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Supreme Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]
SCA NO 26 OF 2019
BETWEEN:
TIKE MALAWA in his capacity as CHAIRMAN OF THE MATEGAMUT HUNAPOKMITIM CLAN and MATEKAKA LANGAREN SUBCLAN
Appellant
AND:
MARIA PIDI
Respondent
Waigani: Hartshorn, Collier & Logan JJ.
(Heard on the papers: Last submission filed on 19 October 2020)
2021:30th March
CIVIL PRACTICE AND PROCEDURE – National Court dismissed appellant’s action – appeal against dismissal – objection to competency of appeal – whether two lower court orders were misdescribed – whether such a misdescription is indicative of an error of law as to the meaning and effect of the orders – whether the National Court erred in placing too much emphasis on the fact that there were two conflicting lower court orders
REAL PROPERTY – customary land – dispute over ownership of customary land – interests in customary land – whether an order of a Village Court can determine ownership of customary land – whether the National Court acted in excess of its jurisdiction with respect to the determination of land ownership
Held:
Cases Cited:
Papua New Guinea Cases
Coca Cola Amatil (PNG) Ltd v Marshall Kennedy [2012] PGSC 52
Kuman v Digicel (PNG) Ltd [2019] PGSC 72
Malewo v Faulkner [2007] PGNC 150
Poio v Puluku [2020] PGSC 59
Rimbunan Hijau (PNG) Ltd v Enei [2017] PGSC 36
Samoua v Aces Venture Ltd [2013] PGNC 149
Siu v Wasime Land Group Incorporated [2011] PGSC 4
The State v LohiaSisia [1987] PNGLR 102
Overseas Cases
Anchor Brewhouse Developments Ltd v Berkley House (Docklands Developments) Ltd [1987] 2 E.G.L.R. 173
Public Transport Commission of NSW v Perry [1977] HCA 32; (1977) 14 ALR 273
Yelloly v Morley (1910) 27 T.L.R. 20
Legislation
Supreme Act Act1975 s 4(2)(a)
Land Disputes Settlement Act 1975 s 26
Village Courts Act 1989
National Court Rules 1983
Supreme Court Rules 2012
Counsel:
Mr. J. Abone, for the Appellant
Mr. L. Baida, for the Respondent
30th March, 2021
1. BY THE COURT: On 7 February 2019, the National Court dismissed with costs an action instituted by the appellant, Mr Tike Malawa “in his capacity as Chairman of the Mategamut Hunapokmitim Clan and Matekaka Langaren Subclan” in which Mr Malawa claimed damages in the sum of K210,717.90 for trespass against the respondent, Mrs Maria Pidi. At the same time, the Court dismissed a cross-claim brought by Mrs Pidi against Mr Malawa.
2. Mr Malawa has appealed against so much of the order made on 7 February 2019 that dismissed his claim. There is no appeal against the dismissal of the cross-claim. Mrs Pidi has, however, objected, or at least purported to object, to the competency of the appeal. It is convenient in the circumstances of this case to adopt the course promoted by each of the parties in their submissions and to hear and determine both the appeal and that objection together. That hearing and determination is being undertaken on the basis of the written submissions filed by the parties in accordance with a practice adopted to meet, amongst others, the exigencies of the prevailing pandemic.
3. Mr Malawa alleged that Mrs Pidi had trespassed on customary land called Langaren Land (customary land) in a village named Rapontamon at Namatanai in New Ireland Province. The act of trespass was said to be the entry onto the customary land by Mrs Pidi, or at least persons engaged by her, and the felling and removal of timber later used in the construction of Kokopo Village Resort either by Mrs Pidi or by the company that employed her.
4. For her part, Mrs Pidi alleged that she had entered into a valid agreement with a Mr Daniel Bitu, whom she alleged had represented himself as the legitimate landowner of the customary land, pursuant to which, in return for the payment to him of K7,000, he had granted permission to her to enter onto that land and harvest logs.
5. More particularly, Mrs Pidi’s amended defence (paragraph 3(e)) put in dispute whether either Mr Malawa or his clan owned the customary land where the logs had been harvested. She did not dispute that logs had been harvested on that land, although she did dispute when that had occurred (late 2009, as opposed to 2010 as alleged by Mr Malawa) and the number of logs felled (27, with 15 “used and paid according to cubic meter and timbers processed from the logs as some logs were hollow” and 12 left on site after Mr Malawa disturbed the logging operation, as opposed to the 67 trees felled alleged by Mr Malawa). Mrs Pidi (paragraph 3(d) of the amended defence) alleged that, “the logs felled were from the clan area belonging to Daniel Bitu whose father BulunamurLogar purchased the land from Tunubuah clan”. On the pleadings therefore, there was an issue in the National Court as to the ownership of the customary land.
6. In order to understand the grounds of appeal, it is necessary to record that in evidence before the National Court were two lower court orders:
(a) an order of a Village Court dated 25 March 2011 in proceedings between Mr Malawa and Mr Bitu (Village Court order); and
(b) a record dated 31 August 2012 of an agreement reached at mediation in relation to the ownership of the customary land, created for the purposes of s 18 of the Land Disputes Settlement Act 1975, the agreement being approved by the Local Land Court at Namatanai on 14 August 2013 and thus taking effect as an order of that court under that Act pursuant to s 19(6) of that Act (LLC order).
7. Mrs Pidi’s amended defence also made assertions about the validity of the mediation agreement which antedated the LLC order. However, as the learned primary judge noted, there was never any appeal against or challenge to the validity of that order by any party, or purported party, to that mediation agreement.
8. The grounds of appeal are prolix. The first three in one way or another assert that a misdescription, admittedly present in the reasons for judgment of the primary judge, of these two orders as “Local Court orders” is, in itself, an error of law. A mere misdescription would be but an error of fact, not law, but such a misdescription may be indicative of an error of law as to the meaning and effect of the orders. The other grounds of appeal seek to make out just such a case. As pleaded, they are:
(iv) The learned Judge erred in law when he placed too much emphasis on the fact that there were two conflicting Local Land Court Orders (LLC) when there was only one Local Land Court Order dated the 14thof August 2013 showing the legitimate customary landowner to be the Appellant in his sub clan.
(v) The learned Judge erred in law when he acted in excess of his jurisdiction when he found that Daniel Bitu was a landowner when customary ownership was already determined and awarded to the Appellant and his sub-clan as per the Local Land Court Order of the 14th of August 2013.
(vi) The learned Judge erred in law when he relied on the Village Court Order of the 25th of March 2011 to determine ownership of customary land when the Village Court lacked jurisdiction to determine customary ownership issues, that power being with the Local Land Court as per the Land Disputes Settlement Act 1975, whose Order supersedes the Village Court Order.
Objection to competency
9. As its very name indicates, an objection to competency must go to the jurisdiction, the “competency”, of the court to entertain the appeal: Coca Cola Amatil (PNG) Ltd v Marshall Kennedy [2012]PGSC 52; SC1221 (Coca Cola Amatil). That case also establishes these further propositions. Even if but one of numerous grounds of appeal validly invokes the court’s appellate jurisdiction then the appeal is competent. Save to the extent that their examination is necessary in order to determine whether one or more grounds have permissibly invoked jurisdiction, the court is not concerned on a hearing of an objection to competency with the merits of grounds of appeal. In determining competency, the court is concerned with the substance, not the form, of grounds of appeal.
10. It is not necessary, in the circumstances of this appeal and in order to resolve the objection, to examine views about the nature of an objection to competency divergent to those in Coca Cola Amatil, which were expressed in Rimbunan Hijau (PNG) Ltd v Enei [2017] PGSC 36; SC1605 (Rimbunan Hijau); cfPoio v Puluku [2020] PGSC 59; SC1968, at [65].
11. There are only three substantive appeal grounds – appeal grounds (iv), (v) and (vi).Each concerns the meaning and effect in law of the LLC order and the Village Court order,and whether the National Court had jurisdiction to entertain the appellant’s claim, given that there was a dispute on the pleadings as to the ownership of customary land. They each raise questions of law. That is a permissible basis upon which to invoke the appellate jurisdiction of the Supreme Court: s 4(2)(a), Supreme Court Act 1975. The appeal is therefore competent.
12. Under the guise of her objection to competency, Mrs Pidi also made numerous criticisms of Mr Malawa’s compliance with the practice of this court in relation to appeals, as set out in the Supreme Court Rules 2012, particularly in relation to the preparation of the appeal book. None of these criticisms could go to the jurisdiction of the court to entertain the appeal, given that the notice of appeal, fairly read, raises questions of law. That is not to say that the criticisms are entirely unwarranted, even though Mrs Pidi, by her lawyers, chose to certify the correctness of the appeal book. It is only necessary to highlight two glaring deficiencies in the appeal book. The index to the appeal book is woefully lacking in detail as to its contents, and the appeal book does not even contain a copy of the formal order which is the subject of the appeal.
13. For these reasons, the objection to competency is itself incompetent. It must be dismissed.
The merits of the appeal
14. We turn then to the merits of the appeal. For this purpose, the three substantive appeal grounds may conveniently be considered together.
15. Subject to one necessary and fundamental qualification applicable to this jurisdiction, the leading English text, Clerk & Lindsell on Torts 23rd Ed., paragraph 18.01, offers a satisfactory definition of the nature of the tort of trespass to land, “Trespass to land consists of any unjustifiable intrusion by one person upon land in the possession of another.” The intrusion must, however, be intentional: Public Transport Commission of NSW v Perry [1977] HCA 32; (1977) 14 ALR 273. An intrusion will be justifiable if it is authorised by law. The tort is complete on the occurrence of the unjustified intrusion, no matter how trifling may be the intrusion: Yelloly v Morley (1910) 27 T.L.R.20. It is not necessary that the intrusion result in damage: see, for example, Anchor Brewhouse Developments Ltd v Berkley House (Docklands Developments) Ltd [1987] 2 E.G.L.R. 173.
16. The qualification which must be made in relation to the tort of trespass to land in Papua New Guinea flows from the nature of land holding in this country. Only a very small proportion of land in this jurisdiction is held under Torrens system title and then only by way of leases granted by the State. Most land is held in customary ownership. In turn that means, in relation to land in customary ownership, that a right of possession as understood in England and some other common law jurisdictions is not relevant in Papua New Guinea. Instead, as the Court stated in Rimbunan Hijau, at [27]:
The duty is therefore, upon the State or any other person which may include foreign investors or developers who wish to enter any land in PNG and more so customary land, to first make it their business to ascertain who the true and correct owners are. Once they have done that, they would then be in a better position to enter into meaningful discussions and negotiations with them and get their free and informed consent or approval before entering, occupying and using their land.
17. The learned primary judge directed himself as to the elements of the cause of action for trespass to land not by reference to these elements but rather by reference to the exposition found in Samoua v Aces Venture Ltd [2013] PGNC 149; N5325 as to the elements of the tort of trespass to property other than land. That was responsive to the submissions made to his Honour. However, the learned primary judge was plainly aware of the ramifications of Rimbunan Hijau in relation to what is otherwise the element of possession in relation to the tort of trespass to land, observing, at [9]:
Regarding the requirement actual possession, I refer to the recent Supreme Court case of Ribunan Hijau v Ina Enei (2017) SC 1605. The Supreme Court held that unlike the common law’s position where actual possession is required, it is not necessary to prove possession or actual possession of land in the Papua New Guinea context. I am bound by the said decision, so I must say that I am satisfied, based on the evidence disclosed, that the plaintiff and ‘his clan’ own the customary land.
In relation to customary land, we respectfully agree with that observation.
18. Flowing from the nature of the tort as applicable in this jurisdiction, another issue before the primary judge was whether Mrs Pidi’s entry was justified in the sense that it was with the permission of the owners of the customary land.
19. In the circumstances of the present case, these considerations necessarily entailed a determination as to the ownership of that land. Answering that was also relevant to whether lawful permission had been given to enter that land for the purpose of harvesting timber.
20. At the forefront of Mr Malawa’s submissions was that the ownership of the customary land had been resolved by the LLC order as a sequel to the mediated agreement and that the learned primary judge had gone further than was jurisdictionally permitted when he concluded, at [15]:
In my view, there is evidence which shows that the defendant] [the respondent, Mrs Pidi] did seek the permission of Daniel Bitu [the appellant], who is a landowner and a member of the Tunubuah clan (fact confirmed by the plaintiff himself in his own evidence) which the LLC has also recognised as an owner of the customary land, before she entered the customary land and harvested the logs.
21. On the basis of this conclusion, his Honour found that he was not satisfied that Mrs Pidi had acted without lawful authority in entering the customary land for the purpose of harvesting the logs. He therefore dismissed Mr Malawa’s claim for damages for trespass.
22. The essence of Mrs Pidi’s submissions was that she sought to uphold this conclusion.
23. The learned primary judge considered (at [14]) that there were “two valid but conflicting LLC orders” in relation to the ownership of the customary land. His Honour stated (at [14]):
The first LLC order recognises the Tunubuah clan (main clan) as the owner of the customary land whilst the second LLC order recognises the plaintiff’s sub clan, the Mategamut clan, as the owner of the customary land. And in the evidence before this Court, both the plaintiff and Daniel Bitu confirm the status of their sub-clans.
24. There are, with respect, a number of errors evident in the reasoning of the learned primary judge but it does not necessarily follow from these that the order of dismissal which he made should be set aside. It is to be remembered that the subject of an appeal is the order made by the lower court, not the reasons of that court for the making of that order. By reference to the grounds of appeal and to the reasons of the lower court, a court exercising appellate jurisdiction may be persuaded that the order of the lower court was made in error. If so, that lower court order will be set aside. If, however, the order itself is in law correct on the evidence before the lower court then, albeit that the reasons for making it may not be correct, the appeal against that order must fail.
25. As translated into English, the Village Court order was:
“Decision Court has made is that (Daniel) BituBulunamarwas wrong in that he trespassed onto the land that belonged to the TunubuahClan and cut 67 trees.... ..”
26. Mrs Pidi was not a party to the Village Court proceeding. More fundamentally, the learned primary judge was, with respect, wrong to describe (at [10]) a Village Court as a “competent court” in relation to the customary ownership of land. Under s.43 of the Village Courts Act 1989, a Village Court has limited jurisdiction only in relation to disputes in respect of land:
A Village Court that has jurisdiction over an area in which there is situated any land that is the subject of a dispute as to–
(a) its ownership by custom; or
(b) the right by custom to its use,
may, on the application of a party to the dispute, make an order–
(c) authorizing the use or occupation of the land by one of the parties to the dispute for such purposes and subject to such conditions as are set out in the order; and
(d) where appropriate, prohibiting the use or occupation of the land referred to in Paragraph (c) except in accordance with an order referred to in that paragraph; and
(e) restraining the other party to the dispute from interfering with the authorized use or occupation,or for any other purpose, pending a decision by the Local Land Court or the Provincial Land Court.
[emphasis added]
27. As can be seen, a Village Court’s powers are limited to authorising, prohibiting or restraining the use or occupation of customary land pending, as the words in s 43 emphasised indicate, “a decision by the Local Land Court or the Provincial Land Court”. It is a Local Land Court or, on appeal, the Provincial Land Court which, under the Land Disputes Settlement Act 1975,have jurisdiction to determine ownership of customary land. More particularly and materially, by s 26(a) of the Land Disputes Settlement Act 1975, a Local Land Court has jurisdiction to determine, “a dispute as to an interest in land where the land in dispute is situated wholly or partly within the province for which the Court is established”.
28. The Village Court therefore had no jurisdiction to determine that the customary land belonged to the Tunubuah Clan. The learned primary judge was in error in regarding the Village Court order as one which determined ownership of the customary land.
29. A long line of cases, which may be traced back to The State v LohiaSisia [1987] PNGLR 102 and which were recently detailed in Kuman v Digicel (PNG) Ltd [2019] PGSC 72; SC1851 (Kuman v Digicel), establish that the National Court has no jurisdiction to inquire into or deal with issues relating to disputes over ownership or interests in customary land. That absence of National Court jurisdiction and the related existence of Local Land Court jurisdiction (and Provincial Land Court appellate jurisdiction) extends, as the court held in Siu v Wasime Land Group Incorporated [2011] PGSC 4; SC1107, at [21], to “monetary or financial benefits arising from or associated with or in connection with the use of or with one’s ownership of such customary land and includes financial payments and benefits paid to land owners.”
30. By the approval of the mediation agreement, the LLC order recognised the Mategamut, a sub-clan of the Tunubuah clan, as the owner of the customary land. However, the LLC order and its antecedent mediation agreement had nothing to say about whether Mr Bitu had any right, either on behalf of the Mategamut sub-clan or the Tunubuahclan to grant permission to Mrs Pidi to enter upon the customary land for the purpose of harvesting timber. Neither did it have anything to say about whether, as paragraph 3(d) of the amended defence asserted, the land in question, acknowledged to be customary land, had been purchased by Mr Bitu’s father, BulunamurLogar, from the Tunubuahclan.
31. Even assuming that the subject land had been so purchased so as to make his father, rather than that clan, the owner, a question which would then arise on the defence was by what means Mr Bitu had succeeded to his father’s interest in the subject land?
32. With reference to the Village Court order and to the evidence before him as to clan and sub-clan membership, the learned primary judge stated (at [14]), that the order, “gives ownership of the customary land to the Tunubuah clan which is the major clan of the sub clans where the plaintiff [Mr Malawa] and Mr Bitu come under. That therefore makes both the plaintiff and Mr Bitu landowners of the customary land”. We have already highlighted that a Village Court cannot determine the ownership of customary land, but another error is evident in the quoted passage. His Honour has presumed to hold that Mr Malawa and Mr Bitu are “landowners of the customary land”. But the nature of the ownership of the customary land was for the Local Land Court (or the Provincial Land Court on appeal) to determine and what interest, if any, an individual member of either a clan or sub-clan had in that land was not for the National Court to determine.
33. There were, therefore, multiple issues raised in this case on the pleadings which were within the jurisdiction of the relevant Local Land Court, not of the National Court, to determine. That being so, there was no error in dismissing the proceeding, although his Honour might, alternatively, as occurred in the National Court in Kuman v Digicel, have adjourned the proceeding, pending the determination by the Local Land Court of the issues which were within its exclusive jurisdiction. The order itself being apt, it matters not that our reasons for upholding its correctness differ from those of the primary judge. The appeal must therefore be dismissed.
The Plaintiff is an adult male and a Papua New Guinean citizen and theLeader of Mategamut Hunapokmitim and Matekaka Langaren Sub-clan and may sue and be sued in that capacity.
This is not a statement that Mr Malawa sues in a representative capacity on behalf of either that clan or sub-clan. Paragraphs 5 and 6 of the amended statement of claim inconsistently plead on the one hand that Mr Malawa and the members of his clan are the owners of the customary land and, on the other, that Mr Malawa is the owner of that land. These are not mere matters of form as, whatever the LLC order determined, it did not determine that Mr Malawa, as chairman, was the owner of the customary land.
Orders
________________________________________________________________
Parkil Lawyers: Lawyer for the Appellant
Nelson Lawyers: Lawyer for the Respondent
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