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Provincial Land Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE PROVINCIAL LAND COURT OF JUSTICE]
PLC. 005 of 2013
BETWEEN
Dick Rahonamo & Others of Nenehi Laurina No. 3 Clan, Tatana, NCD.
01st Appellants
AND
Kevin Rarua for Himself & Members of the Naurina Clan of Tatana village
02nd Appellants
AND
Kenny Avivido Guikau for Himself & Members of the Laurina Clan of Tatana
03rd Appellants
AND
Gaudi Rei; Logea Borema & Muduka Iduhu of Barauni
01st Respondents
AND
Curtain Brothers Ltd
02nd Respondents
Port Moresby: S.Lavutul
Mediators: Nil
2015: 01st, 02nd June
PROVINCIAL LAND COURT PRACTICE & PROCEDURE- Section 50 Land Dispute Settlement Act – Interpretation & Definition of Parties (Section 2 LDS Act) – Provincial Land Court Appeal Process–Sections 54, 55, 56, 57, 58, 59 & 60- Dismissal of Local Land Court Proceedings – Grounds of Appeal Upheld- LLC Decision Quashed-Matter Remitted to Mediation Process.
Cases Cited
Nil
References
Land Dispute Settlement Act
Local Customs and practices of the Motuan people.
Counsel
Mr. Kewat appeared for Nenehi Laurina No.03Clan of Tatana village, NCD.
Ms. Gubag appeared for Curtain Brothers (PNG) Limited.
REASONS FOR DECISION
09th June 2015
Samuel Lavutul, Principal Magistrate; This matter came before me by way of three (3) different Notices of Appeal pursuant to Section 55 of the Land Dispute Settlement Act. This appeal is against the Decision of the Port Moresby Local Land Court dated 29th of August 2013 over the Ranubada Land.
2. Appellant No. 1 Dick Rahonamo on behalf of himself and his Nenehi Laurina #3Clan of Tatana village filed his Appeal on the 28th of October 2013 including cash Deposit of K500- 00.which was paid on the same date as per Receipt No. 289820. Their Appeal was registered based on the following grounds of appeal;
(a). That the Local Land Court exceeded or refused to exercise its jurisdiction; or
(b). The Local Land Court conducted its hearing in a manner contrary to natural justice; or
(c).That in the circumstances of the case no court doing justice between parties would have made the decision appealed against; or
(d).That in the case of an appeal against a decision given under Section 40, the order for the return of the interest or interests in land or the grant of another equivalent interest or interest was not supported on the facts.
3. Appellant No. 2 Kevin Rarua for himself & on behalf of members of all Direct Descendants of Gaigo Resena of Naurina clan of Tatana village; filed a Notice of Appeal in its Draft form on the 08th of August 2014. Prior to the filing of the appeal a sum of K500.00 in cash was paid as registration for the appeal on the 04th of December 2014. Kevin Rarua pleaded the following grounds of appeal;
1. That the Port Moresby Local Land Court exceeded or refuses to exercise its jurisdiction in hearing the land dispute in that;
(a). even though the Port Moresby Local Land Court had jurisdiction to hear the dispute as the land the subject of the dispute is customary land, there was evidence before the court that only a small portion of land was subsequently compulsorily acquired by the state while the dispute was on foot and the subsequent dismissal of the entire proceedings on the 28th of August 2013 was therefore prejudicial to the right of the applicant; and
(b). even though the Port Moresby Local Land Court held in term 3 of the order made on the 28th of August 2013 that there was no evidence of referral from mediation to the Local Land Court in accordance with Section 27 (1)(e) (i) of the Land Dispute Settlement Act Chapter No. 45, which warranted the dismissal of the entire proceeding, the court failed to take into account that the documents may have been misplaced or lost and so the court would have used its discretionary powers pursuant to section 16 of the Land Dispute Settlement Act Ch. No. 45 to mediate over the dispute instead of subsequently dismissing the entire proceedings on the 28th of August 2013 prejudicing the rights of the Applicants.
2. That the Port Moresby Local Land Court conducted its hearing in a manner contrary to natural justice in that;
(a). although the Applicants were a party at the Port Moresby Local Land Court hearing in the matter LLC No. 007 0f 2005; Ranubada case, the Respondents failed to serve him a copy of their Notice of Motion to dismiss the entire proceedings resulting in the orders made by His Worship Tapat on the 28th of August 2013, thereby prejudicing the rights of the appellant
(b). the Applicants were not allowed or given an opportunity to cross-examine on the affidavit material filed by the Respondents (if there were any) and made submissions in reply before His worship pronounced his decision on the 28th August 2013, thereby prejudicing the rights of the Applicants.
3. That in the circumstances of the case, no court doing justice between the parties would have made the decision appealed against in that;
(a). there was a Waigani National Court Order made on 03rd October 2012 ordering that the ownership issue of Ranubada land be determined first by the Local Land Court before the funds (K3million or more paid into Bank South Pacific by Curtain Brothers (PNG) Limited, the second Respondents which was frozen) be lifted for payments to the land owner declared by the Port Moresby Local Land Court, thereby prejudicing the rights of the Applicants; and.
4. Appellants No. 03 Mr. Kevin Avivido on behalf of himself and others did give notice on the 02nd of April 2015 to be included Appellants in the proceeding over the Port Moresby Local Land Court Decision of the 29th of August 2015 over the Ranubada Land in that;
1. Pursuant to Section 53 of the Land Dispute Settlement Act Ch. No.45 (the Act) Applicants be joined as party as Second Appellants in PLC. 005 OF 2013 (Dick Rahonamo v Muduka Idudhu & Curtain Brothers (PNG) Limited.
2. Pursuant to sections 54, 55, 57, 58, 59 and 60 of the Land Dispute Settlement Act the Appellants to be given the opportunity to be heard in this appeal proceeding in the Provincial Land Court.
3. Pursuant to Section 55 (1) of the Act the Applicant hereby give Notice of Appeal to the Honorable Court on the following grounds;
(a).That the Local Land Court exceeded or refused to exercise its jurisdiction; or
(b).That the Local Land Court conducted its hearing in 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 appealed against; or
(d)...
4. Such further orders the court deems fit and proper; and
5. Costs
5. The Port Moresby Local Land Court heard and entered the following orders on the 29th of August 2013;
1. This Local Land Court is not properly constituted to be a Local Land Court. Therefore it does not have jurisdiction to deal with the dispute pursuant to section 23 of the Land Dispute Settlement Act (LDSA)
2. Issue of whether this is a State Lease, Section 3 (2) (a) of the Land Dispute Settlement Act (LDSA) deems this Local Land Court to have no jurisdiction to deal with the dispute
3.There is no evidence of referral from mediation to the Local Land Court; there is absence of Form 7 and Form 8 to give jurisdiction to the Local Land Court in accordance with Section 27 (1)(e)(i) of the Land Dispute Settlement Act.
4. Therefore the entire proceeding is dismissed.
Facts
6. Briefly, It appears from the records of the Local Land Court the Ranubada Land is situated in the vicinity of Tatana and Baruni villages in the National Capital District.
7. The Local Land Court records shows the original parties to the customary land dispute are, Dick Rahonamo & his Nenehi Laurina # 3 clan, Kenny Avivido, Rarua Henao, Eau Asigau, Madaha Resena, Nou Gagoa, Hon Igo & Joseph Igo, Gaudi Rei, Logea Borema Muduka Iduhu of Baruni village and Curtain Brothers (PNG) LTD.
8. According to Local Land Court records proceedings pertaining to the Ranubada Land had gone before several magistrates ever since it was first registered as Case LLC. No. 007/2005 with the Port Moresby Local Land Court and did not reach finality until Magistrate Tapat took charge of the matter and reached a decision on the 29th of August 2013 which now forms the basis of this appeal proceeding. I do not intent to go back on the history of those previous proceedings but I will only dwell on the Port Moresby Local Land Court Decision of 29th of August 2013 in line with the respective grounds of appeal.
Issues
9. The following are the issues which I am required to determine;
ii. Whether the Local Land Court exceeded or refused to exercise its jurisdiction; or
iii. Whether the Local Land Court conducted its hearing in a manner contrary to natural justice; or
iv.Whether in the circumstances of the case no court doing justice between parties would have made the decision appealed against; or
v. Whether in the case of an appeal against a decision given under Section 40, the order for the return of the interest or interests in land or the grant of another equivalent interest or interest was not supported on the facts.
Findings
10. In regards to the first issue whether the respective Appellants had their respective appeals filed on time meeting the requirements of Section 54 (1) & 54(2) of the Land Dispute Settlement Act or not.
11. I find the 01st Appellant in this proceeding Dick Rahonamo and his Nenehi Laurina #03 clan did file their appeal within the requirements of Section 54 (1)&54 (2) of the Land Dispute Settlement Act; except for the 02nd and 03rd Appellants which had their appeals filed outside the requirements ofSection 54 (1) &54 (2) of the Land Dispute Settlement Act.
12. Section 54 (1) of the Land Dispute Settlement Act specifies;“Subject to this section a person aggrieved by a decision of a Local Land Courtmay appeal within three (3) months after the date of the decision to the Provincial Land Court”.Whilst Section 54 (2) of the Land Dispute Settlement Act specifies; “Where the Provincial Land Court is of the opinion that it is desirable in the interest of justice to do so, it may, whether or not the time fixed for the 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”.
13. In the matter before me the Port Moresby Local Land Court made its decision on the 29th of August 2013. The aggrieved parties had from the 30th of August 2013 to the 30th of November 2013 which is about three (3) months to lodge their respective appeals in compliancewith the requirements of section 54(1) of the Land Dispute Settlement Act.
14. The 01st Appellant Dick Rahonamo filed his Notice of Appeal on the 28th of October 2013 and attached to his Notice of Appeal is a copy of an Official Receipt No. R00000289820 issued by the Department of Finance (Vulupindi House) for the sum of K500.00 as monies being paid as registration for his appeal.
15. Unfortunately for Appellant No. 02 Kevin Rarua on behalf of members of Gaigo Resena of Naurina clan of Tatana village lodge his appeal outside the requirements of section 54 (1). He lodged his appeal on the 14th of August 2014 instead of the 30th of November 2013 which was outside the 3 months after the date of the decision on the 29th of August 2013. I also note on foot a Notice Of Motion moving the court for orders pursuant to Section 54 (2) of the LDSA that the Appellant be granted leave to extend time to file a Notice of Appeal out of time and any such orders the court deems fit. However due to his failure to appear and prosecute his motion on the 03rd of June 2015 at 9.30 am; the Appellant’s motion is struck out for want of prosecution. Thus his appeal is dismissed and his monies to the sum of K500.00 be refunded.
16. Similarly, Appellant No.03 Kenny Avivido Guikau on behalf of Laurina Clan of Tatana village lodged his appeal on the 02nd of April 2015 and paid a sum of K500.00 on receipt No. C07-003122 as Appeal fees on the 02nd of June 2015.I find Appellant No.03 to have fell short in satisfying the requirements of section 54 (1) &54 (2) of the Land Dispute Settlement Act.Thus his appeal is dismissed.
17.Prior to dealing with the respective grounds of appeal, I also note the three (3) would be Respondents (Curtain Brothers, Haraka Borema of Kaevaga clan and Gaudi Rei of Tanomotu Clan of Baruni respectively) have not filed any objections contesting the appeal filed by Dick Rahonamo. I have satisfied myself I will proceed to hear the appeal as it is.I will proceed to deal with Dick Rahonamo’s appeal as he did fully comply with sections 54 and 57 of the Land Dispute Settlement Act.
18. Firstly having noted from the Port Moresby Local Land Court Decision of the 29th of August 2013, the court dismissed the entire Local Land Court proceedings and I now wish to expound on its findings that;
(i). The Local Land court was not properly constituted due to the absence of Forms7 and 8. Form 7 is the basically titled RECORD OF MEDIATION as per Section 18 of the Land Dispute Settlement Act. This Form is used to record basic vital information of what has transpired during the process of mediation. The Land Mediators used this form to record and capture, the Name of the Mediators, the particular Mediation Division, Date of meetings, Parties to the Dispute, Nature of Dispute, Name of Land, If the Dispute involves boundaries description of boundaries, How did you mark the boundaries, Name of witnesses to location of boundaries, Agreement reached (if any), Certification of Agreement by Mediators, Mediators signatures and Date of Certification.
Similarly, Form 8 is basically titled DISPUTE REFERED TO LOCAL LANDCOURT is a referral form to the Local Land Court as per Section 26 (1) of the Land Dispute Settlement Act that is required to be completed and endorsed by the particular Land Mediator(s) indicating and certifying that their attempt to assist the parties resolve their dispute has failed or the parties have failed to reach an Agreement.
In the event of a referral to the Local Land Court these two Forms are basic legal requirements which would enable the matter to be registered as a Local Land Court matter, thus giving jurisdiction to the Local Land Court to hear and determine the matter.Section 27 of the Land Dispute Settlement Act specifies, “where a dispute relates to land either wholly or partly in a Land Mediation Area, a Local Land Court has no jurisdiction over the dispute, unless a Land Mediator has certified that he has acted in relation to the dispute and that...”
I therefore find no error and totally agree with the His Worship’s view that Forms 7 and 8 are the basic legal requirements; certification and filing of these two (2) Forms by Mediator(s) then gives the Local Land Court jurisdiction to hear and determine the dispute.
(ii). Secondly, the Port Moresby Local Land Court also discovered and ruled that it did not have jurisdiction to hear and determine the dispute as there exist a Lands Title Commission’s (LTC) decision over the Ranubada Land, hence the Titles were issued in 1993 and was reaffirmed in 1996.
I also find no error and totally agree with Worship’s view as it would be contrary to Section 27 (4) of the Land Dispute Settlement Act. Section 27 (4) of the Land Dispute Settlement Act specifies; “A Local Land Court shall not proceed to hear and determine a dispute, other than an application under Section 44, unless it has first satisfies itself that no previous order has been made in relation to the land by-
(a). a Provincial Land Court or a Local Land Court
(b). the Lands Titles Commission”
(iii). Thirdly, His Worship also raised issue with the constitution of the Local Land Court and found an obvious failure to comply with the mandatory requirement of Section 23 (1) (a) (b), (2) (a) (b) and (3) of the Land Dispute Settlement Act. All four (4) magistrates who sat to hear the dispute over Ranubada Land each sat without having a quorum. A properly constituted Local Land Court shall be made up of the Local Land Court Magistrate, as Chairman and an even number of mediators not being more than four (4). Hence, I find no error with His Worship’s ruling.
(iv). Fourthly, I agree with Worship’s ruling in that the Second Respondent in this appeal Curtain Brothers (PNG) Limited does not fall within the definition of Section 2 of the Land Dispute Settlement Act which defines a “party” as a “party to a dispute to which this Act applies, and includes –
(a). a customary kinship group; and
(b). a customary descent group; and
(c). a customary local group or community”
Hence, Curtain Brothers (PNG) Limited should have not been included as a party in the Local Land Court proceedings over the customary ownership of Ranubada land. The dispute over customary ownership should have been between the Appellants and the 01st Respondent who respectively falls under the above definition under Section 2 of the Land Dispute Settlement Act.
19. I will now deal with issues (b), (c) and (d) together. Appellant Dick Rahonamo pleaded the Port Moresby Local Land Court exceeded or refused to exercise its jurisdiction whilst arriving at the Decision of the 29th of August 2013. He further pleaded the Port Moresby Local Land Court conduct its hearing in a manner contrary to natural justice.
20. Moreover, Mr. Rahonamo pleaded that in the circumstance of the case no court doing justice between parties would have make the decision appealed against.
Ruling
21. I therefore accept and upheld the 01st Appellant’s appeal based on grounds (a), (b), and (c) as supported by the facts before me. I am of the view despite the Local Land Court’s findings on the absence of Forms 7 and 8 on the Local Land Court files, it should have exercise its discretion under Section 17 (2) (c) of the Land Dispute Settlement Act in order to request a Land Mediator either orally or in writing to mediate the dispute over customary ownership or interests over the Ranubada Land. A request by a Local Land Court Magistrate or Provincial Land Court Magistrate under Section 17 (2) (c) and Section17 (2) (f) respectively is mandatory. I am also convinced there are no provisions under the LDS Act that puts a restriction on a Land mediator on what specific area to mediate. The Act gives a Land Mediator wider responsibility and discretion to mediate on any issue(s) where there exists a dispute over customary interests over land.
22. I note Section 15 (1) of LDSA specifies; “The primary function of a Land Mediator is to assist in the attainment of peace and harmony in the Land Mediation Division or Divisions for which he is appointed by mediating in, and endeavoring to obtain the just and amicable settlement of , disputes.”
23. I am of the view the dismissal of the entire proceedings by the Local Land Court was technical in nature, however it does not cure and put to rest the issues surrounding the questions over customary ownership and other customary interests over the Ranubada Land. I am also of the view the Local Land Court instead of dismissing the entire proceedings it should have dismissed only the matter against Curtain Brothers (PNG) Limited who does not fall within the definition of Section 2 of the LDSA and in all fairness struck out the entire proceedings and refer the parties concerned back to the mediation process by invoking Section 17 (2) (c) of the LDSA.
24. I therefore invoke my powers under Section 59 (1) (b) (i) of the LDSA and quashed the orders of the Local Land Court of the 29th of August 2013.
I will enter orders accordingly.
Court Orders
5. All appeal deposits paid be refunded to all parties.
..............................
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