PacLII Home | Databases | WorldLII | Search | Feedback

Supreme Court of Papua New Guinea
You are here:  PacLII >> Databases >> Supreme Court of Papua New Guinea >> 2018 >> [2018] PGSC 86

Database Search | Name Search | Recent Decisions | Noteup | LawCite | Download | Help

Allolim v Kirokim [2018] PGSC 86; SC1735 (16 May 2018)

SC1735


PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]


SCM No. 38 OF 2015


BETWEEN:
DAVID KABOMYAP ALLOLIM
First Appellant


AND:
HIS WORSHIP, FRANK MANUE sitting as the Provincial Land Court Magistrate of Kiunga, Western Province.
Second Appellant


AND:
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Appellant


AND:
BIUL KIROKIM
Respondent


Waigani: Batari J, David & Frank JJ
2016: 24 October
2018: 16 May


JUDICIAL REVIEW – whether judicial review remedies available – decision of District Land Court refusing to aside set ex parte orders dismissing respondent’s appeal against ex parte Local Land Court Orders – discretion to dismiss – whether properly exercised – standing – right of party to appeal or join an appeal - whether party has standing to join as a party – agreement on royalties sharing benefits – whether Local Land Court has power to approve agreement of commercial nature under s. 19 the Land Dispute Settlement Act.


Facts:


The National Court upheld a judicial review application and reversed the decision of the Kiunga Provincial Land Court which had dismissed an appeal from the Kiunga Local Land Court. The only issue for determination was whether the decisions of the Provincial Land Court could be the subject of judicial review by the National Court. The National Court ordered that the order of the Provincial Land Court refusing to set aside its ex parte order of the 20 September 2013 be quashed and that orders of the Kiunga Local Land Court
of 21 April 2006 obtained and approved on 6 December 2006 converting agreements between the parties to Orders of the Court be quashed as being made ultra vires the powers of the Court under sections 3 and 19 of the Land Dispute Settlement Act. The appellant argued that the respondent was not a party to the appeal proceedings in the Provincial Land Court and should have no standing. The appellant also argued that OTML was not a party to the Local Land Court proceedings and should have no standing in the Provincial Land Court appeal.


Held:

  1. The trial judge did not err in finding that the respondent was a party to the Land Court appeal proceedings, at [33-34];
  2. The Provincial Land Court Magistrate erred in law in hearing argument on the merits of an appeal on an ex parte application and also, having dismissed that appeal on that ex parte application, having then held he did not have jurisdiction to set aside the order made on an ex parte basis, at [52-54];
  3. The trial judge was correct in finding that the agreements approved by the Local Land Court did not relate to interests in land, but were commercial agreements, and Section 19 of the Land Dispute Settlement Act did not give jurisdiction, at [69-71];
  4. The orders of the Local Land Court were also flawed because they were made on an ex parte application and consequently the Court could not be satisfied of the three conditions set out in Section 19(2) and (5) of the Land Dispute Settlement Act, at [72-75];
  5. The appeal was dismissed, orders of the primary judge affirmed, liberty to the parties to apply to the appropriate court, with notice to the other party.

Cases Cited:

Eastern Highlands Savings v Nowek Ltd (2013) N5315

General Accident Fire & Life Assurance Corporation Limited v. Ilimo Farm Products Pty Ltd [1990] PNGLR 331;

Helifix Group of Companies v. Papua New Guinea Land Board (2012) SC 1150

James Aiwasi v Monty Derari (2017) N6602

Kekedo –v- Burns Philip (PNG) Ltd & Ors [1988 - 89] PNGLR 122

Lepanding Singut v Kelly Kinamun (2003) N2499.

Mision Asiki v. Manasupe Zurenuoc (2005) SC797

Pais Wingti-v-Kala Rawali, Electoral Commission & Tom Olga (2008) N3285

Peter Malt v. Dean Queen & Christian Union Mission Inc. (2009) N3577

PNG Air Pilots Association v. Director of Civil Aviation & Anor [1983] PNGLR 1

Rangip v. Loko (2009) N3714

Re Piunde Ltd (2015) N6656;

Sandy Talita v Peter Ipatas (2016) SC1603

Steamships Trading Ltd v. Garamut Enterprises Ltd (2000) N1959

Counsel:
Ms M Kokiva, for the First Appellant
No Appearance for Second Appellant
No Appearance for the Third Appellant

Ms A. Kimbu, for the Respondent


JUDGMENT

16th May, 2018

  1. BY THE COURT: On 05/11/2015 the National Court at Waigani upheld a judicial review application and reversed the decision of the Kiunga Provincial Land Court (KPLC) which dismissed the respondents’ appeal from Kiunga Local Land Court (KLLC). The facts are not in dispute – the issue for the Court concerns the application of legal principles by the primary Judge and whether the relevant decisions of the second appellant could properly be the subject of judicial review by the National Court.

A. Background

  1. It is necessary to set out in some detail, the history to the ongoing saga between the parties to this appeal. The First Appellant, Kambomyap Allolim and the Respondent, Biul Kirokim are either land owners or have rights of use or both, over Mt. Fubilan land where OK Tedi Mining Limited (OTML) operates the giant Ok Tedi Gold Mine in Tabubil, Western Province.
  2. The First Appellant representing his Kimka Sepiyan sub-clan members (the appellants) claims they are the true principal landowners of Mt Fubilan land and hence, the rightful beneficiaries to mining royalty payments and related benefits. The Respondent and his group (the respondents) makes the same claim they are the original traditional landowners of the gold and copper mine site.
  3. A benefit sharing arrangement under the Memorandum of Agreement (the principal MOA) executed on 11/01/1991 between the State and OK Tedi landowners, offers some insight into the dispute between the two parties. It provided, inter alia, provisions for percentage (%) sharing benefits between two groups of landowners. The reviewed agreement of 29/10/2004 retained recognition of the two groups of OK Tedi landowners as;

(See, Appeal Book pp. 103 -115 and 117 - 128)


  1. The First Appellant is from Kavorabip village and the Respondent is from Finalbin village. The principal MOA recognises that both villages would have Wopkaimin clan members in them. As both parties are claiming to be principal land owners, they are possibly connected one way or another with Wopkaimin clan. Hence, as Wopkaimin clan members or descendants, both parties may be presumed beneficiaries under the principal MOA of 1991/2004.
  2. Nevertheless, the issue of land ownership has been the underlying cause for animosity and disharmony between the two groups. The appellants are obstinate in their claim and grievance of being left out and unjustifiably excluded and dispossessed of mining royalties and equities being paid to the respondents. They have all along denied receiving any tangible benefit in any way, shape or form from the OTML mining activities.
  3. So, during the currency of the principal MOA, the appellants purportedly reconciled with the respondents and executed a benefit sharing agreement styled, “Memorandum of Agreement Relating to Royalties Payment of Kimka Sepiyan Sub-Tribe – OK Tedi Mine Mt Fubilan” (the appellants’ MOA) on 06/07/2004. The respondents have supposedly conceded and acknowledged the appellants’ status as the principal landowners of the mine site and acceded to the terms of the appellants’ MOA to cooperate with the appellants in implementing the terms of the royalties payments under the new arrangement.
  4. The appellants then initiated court proceedings to enforce the agreement. On 21/4/2006 they obtained ex parte orders from the KLLC, converting the agreement into Court Orders. The parties then allegedly entered into a second agreement on 09/11/2006 which allotted an unprecedented distribution benefit of 95% royalty payments to the appellants and 5% to the respondents. The appellants returned to the KLLC on 06/12/2006 and obtained an approval of the agreement as formal court orders.
  5. Aggrieved by the two Local Land Court orders, the respondents lodged an appeal at the Waigani Provincial Land Court Registry. They also obtained stay orders against the KLLC orders. His Honour Batari, J dismissed that appeal for being filed outside court jurisdiction and therefore incompetent.
  6. The OTML also lodged a separate appeal at the Kiunga Provincial Land Court registry against the same KLLC orders and granted leave to prosecute its appeal. Having lost their appeal, the respondents joined the OTML appeal.
  1. Parties Positions in Summary
  1. The matter has come thus far because each party has persevered with its respective claims in and out of court. The appellants are adamant with their claim of being unfairly ostracized from receiving OTML mining royalties. So, they mediated an agreement with the respondents which led to the KLLC orders. The KLLC orders were properly obtained and binding on both parties, the OTML and the State.
  2. The respondents are similarly obstinate in their claim that the appellants’ MOA and the KLLC orders resulted from calculated unilateral actions intended by the appellants to circumvent the 1991/2004 principal MOA to unjustly acquire all the benefits from the OTML mining operations. They had no part in the appellants’ MOA and the Local Land Court orders. The conduct of the appellants was against their rights under the 1991/2004 MOA.
  3. The respondents in seeking to enforce their rights succeeded in a National Court judicial review application, now the subject of this appeal.
  1. The Judicial Review Application before the National Court
  1. By originating summons filed in the National Court on 3/3/2014, the Respondent and his group sought:
  1. Primary judgment
  1. Following grant of leave by Gavara-Nanu J, the matter returned before Makail J for hearing of the substantive application. The appellants’ contentions were in essence, that the respondents lacked standing to challenge the Provincial Land Court decision. They also contended that the appellate Court magistrate correctly dismissed the appeal for want of prosecution and when he refused to set aside his earlier ex parte order summarily dismissing the appeal. The appellants further argued their MOA was properly reached by both parties and approved by KLLC under s. 19 of the Land Dispute Settlement Act (LDS Act).
  2. The respondents defended their standing to seek a judicial review of the Provincial Land Court decisions arguing the KLLC and KPLC decisions directly affected their rights and interests. On why they allowed the decision of the Provincial Land Court to go by default and on the delay in prosecuting the appeal, the respondents raised a number of contentions, least pertinent to repeat.
  3. His Honour in the primary judgment, made three fundamental findings from the materials supporting the application for judicial review;
    1. The Provincial Land Court magistrate did not err in dismissing the explanation for the delay as being unsatisfactory;
    2. The respondents had standing to join OTML in its appeal;
    3. The initial exercise of jurisdiction by the Local Land Court in approving the appellants’ MOA of 6 July was fundamentally flawed in law.
  4. His Honour found the Local Land Court lacked jurisdiction to make the decision it did and hence, the Second Appellant acted ultra-virus his powers. The primary judge granted the application for judicial review and ordered that;
    1. The decision of the second appellant in refusing the application by OTML to set aside the ex parte order of 20 September 2013 be quashed.
    2. The orders of the Kiunga Local Land Court of 21 April 2006 and 6 December, 2006 be quashed for being made ultra vires the powers of the court under s. 3 and s. 19 of the Land Dispute Settlement Act.
  5. Aggrieved by the decision of the National Court, the Appellant lodged this appeal raising nine grounds. (pp. 2 - 6 Appeal Book).
  1. Notice of appeal
  1. The grounds contained in the appellants’ appeal by Notice of Motion of 11/12/2015 may be fairly summarised as follows;
    1. The primary Judge erred in granting the relief sought in that –
      • the respondent was not part of and had no standing in the appeal commenced by the OTML in the Provincial Land Court.
      • the OTML lacked standing and its appeal grounds had no merits.
    2. The primary Judge erred in quashing the second appellant’s decision refusing to set aside the ex parte orders of 20 September, 2013 after his Honour found OTML had no reasonable explanation for the delay;
    3. His Honour acted beyond his powers to rule on the validity of the Local Land Court decision when the principal issue before the National Court was the refusal by the Provincial Land Court to set aside an ex parte order dismissing the OTML appeal for want of prosecution.
  1. Applicable principles in reviewing decisions of the Court below
  1. The law on judicial review is settled. The Supreme Court in, Kekedo –v- Burns Philip (PNG) Ltd & Ors [1988 - 89] PNGLR 122 stated, inter alia;

“... the circumstances under which judicial review may be available are where the decision-making authority exceeds its power, commits an error of law, commits a breach of natural justice, reaches a decision which is no reasonable tribunal could have reach or abuses its powers.

The purpose of judicial review is not to examine the reasoning of the subordinate authority with the view to substituting its own opinion. Judicial review is concerned not with the decision, but with the decision-making process.”


  1. It is trite then that judicial review is basically concerned with the decision making process in proceedings before a primary court, tribunal or administrative authority or body, and not the decision. The circumstances under which judicial review may be available is where the decision making authority;

reaches a decision which no reasonable tribunal could have reached or abuses its powers.


  1. The decisions in the courts below are assessed under these principles.

G1. Issue: Whether the primary judge erred in ruling that the Respondent had sufficient interest to apply for Judicial Review?


  1. This issue raises a number of contentions from the appeal grounds including, failure by the respondents to file an appeal against the KPLC decision after losing their own appeal; no standing to join the OTML appeal; no or insufficient interest to seek a judicial review of the decision of the KPLC.
  2. The issue of locus standi in judicial review matters is covered under Order 16 Rule 3(5) of the National Court Rules. The Court will not grant leave for judicial review unless it considers that an applicant has sufficient interest in the matter the subject of the judicial review application.
  3. Whether a party has sufficient interest in the matter before the court essentially, depends on the degree of the relationship between the plaintiff and the subject matter of his complaint. The plaintiff will have standing if he can demonstrate a reasonably arguable case on questions of mixed fact and law, that some rights whether private or public has been affected or he has suffered some prejudice from an excess administrative or judicial decision making process. What Sheehan, J stated in Steamships Trading Ltd v. Garamut Enterprises Ltd (2000) N1959, is a useful guide;

“Generally a Plaintiff will have standing if he can show that he has a reasonably arguable claim that by an invalid exercise of statutory power, some private rights in law has been affected or that he has suffered some prejudice. But the right to invoke the Court’s supervisory jurisdiction is not restricted to protection of personal right only. It can extend to more public issues.”


  1. A person having sufficient interest in the matter before the court is entitled to be heard. In Sandy Talita v Peter Ipatas (2016) SC1603 the Supreme Court stated;

“The issue of standing or locus standi is concerned with the right of persons having sufficient interest in the matter before the court to be heard and being given the opportunity to be heard. An applicant must have sufficient interest in that to which the application relates. The test of sufficient interest is an objective one based on the facts of each case: SCR 4 of 1980; the Petitioner M.T Somare [1981] PNGLR 265.”


  1. The right to be heard is an essential element of natural justice. It is settled, that any person whose rights or interests are likely to be affected by an administrative decision or judicial decision has a right to be heard by the decision-maker prior to making the decision: Pais Wingti-v-Kala Rawali, Electoral Commission & Tom Olga (2008) N3285.
  2. It is also settled that the nature of injury or damage suffered, whether actual or perceived can be wide-ranging. In PNG Air Pilots Association v. Director of Civil Aviation and Air Niugini [1983] PNGLR 1, the Supreme Court stated at page 3;

“The plaintiff will have locus standi where he can show actual or apprehended injury or damage to his property or proprietary rights, to his business or economic interests and, perhaps, to his social or political interests.”


  1. In this case, the appellants’ contentions fly in the face of ongoing disagreements and resentments between the parties over benefit sharing of mining royalties and equities. The animosity culminated in the appellants’ court orders now the subject of this appeal. The court orders in essence, made the appellants, inter alia, principal landowners of Mt Fubilan mine site and heavily favored them for royalty and equity payments.
  2. Conversely, the respondents have all along contested the legitimacy of the appellants’ MOA and validity of the court orders. Their rights and interests were/are directly affected by the KLLC orders. In pursuit of their claim, they lost their appeal against the KLLC decision on a technicality other than the merits. In those circumstances, the respondents joined the OTML appeal.
  3. The primary judge addressed the issue of locus standi as follows;

“They also submit that the plaintiff does not have standing to bring this proceeding because there is no evidence that he was a party to appeal in the Provincial Land Court. The appeal was instituted by OTML.

However, the record of the proceeding of the Provincial Land Court clearly shows that the plaintiff was a party to the appeal. It is noted he was the second appellant.

In any case, he is a party affected by the two Local Land Court decisions which decided the distribution of the benefits derived from the use of land by OTML. I am satisfied he has sufficient interest to bring the application for judicial review.”


  1. These observations have support from the Provincial Land Court proceedings and other materials before the primary judge. Besides, the respondents have been beneficiaries as customary landowners under the principal MOA of 1991/2004 and the appellants’ MOA; the court orders of KLLC and the dismissal of their appeal by KPLC, affected the respondents’ rights and interests in a substantial way. So, the respondents have a right and a legitimate expectation capable of being protected by invoking the Court’s inherent supervisory jurisdiction: Helifix Group of Companies v. Papua New Guinea Land Board (2012) SC 1150.
  2. We are satisfied the respondents have substantial interest in this appeal and also in the proceedings in the courts below. The primary judge did not err in reaching the conclusion his Honour did on the issue of locus standi.

G2. Issue: Did the trial judge err in quashing the decision to set aside the ex parte orders of the Provincial Land Court.


  1. The appellant’s contention is that the trial judge should have dismissed the judicial review application after holding that the OTML had no reasonable explanation for the delay in the prosecution of its appeal. Counsel, Ms. Kokiva also argued, the trial judge erred in dealing with a matter in which the applicant lacked standing; the OTML appeal has no merit and was unlikely to succeed.
  2. We start with the issue of standing of the OTML. The company was not a party to the Local Land Court proceedings. It would have absolutely no standing in land court proceedings over issues of customary land.
  3. However, it is clear, the KLLC orders of 2006 impelled OTML to appeal the Local Land Court orders. The orders were directed at OTML and the State for compliance. Neither of these entities was a party to the KLLC proceedings. It is trite, where a court order is directed at a third person not a party to the proceedings, the person against whom the decision is made has a right to be heard on an appeal or in an application for judicial review. The minimum requirement for natural justice is to give the aggrieved person the opportunity to seek protection and enforcement of its rights and interests.
  4. Second, the 2006 KLLC orders were of commercial nature. The orders in effect amended a binding formal agreement between the State and OK Tedi land owners. It amended and re-scoped the benefit sharing arrangement for the landowners under a formal and binding 1991/2004 MOA by assigning the appellants, optimum royalty payments. The court orders seriously affected the company’s legal obligations under the 1991/2004 MOA.
  5. So, OTML was clearly an aggrieved third party just as the respondents were in the land court proceedings. The company had/has the right to appeal or seek a judicial review of the KLLC orders because the 1991/2004 MOA obliges it to ensure disbursement of benefits from its mining activities comply with a binding agreement between the State and the landowners. The obligation under the MOA is a public interest matter which binds the company’s vigilance against any breaches or improper disbursements of mining royalties and equities. In our view, OTML had/has a right and legitimate expectation capable of being protected by the court of competent jurisdiction. Indeed, its appeal was properly filed and it had leave of the Court to prosecute the appeal.
  6. Even if OTML has no standing, which is not the case, its appeal would still survive with the respondent as the second appellant. We dismiss the contention against OTML on standing. It is misconceived and unmeritorious.
  7. The issue of delay went against OTML and the respondents. They procrastinated and therefore defaulted in prosecuting the appeal. The primary Judge found that to be so. Should his Honour then dismiss the application for judicial review on that basis alone? In our view, the answer lies in the review of the whole of the circumstances leading to the judicial review application.
  8. The discretion to dismiss an appeal for want of prosecution can be exercised under two circumstances;
  9. There are two lines of authority on the power of the National Court to set aside orders dismissing proceedings. One line of authorities say the National Court has no jurisdiction to entertain an application seeking to set aside orders dismissing proceedings; Peter Malt v. Dean Queen & Christian Union Mission Inc. (2009) N3577; James Aiwasi v Monty Derari (2017) N6602. We adopt and follow the view in Rangip v. Loko (2009) N3714 where Hartshorn J said;

“although the general rule is that a court ordinarily has no power to set aside a final order once it has been passed and entered, Order 12 Rule 8 National Court Rules and the New South Wales equivalent, Pt 40 r 9 from which our Rule is derived, deal with several exceptions to the general rule: Ritchie’s Supreme Court Procedure Vol. 1 40.9.”


  1. In referring to the application of National Court Rules Order 12 r 8 in Eastern Highlands Savings v Nowek Ltd (2013) N5315 his Honour reiterated;

“Order 12 Rule 8 (3) (a) is as follows:


‘The Court may, on terms, set aside or vary an order-

(a) where the order has been made in the absence of a party, whether or not the absent party is in default of giving a notice of intention to defend or otherwise in default, and whether or not the absent party had notice of motion for the order; or...’

8. The principles governing the exercise of discretion as to whether an ex parte order, and in my view, an order made in the absence of a party, should be set aside are well settled and were detailed by Kapi DCJ (as he then was) in Smith v. Ruma Constructions Ltd (2002) SC695: see also Rangip v. Loko (2009) N3714 and National Development Bank Ltd v. Masket Iangalio (2012) N4931. The onus is on the applicant to satisfy the court:

  1. why the order was allowed to be entered in the absence of the applicant,
  2. if there is a delay in making the application to set aside, a reasonable explanation as to the delay, and

c) that there is a defence on the merits.”


  1. If, in the first scenario set out above, the court summarily dismisses the appeal following an ex parte hearing, the party aggrieved by the decision is entitled to apply to the same court to set aside the ex parte orders. The party seeking to set aside the ex parte orders has the right to be heard on why he or she allowed the decision to go by default and demonstrate that he or she has a good defence or an arguable case on the merits. The principles governing applications to set aside ex parte orders have its basis on the universal doctrines of natural justice and the right to be heard on a procedural dismissal than the merits of the case where the proper recourse is an appeal to the appellate court.
  2. In the second scenario the application is heard inter parties. The guiding principles on when a proceeding ought to be dismissed for want of prosecution is settled in the Supreme Court and National Court cases of, General Accident Fire & Life Assurance Corporation Limited v. Ilimo Farm Products Pty Ltd [1990] PNGLR 331; Lepanding Singut v Kelly Kinamun (2003) N2499.
  3. In Lepanding Singut v Kelly Kinamun (supra) the Court reiterated the principle in O4 rr.10, 11 of the National Court Rules that;

“Once the applicant makes out a prima facie case, the respondent is obliged to rebut it with satisfactory explanation and demonstrate preparedness to take the next step.”


  1. When both parties before the court have been heard on the merits of the application to dismiss for want of prosecution, the ensuing decision will bring the cause to finality. The party aggrieved by the decision has recourse to appeal or seek a judicial review of the decision in the normal course of events.
  2. In this case, the appellate magistrate correctly averted to these principles in deliberating whether or not to set aside his earlier ex parte orders and concluded the provisions of the District Court Act and the rules of practice and procedure in the superior courts do not apply to land issues under the LDS Act.
  3. With respect, that was a gross misstatement of the rules and principles of law and practice. There is real likelihood that it would be unjust to the respondents to allow such misguided and contra dispensation of justice to stand. We will return to this aspect in the latter part of this judgment.
  4. We set out the two scenarios and the applicable principles to demonstrate that the Provincial Land Court reached its decision via substantially defective processes. In the initial decision to dismiss for want of prosecution, it is clear that the application to dismiss the appeal was intended to be heard ex parte or in the absence of the then appellants. The Notice of Motion/Application listed 12 the orders being sought by the then respondents. Paragraph 1 sought an, “Order dispensing with requirements of service in these proceedings.”
  5. The order sought confirms the assertions by lawyers for the respondents, that the appellants did not serve or informed them of the date of the hearing of the application. The full blown hearing of the application to dismiss the appeal is apparent from the 20 page judgment of the court. The hearing which included the other 11 orders sought in the nature of legislative enforcements against the respondents, transgressed all the safeguards and requirements for a fair hearing. The trial magistrate in the process, made numerous adverse references against a party in flagrant disregard of the right of that party to be heard. The Provincial Land Court deliberately denied the respondents, the protection of the law in what was clearly a hearing by ambush. It was a classic case of excess exercise of judicial power and an abuse of the court process.
  6. The appellate magistrate committed further serious errors of law and procedure when he considered and made findings on the merits of the appeal in the absence of the then appellants and when the matter before the court was, an application to dismiss the appeal for want of prosecution.
  7. The gross injustice caused in the ex parte prosecution of application to dismiss and the erroneous decision reached was left to survive when the trial magistrate again, with respect, misapplied the law when he held that he had no discretion, to set aside an ex parte order under the LDS Act.
  8. The law requires that an applicant seeking to set aside an ex parte judgment be present in court to show cause why his or her appeal should not be dismissed for want of prosecution. Section 50 (2) (e) of the LDS Act requires the Provincial Land Court to try to do “substantial justice” as between the parties. ‘Substantial justice’ necessarily involves giving a party the opportunity to be heard. That is a fundamental requirement for proper dispensation of justice to everyone, including those involved in customary land issues and disputes before a court of competent jurisdiction.
  9. With respect, these issues were not addressed at the lower courts or at the hearing of this appeal. Hence, the trial judge did not rule on these particular aspects of the review. Yet, on the face of the records, the two proceedings before the Provincial Land Court were so tainted in procedure and law they cannot be maintained. This Court in its inherent jurisdiction under the Constitution is bound to correct apparent errors of law and procedure in the court below, to do justice in all the circumstances of the case. These findings also make the argument on the issue of delay, ineffective.
  10. We next consider the issue of jurisdiction to review the decision of the KLLC. The issue can be stated thus:

G3. Issue: Whether the primary judge erred in ruling against the exercise of jurisdiction by the KLLC.

  1. The appellants’ contention is that the trial judge ought to have kept his findings and decision within the confines of the Provincial Land Court decision dismissing OTML’s application to set aside the court’s earlier ex parte orders. Ms Kokiva submitted that the trial judge lacked jurisdiction when his Honour went beyond the KPLC proceedings to decide the judicial review application on some earlier decision of another court.
  2. The respondents argued that the jurisdiction of the National Court to review decisions of inferior courts included decisions giving rise to the cause of an appeal or a judicial review application. In this case, the KLLC orders gave rise to the respondents’ appeal to the Provincial Land Court on the basis that the orders fell outside the ambit of mediated agreements for which s.19 of the LDS Act is intended. So, the KLLC issued the orders in excess of its jurisdiction.
  3. The trial judge addressed this issue at p 929 of the Appeal Book as;

“12. But what is more fundamental is the exercise of jurisdiction by the Local Land Court in approving the 06th July 2004 Agreement. This Court is exercising its supervising jurisdiction in reviewing decisions of the inferior Courts and when this Court is to trace the origin of the dispute between the parties, it finds its origins in the 06th July 2004 Agreement which was approved by the Local Land Court. This exercise of power by the Local Land Court has led to this application for judicial review.


13. Putting aside all the submissions made by the plaintiff and defendants as I consider them not necessarily relevant to the main issue of exercise of jurisdiction by the Local Land Court which resulted in the appeal to the Provincial Land Court on decision by the first defendant, what must be appreciated in this, under Section 3 of the Land Disputes Settlement Act states that this Act applies to disputes as to “interests in customary land, or as to the position of boundaries of any customary land.”


  1. We agree. The threshold issue which invoked the jurisdiction of the Provincial Land Court had its genesis in the 2004 and 2006 agreements followed by the 2006 Local Land Court Orders which the appellants instigated. The issue involved important questions of law that are not without merit.
  2. It is settled that judicial review proceedings involve two stages; (i) the applicant has to establish one or more grounds of review, (ii) if successful, the applicant has to make out a case for the relief sought: Mision Asiki v. Manasupe Zurenuoc (2005) SC797. The court should consider all the circumstances of the case and decide whether it is appropriate to grant a remedy. The court should generally only consider granting a remedy that has been specifically sought by the applicant for judicial review or that would serve a useful purpose.
  3. The determination the court below made on the Local Land Court orders, was based on the grounds for review and the relief sought in the originating process and the Notice of Motion. The appellants did not contest that relief in the court below. They are not at liberty to raise it now.
  4. It is procedurally correct, that the Court in a judicial review application ought to confine its findings and determination to issues connected with the decision making process against which the appeal or review lies. However, when the appeal or review is connected with another decision making/process say, an appeal to that court, it is trite that the appellate Court in its supervisory role has the power to review the decisions of the inferior courts and make orders where necessary to do justice in all the circumstances of the case.
  5. In this case, the issue at stake was the proper application of s.19 of the LDS Act by the Local Land Court. Section 19 reads as follows:

“19. Approval of agreements.


(1) The parties to an agreement may apply to a Local Land Court to have the agreement approved.

(2) On receiving an application under Subsection (1), the Court shall make such inquiries as it thinks necessary to ensure that—

(a) the terms of the agreement are fully understood by the parties; and

(b) where a party to the agreement consists of more than one person, a substantial majority of the persons comprising the party concur with the terms of the agreement; and

(c) the agreement is not in breach of any law, or contrary to natural justice or public policy.

(3) Where the Court is not satisfied as to any matter specified in

Subsection (2), it may—

(a) mediate between the parties in order to reach a satisfactory agreement; or

(b) by order direct the Land Mediator who mediated the dispute or another Land Mediator specified in the order to conduct further mediation, with, if it thinks fit, a direction as to how any defect in the original agreement might be overcome.

(4) Where further mediation has been carried out under Subsection (3)(b) and an agreement has been reached and recorded, the parties may re-apply to the Court to have the agreement approved in accordance with this section.

(5) Where the Court is satisfied as to the matters specified in Subsection (2), it may approve the agreement.

(6) An agreement approved under Subsection (5) has effect as an order of a Local Land Court made under this Act.”


  1. The intents and purpose of s. 19 is confined to mediated agreement over customary land interests and boundaries of customary land. The Court is empowered to endorse agreements following out-of-court mediation or court ordered mediation. The intent and purpose of s. 19 are clearer when read together with Sections 3, 17 and 18 of the LDS. Section 3 reads;

“3. Application.


(1) Subject to Subsection (2) and to Section 4, this Act applies to disputes as to interests in customary land, or as to the position of boundaries of any customary land.

(2) Nothing in this Act applies to a dispute—

(a) as to whether land is or is not customary land; or

(b) to which Part IV. of the Land Groups Incorporation Act applies.”


  1. The relevant provisions on mediated agreements under Section 17 reads;

“17. Mediation.

(1) Where he is of opinion that—

(a) a dispute exists as to interests in land situated wholly or partly within the area of the Land Mediation Division or Divisions for which he is appointed; and

(b) mediation as a means of settling the dispute may be successful,

a Land Mediator may mediate the dispute if no other Land Mediator has been appointed, or has commenced, to mediate the dispute.

(7) Where a Land Mediator—

(a) decides to mediate a dispute under Subsection (1); or

(b) is requested to mediate a dispute under Subsection (2),

he shall, as soon as practicable, inform the Local Land Magistrate located nearest to the land in dispute.”


  1. Section 18 (1) relevantly reads -

“18. Agreements.

(1) If an agreement is reached between the parties to a dispute as to the whole or part of the dispute, the Land Mediator shall—

(a) record that an agreement has been reached; and

(b) unless he thinks it inappropriate to do so—record the terms of the agreement; and

(c) ensure that the terms of the agreement are understood by the parties and are formally and publicly acknowledged by or on behalf of the parties; and

(d) where the terms of the agreement are recorded—forward a copy of the record to the nearest Local Land Court.


  1. It is apparent from these provisions that s. 3 sets out the purpose for which the LDS Act applies. Sections 17, 18 and 19 come under PART III – MEDIATION OF LAND DISPUTES and Division 3.- Mediation and Agreement; Subdivision A.- Mediation; Subdivision B.- Agreements of the LDS Act. The intention is clearly, that any agreement reached between the parties, must result from mediated disputes over interests in customary land or position of boundaries of any customary land before a Local Land Court will have jurisdiction to approve the agreement as an order of the court.
  2. In this case the primary judge found, the Local Land Court had wrongfully assumed jurisdiction over a matter that was commercial in nature. The Local Land Court acted beyond its jurisdiction to approve the agreement of 6 July 2006 and likewise, that of 2004. The power of the Local Land Court under s. 19 of the LDS Act is limited to endorsement of mediated agreements over customary land issues. It is clear, the trial magistrate in the KLLC made orders with no legal basis and hence, ultra-virus s.19 of the LDS Act. That decision was the subject of appeal to KPLC.
  3. We endorse the notion that the primary judge had jurisdiction to review the decision making process of the Local Land Court which led to an appeal to the Provincial Land Court. In our view, his Honour was/is duty bound to look at the entire circumstances of the case before him to ensure, the decision making processes in the original process and the subsequent appeal process do not lead to unjust results or miscarriage of justice.
  4. There is a further serious concern in the application of s.19 of the LDS Act by the Local Land Court in its 2004 and 2006 orders. The records of proceedings on both occasions show, the applications for approval of the agreements were granted ex parte. That course is contrary to the dictates of s. 19 (2) and (5). Sub-section (5) states, that where the Court is satisfied as to the matters specified in Subsection (2), it may approve the agreement.
  5. The Local Land Court is required under s.19 (2) and (5) to make such enquiries as it thinks necessary to ensure existence of three conditions, namely;
    1. the parties fully understood the terms of the agreement; and
    2. if a party in an agreement involve a group of persons, a substantial majority of the persons comprising the party must concur with the terms of the agreement; and
    1. the agreement is not in breach of any law, or contrary to natural justice or public policy.
  6. It is mandatory on the magistrate to enquire into those matters and be satisfied that the terms of the agreement is fully understood and reached by majority consensus of persons comprising the party and that the agreement is not in breach of any law, or contrary to natural justice or public policy. Presence of all parties is a prerequisite that would enable the court inquiry into and to be satisfied as to the legal and procedural validity of the agreement. Failure to comply with those statutory requirements will render the agreement a nullity.
  7. In this case, the records show the respondents were not aware, nor were they involved in any land mediation between them and the appellants. That makes sense because on both occasions in 2004 and 2006, the Local Land Court proceedings and the orders were obtained ex parte. The orders were obtained in direct breach of the prerequisites for court approvals of agreements under s. 19 (2) and (5) of the LDS Act. It is apparent from those prerequisites in Sub-sections 19 (2) and (5) the law is guarded against and does not authorize ex parte approval of unilateral agreements over customary land interests and customary land boundaries. That is a necessary safeguard against fraudulent dealings with customary land interests and boundaries of customary land.
  8. The appellants in a compassionate plea through counsel argued the decision of the trial judge has resulted in grave miscarriage of justice against the First Appellant and his people who have all along suffered and their rightful claims suppressed by the respondents.
  9. Whilst justice is not based on sentimental pleas, or personal likes and dislikes, some things in this case are clear from the records:
  10. In summary the appellants have not made out any of the grounds of appeal against the decision of the primary court. The Local Land Court acted ultra-virus s. 19 of the LDS Act and erred in law in its approvals of the appellants’ MOA. The Provincial Land Court committed fundamental errors of law and acted contrary to natural justice in the lump hearing of the application to dismiss the appeal for want of prosecution and the merits of the appeal together with numerous other issues on applications of law without serving the then appellants. The Provincial Land Court further erred in law and procedure when it ruled that it lacked the power to set aside an ex parte decision.
  11. In the end result, the appeal on the whole is without merit. It is dismissed. The orders of the primary court are affirmed on terms as ordered.
  12. As the result of this appeal may not bring to finality, any issue in respect of interests over customary land and the boundary of customary land as between the parties, either party is at liberty to apply to the appropriate court of competent jurisdiction with adequate notice to the other party under the Land Disputes Settlement Act.
  13. Costs will follow the event.

________________________________________________________________
Martha & Associates Lawyers: Lawyers for the First Appellant
No Appearance for the Second Appellant
No Appearance for the Third Appellant
Greg Manda Lawyers: Lawyers for the Respondent

PacLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback
URL: http://www.paclii.org/pg/cases/PGSC/2018/86.html