Kimas v Oala [2015] PGSC 69; SC1475 (17 December 2015)

SC1475

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCM NO 7 OF 2015

PEPI KIMAS, SECRETARY FOR LANDS & PHYSICAL PLANNING
First Appellant

BENJAMIN SAMSON, DEPUTY REGISTRAR OF TITLES
Second Appellant

HON DR PUKA TEMU,
MINISTER FOR LANDS & PHYSICAL PLANNING
Third Appellant

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Fourth Appellant

V

ARUA LOA, ARENI IGO & LAKANI OALA
Respondents

Waigani: Cannings J, Kangwia J, Bona J
2015: 27th October, 17th December

LAND – customary land – whether National Court has jurisdiction to hear and determine a dispute as to whether land is customary land – whether judicial review proceedings in which the applicants sought orders as to a Special Agricultural and Business Lease constituted a dispute as to whether land was customary land.

The respondents applied to the National Court for judicial review of two decisions of the appellants (the Secretary for Lands and Physical Planning and other State parties) regarding a portion of land, of which the respondents claimed customary ownership. First, the appellants' decision to grant an Urban Development Lease (UDL) over the land to a third party. Secondly, the appellants' decision to cancel a Special Agricultural and Business Lease (SABL), which the respondents held over the land. In upholding the judicial review, the National Court quashed both decisions under review and declared that the land was customary land owned by the respondents, the UDL granted to the third party was null and void, the SABL (granted to the respondents, but cancelled) was restored and the grant of any interests in the land without the express consent of the respondents was null and void. The appellants appealed against the order of the National Court on 25 grounds, which fell into two categories: (1) excess of jurisdiction as the subject matter of the National Court proceedings was a dispute about whether the land was customary land; (2) errors of fact and law in finding that the land was customary land. The appellants contended before the National Court and the Supreme Court that the land had been acquired by the pre-Independence administration, so it was Government land and no longer customary land.

Held:

(1) The National Court has no jurisdiction to hear and determine disputes concerning ownership by custom of any land, including a dispute as to whether any land is or is not customary land. Such disputes fall within the exclusive jurisdiction of the Land Titles Commission under Section 15 of the Land Titles Commission Act.

(2) At the centre of the judicial review proceedings was a dispute about whether the land was customary land. The National Court exceeded its jurisdiction by hearing and determining the dispute.

(3) The first category of grounds of appeal was upheld. It was unnecessary to determine any other grounds.

(4) The appeal was upheld. The order of the National Court was quashed and the National Court proceedings were dismissed.

Cases cited

The following cases are cited in the judgment:

Anton Lavu v Nicholas Mark Thompson (2007) N5018
Arua Loa v Pepi Kimas (2014) N5849
Doriga Mahuru v Hon Lucas Dekena (2013) N5305
Golpak v Kali [1993] PNGLR 491
Musa Valley Management Company Ltd v Pepi Kimas (2010) N3827
Roderick Tovo Bibilo v Gerard Balbagara (2008) N3291
Ronny Wabia v BP Exploration Co Ltd [1998] PNGLR 8
Siaman Riri v Simion Nusai (1995) N1375
Sioti Bauf and Lavoi Nodai v Poliamba Pty Ltd [1990] PNGLR 278
Soso Tomu v The State (2002) N2190
The Administration v Blasius Tirupia (Re Vunapaladig and Japalik Land) [1971-72] PNGLR 229
The State v Lohia Sisia [1987] PNGLR 102
Thomas Taiya Ambi v Exxon Mobil Ltd (2012) N4844
Wak v John Wia (2008) N3356

APPEAL

This was an appeal against the granting by the National Court of an application for judicial review by persons claiming customary ownership of a portion of land.

Counsel

I Molloy & I R Shepherd, for the Appellants
Z G Gelu, for the Respondents

17th December, 2015

1. BY THE COURT: The Secretary for Lands and Physical Planning and other State parties appeal against the decision of the National Court in proceedings involving a piece of land in the National Capital District.
   
2. The land, Portion 2585, also known as Portion 2585C, lies between the top of the Poreporena Freeway, near Burn's Peak, and Murray Barracks in the Hohola area. Its traditional name is "Gagoramani". It has an area of 18.49 hectares. The respondents are three men from nearby Hanuabada village, Arua Loa, Areni Igo and Lakani Oala, who have for many years claimed customary ownership of the land.
   

NATIONAL COURT PROCEEDINGS

3. The respondents were the plaintiffs in the National Court. They applied for judicial review of two decisions of the appellants regarding Portion 2585:
   
   • First, the decision of the Minister for Lands and Physical Planning to, on 4th August 2008, without their consent, grant an Urban Development Lease (UDL) over the land to a third party, Garamut Enterprises Ltd. (Garamut was originally a defendant in the National Court proceedings but ceased to be a party, evidently as its UDL expired in early 2014 and it no longer had any interest in the land.)
     
   • Secondly, the decision of the Deputy Registrar of Titles to, on 5 November 2010, cancel a Special Agricultural and Business Lease (SABL) over the land, which had, only the previous month, on 7 October 2010, been granted to the respondents.
     
4. The National Court, constituted by Justice Kandakasi, on 29 December 2014, upheld the respondents' application for judicial review (Arua Loa v Pepi Kimas (2014) N5849). His Honour quashed both decisions under review and declared that:
   
   • the land was customary land owned by the respondents and the Geakone Laurina sub-clan of Hohodae, Hanuabada;
     
   • the State had never acquired the land from its customary owners;
     
   • the UDL granted to Garamut was null and void;
     
   • the SABL granted to the respondents, then cancelled, was restored;
     
   • the grant of any interests in the land without the express consent of the respondents was null and void.
     

THE APPEAL

5. The appellants appeal against those orders and declarations on 25 grounds, which fall into two categories:
   

(1) Excess of jurisdiction as the subject matter of the National Court proceedings was a dispute about whether the land was customary land (ground (e)). The appellants argue that the primary Judge had no jurisdiction to determine customary ownership of the land.

(2) Errors of fact and law in finding that the land was customary land (grounds (a)-(d), (f)-(y)). The appellants argue that the evidence showed that the pre-Independence administration acquired the land from the customary landowners in 1957, and that it was no longer customary land and that the primary Judge erred in drawing the opposite conclusion. They argue that the primary Judge should have found that:

• Portion 2585 has been Government land since 1957;
• it was properly made the subject of the State Lease to Garamut in 2008;
• it was improperly made the subject of the SABL to the respondents in October 2010;
• the SABL was properly cancelled in November 2010, as an SABL can only be granted over customary land (Musa Valley Management Company Ltd v Pepi Kimas (2010) N3827).
  

EXCESS OF JURISDICTION

6. It is settled law that the National Court has no jurisdiction to hear and determine disputes concerning ownership by custom of any land, including a dispute as to whether any land is or is not customary land. Such disputes fall within the exclusive jurisdiction of the Land Titles Commission under Section 15 (determination of disputes) of the Land Titles Commission Act, which states:
   

The Commission has, subject to this Act, exclusive jurisdiction to hear and determine all disputes concerning and claims to the ownership by custom of, or the right by custom to use, any land, water or reef, including a dispute as to whether any land is or is not customary land and may make all such preliminary inquiries and investigations as it deems necessary for the purpose of hearing and determining the disputes and claims. [Emphasis added.]

7. Section 15 has been given full effect by the courts over many years. As soon as it becomes apparent that a case involves a dispute about whether land is or is not customary land, the Court should divest itself of jurisdiction. Such disputes fall within the exclusive domain of the Land Titles Commission.
   
8. The leading case is The State v Lohia Sisia [1987] PNGLR 102. The Supreme Court stated clearly that because of Section 15 of the Land Titles Commission Act neither the National Court nor the Supreme Court has power to hear or determine disputes about whether land is customary land:
   

The Land Titles Commission is a specialist tribunal established by Parliament to hear these disputes. It has special powers to hear evidence and special expertise developed over [many] years of operation. It has the difficult task in many cases of weighing up oral evidence from interested parties of events which happened decades before against contemporary documents. Over the years there have been many cases and a considerable jurisprudence has developed in this area.

9. That view was consistent with the approach of the pre-Independence Full Court of the Supreme Court in The Administration v Blasius Tirupia (Re Vunapaladig and Japalik Land) [1971-72] PNGLR 229. Lohia Sisia has been followed on numerous occasions by the National Court. See, for example, Sioti Bauf and Lavoi Nodai v Poliamba Pty Ltd [1990] PNGLR 278; Golpak v Kali [1993] PNGLR 491; Siaman Riri v Simion Nusai (1995) N1375; Ronny Wabia v BP Exploration Co Ltd [1998] PNGLR 8, Soso Tomu v The State (2002) N2190, Anton Lavu v Nicholas Mark Thompson (2007) N5018, Roderick Tovo Bibilo v Gerard Balbagara (2008) N3291, Wak v John Wia (2008) N3356, Thomas Taiya Ambi v Exxon Mobil Ltd (2012) N4844, Doriga Mahuru v Hon Lucas Dekena (2013) N5305.
   
10. As for the present case, the critical issue in the National Court was whether the land was or was not customary land. The appellants argued it was not. The respondents argued it was. The trial Judge concluded that it was. The evidence before the Court was extensive and technical in nature. Competing expert evidence and opinion was provided by several surveyors. A complex history of events, going back to the 1950s, was inquired into. There were several changes in the description of the land over the course of almost 60 years. There were competing submissions as to the interpretation of the evidence. All of the primary Judge's findings of fact and law and all of the orders and declarations hinged on his Honour's finding that Portion 2585 was and always had been customary land, which was never acquired by the State or the pre-Independence administration.
    
11. We find with respect that his Honour was not authorised to make such a finding. The question of whether Portion 2585 was or was not customary land fell within the exclusive jurisdiction of the Land Titles Commission.
    

CONCLUSION

12. We uphold the first category of grounds of appeal: the National Court exceeded its jurisdiction. The appeal will be allowed. It is unnecessary to address the other grounds. All of the orders and declarations of the National Court will be quashed and the National Court proceedings must be dismissed.
    

13. We will order that the parties will bear their own costs. The appellants led the National Court into error by failing to draw his Honour's attention to the jurisdictional problem in determining the judicial review. The appellants' inattention to the critical issue continued at the hearing of the appeal. Only one of the 25 grounds of appeal raised the jurisdictional issue. The bulk of the appellants' submissions was directed at the issue of whether the trial Judge had erred in finding that the land was customary land.

14. Any further dispute as to the status of Portion 2585 must be resolved by the Land Titles Commission.

ORDER

(1) The appeal is allowed.

(2) The orders and declarations of the National Court of 29 December 2014 in OS (JR) No 903 of 2011 are quashed.

(3) The proceedings OS (JR) No 903 of 2011 are dismissed.

(4) The parties shall bear their own costs of the appeal and the National Court proceedings.

Judgment accordingly.
________________________________________________________________

Ashurst Lawyers : Lawyers for the Appellants
Gelu Lawyers : Lawyers for the Respondents