where a decision appears to be irrational - Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at 364. None of these descriptions could be applied to the Tribunal's decision in the present case.

11.	Statements such as that made in the Wednesbury case, that a decision may be regarded as unreasonable if no reasonable person could have made it, may not provide the means by which a conclusion of unreasonableness may be arrived at in every case. But it serves to highlight the fact that the test for unreasonableness is necessarily stringent - Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at 376, and that is because the courts will not lightly interfere with the exercise of a statutory power involving an area of discretion. The question is where that area lies.”

26.	In what was put forward in this matter, other than in relation to adverse possession, the submission of unreasonableness went to a discussion of factual issues – not submissions dealing with the legal sense as to what the unreasonableness of the decision was, as explained above, in that the court was not taken to “an evident and intelligible justification” to challenge the decision. 

27.	In relation to the ground stated at paragraph 21 (a) above, customary inheritance, the learned magistrate detailed references to the family relationships, inheritance in both patriarchal and matriarchal cultures, as one cousin was from the patriarchal line and the other from the matriarchal line, as well as to the standing of the matter under the Wills Probate and Administration Act. 

28.	What has to be shown is how and why the decision was so unreasonable that no reasonable person would make it as an evident and intelligible justification. 

29.	Lacking elucidation on the point, and given His Worship’s reference to these very important matters, I do not find unreasonableness here.

30.	In relation to the ground stated at paragraph 21 (b) above, the adverse possession point, it was submitted that the learned magistrate fell into error and came to an absurd and unreasonable decision by failing to consider that the land was held by adverse possession.

31.	Adverse possession occurs when a person holds property under any or no title and another person claims to be the rightful owner under a different title.

32.	In the written submission it was said that a restrictive view of settled principles was taken when ruling that on acquisition of interests in customary land by adverse possession, with evidence of improvements, that such was only applicable to disputes between clans and is not appliable to disputes between family members and such was an absurd decision and unreasonable.

33.	In oral submission it was put that the court below failed to consider the appellant’s adverse possession of the land.

34.	Apart from the conflicting nature of the submissions, it appears to be a submission that the magistrate made an error of law. To argue that, the court has to be taken to the law and how the decisions have treated such factors in the past. Reference was made to Re Hides Gas Project Land [1993] and that case’s reference to a person dwelling on land and by improvements acquires an interest, and that it was absurd and illogical to rule in favour of someone not residing on the land. 

35.	If that is all the case was, such submission may be acceptable, but this case was a claim within the customary land framework and the provisions of the Land Disputes Settlements Act.

36.	Counsel did not take the court to either the submissions made or the learned magistrate’s actual words in relation to this aspect, relying on general submissions.

37.	In examining the decision by the learned magistrate, he referred to the provisions of the Land Disputes Settlements Act and specifically stated, reminding all parties, that s.68 directed the courts to decide all matters in accordance with substantial justice.

38.	Those words of the provision are to be read widely, as he did, aware that he was not dealing with strangers but with family members in dispute over who the land should go to.

39.	In doing so, the magistrate examined, as I have stated, the family relationships, the claims made as to customary land ownership, the competing evidence and the law to be applied.

40.	I do not accept as a matter of law that adverse possession alone is the determining factor. If it was a decision for or against that alone it would be a very simple matter, but such would ignore the customary aspects which had to be determined as occurred in this case.

41.	Nor were submissions given by way of explanation why this alleged ignoring of this issue was absurd or unreasonable and in light of the need to show unreasonableness “in a legal sense when it lacked an evident and intelligible justification”, it is impossible to know just how this ground can be made out.

42.	In my view, the careful considerations made, the balancing of factors which the learned Magistrate undertook, indicated a very reasonable decision.

43.	In relatioin to the ground stated at paragraph 21 (c) above, that the matter should have been remitted back to the primary court and in failing to do so such was an unreasonable decision, based on a submission that the court below had all of the facts, again, the decision outlines reasons.

44.	The learned magistrate stated that he would have remitted the matter, however, the case would likely be before the court for another five years and that would be unreasonable in the circumstances.

45.	This issue of not remitting the matter back to the primary court, such being absurd, unreasonable or in breach of the rules of natural justice, was approached in a number of ways, including failure to call witnesses when evidence conflicted, or failure to call witnesses after he said he considered referring the matter back.

46.	That he then determined the matter in the manner he did is not actually challenged as being an unreasonable decision, and his reasons were made clear when he stated in the judgement: “...in my view, having disclosed the undisputed facts and facts in contention, there are several issues that arise and go deeper and beyond the issues of ‘interests’ and ownership of the customary land Raglamp. I say this because the dispute is not wholly on the interests and ownership of Raglamp land, as the person who not only developed it, but lived on it and had interest over it is now deceased. He is not alive to dispute with anyone in contention over interests Raglamp he doesn't follow. The dispute is between the surviving family members of the Nukundi family and the Aki family and specifically between Mr Jim Mek Seth and Mr Charlie Aki. Not only that the deceased left a portion of land which he developed and dwelled on and with interest on it, but that he left no biological son to automatically inherit the disputed land and the interest on it according to local custom in a patrilineal society. This is very much crucial in a patrilineal society.”

47.	His worship then went on to determine the necessity of inheriting the land, rather than acquiring it otherwise, and the issue that one cousin came through the patrilineal descent and the other through the matrilineal descent.

48.	This is where the plaintiff in appealing the decision has failed to address how the decision was absurd or unreasonable or breached the rules of natural justice by applying the authoritative law – that the decision “lacked an evident and intelligible justification”. 

49.	The learned Magistrate exercised a discretion, one he was entitled to exercise.  Had he remitted it back as he considered, his decision indicated where the local court made mistakes, so on those points the plaintiff here was on notice that the primary decision was wrong. In exercising his discretion, the Magistrate took that into account, as well as determining the great length of time the matter would be in dispute, and although not stated – no doubt considered what would occur in between. This ground of review has nothing to do with unreasonableness, it is simply dissatisfaction with the decision made.

50.	In relation to the ground stated at paragraph 21 (d) above, that no time was given for the vacation of the land, and also a failure to award compensation for the work done and that was unreasonable, is not a proper ground of review as it has nothing to do with the decision as to the inheritance. 

51.	The land is now occupied against not only the decision as to ownership, but that the customary laws of inheritance applied, the occupant either having a right to occupy by agreement of the owner or not.

52.	If the learned Magistrate had the power to order vacation of the property and did not do so, that is not an unreasonable decision in the sense of a judicial review of the decision. It is merely an order which could have been made but was not. The owner has a right to seek eviction from the District Court. 

53.	Although not necessarily addressed in the oral submissions the plaintiff had also stated several other grounds for judicial review. They are as follows, the number in square brackets representing the numbered ground as set out in the plaintiff’s written submissions handed to the bench on 22 July 2021. I address them for completeness even though they may well have been abandoned at the hearing as they were not mentioned in oral submissions:

a)	[2] That the appeal decision was unreasonable or ultra vires as the magistrate fell into error in awarding the land subject to the dispute to the first defendant, when that was not the relief sought by the first defendant. If this ground has not been abandoned, it is very difficult to follow from the written submissions because although it is identified as an issue it does not seem to be addressed in the submissions. However, in reading the decision it is clear that the land has not been awarded – it has been inherited and there is a legal difference between awarding land to someone or determining whether it was passed by inheritance. There is no ground of review made out here.
b)	[8] That the learned magistrate failed to call witnesses after conflicting evidence was given by a witness Anton Mininga and such was absurd and unreasonable and in breach of the principles of natural justice. His worship indicated that certain questions had not been asked by either counsel in the court below, and he was making a decision on what was before him, a discretion he was entitled to exercise. Further, the claim is another way of stating that the matter was not remitted, and such has been addressed above. However, it is not enough to merely say this was unreasonable or absurd, and what is required is an explanation within the meaning of the cases, and as a the quote from the Minister for Immigration and Border Protection v SZVFW case above requires, the court has to be addressed about unreasonableness which involves “some misapprehension of what is comprehended by the legal standard of unreasonableness” and that such lacks evident and intelligible justification. 

c)	[9] That the learned magistrate was in error in finding that the plaintiff and the first defendant both claimed interests in the land given to them and then failing to remit the matter back for a finding on that issue. The actual decision made was one of inheritance not who gave what to whom and the decision made is not absurd or unreasonable or a breach of natural justice because the court set out to determine an inheritance issue. There is no ground of review here.

d)	[10] That the learned magistrate was in error by not considering the conflicting evidence as to who cultivated the land and such was absurd or unreasonable. Again, this is just merely a matter of the evidence and that is not open for review on the grounds of absurdity or unreasonableness. There is no ground of review here.

e)	[11] The magistrate disregarded or did not consider the local court finding that the first defendants’ primary evidence was lacking and such was absurd or unreasonable. That is a submission in the teeth of the decision. Clearly the magistrate did find errors and as he had the power to do and made his decisions. It is not clear what this ground is actually stating. There is no ground of review here.

54.	As I stated I do not know whether these grounds were abandoned but for completeness I have addressed them.

 ORDERS
 
1.The application for review is refused.
2. The decision of 11 October 2018 in the Provincial Land Court in Appeal No. 01 of 2017 is confirmed.
3. The plaintiffs shall pay the defendant’s costs of and incidental to these proceedings, to be taxed if not agreed.
________________________________________________________________
Lawyers for the plaintiff (first instance): Veronica Palts Lawyers
Lawyers for the plaintiff (interim): Be’soer Lawyers
Lawyers for the first defendant: Charles Kos Lawyers