Lou v Soni [2020] PGPLC 1; DC4058 (31 August 2020)

DC4058

PAPUA NEW GUINEA

[IN THE PROVINCIAL LAND COURT OF JUSTICE]

PLC: 01 of 2020

BETWEEN

John Lou of Loru & Ndrakorkor Clan

Appellant

AND

Justice Sokol Soni of Lohopue Clan

Respondent

Lorengau: S.Lavutul

Mediators: Nil

2020: 27^th, 31^st August

PROVINCIAL LAND COURT PRACTICE & PROCEDURE- Section 50 Land Dispute Settlement Act – Provincial Land Court Appeal Process–Sections 54, 55, 56, 57, 58, 59 & 60-- Refusal of leave to file Appeal – Principles of Natural Justice not observed by LLC when endorsing the Agreement- No Disputing party or parties against Respondent in Mediation to LLC Process – Case dealt with through preliminary enquiries of parties. – Abuse of Form 10 by the Respondent & LLC.

Cases Cited

Nil

References

Land Dispute Settlement Act

PNG Constitution

Counsel

Appellant Appeared In Person

Respondent Appeared In Person

REASONS FOR DECISION

31^st August, 2020

Samuel Lavutul, Principal Magistrate, The Appellant in the matter is John Lou for and on behalf of the Lorou and Ndrakorkor Clan of Lombrum, Los Negros Island, Lorengau, Manus Province. Whilst the Respondent Justice Sokol Soni for and on behalf of the Lohopue Clan of Lombrum, Los Negros Island, Lorengau, Manus Province.

2. This Appeal is over an Application for Approval of Agreement filed by Justice Sokol Soni and co -endorsed by former Local Land Court Magistrate Francis Kalai and Land Mediators, Joseph Ndrasal and Ruben Nawi on the 02^nd of April, 2014. This particular Application for Approval of Agreement (Form 10) was numbered as LLC 03/2014

3. The copy of the Application for Approval of Agreement on foot in the Local Land Court file No # LLC: 03/2014 records that on the Wednesday 26^th of February 2014 an agreement was reached between the purported parties after mediation. And the Application was dated 26^th of February 2014 and later certified pursuant to Section 26 (a) of the Land Dispute Settlement Act by Land Mediators, Joseph Ndrasal and Ruben Nawi on 01^st of April 2014.

4. On the 02^nd of April 2014 the certified Application for Approval was laid before the former Local Land Court Magistrate Francis Kalai for deliberations and approval pursuant to Section 28 (1) of the Land Dispute Settlement Act and co-endorsed by Land Mediators, Joseph Ndrasal and Ruben Nawi. And based on this approval by the Local Land Court the Agreement became an order of the Local Land Court.

5. The Appellant John Lou filed a Notice of Appeal and Notice of Motion on the 24^th of August, 2020, seeking the court to be granted leave to be joined as a party to appeal against the decision of the Local Land Court dated 02^nd of April 2014 pursuant to Section 54 (2) and Section 55 (1) (a) (2) and (3) of the Land Dispute Settlement Act of 1975.

6. The Appellant also moves before the court in the alternative for leave to be granted to him to be joined as an interested party for the opportunity to be heard for the purpose of natural justice under Section 59 (1) and (2) of the Constitution.

7. The Appellant further moved the court pursuant to Section 58 (c) of the Land Dispute Settlement Act of 1975, in such circumstances of this case, no court doing justice to the parties would have granted customary land ownership rights over Lombrum in the Los Negros LLG to Lohopue Clan from Pak Island, Rapatona LLG, without prior consultations with the local customary land owners.

8. Furthermore the Appellant moves the court pursuant to Section 59 (1) (b) of the Land Dispute Settlement Act of 1975; this Provincial Land Court has the jurisdiction to quash the land mediation agreement endorsed by the Local Land Court Magistrate subject of this appeal.

9. And lastly the Appellant moves the court pursuant to Section 59 (1) (b) (i) of the Land Dispute Settlement Act of 1975, the matter be reverted to the Local Land Court for rehearing and proper determination of customary rights and ownership of Lopuhun Land where the Naval Base is affixed and also land and sea boundaries of the whole Los Negros Island.

Appeal Process

10. I wish to highlight here below the appeal process on how and when an appeal is to be instituted by an aggrieved party to a Local Land Court proceeding not satisfied with a Local Land Court decision or declaration;

Section 54 - APPEAL AGAINST DECISION OF LOCAL LAND COURT.

(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. By reading Section 54 (1) (2) of the LDSA it is obvious the Appellant John Lou’s time for appeal has lapsed. He failed to file his appeal within three (3) months from the date of the Local Land Court Decision dated the 02^nd of April 2014. He also failed to seek leave of the court in order to file an appeal after the expiration of the three (3) months on the 02^nd of July 2014 and within 12 months between the 02^nd of July 2014 and 02^nd of July 2015.

12. I therefore ruled that Appellant John Lou’s motion to seek leave to file an appeal is not granted as the requirements under Section 54 (2) is mandatory and his right to move the court to be granted leave to file an appeal has lapsed by five (5) years. His application for leave is dismissed. And his filing fee of K500 is refunded.
13. However, Section 59 of the Constitution speaks of the principles of natural justice. And Section 59 (2) stipulates;

“The minimum requirement of natural justice is the duty to act fairly and, in principle, to be seen to act fairly”.

Issues

14. The issues now are;

(i) whether I have discretion to act in all fairness and in the best interest of justice to correct the error and irregular manner followed by the Local Land Court Magistrate and the two (2) Land Mediators in approving the Application despite the fact the Appellant was not granted leave to file out of time.

(ii) whether the Local Land acted fairly in approving the Application for Approval of Agreement and thereby converting into a Local Land Court Order; and

Deliberations

15. Before I proceed further with my deliberations I wish to first make reference to Section 50 of the Land Dispute Settlement Act on the Practice, Procedure and Powers of Provincial Land Courts. Section 50 stipulates;

(1) Subject to this Part, the practice and procedure of a Provincial Land Court are as prescribed.

(2) Subject to this Part and the regulations, a Provincial Land Court–

(a) is not bound by any law or rule of law, evidence, practice or procedure other than this Act; and
(b) may call and examine, or permit the parties to call and examine, such witnesses as it thinks fit; and
(c) may receive fresh evidence; and
(d) may otherwise inform itself on any question before it in such manner as it thinks proper; and
(e) subject to any guidelines laid down in the regulations, shall endeavour to do substantial justice between all persons interested, in accordance with this Act and any relevant custom.

(3) Where a Provincial Land Court informs itself on any question in accordance with Subsection (2)(d), it shall–

(a) make the information available to the parties; and
(b) call for and hear argument on the information.

(4) A Provincial Land Court may, where in its opinion it is necessary to do so, inspect the land in dispute before or during a hearing.

16. In answering the first issue on whether I have discretion to act in all fairness and in the best interest of justice to correct the error and irregular manner followed by the Local Land Court Magistrate and the two (2) Land Mediators in approving the Application for Approval of Agreement and arriving at formalizing a Local Land Court Order on the 02^nd of April 2014 despite the fact the Appellant’s application to seek leave to file an appeal was dismissed; Yes whilst sitting as the Provincial Land Court Magistrate Section 50 (2) (a) (d) gives me the discretion in that I am not bound by any law or rule of law, evidence, practice or procedure other than this Act and I may otherwise inform myself on any question before me in such manner as I think fit.

17.In addition Section 50 (3) (a) calls for where a Provincial Land Court informs itself on any question in accordance with Subsection (2) (d) above it shall make the information available to the parties concern as in this case the Lohopue Clan, Lorou Clan and Ndrakorkor Clan respectively.

18. Secondly in relation to the issue on whether the Local Land Court comprising former Magistrate Francis Kalai, Land Mediators Joseph Ndrasal and Ruben Nawi acted fairly and observed the principles of natural justice in approving the Application for Approval of Agreement and thereby converting it into a Local Land Court Order; I have thoroughly perused the entire Local Land Court file numbered LLC. 03 OF 2014 and in particular the content of the Application for Approval of Agreement.

16. The requirements and intended purpose of the Form 10 (Application for Approval of Agreement) as per Section 28 of the LDSA is to reduce into writing the names of the disputing parties to a dispute over interests in customary land if and when the respective parties have arrived at some form of agreement including the agreed terms of their agreement and date must be clearly shown. The names of the disputing parties including the name of the land the subject of the dispute must be clearly shown on the Form.

17. However in the matter before me it is obvious the only party named on the Application for Approval of Agreement is the Lopuhun Clan with purported clan leader namely Justice Sokol Soni. I noted from the Form 10 before me the agreement was amongst the Lopuhun Clan members themselves not with any other clan.

18. I also noted the content of the purported terms of the agreement were not a result of a properly constituted meditation between disputing parties despite the fact Land Mediators were involved; but obviously from my observation these were records of the Lopuhun clan general meeting minutes as indicated on clause 1 of the purported application for approval of agreement.

19. It is in my view an absolute abused of process by the presiding land mediators including the Local Land Court Magistrate. The basic requirement is there must be on foot a registered dispute with Land Mediation, there must be two or more opposing parties with interests over a piece of customary land the subject of a dispute. I find there was no initial dispute registered with Land Mediation in order to give jurisdiction to the Land Mediators to begin the process of mediation (with emphasis).

20. I also concluded from the manner in which the Form 10 was prepared for registration before the Local Land Court it is the duty of the Land Court Clerk and especially the presiding magistrate after consultation with the presiding Land Mediators to ensure the Form 10 carries the names of the disputing parties and the name of the land the subject of the dispute and also there must be some evidence provided by Land Mediators to confirm the dispute was formerly registered and presided upon as indicated by the agreed terms and that all parties must be present before the Local Land Court to be heard regarding their Application for Approval of Agreement.

21. I also noted in the front cover of the case LLC.03 of 2014 there was a notation by the Local Land Court Magistrate giving a specific instruction to the current Clerk of Court at Lorengau District that and I quote, “Lucy file and content must not be viewed or removed without my permission as SPM or you “signed by Magistrate Kalai and dated the 08^th of May, 2014. Thus such instruction obviously raised some suspicion on how the matter was registered and entertained before his worship and it also raises questions on whose interest was the court obviously trying to protect. I further noted on the file cover of the LLC. 03 of 2014 states that and I quote, “Nature of Dispute: Recognition and Election of Clan Leader” thus raises the question on what is the role of the Local Land Court in entertaining such a dispute over the recognition and election of the Lopuhun Clan leader. This is a matter for the clan members to deal with and not a matter for the court.

22. I therefore conclude and based on the above line of reasoning I find there was no opposing disputing party recorded apart from the Lopuhun Clan in this purported land dispute case; there is also no indication which piece of land was the subject of the dispute if any.

23. I conclude by ruling that the entire journey of this purported land dispute from the mediation process including the drafting, filing and deliberations on the Application for Approval of Agreement by the Local Land Court was in total an abuse of process and an obvious denial of natural justice to the parties concern including those who would be likely parties should there be a registered dispute between parties who have customary interest in land in and around the Los Negros area and specifically Lombrum.

Orders

1. I therefore ruled that the Application for Approval of Agreement and the Local Land Court Decision of the 02^nd of April 2014 is quashed in its entirety forthwith.
2. That the Lopuhun Clan, Lorou Clan, Ndrakorkor Clan including any other clans with customary interests over any land in the Lombrum area are at liberty to formerly register their dispute before the Land Mediation Office at Lorengau.
3. Filing fees of K500 to be refunded to Appellant John Lou.
4. Parties to bear their own costs.
   

Appellant Appeared In Person

Respondent Appeared In Person