Laumbo v Maniki [2018] PGPLC 1; DC5002 (12 January 2018)

DC5002

PAPUA NEW GUINEA

[IN THE PROVINCIAL LAND COURT OF JUSTICE]

PLC. 004 of 2013

BETWEEN

Gabriel Laumbo for and on behalf of the Elmare Loburpuo Clan

Appellants

AND

Lucas Maniki of Lewrik Diel Clan

1^st Respondent

AND

Leo Maniki of Elmare Kira Clan

2^nd Respondent

AND

John Soni as Land Mediator

3^rd Respondent

AND

Silas Taidang as Local Land Court Magistrate

4^th Respondent

Kokopo: S.Lavutul

Mediators: Nil

2015: 14^th May, 04^th, 17^th June, 08^th July, 04^th August, 2016: 14^th, 16^th November, 01^st December, 2017: 05^th, 19^th June, 31^st July, 27^th November, 21^st December

PROVINCIAL LAND COURT PRACTICE & PROCEDURE- Section 50 Land Dispute Settlement Act – Provincial Land Court Appeal Process–Sections 54, 55, 56, 57, 58, 59 & 60- Filing of an Appeal outside the three (3) months period after the date of the Local Land Court Decision and after the ending of the 12 months – Principal Magistrate is Provincial Land Magistrate in the Provincial Land Court.

APPEAL: APPEAL AGAINST DECISION OF LOCAL LAND COURT.

Section 54 (1) Land Dispute Settlement Act, Subject to this section, a person aggrieved by a decision of a Local Land Court may appeal within three months after the date of the decision to the Provincial Land Court.

Section 54 (2) Land Dispute Settlement Act, Where the Provincial Land Court is of opinion that it is desirable in the interests of justice to do so, it may, whether or not the time fixed for 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.

APPOINTMENT OF PROVINCIAL LAND MAGISTRATES.

Section 46^[5](1) The Minister may, by notice in the National Gazette, appoint a Principal Magistrate to be a Provincial Land Magistrate.

Section 46 (2) For the purposes of this Act, the relative seniority as between themselves of Provincial Land Magistrates is in accordance with their respective appointments as Principal Magistrates.

Cases Cited

Nil

References

Land Dispute Settlement Act

Local Customs and practices of the East Pomio people.

Counsel

Mr. Paul Yange for Appellants

Mr.Nesarawa Motuwe for Respondents

RULING ON THE APPELLANTS’ INTERLOCUTARY SUBMISSION TO DISMISSED THE APPEAL.

12^th January 2018

SLavutul, Principal Magistrate, This Appeal rose out of a Local Land Court Mediation Agreement which was signed between the First, Second and Third Respondents on the 03^rd of November 2011 and was approved by the Local Land Court on the 02^nd of December 2011 over the Kalip Land in the East Pomio Local Level Government area of Pomio District, East New Britain Province.

2. The Appellants claimed that the alleged Agreement was signed and approved contrary to Section 18 (1) & (2) and Section 19 (2) of the Land Dispute Settlement Act in that;

(a) The 03^rd Respondent failed to consider that another land dispute on the same land involving the Appellants and the Diedil Leuruk clan had existed; arising from which Appellants’ consent was required.

(b) The Third Respondent failed to carry out an open enquiry to determine if there were other clans who had interest in the entire Kalip Land.

(c) The Third Respondent failed to physically walk through the boundaries of the Kalip Land to confirm ownership as prominent features of the land boundaries were never made known to him by the parties.

[2] And that;

(a) The Local Land Magistrate failed to do an enquiry to determine whether another dispute over the same land existed.

(b) The Local Land Court Magistrate failed to establish whether substantial majority of the clans who own part and partial of the Kalip Land could concur with the terms of the agreement.

(c) The Local Land Court Magistrate failed to consider in all of the circumstances that the agreement was in breach of principles of natural justice (interest of Appellants and others who own portions of land on Kalip) and also against public policy.

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

The Appellants seeks the following orders;

(a) That the mediation agreement that was signed on 03^rd November 2011 between the First, Second Respondents and Third Respondent and approved by the Local Land Court Magistrate as a Court Order on the 02^nd of December 2011 be quashed
(b) Any other orders this court deems appropriate.
(c) Costs of the Appeal

3. The Respondents through their interlocutory submissions moves the court in the following;

(i) Going by the Law the Appeal was lodged out of time and even the application to extend time has been made out of time. It argues Section 54 (2) is in mandatory terms that there lies no appeal after 12 months.

(ii) The Application for extension of time was brought before a magistrate who had no jurisdiction and further was brought out of time.

(iii) The Magistrate who entertained the leave application exercised jurisdiction he did not have and his act was ultra vires and the decision to extend time is ultra vires.

(v) For these reasons this court has no jurisdiction to hear this appeal and should be dismissed with costs.

4. I will deal with both submissions in relation to the Respondents’ interlocutory submissions to have this Appeal dismissed in its entirety. I also cautioned myself not to venture into touching the respective grounds of Appeal at this juncture.

5. The obvious issues before me are;

(i) Whether the Appeal was filed within time meeting the mandatory requirements of Section 54 (2) of the Land Dispute Settlement Act?

(ii) Whether the magistrate who entertained the Leave Application to file an Appeal out of time, had jurisdiction to hear and grant extension of time?

6. Prior to resolving the issues before me I note the Appellants did file for judicial review of the Local Land Court decision of the 02^nd of December 2011 in the National Court on the 07^th of June 2013. However the National Court made an order directing Mr. Paul Yange now counsel for the Appellants to take up the matter with the Provincial Land Court in appealing the Local Land Court decision to endorse the Mediation Agreement referred to and discontinued the judicial review proceedings and made additional orders for Mr. Yange to file a “Notice of Discontinuance”.

7. I am satisfied the spirit and intent of the National Court Orders of the 19^th of May 2015 was not directed at the Provincial Land Court but to the Lawyer concern, Mr. Paul Yange in order to effect the filing of an appeal on behalf of his clients in the Provincial Land Court.

8. However the first huddle that Mr. Yange and his clients were faced with was to be granted leave by the Provincial Land Court in order to file their Appeal outside of time. And the leave was to be sought by way of application before the Provincial Land Court.

9. The Appellants through their lawyer filed an Application seeking leave of the Provincial Land Court to grant them leave to file their Appeal outside of time. The Application referred to herein was filed before the Rabaul Local Land Court on the 12^th of September 2013. Consequently, orders were granted by Magistrate Oiveka on the 17^th of September 2013, in that the Applicants/Appellants were given 30 days from the date of the orders to file their Appeal against the Local Land Court Decision of the 02^nd of December 2011 to the Provincial Land Court. Thus gives rise to these current proceedings.

10. I will now deal with the first issue on whether the Appeal was filed within time meeting the mandatory requirements of Section 54 of the Land Dispute Settlement Act or not? Section 54 stipulates;

“ (1) Subject to this section, a person aggrieved by a decision of a Local Land Court may appeal within three months after the date of the decision to the Provincial Land Court.

(2) Where the Provincial Land Court is of opinion that it is desirable in the interests of justice to do so, it may, whether or not the time fixed for 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”.

11. The intent of Section 54 (1) of the Land Dispute Settlement is that if a party is aggrieved by a Local Land Court Decision they are accorded the right to appeal the decision within a period of three (3) months from the date of the decision. In the matter before me the Appellants should have filed on or prior to the 02^nd of March 2012, as the Local Land Court Decision was pronounced on the 02^nd of December 2011 in which the Appellants failed to file a Notice of Appeal within 3 months after the date of the decision.

12. Likewise the intent of Section 54 (2) of the Land Dispute Settlement Act is that if a party has failed to meet the requirements of Section 54 (1) of the Land Dispute Settlement Act, it may by way of application seek leave of the Provincial Land Court to file an Appeal within a period of 12 months from the date of the Local Land Court Decision. In this case the Appellants should have filed on or prior to the expiration of 12 months which was the 02^nd of December 2012 as the Local Land Court Decision was handed down on the 02^nd of December 2011.

13. I am satisfied the requirements under Section 54 (2) of the Land Dispute Settlement is mandatory. Despite the orders of the National Court of the 19^th of May 2015 in order for counsel to file an appeal in the Provincial Land Court, and with due respect to former acting Justice Oli, I am of the view it was an oversight on the part of both His Honor and Counsel regarding the strict requirements of Section 54 (2) of the Land Dispute Settlement Act. I am of the view His Honor former Acting Justice Oli should have dealt with the Applicants’ application to review the decision of the Local Land Court of the 02^nd of December 2011 in the first instant; they purposely filed for review as they were aware of their right to appeal had lapsed by three (3) months and 12 months as per the requirements of Section 54 (1) and Section 54 (2) of the Land Dispute Settlement Act.

14. I also find from the documents before me the Appellants filed for leave to extend time fixed for appeal, pursuant to Section 54 (2) of the LDSA on the 12^th of September 2013 before the Rabaul Local Land Court; whilst the National Court made orders on the 19^th of May 2015 for counsel to file on behalf of the Appellants an appeal in the Provincial Land Court. Having perused the respective submissions I am stunt why counsel for the Appellants brought back the date for filing the appeal to 12^th of September 2013 and not in any dates after the 19^th of May 2015 orders by the National Court.

15. Therefore going by the mandatory requirements of section 54 (2) of the Land Dispute Settlement Act, I ruled the Provincial Land Court and me as the Provincial Land Court magistrate does not have jurisdiction to hear this Appeal as leave to file the Appeal outside the period of 12 months from the date of the Local Land Court Decision of 02^nd of December 2011 was granted outside of the 12 months mandatory period and had lapsed on the 02^nd of December 2012.

16. In relation to the second issue on whether the magistrate who granted leave for the filing of the Appeal outside the mandatory requirements of Section 54 (2) has jurisdiction to do so or not. Firstly, appointments of Provincial Land Magistrates pursuant to Section 46 of the Land Dispute Settlement Act may be done by the Minister for Justice, by notice in the National Gazette, appoint a Principal Magistrate to be a Provincial Land Magistrate. Only magistrates who are Principal Magistrates are eligible to be considered for appointment as Provincial Land Magistrate.

17. Obviously the Application for leave to file outside of time before the Rabaul Local Land Court was done on the 17^th of September 2013. It is also obvious the Application was not filed before the Provincial Land Court which comprises a Principal Magistrate. It is also clearer and obvious from the endorsed orders Magistrate Oiveka who was not and is not a Principal Magistrate in order to preside and granted leave for the extension of time to the applicants to file their appeal outside the mandatory requirement of 12 months from the date of the Local land Court decision of the 02^nd of December 2011. He assumed and exercised powers he did not have and granted the extension of time to the Appellants.

18. I agree with counsel for the Respondents, Magistrate Oiveka did not have jurisdiction to have entertained the leave application and his act was ultra vires and the decision to extend time is ultra vires.

19. I therefore rule that Magistrate Oiveka did not have jurisdiction to have granted leave for the extension of time to the Appellants to have their Appeal filed outside the mandatory period of 12 months from the date of the Local Land Court Decision of the 02^nd of December 2011. Thus his act was ultra vires and the decision to extend time is ultra vires.

Orders entered accordingly;

1. Objections by the Respondents to the Appeal is upheld and Appeal is dismissed with costs
2. Cost to be taxed if not agreed.

....................

Mr. Paul Yange of Islands Legal Services

Mr. Nesarawa Motuve of Motuve Lawyers