Ikupu v Poha [2015] PGPLC 3; DC4095 (12 June 2015)

DC4095

PAPUA NEW GUINEA

[IN THE PROVINCIAL LAND COURT OF JUSTICE]

PLC. No: 10- 11 of 2014

BETWEEN

Fabian Ikupu Ikupu

01^st Appellant

AND

Peter Aihi Bahau & Others

02^nd Appellant

AND

Aihi Paraha & Others

03^rd Appellants

Victor Ketoa Poha & Others

Respondents

Port Moresby: S.Lavutul

Mediators: Nil

2015: 03^rd, 08^th, 12^th June

PROVINCIAL LAND COURT PRACTICE & PROCEDURE- Section 50 Land Dispute Settlement Act – Provincial Land Court Appeal Process–Sections 54, 55, 56, 57, 58, 59 & 60- Allegation of Bias- Breach of Natural Justice- Appeal upheld and Orders Quashed- Matter Remitted for Rehearing

Cases Cited

Nil

References

Land Dispute Settlement Act

Local Customs and practices of the Waima people.

Counsel

Appellants present in person

Respondent appeared in person

REASONS FOR DECISION

12^th June 2015

SLavutul; This matter came before me by way of three (3) separate Notices of Appeal each filed by Mr. Fabian Ikupu as 01^st Appellant, Mr. Peter Aihi Bahau as 02^nd Appellant and Aihi Paraha as 03^rd Appellant. The respective Appellants were aggrieved by the Local Land Decision No: LLC.12/2013 of the 26^th of June 2014 over the customary ownership of Ibaboro Land in Waima village, Bereina District of the Central Province. I note would Respondent Mr. Victor Ketoa Poha is now deceased and his spokespersons are Martin Beni and Joseph Maune.

2. The Local Land Court was presided upon by His Worship David Yalal as he was then and made the following orders on the 26^th of June 2014;

1. All parties to the customary land dispute over the Ibaboro Tower have ownership rights and interest therein.

2. That the parties share the Benefits, Royalties compensation and other financial benefits as follows;

(i) Peter Bahau – 15%

(ii) Victor Ketoa Poha – 40%

(iii) Fabian Ikupu Ikupu- 15%

(iv) Thomas Ikupu Hau- 15%

(v) Aihi Paraha- 15%

3. That Victor Ketoa Poha shall have occupation rights over the disputed portion.

3. Briefly, the respective Appellants all pleaded the same grounds of appeal in that;

1. The Local Land Court exceeded or refused to exercise its jurisdiction, or

2. The Local Land Court conducted its hearing in a manner contrary to natural justice, or

3. In the circumstances of the case no court doing justice between the parties would have made the decision appealed against.

4. First, except for the third Appellant, I am satisfied the first and second Appellants had their appeals filed on time pursuant to Section 54 (1) of the Land Dispute Settlement Act. The third Appellant filed his appeal on the 10^th of June 2015. He failed to comply with Sections 54 (1) and Section 54 (2) of the Land Dispute Settlement Act. Therefore I refused to include him as a party in this proceeding and his appeal is dismissed.

5. Secondly having perused the all documents on the file I was not able to find the Local Land Court Magistrate’s Reasons for Decision. The only document which the Local Land Court Magistrate had on the file was the actual court orders. This is a direct failure to comply with Sections 38 (3) (4) and (5) by the Local Land Magistrate.

6. On the face of the record I find the Local Land Court Magistrate’s failure to comply with Section 38 (3) (4) and (5) of the Land Dispute Settlement Act. Section 38 and its subsections are mandatory provisions. It is a mandatory requirement for a Local Land Court Magistrate after the completion of a Local Land Court matter he shall cause to produce a Record of Proceedings on the prescribed Form which is Form 14 and the Reasons for his or her Decision and forward it to the Provincial Land Court.

7. I am of the view Reasons for Decision is a vital record that Provincial Land Court and the respective parties would rely on if the Local Land Court Decision is appealed. It would also set the basis for the Provincial Land Court to identify if there are any errors that may have occurred whilst in the course of the Local Land Court dealing with a matter if its decision is appealed.

8. I emphasized without the Reasons for Decision and a copy of the Record of Proceedings it is difficult for the Provincial Land Court including the parties to understand and comprehend what transpired at the time of the Local Land Court Hearing.

9. I also identified from the Local Land Court Orders of the 26^th of June 2014, His Worship went ahead and decided the percentages each individual is entitled to in terms of benefits from the owners of Mobile Tower. This is a fundamental error, hence the primary function of the Local Land Court is to hear and determine from the evidence then declare ownership of the said land the subject of the dispute. Any decision on who gets what is a matter between the developer and the successful Customary Land Owner after customary ownership is settled.

10. I took the opportunity to explain to the Appellants and Respondents at length the disadvantage of not having the Magistrate’s reason for his decision on foot. A court doing justice must always have a justification for the decisions it makes through its reasons or otherwise there is no decision at all and/or it makes one wonder how a magistrate had arrived at a decision.

11. In the matter before me all the parties express their wish for the dispute to be remitted to the Local Land Court for rehearing and determination of customary ownership based on the above reasons.

Orders

Based on the general consensus by all Appellants including the Respondents I will enter the following orders;

1. That the Appeals by the 1^st and 2^nd Appellant are upheld generally.
   
2. That the Local Land Court orders of the 26^th of June 2014 is quashed.
   
3. That the Customary Land Dispute over Ibaboro Land is remitted to the Local Land Court for rehearing and determination of customary ownership.
   
4. That Pending the determination of customary ownership by the Local Land Court all parties including their immediate and extended families, their agents, associates, servants and employees are restrained from dealing with the said Ibaboro Land.
   
5. That pending the outcome of a Local Land Court decision the Developer and owners of the BMobile (Vodafone) Tower, BMobile (Vodafone) Limited are restrained from paying out any royalties to the following people;
   
   1. Peter Aihi Bahau
   2. Victor Ketoa Bahau
   100. Fabian Ikupu
   4. Thomas Ikupu Hau
   5. Aihi Ikupu Hau.

Including their immediate families, agents, associates, any authorized
persons, representatives, witnesses or legal representatives

6. That pending the outcome of a Local Land Court decision, all parties to the dispute; and their families, immediate or extended and/or agents or legal representatives; are restrained from interfering with the property belonging to BMobile (Vodafone) Limited located on Ibaboro Land.
   
7. All appeal deposits are to be refunded to the respective parties.

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