Pagere v Sorari [2022] PGPLC 1; DC9042 (31 May 2022)

DC9042

PAPUA NEW GUINEA.
[IN THE PROVINCIAL LAND COURT OF JUSTICE]

PLC NO: 01 /2006.

In the matter of a Customary Land Dispute over Ownership of the Waseta Land at Dobuduru Village Oro-Bay Local Level Government Area in Ijivitari District, Northern Province.

IN THE MATTER BETWEEN:

1. WILLIE PAGERE
2. HAROLD TOPIRI
Appellants.

AND:

CHAMPION SORARI
Respondent.

Popondetta: Michael W. Apie’e, Provincial Land Court Magistrate.

Participating Land Mediators:
Mr. Ezekiel Haera-Land Mediator
Mr. Prout Sehopa-Land Mediator

2021: December 02^nd, 12^th, 23^rd, 2022: January 06^th, 14^th, February 17^th, 22^nd 28^th, May: 31^st.

Land Disputes Settlement Act (LDSA): Appeal filed in 2006 against decision by Local Land Court Magistrate awarding Waseta Land to the Respondent.

Further Orders restraining the Third Party the Melanesian Brotherhood Society (MBS) from further Extensions on the said Waseta Land.

Site Inspection of Disputed Land to determine the Land Description not carried out by Local Land Court Magistrate. Magistrate Chose rather to rely on Land Inspections Reports by Land Mediators.

PLC Land Inspections-also abandoned due to conflicting Land Descriptions and Boundaries.

Evidence: Reports by Land Mediators of Inspections carried out by themselves Contrary to Section 36 of the LDSA is HEARSAY Evidence.
-Despite Section 35 (1) (a) of the LDSA, Hearsay Evidence should not be relied on to formulate LLC Decisions.

Held :

1. Appeal is upheld.
2. The LLC decision and Adjudications of 12/04/06 are hereby quashed and set aside.
3. The matter of Land dispute between the Parties over the Waseta Lands will be remitted back to the Local Land Court for Relisting and Rehearing.
   

Cases Cited:
Kataka v. Kuman [1977] PNGLR 358.
Norris v. The State [1979] PNGLR 605
Gabir v. Koronai [1988-89] PNGLR 406.
Re James Eki Mopio [1981] PNGLR 416.

References:
Land Disputes Settlement Act (LDSA)
Evidence Act 1975 Chapter 48.
Constitution of Papua New Guinea.

Representation;
Appellants appear for themselves.
Respondent appears for himself.

JUDGMENT.

Background:

1. Decision of the Local Land Court in Respect of the Land Dispute between the Parties over the concerned Portion of the Waseta Lands at Dobuduru village in the Oro-Bay LLG area the Then Ijivitari District, Northern Province was delivered by the Local Land Court (LLC) with Mr. Max Haembo Presiding as Local Land Court Magistrate (LLCM)and Mr. Hansel Karepa and Mr. Barthtimus Bavoja as Land Mediators on the 12/04/2006.
   
2. The ‘Then Ijivitari District’ because as of May 2022, Oro-Bay LLG is now Part of the newly installed Popondetta District.
   
3. This Current Provincial Land Court commenced this hearing with a lot of misgivings about why it had to take about Sixteen (16) years before this Appeal filed on the 07/06/2006 is finally heard and dealt with.
   
4. Incidentally, the Melanesian Brotherhood Society Seminary (MBS) of the Anglican Church has part of its Campus Establishment supposedly on the said Waseta Lands, and to this day this Institution is in Operation and there are Seminarians and Trainees living, working and Studying or Training there still to date.
   
5. The LLC in its decision held as follows;
   
   1. The Land Known as WASETA now it becomes the Properties of Champion Sorari.
      
   2. The following Court orders as follows;
      1. The Buildings; (a). Mess

(b). Kitchen

(c). Elder brothers House

(d). Car, Petrol to remain.
2. There will be no extension.

6. The basis for this Decision by the LLC is Largely Dependent on the Land Inspection Report furnished either in document form or verbally to the LLC by the Land Mediators as indicated in the Local Land Courts own reasons for Judgment Published also on the 12/04/06.
   
7. The Appellants were aggrieved by this Decision of the LLC and they filed their Appeal against this Decision to the Provincial Land Court (PLC) on the 07/06/2006 and pleaded their grounds of appeal as follows;
   
   1. That in the circumstances of the case, no court doing justice between the Parties would have made the decision Appealed against.
      
   2. The Local Land Court Conducted its hearing in a manner contrary to (the Rules of) Natural Justice.
      
8. Due to either the unavailability of qualified PLC Magistrates (PLCM’s) or maybe a lack of willingness on the part of PLCM’s that came through this Province, this matter was not given ear let alone being mentioned in court with a serious intent until Deputy Chief Magistrate (DCM) Mark Selefkariu’s Circuit to this Province in September of 2021.
   
9. Just Prior to that Circuit by DCM Selefkariu, I was appointed as PLC Magistrate by Virtue of my Acting appointment to Grade Five and so DCM Selefkariu had this matter along with others set for mention before me with the view and intention that they be progressed to hearing.
   
10. Oro Province Land Mediators Mr. Ezekiel Haera from the Ijivitari District /now Popondetta District and one Mr. Jairus Sumbiri from the Sohe District were appointed to assist in the relevant aspects of the hearing of this Appeal especially in the Land inspections, and I am thankful to them for their participation.
    

Hearing of this Appeal.

11. This matter came back before me in the subsequent mention dates and due to the workload in the Northern Province, I was able to have this matter eventually progressed to the Point of Listing for hearing of this appeal on the 07/11/21.
    
12. However due to non-attendance by parties on the set date, the matter is further adjourned from time to time to 02/12/21.
    
13. On the 02/12/21 hearing into this appeal commenced and after initial submissions by the appellant and after taking stock of the various Documents, Affidavits and Submissions filed by the Parties, it was resolved that the PLC should carry out Land Inspections of the Disputed area before receiving the final Submissions on appeal, and so Site inspection was set for 23/12/21.
    
14. On the 23/12/21 the actual Land Inspection was carried out but abandoned halfway when the Parties could not agree on the route taken by the LLC Party in its Land Inspection as follows;
    
    1. Respondent and his group tried to lead the PLC Party into the route that they said was taken by the LLC Land Inspection Team in 2006, whilst the Appellant disputed that route saying that the Actual Waseta Land was within the demarcation of a little galley running along the edge of the Waseta Land and that the Route the Appellant was trying to take the PLC Party to would be encroaching into Lands outside the Waseta Land Disputes onto Lands belonging to another Clan, the Jirekapa Clan of Dobuduru.
       
    2. The PLC Land Inspection was therefore abandoned due to the suspicion I had as PLCM that the LLC Land Inspection might have being flawed or that it was conducted not inclusive of all the Parties or that it might encroach onto other Lands not part of the current Disputed Waseta Land.
       
15. So instead I resolved to utilize Section 35 (1) (a) and (b) and (2) (a) of the LDSA to get an input from one of the LLC Land Mediators involved in the decision of 12/04/2006 and so I asked Mr. Barthtimus Bavoja to submit a brief statement on how the Land inspection was carried out under the Auspices of the LLC then.
    
16. Mr. Barthtimus Bavoja’s in anticipation had prepared a Statement dated the

22/12/21 and so he had it filed with the PLC and so after the Christmas Break, the matter was mentioned again in court on the 14/01/22.

17. On the 14/01/22 the Appellants were not present and the matter further stood over to the 17/02/22 and on the 17/02/22 when the parties were present Land Mediator Bavoja’s Statement of 22/12/21 was copied to the Parties and the final Submission date for this appeal set for 28/02/22.
    
18. On the 28/02/22, however due to certain intervening factors affecting the Court, the Actual Appeal was set for 22/03/22.
    
19. On the 22/03/22, the Parties attended to the PLC, and with the Land Mediators present the Appellants (especially Mr. Harold Topiri) indicated that he had prepared his Submission on appeal and will be relying on such Written submissions dated the 18/03/22 while the respondent indicated that he will be making Oral Submissions in response
    
20. In his submission, Mr. Harold Topiri made the following submissions;
    
    1. During the LLC hearing the Presiding Magistrate Mr. Max Haembo himself never participated in the Land Inspection but rather relied on what was told him by the Land Mediators.
       
    2. That also during the Land Mediators Inspections, the Land Mediators did not ask the Defendants then and Appellants now to show their Land Marks and other features peculiar to them.
       
    100. All the Mediators did was a Sight-seeing visit to general area of Jaereta/Waseta Land in Dobuduru before the Mediators returned and reported to the LLC Magistrate.
         
    4. At this time of Submission by the Appellants, the PLC asked ‘if the LLCM Late Mr. Max Haembo was personally involved in the Land Inspections carried out at Waseta lands before the Decision was handed down? And he replied ‘No, only the Land Mediators did their Sightseeing and went back and submitted a report to the LLCM and he made the decision.’
       
    5. Mr. Harold Topiri also referred to his Written submission dated 01/03/22 paragraph 3 and 4 and 7 wherein he claimed that the Respondent had initially initiated action in the LLC for Land known as Jaereta and therefore their Land Inspections with the LLC Land Mediators extended beyond the bounds of Waseta Lands.
       
    6. This Point is sustained on the Appointment Notice for an Ad-hoc Land Mediator for the Land Dispute Between the Parties attached as annexure ‘B’ of his 18/03/22 submission, wherein it is clearly written that the dispute is over Jaereta Land.
       
    7. In regards to the recent Abandoned Land Inspection by the PLC, he submitted that the Inspection was really on the Waseta Lands but the inspection failed when the Respondent and his team insisted that the PLC Party venture outside into other Lands they visited with mediators in the LLC which has no connection to Waseta.
       
    8. At this time also, a Third party namely (members of) the Jirekapa Clan also from Dobuduru stepped up and voiced their claim over the Lands on which the Respondents had sought to lead the PLC to inspect.
       
21. The Crux of the Appellants submissions on this appeal is that;
    
    1. The Local Land Court Conducted its hearing in a manner contrary to Natural Justice and also;
       
    2. That no Court Doing Substantial Justice between the parties would have handed down the decision it did on the 14/04/2006.
       
    100. The Fact that the LLCM Late Mr. Max Haembo himself did not participate in the Land Inspection but rather acted on reports given him by Land Mediators in a contested matter is relied on by the Appellant(s) to seek the nullifying of the LLC Orders of 12/04/06.
         
22. The Respondent Mr. Champion Sorari responded to the Appellant(s) submissions as follows;
    1. The Jaereta Land is the same as Waseta Land and so there is no issue really in what land name is used.
       
    2. Inspection on the Land was carried out by Land Mediators Mr. Hansel Karipa (Late) and Mr. Barthtimus Bavoja in 2006 and everyone concerned was there including the Defendants then and Appellants now.
       
    3. On the 23/12/21 This PLC also did Land Inspection on the Waseta Land and Mr. Bavoja was there as the Previous LLC Land Mediator, but the Appellants confused the Inspections and so we did not complete it.
       
    4. Mr. Onesmus Konja, as next Friend of the Respondent, also reiterated the Respondents sentiments
       

OBSERVATIONS:

23. Having therefore heard, received, read and gone through the Parties Submissions and Various relevant documents the Provincial Land Court makes the following observations regarding this case;
    
    1. It is an undisputed Fact that the LLC Decision of 12/04/06 by Mr. Max Haembo as LLCM and Messrs. Hansel Karipa and Barthtimus Bavoja was based on ‘Land Inspections Report’ that Mr. Haembo himself was not involved in, personally.
       
    2. It is revealed on submissions and fillings by the Parties that the Land Mediators carried out the Land Inspections themselves and then submitted reports to the LLCM, on the basis of which the LLCM Max Haembo as Chair of the LLC handed down the decision of 12/04/06, the subject of this Appeal.
       
24. The Issues that therefore arise before the PLC are;
    
    1. ‘Would the Land Mediators Land Inspection Reports insofar as the LLC is concerned be considered as Valid Evidentiary Matters that the LLC can act on to deliver Decision on a Land Dispute?’
       
    2. ‘Does the fact that the LLCM (late Mr. Max Haembo) did not do the Land Inspections himself sufficient grounds for the PLC to vacate the LLC Orders of 12/04/06?’
       
25. Section 36 of the Land Dispute Settlement Act reads:

36. INSPECTION OF LAND IN DISPUTE.

(1) A Local Land Court to which an application has been made under this Part, shall, before giving a decision on the matter, inspect, with the parties to the dispute, the land in dispute and shall satisfy itself as to–

(a) the scope and extent of the land, where the dispute concerns interests in the use or possession of the land; and

(b) the scope and nature of the produce of or improvements to the land, where the dispute concerns the produce or improvements; and

(c) the location of alleged boundaries, where the dispute concerns a boundary to land; and

(d) any other aspect of the land that will assist the Court in reaching a just decision, as the case requires.

(2) Subject to Subsection (3), all the members of the Court shall inspect the land in accordance with Subsection (1) except where the land in dispute is situated in a place to which access is difficult, in which case it shall be a sufficient compliance with Subsection (1) if one of the members of the Court inspects the land.

(3) Subsection (2) does not apply to a member of the Court suffering from any physical disability, and an inspection by all the other members shall be deemed to be an inspection for the purposes of that subsection.

(Bolding and underlining are added)

26. Section 36 (1) and (2) requires the Local Land Court, that is LLC Magistrate as well as Land Mediators, to carry out Land Inspections before delivering Decisions in Land Disputes before it.
    
27. In the case at hand, the Local Land Court Magistrate Mr. Max Haembo was not involved in whatever Land Inspections that were supposedly carried out as follows;
    
    1. The Appellants submitted that the Land Mediators visited at Dobuduru and Inspected not only the Disputed Land but also other Lands outside the Scope of the Dispute.
       
    2. According to the Appellants, what these Mediators did was a Sightseeing Visit and after the sight visit they only obtained the Respondents side of the Stories and returned back, thereby not getting the Appellants side of the story.
       
    3. Then they (Mediators) informed or briefed the LLCM Max Haembo and he gave this decision on the 12/04/06.
       
    4. The Appellants therefore claimed that they were never asked to point out their own Land or Hand marks on the Disputed Land, hence their claim that Rules of Natural Justice were breached.
       
    5. At this Juncture, ‘The Rules of Natural Justice’ claimed to have being breached’ by the LLC in its Orders of 12/04/06 are the Principles of Fairness in all Judicial or Quasi-Judicial acts covered by the Papua New Guinea National Constitution in sections 59 to 62.
       
    6. The Respondent does not deny the fact of the LLCM not being involved in the Land Inspection but stated that the Appellants were also involved in the Land Inspection by the Mediators in 2006, leading to the Appealed Decision.
       
    7. During the PLC Land Inspections on 23/12/21, the contrast in this Land Inspection Story became apparent, as the Appellants led the PLC Party around the Waseta lands to the edge of the current Chicken/Poultry Project area and sought to circle back around along the edge of the gulley at the edge back towards the MBS Establishment toward Sambogo River, but the Respondent and his Group insisted that the PLC Party follow them further away from the MBS Establishment area.
       
    8. At this time, a Third Party from the Jirekapa Clan of Dobuduru opposed the Respondents and insisted that any further advancement of the Land Inspection from the MBS Poultry Project would be an encroachment onto Jirekapa Clan Lands.
       
    9. The PLC had to abandon its Land Inspection at that point in time as;
       
       1. A successful conclusion to the Land Inspection was no longer Feasible given that he Parties were obviously making reference and reliance on different Land Portions.
          
       2. The Potential Involvement of a third Party in the Land inspections would greatly jeopardize the viability of not only this Appeal but also the Substantive LLC Case No: 26/06.
          
       100. No proper Appreciation of Land Marks and features could be ascertained given the difference of opinion on what the ambit of the Disputed Land was.
            
28. Assessments on the Issues:
    
    1. Regarding Issue No: 1 in Paragraph 21. i. above, ‘Would the Land Mediators Land Inspection Reports insofar as the LLC is concerned be considered as Valid Evidentiary Matters that the LLC can act on to deliver Decision on a Land Dispute?’
       
    1. The Fact that the Learned Local Land Court Magistrate was not involved in the Land Inspection over the Disputed Land is Problematic as Section 36(1) and (2) of the LDSA requires all members of the LLC to visit Disputed Land to do Inspections.
       
    2. Even though Section 35 (1) (a) of the LDSA States that the Local Land Court is not bound by any strict rules of Evidence except for the LDSA, that still does not mean that the Local Land Court should flagrantly disregard the Basic tenets of Rules of Evidence, and act irresponsibly in its deliberations.
       
    3. The Admission and Reliance of ‘Hearsay Evidence’ is one such Tenets of the Rules of Evidence are Paramount in Papua New Guinea Jurisprudence.
       
    3. In the case of Kataka v. Kuman [1977] PNGLR 358, Williams J, as he then was in commenting on the Admission of Hearsay Evidence stated that the rule was not that ‘there is no truth in the hearsay Evidence, but rather that the Hearsay evidence wrongly Admitted, Influenced the Decision.’
       
    4. In the Supreme Court Case of Norris v. The State [1979] PNGLR 605, a case emanating from the Sentencing of the Appellant on Manslaughter, the Sentencing Court Relied on Hearsay Evidence Tendered into Evidence via three Diaries belonging to the Deceased during Submission on Sentence resulting is what was claimed as severe sentence.
       
    5. The Supreme Court in that case ruled that even during the Sentencing Phase in Criminal matters, the Sentencing Court was still not entitled to admit Hearsay Evidence in to help it formulate a decision on Sentence.
       
    6. In this Jurisdiction, the Courts can only Act upon Tried and Tested Evidence, or Evidence consented to, and the Inspection Report by the Land Mediators Hancel Karipa and Barthtimus Bavoja in 2006 to LLCM Late Mr. Haembo was not Tried and Tested in Court, nor was it consented to, and thus it was for all intents and purposes HEARSAY Evidence that ought not have formulated the basis for the LLC decision of 12/04/06.
    7. Land Mediators are not parties to the Land Dispute and are not Witnesses who give evidence on Oath before the Court on whose Reports or Evidence LLC’s should found its decisions.
       
    2. The Next Issue in Paragraph 21. i. above is ‘Does the fact that the LLCM (late Mr. Max Haembo) did not do the Land Inspections himself sufficient grounds for the PLC to vacate the LLC Orders of 12/04/06?’
       
       1. Again, going back to Section 36(1) and (2) of the LDSA, the Requirement is for all members of the LLC to visit and Inspect the disputed Land.
          
       2. The Exceptions to this requirement in Section 36 are covered in Subsection (2) and (3), wherein the Land is situated in a Remote of Difficult to reach Location or if a member of the LLC is incapacitated by some physical disability.
          
       3. The Waseta Land is Located 20 minutes from Popondetta Township accessible by road and as far as this PLC is concerned, LLCM Haembo was not suffering from any physical disabilities during the relevant times leading up to this LLC Decision in 2006, and so there is no valid excuse or reasons for him not attending the Inspection to the disputed Land.
          
       4. The other factor that comes to light is that during the PLC Visit on the 23/12/21 to the Disputed Land, the Actual Boundaries of the Dispute Land is not clear as per the Disputing Parties and the Appellant directed the PLC to take a different Route, whilst the Respondent wanted to direct the PLC to take a different Route.
          
       5. This meant that the LLC Decision was founded on Improper and
          Inconclusive Land Inspections, further meaning that the Description or Boundaries of the Disputed Land was no Resolved by the Disputants fully before the LLC Returned its Ruling on the 12/04/06.
          
       6. Though I Respect and Honour the memory and Legacy of LLCM Late Max Haembo as a District Court and also a Local Land Court Magistrate, I find here that by relying on the Hearsay Recitals/Reports of the Land Mediators before Formulating the LLC Decision of 12/04/06, the Local Land Court had returned a Decision that is Flawed in Law and Practice and therefore ought not to be allowed to remain in force.
          
29. Additional Observation on the Rules of Natural Justice. This claim by the Appellants is relevant to the Extent of their narrative that the “Land Mediators in 2006 did a sight visit and never asked them (Appellants) to show them their Land Marks before reporting back to the LLCM Max Haembo.
    
30. If this was what really happened than obviously the LLC was conducted in an Unfair manner and so the Decision finally arrived at on 12/04/06 would be flawed on that basis per-se.
    
31. The Rule of Natural Justice has Application to both Judicial and Quasi-Judicial Proceedings as per the overall Adjudications in cases like re James Eki Mopio [1981] PNGLR 416, Gabir v. Koronai [1988-89] PNGLR 406 and other such cases in which the Concept of Rules of Natural Justice were discussed.
    
32. The Fact that the Land Inspections were allegedly carried out in a manner that did not allow the Appellants to emphatically point out their Land Marks and Peculiar Features could substantiate their Claims of Breach of Rules of Natural Justice.
    
33. However, without the need to further expound on the ‘Rules of Natural Justice Argument’, the point of Appeal is made out on the preceding arguments relating to the non-attendance of the LLCM during the Land inspections to the Waseta Land in 2006, suffice to say.

Judgment.

34. Having consider the whole of the Evidence and the submissions made by and for the Parties the Provincial Land Court Rules as follows that;
    
    1. This Provincial Land Court finds and holds that the LLC erroneously acted on hearsay Evidence when it relied Solely on the Land Mediators Land Inspection Reports to found the LLC Decision of 12/04/06.
       
    2. The Appellants Argument on Appeal namely that ‘the Failure of the Presiding Local Land Court Magistrate to attend the Land Inspection’ is sufficient for this Court to Quash the LLC findings and Orders of 12/04/06’ is made out and upheld by this Provincial Land Court.
       
    3. The LLC Decision of 12/04/06 is therefore found to be untenable at Law and so must be Quashed.

35. Accordingly, the Court will order as follows that;
    

ORDERS.

1. The Local Land Court Decision dated the 12^th of April 2006 relating to the Waseta Land at Dobuduru village in the Oro-Bay LLG area of the Northern Province between the Appellant and Respondents is hereby Quashed in its entirety and set aside.
   
2. The Matter of LLC No: 26 of 2006 between the Parties is hereby Reinstated and referred back to the Local Land Court (LLC) for Rehearing with Proper Land Inspection(s) to be carried out pursuant to Section 36 of the Land Dispute Settlement Act.
   
3. Applicable Appeal Fees paid by the Appellants are to be refunded.
   
4. No Orders on Costs.
   

36. Orders to be issued accordingly.
    

Harold Topiri for the Appellants.

Respondent for himself.

Dated 31^st of May 2022