National Court of Papua New Guinea

exce>except whpt where:

(c) ҈&sdn is r is rred thed the Supreme Court to the excl exclusionusion of t of the Nahe National Court; or

(d) &##160;Supe met emet assjurssjurisdiction under Subsection (4); or

(e)&>(e) #160; &#th0; ower of review is reis removed by a Constitul Lawn Acthe Parliament.”

And the juhe jurisdirisdictionction of the National Court under s. 155 (3) (a) is subject to removal or ictioer s.(3) (c), (d), (d) and and (e).&(e). Because of those Supreme Court decisions (supra), s. 60 Land Disputes Settlement Act is not what s. 155 (3) (e) Constitution envisages. In any case the purportatustatutory exclusion would offend also against s. 155 (4stitution which reads:

“(4) Both the Se Comrt and the the National Court have an inherentpower te, in such circumstances ases as seem to them proper, orders in the nature of prerogative writs and such other orders as are necessardo ju in trcumstaumstances nces of a of a particular case.”

Needless to say, s. 155 (4) Constitution would only be resorted to where there were no specific provisions of the Constitution for the enforcement of guaranteed rights (e.g., s.57): See, per Kidu CJ in Avia Aihi v The State (p. 86 supra). In the same case,Honour Keur Kearney DCJ considered this provision as giving an “unfettered discretionary power both to this Court and the National Court so as to tailor their remedial process to the cirances of the individual casl case as to ensure that the primary rights of the parties before them are protected”. His Honent on to provide tide the rider that s. 155 (4) cannot affect the primary rights of the parties: they are determined by l. 87 supra). I respectfully agree wiesethese opinions. The helpful nts of s of thof the learned authors of The Annotated itution of Papua New Guinea (pp. 345-346) are referred to here in this respect.

So, >So, whilst I am in agreement with my sister Do J as to the original jurisjurisdiction of the Local Land Court over disputes in relation to interests in customary land, the National Court has review jurisdiction by virtue of s. 155 (3) (a) Constitution through the use of Order 16 NCRs procedures. And,ourse, only after all all the avenues under the Land Disputes Settlement Act have been availed of and exhausted. Now, getback is immediate iate case, that is exactly what was being done, or intended and sought, wht, with the OS 91 of 1992 proceedings.&#1o once leave was granted to Tita Puran to apply for judicial review (in the OS 6 (L) proceeroceedings of 1993), that is what the lawyers ought to have done. In they initiated the orig originating summons in OS 42 (L) of 1993.

It would appear to me, through the perusal of the somewhat scanty “transcripts” from both the Local Land Court and Provincial Land Court proceedings, that the first court’s decision merited appeal to the second court under the provisions of the Act, and, that the decision on appeal of the second land court was ripe for review by the National Court.

Section 39 of the Land Disputes Settlement Act sets out, in a very exhaustive fashion through subsections (2) to (6) the orders the Local Land Court has to make, applying the relevant custom in respect of a host of interests in or to the subject land, and taking due account of certain specified factors and considerations. The learned magistrate (assisted by two mediators) misapprehended his functions, and powers, and thereby completely ignored s. 39 in his decision-making process. He never took into accoele relevant factors and made no orders that the law required him to make. For a dispute that ied inid initially several individuals from two clans, and whe usual potential to attract other individuals and clans, ans, it did not involve much of a hearing (if the scanty “transcript21; or depositions on the fthe file are any indication). In theit only attracted thed this from the magistrate:

“The rights and interests over the land Regitamut (sic) is vested on Nintzip Clan. The ownership sted on Nint Nintzip Clan.&;

This is just not gnot good enough, and thus not in the spirit and intent of the Act, not to mention the specific expectationtained therein (under s. 39). Turt also did not not advt advert to the powers under s.40 - order relating to return of former interest. It is not as if therenot bnot been any judicial precedents on the purpose and operation of this legislation. As a diresult of the exercexercise of jurisdiction under the Act by both the Local Land Courts and the Provincial Land Courts a few casve found their way to the National Court for review.

The first of these reported casd cases was The State v District Land Court, Ex Parte Caspar Nuli [1981] PNGLR 192. This was a decisf his Hono Honour Bredmeyer J on an application for certiorari to quash a decision of the District Land Court (now the Provincial Land Court) on appeal from the Local Land Court. His Honound was an error rror of r of law demonstrated on the face of the record, so ruled that certiorari lay. The error was that thrned District Land Court magistrate purported to “affirm the order with slight variatariations” when he had no powedo sor nder the then s. 60 (now s. 59 which sets out the powers of the appellate court).&#1). The pron reads as follows:lows:“(1) In determini a anal peder nder this Division, a Provincial Laal Land Court may:

(a) & affirm the o der;p> (b)p>(b) ـ quash the order andr and:

(i) &##160; s60; such or e inonini thof the Court, will dispose of the appeal and the disputispute; ore; or

(i

(ii) where, in the opini the , jusdemands that the matter or part of the mattematter of r of the athe appeal be remitted to the Local Land Court, remit the matter, or that of thter t Locad Coup>

(2)  &1600 In remittimitting a matteratter to a Local Land Court under Subsection (1) (b) (ii), a Provincial Land Court may give such instructions, directions or guidelines to the Court as to the manner in which the matter remitted is to be dealt with as it thinks proper.”

In the case of The State v Giddings, Ex Parte Tiangan Koan 1981 PNGLR 423, an application was made to quash the decision of the then District Land Court by certiorari. His H Kearney DCJ granted nted the application and issued an order nisi to show cause why certiorari should not be issued. It shouldoted that the appe applicatn this and the last case were made pursuant to the old rule rules for prerogatives writs before the incorporation of Order 16 into thsent NCRs. The District Land Coad disd dismissed the the appeal against the decision of the Local Land Court, which decision his Honour found to have been arrived at from deficient proceedings. His Honour found that the tory requirequirements of s. 39 had not been complied with (as in the present case, supra). Theeedings had not been coen conducted with a view to doisticeeen the parties, and that the procedure adopted bted by they the learned magistrate did not serve the purpose of the Act, as set out 1, which reads:

&#8p>“The purpose of the Act is to provide a just, efficient and effective machinery for the settlement of disputes in relation to interests in customary land by:

(a) &#encouraging self-relianceiance through the involvement of the people in the settlement of their own disputes; p>

(b) ـuse o prnns undng trng traditional dispute settleettlement ment proceprocesses.sses.”

And this underlying purpose is adverted to again in th itse. 35 d), enjoining the Local Land Court to endeavndeavour tour to do o do substantial justice between all persons interested, in accordance with this Act and any relevant custom (subject to s. 40, supra).

After the incorporation of the Order 16 applications for judicial review in the 1983 NCRs., the case of Augustine Olei v Provincial Land Court [1984] PNGLR 295, came before his Honour McDermott J. seeking order certiorari. On the issue of locus i hidi his Honour held that (from the Headnotes):

“(1) A person may have sufficinnt interest within s. 16 (sic) of National Court Rules to maintain proceedings fdicial review in the natureature of certiorari and prohibition, notwithstanding that he was not a party to the decision under review, provided he is a person aggrieved by the decision.

In re Portion 56 Morobe [1971]-1972] PNGLR 442 at 450, applied.

(2) ټ Accordicordingly, that a person had sufficient interest to maintain proceedings for judicial review where the efof a decision of the Provincial Land Court (formerly District Land Court) made without juri jurisdication, was to deprive the person of the right to claim ownership or possession of the land the subject of the decision.”

In relation to the purpose of the Act, his Honour said this (at p. 296):

“On 5 June 1975, new legislation, the Land Disputes Settlement Act (Ch No 45) became operative. This provided that disputes concerning customary land be settled or determined in accordance with new machinery provisions and courts established under the Act. It provi system of mediatidiation and agreement through land mediators, the hearing of disputes as to interests in land by local land courts and an appeal jurisdiction in a Provincial Land Court.&#822>

In 1989 his Honour Barr Barnett J gave his decision in another application for judicial review of a decision of the Provincial Land Court quashing a decision of the Local Land Court: Theication of Nango Pinzi inzi [1988-1989] PNGLR 464. The judgmentmphasises the the purpose of the Act and sets out in detail what the Provincial Land Court must do, under the Act, on an a fromLocal Land Court ourt (see: ss. 39,50,58 and 67).

Now, getting back to the present cent case, s. 41 of the Act requires the Local Land Court magistrate to explain his reasons for the don and state clea clearly the terms of his order(s), “in the presence of the parties to the dispute” (subsection (1)). Nowhere in the “transcripts” or depositionshe hearing can I find any eany evidence that this requirement was complied with. Nor can I find evidof due due compliance withrequirements of subsection (2) which reads:

“(220;(2) &##160; On making an order rder under this Part, other than aorary order under Section 30, the Court shall give notice oice of the terms of the order in such form as it thinks fit, in accordance Section 71.”

>

One of the parties, Tita Puran, was, therefore, understandably “aggrieved” enough to avail himself of the appeal procedures under ss. 54 and 55 of the Act. But unfortunately for hhe the Provincial Land Court misapprehended its jurisdiction, its powers, and did not detect any errors on the part of the Local Land Court (as I have demonstrabove). The appeal was, therefoism dismissed with theh the briefest of reasons:

“Grounds of appeal not established. All what (sic) witnesses Appellant Puran called did very little to establish that the Local Land Court did conduct its hearings in a manner contrary to natural justice.”

Section 58 of the Act sets out clearly the four main grounds for appeal that appellants can utilise to challenge the decision of a Local Land Court. It is my opinion what I ha I have outlined as default on the part of the initial “hearing” would fit in comfortably with any of those grounds. Section 59 setsthe p of thof the Provincial Land Court on appeal. It0; It is my opialso that that the learned appellate magistrate ought to han the light of what the learned Local Land Court magistrate did and did not do (as I have dave demonstrated here), remitted the dispu the first court under s. 5 s. 59 (1) (b) (ii), accompanied by instructions, directions or guidelines as envisaged by subsection (2). He did not do those thingd, and, therefore, his defective, faulty, decision-making was ripe for judicial review.

The proceedings OS 42 (L) of 1993 should never have been brought. This proceedings were misconceived and mischievous from the outset. As my brother Sevua J, afier citing the relevant authorities and the procedural rules, properly concluded: “throceedings amounted to an abuse of the process of the CourtCourt” because the applicant was seeking relief(s) in customary land, matters which the National Court had no jurisdiction to entertain at that juncture (p. 5 jud). This conclusiolusion is repeated in his Honour’s judgment on the very next page. But his Honour went on to n to say this (on p. 8):

With respect, it is this concludint of his Honour’s judgment that has contributed to my being involved in this matter.&ter. This “second” OS 42 (L) of 1993 proceedings should never have been brought. And ifd been involved in t in this “second” proceedinom the outset, I would have, in the exercise of my “inherent” jurisdiction to c to control the procedures and proceedingshe court, upon my own initiinitiative, if the other party failed to file the necessary application(s) to object (under Order 12, r. 40 NCRs), dismissed it. Justhe “first”8221; OS 42 (L) proceedings qualified for dismissal pursuant to Order 12, r. 40 NCRs, so did this for the very same reasons.

Since the subject-matter of the “first” OS 42 (L) of 1993 proceedings took the matter out of the jurisdiction of the National Court, there really was nothing left to “stay”, “remit” or “refer” to any other tribunal. The jurisdictional question having been answered, there was, therefore, strictly speaking, no dispute inter partes in the National Court. And the originatimmons wits with the pertinepporting documents that constituted OS 42 (L) could not be t be referred to the Local Land Court because that tribunal has no jurisdi to entertain National Court processes.

And so when when the lawyers for these applicants saw “and the parties are at liberty to apply” coming at the end of his Honour’s judgment, they must have gleefully taken this as an invitation to have “ a second bite at the cherry”, to regurgitate the same issues as in the “first” proceedings. Liberty is the power of doing what is allowed by law. If the lys the Local Land Land Court has original jurisdiction to entertain and determine disputes over interests in customary land under the Land Disputes Settlement Act, then what is there for the ps to have “liberty toty to apply” for? The “s” proceeroceedings had reached the stage where the purported pleadings had concluded and the written submissions of the parties had been filed when I came on the scene, as it were, to red rule on the application.

If there is anything that the lawyers for the present respondents can be said to have done properly in this whole National Court litigation that now can conveniently be described as the Ragitamut Land Dispute, it is their submission that this application should be dismissed with costs against the applicants.

And I so order the dismissal of the application in the “second” OS 42 (L) of 1993 proceedings with the ancillary order for costs as sought.

As for what happens now, for the parties, in view of the continuing lack of certainty and finality in the determination of their disputes, because of the quite unnecessary journeys through the labyrinth of National Court applications and motions, returning to the judicial review option offered by Hinchliffe J back in May 1993 with the grant of leave to Tita Puran (which offer/option was not taken up) would seem to me to be the only course of action available now. And, in ight of what I havI have said about the Local Land Court and Provincial Land Court proceedings, I would think that any member of the Nintzip and Zumang Clans, al as any other individuals associated in some customary wayy way with the subject piece of land, would be “aggrieved” and “interested” enough under the Act and Order 16 NCRs to be entitled to seek judicial review: See per McDermott J in Augustine Olei v Provincial Land Court (supra).

Lawyers for the Applicants: Godfrey Langtry Lawyer

Lawyers for the Respondents: Warner Shand Lawyers