Papua New Guinea Law Reports - 1981
[1981] PNGLR 423
N301
PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]
THE STATE
V
GIDDINGS
(MAGISTRATE OF THE DISTRICT LAND COURT OF LAIAGAM)
EX PARTE TIANGAN KOAN
FOR THE AMBAI CLAN OF LAIAGAM
Waigani
Kearney DCJ
14 May 1981
4 June 1981
24 June 1981
26 June 1981
PREROGATIVE WRITS Certiorari - Application for - Extension of time - Unfettered discretion to extend time in which to apply - National Court Rules O. 90 r. 6.
REAL PROPERTY Ownership of land - Disputed customary interests - Determination by District Land Court magistrate - Proceedings - Practice and procedure on - “As graun” policy not appropriate - Natural justice, requirements of - Land Disputes Settlement Act 1975, ss. 1, 36, 37, 40, 59, 66.
A District Land Court in hearing disputed claims as to customary interests in land under the Land Disputes Settlement Act 1975,
(a)      should ensure that proceedings before it serve the purposes set out in s. 1 of the Act;
(b)      should ensure that all disputants are included in (and not excluded from) proceedings before it;
(c)      should observe the rules of natural justice, the minimum requirement of which is, under s. 59(2) of the Constitution, “to act fairly and, in principle, to be seen to act fairly”, and which includes, inter alia:
(i)       giving notice of the time and place of hearing to all disputants;
(ii)      allowing disputing parties to put their respective cases in each others presence;
(iii)     holding proceedings in public and announcing a decision in public in accordance with s. 37(12) of the Constitution;
(d)      should not adopt an “as graun” policy to determine ownership: such a policy is inconsistent with carrying out the duties imposed by the Act, particularly s. 36(4) which requires the court to “endeavour to do substantial justice between all persons interested, in accordance with this Act and any relevant custom”;
(e)      should adopt an approach which tests the competing traditional accounts by reference to recent and existing facts established by evidence, and deciding, in that light, which of the two competing accounts is more probable;
Lilumpat Land Owning Group v. The Ianu and Sausau Clans of Kranket (Re. Piawai Pig and Masas Islands) [1974] P.N.G.L.R. 235 referred to.
(f)      and must enforce the rights as determined by custom, ascertained in accordance with s. 66(1) of the Act.
The power to enlarge time under O. 90 r. 6 of the National Court Rules in which to bring certiorari is discretionary and unfettered; it must be exercised judicially and in accord with what is just and proper, the applicant having to make out a substantial case along those lines.
Order Nisi for Certiorari
This was an application for an enlargement of time in which to apply for a writ of certiorari to quash a decision of a District Land Court, and return of the order nisi.
Counsel:
I. Nwokolo, for the prosecutor.
A. Mullumby, for the District Land Court Magistrate.
P. Donigi, for the Pialin Clan.
Cur. adv. vult.
26 June 1981
KEARNEY DCJ:  On 18th July, 1979, the District Land Court dismissed an appeal brought by the Ambai clan against a decision of the Local Land Court at Laiagam given on 21st December, 1978, concerning land known as Angaram-Yagenda on the Lagaip District. This land is bounded on the east by the Waim creek, and on the west by the Pumbun creek; it is about ten minutes drive from Laiagam. The Local Land Court had drawn a boundary line through the land, and awarded the eastern part to the Pialin clan, and the western part to the Ambai clan.
The Ambais were dissatisfied with the District Land Court decision. But s. 61 of the Land Disputes Settlement Act 1975 (herein called the Act) provides that District Land Court decisions are final and “not subject to appeal in any way”.
In March 1981 the Ambais came to this Court, applying for a writ of certiorari to quash the District Land Court decision. Of course, rules of this Court provide that such applications cannot be granted unless made within six months. So the Ambais are fourteen months too late. However the court has power to enlarge the six months time-limit.
The result is, then, that the Ambais now seek the following relief from this Court:
(1)      that the Court exercise its power under O. 90 r. 6 to enlarge the six months time-limit by the period necessary to enable the Court to entertain their application for certiorari; and that
(2)      the parties interested in resisting the application be ordered to show cause why a writ of certiorari to remove and quash the District Land Court decision, should not be issued.
On 14th May Dr. Nwokolo appeared for the Ambais and Mr. Mullumby for the magistrate, to oppose the enlargement of time.
Dr. Nwokolo took me through the various affidavits filed and lucidly illuminated the complicated procedural history of litigation involving Angaram-Yagenda land, between the Ambai clan and the Pialin clan. There have, so far, been four court proceedings involving this Angaram-Yagenda land, resulting in four judgments. It is necessary to trace the history of this litigation.
The first judgment is L.L.C. 5/1977, by Mr. S. R. Saga L.L.C.M. It is a reasoned judgment determining the ownership of land and trees, ordering the marking of a boundary between the lands of the two clans, and awarding compensation for the killing of certain clansmen. The magistrate found that the current land dispute had been continuing since 1968, and had cost four lives by 1977. Each clan claimed to have ancestors buried in the land. He ordered an equal division of the land.
The Ambais were dissatisfied with this decision and appealed to the District Land Court. On 16th June, 1978, the appeal was upheld, and the Local Land Court decision was quashed. This reasoned judgment of the District Land Court incorporates interesting testimony from the clans’ representatives. The magistrate considered that the land in question had not been sufficiently identified in the Local Land Court decision, and there appeared to be a critical confusion in the allocation of lands. When quashing it, and sending the case back “for re-hearing, if necessary”, he made certain “recommendations”, mainly directed to the desirability of confining future determinations to “smaller, easily identifiable areas whenever possible”; to the need to see the pattern of actual user of the land; and to the need to physically mark the boundaries. I would, with respect, fully endorse that approach to the determination of rights.
The magistrate did not consider that all the oral evidence need be taken again “if/when this matter is raised again”; and he thought that the existing depositions could be adopted “into the record of a subsequent case”. The dangers of such an approach were to become manifest later. The magistrate considered that the clans would certainly litigate their claims again.
In due course, trouble did erupt again, and the third judgment, was given on 21st December, 1978, by a Local Land Court constituted under s. 22(1)(a) of the Act, Mr. Rimbao, the Local Land Court magistrate, sitting with four mediators. It is this judgment which lies at the root of the Ambai’s present complaint; accordingly, I will deal with it in detail. The disputing clans came to the court, and the magistrate told them he would not take any new evidence from them, but he would use the depositions in the 1977 Local Land Court case, in accordance with the “instruction” (as he put it) of the District Land Court in its judgment of 16th June, 1978. The magistrate interviewed “a number of people” whom he described as “reliable”, seeking “the real traditional boundary between the two disputants, the improvements and their interest, rights usage, occupation and ownership on the disputed land”. He felt that the court was not bound to apply “the rules of law” but should accept the “direction given by the District Land Court”.
The court then met, in the sense that the five members gathered together on their own, late in the afternoon, and considered “how the court will put new boundary, access use, interest, possession, growing, harvesting as required by s. 40”. Apparently, they also had with them, as “advisers”, two persons, “old mediators”, who were related to the disputing clans and had a “fair knowledge of the land”. The court determined in detail, a new boundary line, dividing Angaram-Yagenda between the disputing clans, the boundary line being closer to the west than the east. There was no compliance with s. 36(1)(c) of the Act.
The judgment sets out the different boundary lines proposed by different members of the court during their discussion. Thus Mr. Rimbao would have had the line rather farther to the east. One of the advisers appears to have proposed the boundary ultimately adopted. Mr. Rimbao apparently asked him: “Why giving the land back to Pialin, when there was substantial degree of Ambai occupation, right, and improvements?” The adviser responded that the clans’ dispute was long standing, and he had himself been a member of the Land Demarcation Committee which had marked a boundary agreeable to the Ambais but not the Pialins; and he “firmly believe[d] that both parties will settle peacefully if court adopted his proposal”.
The other adviser agreed; so did three of the other four members of the court.
It is apparent that Mr. Rimbao was uneasy about this boundary line. He pointed out to the members “fully the implications of s. 41” of the Act, which deals with the return in certain circumstances of interests in land to a party presently short of land, who had previously held an interest in the land. He went on:
“I did not see any evidence at any stage by any of the former witness of the (1977 Local Land Court), that Pialin being the former occupier, numerous, generations ago, did not specify why he is disputing this land which is owned occupied have had lot of improvements to the land after Tigan Pup chased them away to Yokonda. I suspect, why Pialin was given fair share of the land in dispute, but no way near to prove such suspicion. (sic)”
Mr. Rimbao then, acknowledging that he knew “little about the land”, agreed with the “vast majority decision”, expressing the hope that the members of that majority would be “honest enough to reach an honest and everlasting decision which will not be disputed again”.
Then appears, after this reasoning, the formal “decision”, which states that the land is divided and—
“Pialins will get fair share of the dispute, as being former interest without any valid reason purporting to support Pialin but to please both sides due to its long standing disputes and the lives which have been claimed from both parties in this dispute.”
The boundary line was then described, by reference to physical features, and the judgment proper concluded, ominously: “The court agreed to arrange with riot squad from Wabag and put the new boundary without telling both parties.”
There is however an additional page of “remarks”, also signed by all the members of that court, written after the boundaries were physically marked next day, the riot squad being there and the parties not being told: “that was to prevent any outbreak of trouble”.
Despite this care to prevent the parties from knowing what was happening, one Pialin representative, a mediator, “did come and I told police to charge him, but police did not”.
Mr. Rimbao became even more suspicious, obviously, of the adviser who had persuaded the majority of the court to fix this boundary line where he recommended it. Mr. Rimbao said this adviser had been told not to be there, but he—”refused, and acted main figure in the team putting boundary on this dispute.”
Mr. Rimbao went on—
“I greatly suspect (the adviser’s) unwarranted involvement but no way to prove. I assume most of members were either fried (?) (quaere ‘afraid’, ‘bribed’), by no way to prove it. I suspected any members of the Local Land Court, (the adviser’s) being present in the team to set new boundary and majorities of the members of the Local Land Court and advisers were related to Pialin clan and land was in fact given to Pialin clan. I wish to allow the appeal and not to take necessary steps to apply Section 4 of (the Act) (sic)”.
This last paragraph may fairly be described as extraordinary. The magistrate was clearly expressing a lack of confidence in the integrity of some of the other members of the court. The last sentence is apparently Mr. Rimbao’s indication that he sees what is wrong in the decision being corrected by the appellate process, rather than by using s. 4 of the Act, which enables certain disputes to be settled by means other than those provided for by the Act.
That judgment was again appealed by the Ambai clan to the District Land Court. By judgment dated 18th July, 1979, the appeal was dismissed and the judgment of the Local Land Court was affirmed. Again it is a reasoned judgment; as I mentioned at the outset, it is this judgment which the Ambais seek to quash by certiorari.
The District Land magistrate found that his earlier “recommendation” —about confining any determination to a particular piece of land—had not been followed, and the Local Land Court had seen that “its responsibility lay in settling the land dispute once and for all by placing a land boundary between them (i.e. between the disputing clans) throughout the Angaram-Yagenda area”.
The magistrate recounted earlier attempts to resolve land disputes between these two clans. He considered that the Local Land Court had adopted the correct approach, in placing a boundary line throughout the entire disputed land.
The magistrate dealt with nine grounds of appeal raised by the Ambai clan; these grounds are not all explicit, but some reasonably appear from what the magistrate said.
One was that the boundary had been marked “without their presence”. The magistrate agreed; he noted that the Pialin “were excluded as well”. He considered this approach “a sound move motivated by considerations of security, given the troubled past in this area”. He considered that the only requirement was that “both parties know where the boundary had been placed”, a requirement which “was fulfilled”; and there was no requirement that the parties “accompany the court while the boundary was being placed”.
With respect, I do not agree; there appears to have been a clear breach of the mandatory requirements of s. 43(3) and s. 43(4)(b) of the Act.
A second ground appears to have been that this Local Land Court was not conducted properly with a view to doing justice between the parties. The magistrate rejected this, and correctly so, insofar as any personal slur on Mr. Rimbao may have been implied. However, I consider that the proceedings were not conducted properly; far from it. First, the procedure adopted did not serve the purposes of the Act, as set out in s. 1; the disputants were excluded rather than involved. Under s. 36 a Local Land Court is fairly untrammelled as to its decision-making procedures; but, having informed itself on the questions before it, it failed to comply with the mandatory requirement of s. 36(1)(c). It may have failed to comply with the mandatory requirements of s. 37(1). There is nothing in the judgment of the Local Land Court to indicate that the provisions of s. 40(2) were complied with.
A Local Land Court is required to observe the rules of natural justice, when conducting its hearing; that appears, a little indirectly, but very clearly, from s. 59(b). The minimum requirement of those rules is set out in Constitution s. 59(2): “to act fairly and, in principle, to be seen to act fairly.” Failure to allow the disputing parties to put their respective cases in each other’s presence, is a breach of those rules. So was the failure to give notice of place and time of hearing.
Failure to hold the proceedings in public—indeed, there may not have been any “proceedings” at all—and announce the decision in public, is a breach of the Constitution, s. 37(12).
A third ground appears to have been that the mediators were corrupt. The magistrate rejected this as a “mere allegation”. It does not appear what form the hearing of the appeal took, and whether the Ambais were invited to substantiate the grounds upon which they relied; it may be assumed that this was done. However, in the light of Mr. Rimbao’s comments quoted above, it is quite impossible for it to be said that justice was seen to be done. To the contrary, Mr. Rimbao’s comments are sufficient reason to require a conclusion that the Local Land Court decision cannot stand; it cannot be seen to have acted in good faith and fairly listened to both sides.
The other grounds relied upon by the Ambais do not clearly appear.
The District Land magistrate then proceeded to discuss the history of the various boundary lines. In considering the validity of the boundary line as fixed by the “Rimbao” Local Land Court, he said: “... mediation policy in the Lagaip District is to find in favour of the ‘as graun’ (original owners) of land under dispute.”
If I may say so, that is a surprising policy; if it has been applied efficiently, it could be responsible for a great deal of the Highlands tribal fighting in recent years. Indeed, I believe it is a matter which would bear urgent investigation; for five years or so, this system has been operating for good or ill, and this application is the first time the system has been opened up to examination by the ordinary courts.
The purpose of the Act is to provide machinery to settle “disputes in relation to interests in customary land”. An “interest” is one recognized as such by the custom of the people in the area: see definition s. 2. The range of such interests is very wide; see s. 40(3). The Act is almost wholly a machinery Act. Section 36(d) requires the Local Land Court to—
“endeavour to do substantial justice between all persons interested, in accordance with this Act and any relevant custom.”
Section 67 directs the Land Courts to “decide any matter ... in accordance with substantial justice”. It is highly doubtful whether the adoption of an “as graun” policy to determine ownership is consistent with carrying out the statutory duty in s. 36(d); or with s. 40(2)(b), or s. 40(2)(a) for that matter.
Moreover, the “as graun” policy does not appear to be consistent with s. 41, which appears to contemplate that customary interests may be lost over time. An “as graun” policy is not consistent with the factors spelled out in s. 45(4), which a court must observe when deciding whether or not to vary an order; those factors appear by implication, to go closest to a legislative prescription of the determining factors upon which a court must act when making an order, which then, by s. 45, becomes conclusive evidence that the customary interests specified are vested in the groups named.
The presumption in s. 65 also works against an “as graun” policy. It may be, of course, that in Enga the Local Land Courts have consistently found, in carrying out their duty under s. 66, that the relevant custom is an “as graun” principle. I doubt that.
The fixing of the criteria upon which turn the decisions as to customary interests in land, is crucial. It has been much discussed: see, for example “Problem of Choice”[dclxxxii]1. Where a clan in Kerowagi had acquired land by conquest and effective occupation prior to Government control, it was regarded as owner, by Simbu custom: see Wena Kaigo v. Siwi Kurondo[dclxxxiii]2. In that case, Saldanha J. said of such conquest and effective occupation at p. 38:
“... It is the only practical and sensible basis upon which ownership of land can be recognized otherwise a tribunal would be faced with the impossible task of going back to the mists of time in order to ascertain who are the rightful owners of disputed land.”
Insofar as one must embark upon the “impossible task of going back to the mists of time” I support the approach mentioned by the District Land Magistrate when reviewing the first judgment (see p. 425, infra). That approach—of testing competing traditional accounts by reference to recent and existing facts established by evidence, and seeing, in the light of that, which of the two competing accounts is more probable— has been adopted in the case-law. See Re Veakabu Vanapa[dclxxxiv]3 and Lilumpat Land Owning Group v. The Ianu and Sausau Clans of Kranket Re Piawai, Pig and Masas Islands[dclxxxv]4. In the present case, it appears that the Ambai’s claim was treated, at least by the District Land magistrate, as being one based on occupation in “tribal fighting days” when the Pialins had been driven off the subject land by a third group. This carried “no traditional rights to land”.
Despite this, the magistrate’s own view was that the boundary line should be fixed along the Titipank creek, somewhat to the east of the Rimbao boundary, that creek having been administratively fixed as the boundary by a “kiap” some sixteen years ago. However, it appears that he sat with assessors, who were land mediators “adjudged by the contestants to be acceptable as Assessors”; that is provided for by s. 48(2), the function of an assessor being “to advise (the court) on any matter on which it requests his advice”. The assessors considered a Titipank creek boundary was “unacceptable”, and that the Rimbao boundary “was the most fairest that the Ambai could reasonably expect and that the District Land Court should not tamper with it”. The District Land Magistrate regarded this as “very compelling advice” and mainly for that reason plus “the fact that I could find no serious irregularities in the Rimbao court”, dismissed the appeal.
He stated that he “relied upon” much of the “witness evidence” as recorded by the 1977 Local Land Court, and described its nature. He found that—
“The Ambai claim remained based on ancestral occupation over many generations. The Pealin claim remained based on prior occupation.”
The mediators—presumably who were also the assessors—were “of one mind that the Pealin had the better claim based on prior ancestral occupation”. Irrespective of where the truth as to prior occupation lay, he found—
“... the Rimbao Court was working within its jurisdiction when it decided to divide the disputed land.”
citing s. 40(5)(b) of the Act, which relates to the division of land in dispute, or the declaration of a boundary.
It is somewhat difficult to see how that can be so. It appears that applying the “as graun” principle (rightly or wrongly) the land belonged to the Pialins. In making its order, the Local Land Court was bound to “apply the customs of the area concerned”; s. 40(1). There is no suggestion that consideration was given to s. 40(2)(b), or to s. 40(3). Section 40(5) is a pure machinery provision, and the orders which it enables to be made must implement the findings which the Local Land Court makes. It is not a separate head of power which enables the court to ignore those findings. I do not think that either s. 36(d) or s. 67 takes the matter any further, and the rights as determined by custom ascertained in accordance with s. 66(1), must be enforced.
The magistrate went on—
“I believe that course of action was its wisest move for even if Pialin land extends as far as the Pumbun Creek they have shown an inability to keep the Ambai out of it and therefore risked losing the rights to some of it.”
Here the magistrate appears to contemplate the existence of some further customary rule, determining ownership rights. The existence of a custom of this type is contemplated by ss. 40(2)(b), 40(4)(b), 41, 45(4), but there is no reference to a determination of the existence of such a custom here, in accordance with s. 66.
Finally, the magistrate considered that notwithstanding Mr. Rimbao’s “hesitancy”, the Local Land Court decision was correct, the boundary it placed was a—”reasonable one given the history of this case, and one of a number of alternative solutions any court acting in good faith might have adopted.”
This concludes the review of the history of this litigation, which I commenced on p. 425.
Before turning to counsel’s submissions, a few general comments in the light of that history may not be out of place.
The effect of the Act is to set up a system for the settlement of disputes, closely insulated from the scrutiny of the law and the usual legal system for the determination of rights and resolution of disputes. Thus lawyers cannot appear before Land Courts except in unusual circumstances; s. 70. And as I mentioned earlier, appellate decisions of District Land Courts are said to be “final” and “not subject to appeal in any way”; s. 61. The Act was intended to provide “just, efficient and effective machinery”, involving the people in settling their own disputes, and using “principles underlying traditional dispute settlement procedures”; s. 1.
No doubt this was to some extent a reaction to the obvious imperfections of the former system of settling disputes by judicial process, a resume of which appears in Ch. 8 of the Goava Report[dclxxxvi]5. See, for example, the Paney Committee Report[dclxxxvii]6 where emphasis is placed on informal mediation processes. The following extract from par. 63 of that Report is of some interest, in relation to the procedures adopted in this case:
“In a recent land dispute in the Wabag area the Land Titles Commissioner actually visited the disputed land and walked around it with the group leaders. Previous to his arrival they had, under the direction of the A.D.C., discussed the dispute between themselves for a week. Once the Commissioner arrived they were prepared to state their case succinctly, he made a decision and it was readily accepted by the disputants. Previous decisions by the Land Titles Commission, usually given in a court room miles from the disputed land, had not been accepted in the Wabag area.”
The point is that the setting up of an insulated system can work injustice.
The Act, it appears, was intended to implement to some degree, the Goava Report (supra); see par. 8.7, recommendation 67, and pars. 8.8-8.12. Possibly, after some six years in operation, its practical working could bear review; see I.N.A. Discussion Paper No. 6 of April 1981, at pp. 55-65, for an excellent analysis.
I now turn to counsel’s submissions, on the question of an enlargement of time.
It appears from the affidavits that some six weeks after the District Land Court decision of 18th July, 1979, the Ambais sought legal advice from Dr. Nwokolo. The only avenue for the Ambais was the possibility of certiorari proceedings, and counsel set about obtaining a copy of the relevant Land Court records at Laiagam. The Ambais sent down some of these papers in mid-September 1979, some two months after the decision. However, it appears that counsel needed further court papers, and in October 1979, some three months or so after the decision, requested the Ambais to obtain them. Photo-copying difficulties ensued, and finally the Ambais made arrangements, in mid-December 1979, some five months after the decision, to have the court papers photo-copied in Mount Hagen. They then sent them down to a clansman in Port Moresby, for delivery to Dr. Nwokolo, but he proved unreliable— a vacation and a death in the family ensued—and Dr. Nwokolo did not receive the papers until early March 1980, some seven and a half months after the decision.
Counsel informed the Ambais at the end of March 1980, some eight and one half months after the decision, that the only avenue to challenge the District Land Court decision was by certiorari proceedings, and this would require the expenditure of a substantial sum. The Ambais did not have enough money. Over the period April-November 1980, they attempted to raise the money. Finally, late in November 1980, some sixteen and one half months after the decision, they instructed counsel to apply for certiorari.
Thereafter, counsel was overseas until late in January 1981 and found on his return that the District Land Court Magistrate was out of the country until 5th March, 1981. It was necessary to give the magistrate notice of the intended application, under O. 81 r. 7. This was done in March, and the proceedings finally instituted by notice of motion filed on 19th March, 1981, twenty months after the decision.
I was referred by Mr. Mullumby to Re Salmon (deceased), Coard v. National Westminster Bank Ltd.[dclxxxviii]7 in support of his submission that the delay here was inordinate and excusable only in part. I consider the “guidelines” in Coard’s case (supra) may usefully be applied.
The discretion to enlarge time is unfettered. It exists, so that injustice may be avoided: it must be exercised judicially, and in accord with what is just and proper, the applicant having make out a substantial case along those lines. The background to this litigation has to be considered. There is nothing before me to suggest that the Pialins are likely to have been prejudiced in any way from this delay in the resolution of an issue which one way or another, has been going on for many years. It is not a case of the dimming of witness’ memory. I do not see that any mischief, let alone irreparable mischief, is occasioned thereby. The very real difficulties which exist for a group of tribesmen outside Laiagam, whose application within a month of the District Land Court decision for legal aid was rejected, have to be borne in mind. The circumstances I have set out reflect the peculiar difficulties of adhering to time-tables in this country. Not all of the delay was due to the Ambais. In all the circumstances, and despite the very substantial period of time involved, I consider that time should be enlarged, and an order made in terms of the relief sought in item 1 on p. 424 of these reasons. I should perhaps add that although the Ambais applied ex parte, I ordered on 14th May that the Pialins be served, applying R. v. Ashford (Kent) Justices; ex parte Richley[dclxxxix]8, in order that they might be heard on the question of whether time should be enlarged. Mr. Donigi appeared for the Pialins on 4th June when the matter was adjourned at his request until 24th June to enable him to obtain instructions. No further adjournment was sought on 24th June.
I turn to the question of whether an order nisi should be granted. The Ambais move on the basis that in several respects the District Land Court acted without or in excess of its jurisdiction, and in breach of the rules of natural justice.
The grant is a discretionary matter. It was not sought to be argued that the District Land Court is not amenable to the writ, no doubt because of the Constitution ss. 155(3)(a) and 155(4).
I do not think it necessary to go into the arguments put before me, in view of the lengthy review of the proceedings which I have earlier set out. I consider that on the materials disclosed in the affidavits and, more particularly, in the record of the District Land Court proceedings which led to its decision of 18th July, 1979, a prima facie case has been made out, and an order nisi to show cause should be made, on the grounds relied upon, in terms of item 2 on p. 425 of these reasons.
I should add that I am of opinion that the appellate proceedings in the District Land Court are inextricably interlinked with the proceedings in the Local Land Court, and infected by the deficiencies in those proceedings.
One final matter, which may ultimately be relevant on costs. Normally, an order nisi is obtained ex parte. However, in these proceedings I had the benefit of fairly full argument, all interested parties being represented. In these circumstances, and in the light of the proceedings before the Land Courts, I intimated to counsel that I considered this appeared to be a case for the exercise of the discretionary power to issue an order absolute for certiorari in the first instance, under O. 81 r. 1. Counsel for the magistrate opposed that approach, on the basis that his client might wish to file affidavits when the time came to show cause. In those circumstances, and as Mr. Donigi had no instructions, I did not take the matter further.
I made the orders on 24th June and these are the reasons therefor. The order nisi is returnable on 24th August, 1981, before the National Court.
Orders accordingly.
Solicitor for the prosecutor: Ikenna Nwokolo & Co.
Solicitor for the District Land Court Magistrate: B. O. Emos.
Solicitor for the Pialin Clan: P. Donigi.

[dclxxxii]A.N.U. Press, Canberra, 1974 ed. P. G. Sack. See esp. P. Chatterton at pp. 13-15; C. W. Kemmerley at pp. 123-124; T. M. Kambipi at pp. 126-133; J. Nilles at p. 139 M. B. Orken at pp. 146-149.
[dclxxxiii][1976] P.N.G.L.R. 34.
[dclxxxiv]Unreported pre-Independence Supreme Court judgment 547, 24th October, 1969 (Frost J.).
[dclxxxv][1974] P.N.G.L.R. 235.
[dclxxxvi]Report of the Commission of Injury into Land Matters; Port Moresby October 1973.
[dclxxxvii]Report of the Committee investigating tribal fighting in the Highlands, Port Moresby, May 1973; see pars 61-70, recommendations 14-18.
[dclxxxviii][1980] 3 All E.R. 532.
[dclxxxix][1955] 2 All E.R. 327.