Morea v Naime [2015] PGPLC 1 (3 November 2015)

PAPUA NEW GUINEA

[IN THE PROVINCIAL LAND COURT OF JUSTICE]

PLC: 002 OF 2012

BETWEEN:

Idau Morea and others of Hoboimo
Clan of Hanuabada - NCD
(1^st Appellant)

AND:

Bogodo Raho and others of Hagwaipi
Clan of Elevala - NCD
(2^nd Appellant)

AND:

Jack Nou, Mary Nou and Others of Hagwaipi
Clan (Madai) Badiagawa - NCD
(3^rd Appellant)

AND:

Bogodo Naime and others of Hagwaipi
Clan of Gabi - NCD
(1^st Respondent)

AND:

Raho Lou Moipi and others of Hagwaipi
Clan of Elevala - NCD
(2^nd Respondent)

AND:

Kelly Gorohu Frank and others of Hoboimo
Clan of Elevala – NCD
(3^rd Respondent)

PORT MORESBY : J.TAPAT

Senior Principal Magistrate

2015 : 03^rd November

REASONS FOR DECISION

Referral - from Judicial Review – for the Provincial Land Court determination

- Earlier Provincial Land Court decision – quash and to be determine by another Provincial Land Court Magistrate.
- Original grounds of appeal – to be determined.
- Appeals are upheld.
- Dispute remitted back, with Instructions and guideline to the NCD Local Land Court, to further referred to NCD Land Mediation Division for appoint of mediators.

TAPAT J. – MAGISTATE - This is an appeal proceeding which was commenced as a result of the Judicial Review proceedings at the Waigani National OS(JR) No. 558 of 2008. Again His Honour Justice Bernard Sakora quashed the decision of the 2^nd July, 2008 and remitted the appeal to Waigani Provincial Land Court for another magistrate to sit and determine the appeal.

This appeal proceeding was remitted to Port Moresby Provincial Land Court before His Worship Mr Stephan Oli as he was than on the 8^th of March 2012. The matter further referred to the current presiding magistrate, when the former was elevated to be an acting judge of the National Court.

Grounds of Appeal

Since the appeal was remitted for rehearing, the Court will consider the original grounds of appeals that were lodged in 2008. The grounds of the three appeals by the three appellants will be consolidated in one appeal for the sake of this appeal Court. These are three grounds of appeal pursuant to Section 58 of the Land Dispute Settlement Act Chapter No.45 and they are as follows; The Local Land Court,

a) exceeded or refused to exercise its jurisdiction
b) conducted the hearing in the manner contrary to natural justice and

100. in the circumstance of the Case, no case doing, justice between the parties would have made the decision appealed against.
     

When the appeal was remitted back for rehearing the original grounds of appeals and local land Court file were not furnished to this Court.

However, Martha and Associates Lawyers had annexure photocopies of some of the original local land court documents and the grounds of appear which had greatly assisted this Court. This court really appreciated the services of Lawyers for such cases which had taken a long time for court to consider the appeal court.

ISSUES IN THE GROUNDS OF APPEAL

One of the explicit issue raised by Jack Nou, Mary Nou & Family of Madai Village, NCD is that the two mediators appointed, are both from Central Province and are appointed pursuant to Section 15 of the Land Dispute Settlement Act. The Court will address later. They both were not appointed to assist and mediate within the NCD, Mediation Divisions or Areas.
The other, was the land in dispute was not properly identified before the local land court sitting and were not clearly demarcated, verified and confirm to the local land court which was still uncertain.

FACTS OF THE CASE

This is a long outstanding local land court appeal pending since 2007. These appeals were considered by the National Capital District Provincial Land Court who divided the interest of the customary land and warded in percentage to all the appealing parties.

The local land court presided by Mr Bingtan made its decision on the 5^th January 2007.

The Notice of Appeal was filed before the Provincial Land Court on the 27^th of June 2007 at Waigani, (NCD) Provincial Land Court. His Worship Mr Noki made the Provincial Land Court decision on 2^nd of July, 2008.

The parties that were aggrieved by the Provincial Land Court decision applied for Judicial Review on the 19^th of May 2009 and leave was granted. His Honour Justice Sakora made his decision on the 2^nd of December, 2011. His Honour remitted the appeal back to the Provincial Land Court to be heard by a different magistrate.

The Appeal first went before His Worship Mr Stephen Oli on the 8^th of March 2012.

On the 14^th October 2013, the matter came before the current presiding magistrate. However, the second Appellant had an internal family dispute which they fail to address internally which affected the entire appeal proceedings. This Court dealt with their internal issue and made a decision on the 5^th of June 2014. After it dealt with the internal issue and ruled on it, the Court preceded to the appeal proper.

LAW

Section 54 of the Land Dispute Settlement Act, states, a person aggrieved by a decision of a local land court may appeal within three months after the date of the decision of the local land court to the Provincial Land Court.

The grievances are to be categorized into three areas of law pursuant Section 58 (a) that the local land court exceeded or refused to exercise its jurisdiction, or (b) that the local land court conducted its hearing a manner contrary to natural justice, or (c) that in the circumstances of the case no court doing justice between the parties would have made the decision appeals against.

The first issue that arose from the three appellants is that the two mediators are from Rigo in Central province.

Section 11 of the Land Dispute Settlement Act is clear, Sub-Section (1) reads:- A Provincial Land Dispute Committee shall, at the same time as it declares an area to be a Land Mediation Division or as soon as possible after, and may from time to time, appoint Village Magistrate, or other persons to be Land Mediators for the Division.

The two mediators named are appointed to deal with matters in the Rigo Local Level Court Mediation Area and not by National Capital District Provincial Land Dispute Committee. Both Mediators, Banige and Mahuta appointed for the mediation in Rigo District of the Central Province. When appointed their mediation powers a confine within the Rigo District of the Central Province.

Section 23 of the Land Dispute Settlement Act reads;

Sub-Section(1) A Local Land Court shall be constituted by a Local Land Magistrate, who shall be the Chairman, and

(a) Subject to subsection (2), a even number of Land Mediators (not being more than fair); or

(b) where the Court is constituted for the purpose of a dispute in an area.

This appeal court further understood that the Motu customs and traditional land tenure system is the bases of solving the Motu customary land dispute. The Land Dispute Settlement Act sets out the guideline for the Local Land Court to apply the Motu Customary practices of their land transfers, inheritance, or the right to use their land. This law is recognized by the Constitution of Papua New Guinea. It is the intention of this court to start doing it now.

In fact, if proper local land court practice and procedures are not developed, there would be continual avoidance in pleading of the local customary ownership practices. This will not lead to developing our under laying law on ownership of customary land. This appeal court will be embarking on developing the Motu Customary Land practice for consistency and maintaining the Motuan heritage and land succession.

Most grounds of appeal that have raised and mentioned in the appellants grounds of appeal is based on the Local Land Court, mixing genealogies and the local land court’s inability to clearly demarcate land boundary of ‘Madai Land’. This led to include other lands that are mentioned in the local land court declaration.

The local land court had only two Clans from various villages in the National Capital District who were disputing ownership of the land and they are the only parties in this appeal Court. This indicates that all parties before this court have some sort of extended relationship as practiced within out Melanesian Culture. The Local Land Court will have to ascertain the Motu Customary tenure system as alluded above.

All customary land disputes that are lodged are to first consider Section 3 and 4 of the Land Dispute Settlement Act. A Local Land Court must be wary of its jurisdiction and not determine land that are under State lease and listed on Government Gazette as state lease. A lot of care needs to be taken on customary lands which are within the vicinity of Urban Centers or Agricultural Lease areas.

The Local Land Court must be wary of Section 27(4) of the Land Dispute Settlement. Port Moresby is the place which Colonial Masters had their first administrative headquarter and Government post. There would be a lot of land within the National Capital District which had been determined by the Native Lands Commission.

COURT FINDING

The Provincial Land Court finds that the two mediators from the Central Provincial land court had no basis and legal authority to constitute the Local Land Court.

Though the Court composition was three (3), they were not appointed pursuant to Section 15 of the Land Dispute Settlement Act, so the court had no jurisdiction from the start.

The Provincial Land Court also established that though the Land in dispute was called MADAI Land there were other names that rose from the hearing. This raises the issues of proper identification of land boundaries, name of the land in dispute before the local land court.

The Provincial Land Court further found that the Local Land Court made orders declaring ownership, usage right and discussing land that are not registered in the dispute. It was obvious that from Mediation, there was confusion to the clear identity of the land in dispute and the nature of the dispute before the Court.

The Court also realized that the parties before the Court are from two clans, the Hagwaipi Clan and Hoboimo Clan. It was only their locations, or villages that have separated them in different villages. They are Appellants and Respondents.

This Court also could not ascertain the Motu Customary tenure system that was used as the criteria to award the true ownership of the land, neither the criteria that were used to award the user right nor the criteria for the exceptional circumstance for ownership of the land.
COURT ORDER

This Provincial Appeal Court is vested with the powers under Section 59 of the Land Dispute Settlement Act either to affirm the order of the Local Land Court or to quash the orders of the local land court and do several things, as it thinks proper.

This Court after determining the grounds of appeals, submissions from the appellants and respondents, and the reasons of the Local Land Court, the appeal Court pursuant to Section 59(1)(a) of the Land Dispute Settlement Act, quashed the order and pursuant to Section 59(2) of the Act, give instructions, direction and guideline, is remitted to the Local Land Court for rehearing.

The Local Land Court is directed to A – Before hearing;

1. Identify the land in dispute, whether it the entire MADAI land, or portions in MADAI land or a portion in MADAI land. Have a sketch map.
   
2. If they are more than one land in dispute, the land names had to be identified, plus the boundaries and must be separated. Have sketch maps.
   
3. Identify the nature of dispute; whether it is customary ownership, boundaries, user right, etc.
   
4. Deal with one land and its dispute individually.
   

B-Hearing

5. At the first sitting, take the pleading of the customary land system of the MOTU CUSTOM.
   
   • (a) Whether patrilineal or matrilineal
   • (b) Whether the Motu Custom practice, tribal ownership, Clan ownership, family ownership or individual ownership.
   • (c) If there are exceptional types of ownerships, they have to be pleaded also.
     
6. Direct all parties to address the above pleading and settle with the correct customary land system practice.
   
7. If the nature of dispute is user right, plead that practice in Motu land tenure system or their Motu Customary practice.
   
8. Local Land Court Magistrate and Registry Staff will decide the rehearing dates as they see fit.
   
9. Land Mediators appointed must be well versed with the Motu Land Tenure System and must be from within NCD (NCD-Mediation Division)