Bais v Bipu [2003] PGPLC 1; DC103 (9 December 2003)

DC103

PAPUA NEW GUINEA
[DISTRICT COURT OF JUSTICE]

CASE NO 2 OF 2000

BETWEEN

TOM BAIS AND OTHERS OF ISIMBU CLAN OF NINGRA VILLAGE
Appellants

AND

ROBERT BIPU AND OTHERS OF WASIME LAND GROUP INC. OF IYAM CLAN OF NINGRA VILLAGE

Respondents

Vanimo

August, M

27 November 2003
9 December 2003

LAND COURT - Appeal to Provincial Land Court from decision of Local Land Court – Provincial Land Court may mediate - Whether the Provincial Land Court has the powers to quash a decision of the Local Land Court for want of reasons for decision by presiding magistrate pursuant to section 38(3) of the Land Dispute Settlement Act -Provincial Land Court has power to mediate - Provincial Land Court has power to quash decision if no reasons for decision is given by Local Land Court presiding magistrate - Land Dispute Settlement Act s. 38.

No cases cited.

Counsel
Lucian Siu for Appellants

Robert Bipu for Respondents

09th December, 2003

AUGUST, DCM.: This is an appeal from a Local Land Court decision dated the 29th August, 2000 which awarded the ownership of the land described as "Portion 47, Block B" or sometimes described as "Basse (Passi) Ningra Reserve".

It would be a totally waste of time to set out the grounds of appeal knowing from the records that no reasons for decision or judgment was written for the convenience of the Provincial Land Court.

Having considered that and the fact that both parties come from the same village of Ningra east of Vanimo, I thought I would attempt mediation under section 22B of the District Courts Act because section 28 of the Land Disputes Settlement Act (chapter 45) ("the Act") only provide for mediation in the Local Land Court. Section 50 (2) (c) also gives me a discretion that I may inform myself on any question before me in such a manner as I think proper. Based on that, I conducted two sessions of mediations with a hope of getting the parties to agree to an amicable settlement on their own, but the mediation failed.

Knowing that I have no reasons for decision on record to study and go through each grounds of appeal advanced by the appellants, I decided on the court’s own motion to make a preliminary ruling on whether I have the power to quash the decision of the Local Land Court for want of reasons for decision. Section 38 reads:

38 Records and returns of cases

(1) As far as practicable, a Local Land Court shall keep or cause to be kept, a record of the proceedings in a form approved by the Minister.

(2) The record of any proceedings shall include minutes of any evidence or information given in the proceedings before the Court.

(3) The reasons for the decision of the Court shall be recorded by the Local Land Court Magistrate.

(4) ...

(5) The Local Land Magistrate shall forward a copy of the record of each proceeding to the Provincial Land Court.

This particular land dispute was heard in 2000 by His Worship (as he then was) Mr. Caspar Apundamatiet in Vanimo. The decision was handed down on the 29th August, 2000 in favour of the Respondents. The Appellants lodged their appeal on the 29th November, 2000. My enquiry with the Clerk of Court in Vanimo, who is tasked with the responsibility of all court records, revealed that the records of proceedings were taken to the presiding magistrate’s posting in Nuku. No certified copy of the proceedings was forward to the Provincial Land Court in Vanimo from Nuku. After many search for the record of proceedings it was found at the Magistrate’s residence in Nuku by the Clerk of Court in 2002 and sent to Vanimo. The records went missing for almost 2years. When I peruse the records I could not locate any reasons for decision or judgment by the presiding magistrate.

The issue is whether the Provincial Land Court has the power to quash the decision of the Local Land Court for want of reasons for decision.

I am of the view that I do have the power at this stage of the proceedings to quash the decision of the Local Land Court. The provision of section 38 of the Act is mandatory. The presiding magistrate must not only record his reasons for decision, he also must forward a certified copy of the record of proceedings to the Provincial Land Court. The records went missing for almost 2 years and no certified copy of the record of proceedings was sent to the Provincial Land Court in Vanimo. The Provincial Land Court now quashes that decision.

In conclusion, I noted with interest a certain order alleged to be issued by the Lands Title Commission in 1969 now in the possession of the Respondents during the preliminary hearing. If that is proved to be the case, section 27 (Limitations of jurisdiction) of the Act could limit the jurisdiction of the Local Land Court, especially sub-section (4). This has further consolidated my reasons given above and I now make the following orders:

The Court orders that:

1. The order of the Local Land Court dated the 29th August, 2000 is hereby quashed.

2. The land dispute shall be remitted back to the Local Land Court for hearing with the following direction:-

>that the Local Land Court shall satisfy itself whether there has been previous deliberation in respect of the land the subject of this dispute, either by a Local Land Court, or a Provincial Land Court or the Land Title Commission.

3. Having satisfied itself that there has not been any previous determination, or order, in relation this land dispute, the Local Land Court shall hear the land dispute afresh.

The Respondents have put the court on notice that they wish to appeal this decision.

Complainant: Lucian Sui
Defendant: Robert Bipu