Torena v Malik [2015] PGPLC 5; DC4099 (16 June 2015)

DC4099

PAPUA NEW GUINEA

[IN THE PROVINCIAL LAND COURT OF JUSTICE]

PLC. No: 005 of 2009

BETWEEN

Eddie Torena for Himself & Others of Bereka Clan

01^st Appellant

AND

Helen Vaivai for Herself & Others of the Varagadi Clan

02^nd Appellant

AND

Peter Malik for Himself and Others of the Aihai Clan

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- Court Not Properly Constituted- Appeal Upheld and Orders Quashed. Matter Remitted for Rehearing before another Magistrate.

Cases Cited

Gaigo on behalf of Laurina Clan & Ors v. The State [1979] PNGLR 202

References

Land Dispute Settlement Act

Local Customs and practices of the Koiari people.

Counsel

Appellant Helen Vaivai appeared for by Mr. Peter P. Siminzi of Siminzi Lawyers.

Appellant Eddie Torena appeared for by LTI Trainee, Mr. Arthur Dalye.

Respondent appeared did not appear.

REASONS FOR DECISION

16^th June 2015

SLavutul; This matter came before me by way of two (2) separate Appeals filed against the decision of the Local Land Court of the 16^th of June 2009 over the customary ownership of “Yobenumu, Edevu TRP” Land; CPLLC. No. 40 of 2008. Appellant Helen Vaivai filed her appeal on the 1^st of July 2009 whilst Appellant Eddie Torena filed his appeal on the 07^th of August 2009 pursuant to Section 54 (1) of the Land Dispute Settlement Act respectively. The Respondent in this matter failed to appear in person in order to respond to the respective appeals despite notices being served on him. I will proceed exparte.

2. His worship Mr. Hubert Sareke sitting as Local Land Court Magistrate on the 16 of June 2009 and entered the following orders;

1. That the ownership of Yobenumu, Edevu TRP which lies North –East is owned by AIHAI CLAN.

2. The control and leadership of the said land is vested with Peter Malik as Chairman of Aihai Clan.

3. That any royalty compensation within YOBENUMU EDEVU TRP land be paid to the Chairman on behalf of the Aihai Clan members.

4. That any royalty payments received by other parties, agents, strangers or individuals without consent of both Chairman and its AIHAI clan be reimbursed in full.

5. These orders become effective accordingly.

Brief Back Ground

3. By way of back ground the Land the subject of the 16^th of June 2008 Local Land Court Orders could be found within the vicinity of the Brown River area of the Central Province.

4. The subject land was acquired under a TRP where logs were harvested for timber, where by royalties were due to the rightful land owing clan(s). Thus resulting in the initial customary land dispute between Eddie Torena of Bereka clan and Helen Vaivai and her brother Steven Imiri and their Varagadi clan. The Respondent Peter Malik is a member of the Aihai clan and his father is from Madang province whilst his mother is Helen Vaivai’s sister. Peter Malik used to reside with her aunty Helen Vaivai and her family on their land prior to the dispute. It appears the complainant Eddie Torena disputed the claim of ownership over the subject land by Helen Vaivai claiming that he was the rightful land owner.

5. As per the Local Land Court proceedings Eddie Torena was the Complainant whilst Peter Malik of Aihai clan was the first Respondent/Defendant and Helen Vaivai of the Varagadi clan was the second Respondent/Defendant. Hence the Local Land Court awarded customary ownership of the “Yobenumu, Edevu TRP” Land to Peter Malik and his Aihai clan despite the fact that he (Peter) according to Local Land Court records never filed any affidavits or gave any oral evidence during the hearing.

Issues

6. I note from the respective Notices of Appeals the Appellants raised the following issues;

1. Whether the Local Land Court in arriving at its decision conducted the hearing in a manner contrary to natural justice in light of section 58 (b) of the LDSA.
2. Whether in the circumstances of the case no court doing justice between the parties would have made the decision appealed against in light of section 58 (c) of the LDSA.

7. First Appellant Eddie Torena claims the Local Land Magistrate whilst presiding over his case refused and did not give him the opportunity to call witnesses who are leaders from neighboring clans in order to give oral evidence relating to customary boundaries – namely Mr. Walter Momo of Asiri –Momiri clan and Mr. Allan Gudoi of Agari clan as they did not file affidavits. Appellant Torena claims their oral evidence would have effectively support their case, although he did allow Mr. Den Ugia Kiroki to give oral evidence during the trial in support of the Aihai clan given the fact he did not file affidavit.

8. The first Appellant Eddie Torena claims the Local Land Court magistrate erred in law in not allowing the other Land Mediator – Mr. Asi Gebo Morea to go into his office/chamber in order to discuss and vote on a decision. He further claims the decision to ward ownership of the land to Peter Malik was made without the Land Mediator’s vote.

9. The first Appellant also claims the Local Land Court Magistrate is related to Mr. Peter Malik of Aihai clan in that the presiding magistrate’s uncle is married to Peter Malik’s niece and should have not presided over the matter.

10. Similarly, Appellant Helen Vaivai also raises the issue of breach of natural justice in her grounds of appeal she essentially allege that;

i. The magistrate did not inspect the land in dispute prior to his ruling;

ii. The magistrate did not involve the two Land Mediators appointed to assist in the case but involved a third mediator who was brought into the scene by Peter Malik; and

iii. The Magistrate was seen by the Appellants and their witnesses to go around with and was talking to the Respondent Peter Malik and his associates on many occasions prior to his ruling.

11. The Appellants therefore alleged that the magistrate did not hand down a fair ruling.

12. The above allegations are ably supported by Appellant Helen Vaivai’s affidavits filed on the 14^th of May 2010 (specifically paragraphs 11 & 12) and 29^th of July 2011 (specifically paragraphs 5, 6, 7, 8, 9 10, 11, 12, 13 & 14) respectively.

13. These are also ably supported and corroborated by the Cross Appellant Eddie Torena’s affidavit in support of his grounds of appeal.

Findings

14. I have given careful consideration to the arguments put before me in the respective submissions. I am totally satisfied with the nature and substance of the respective submissions.

15. Firstly 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 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.

16. I am of the view Reasons for Decision is a vital record that the 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.

17. Secondly, without the Reasons for Decision and a copy of the Record of Proceedings it is difficult for the Provincial Land Court to tell whether the Local Land Court did inspect the land the subject of the dispute prior to and after the decision. In the matter before me, I rely on the balance of probabilities the allegations by the parties that the Local Land Court Magistrate and its Land Mediators failed in their duty to inspect the land prior to and after the decision. It is a direct failure to adhere to the mandatory requirements of Section 36 & S. 42 of the LDSA. I find the Local Land Court party failed to inspect the land prior to and after their decision.

18. Thirdly based on the evidence before me I am satisfied the Local Land Court despite the fact it does not follow strict rules of evidence it must at all times observed the principles of natural justice.

19. Now basically natural justice is about fairness and being accorded the right to be heard or call evidence through witnesses or documentary evidence if any. The parties to the dispute must be accorded the opportunity to be heard including their witnesses. I agree with counsel for the Appellant Helen Vaivai it is a Constitutional requirement pursuant to Section 59 of the Constitution of Papua New Guinea in that the minimum requirement of natural justice is the duty to act fairly and, in principle, to be seen to act fairly.

20. I also agree with and adopt the view taken by His Honor Wilson J. in the matter Gaigo on behalf of Laurina Clan & Ors v. The State [1979] PNGLR 202, in that any discussion of what is meant by natural justice in the context of the conduct of a judicial hearing is not merely some importance but is of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done.

21. In the matter before me I am satisfied the presiding magistrate failed to accord the parties especially the respective Appellants natural justice. His Worship acted inappropriately by not abiding by the requirements of the LDSA. In my view based on the evidence before me the Court which made the decision of the 16^th of June 2009 was not properly constituted as the Land Mediators were not involved. Hence a decision of a Local Land Court is always based on majority votes.

20. I also except the fact raised in evidence that the presiding magistrate was related to the Respondent Peter Malik through marriage by His Worship’s uncle to the niece of the Respondent. It is my view, His Worship’s visible association with the Respondent and his associates, and conduct amounts to judicial bias.

Ruling

21. Based on the submissions and arguments put before me, I hereby upheld all the grounds of appeal and I make the following orders;

1. That the Local Land Court Decision including its orders of the 16^th of June 2009 is quashed in its entirety.

2. That the Local Land Court case CPLLC. No. 40 of 2008 is remitted for rehearing and determination before another Local Land Court Magistrate.

3. That the Respondent Peter Malik is to pay costs to the Appellants.

4. That all monies paid by the Appellants as appeal fees are to be refunded.