N8915

PAPUA NEW GUINEA              
[IN THE NATIONAL COURT OF JUSTICE]

OS (JR) NO. 212 OF 2014

BETWEEN:
FRANCIS KARAIE for and on behalf of the Kumetangigi Clan
Plaintiff 

AND:
KEVEN PURUNO for and on behalf of the Ipulumai Nombunombu Clan
First Defendant

AND:
VINCENT LINGE sitting as Mendi Provincial Land Magistrate
Second Defendant

AND:
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Defendant

Ialibu & Mendi:  Kassman, J
2016:  19th May, 10th August & 18th November

JUDICIAL REVIEW – application to review decision of Provincial Land Court – preliminary issues raised by the first defendant supported by second and third defendants- whether this court has jurisdiction to hear the preliminary issues raised below by the Defendants - If this court has jurisdiction , whether the referral by the National Land Commission to the Local Land Court lawful and did the Local and Provincial Land Court have jurisdiction to hear and make the various decisions in this matter – S 155 (3) & (4) Constitution gives jurisdiction to the National Court and Supreme Court to review any exercise of judicial authority and make any orders – National and Supreme Court also have inherent power to make, in such circumstances as seem to them proper, orders in the nature of prerogative writs and such other orders as are necessary to do justice in the circumstances of a particular case – all preliminary issues raised by the defendants were refused – costs awarded to the plaintiffs.

Case Cited:

Kekedo –v- Burns Philip (PNG) Ltd and Others [1988-89] PNGLR 122
Mauga Logging Company Pty Ltd v. South Pacific Oil Palm Development Pty Ltd (No. 1) [1977] PNGLR 80

Legislation Cited:

Constitution Sections 155(3) and (4) and Section 166
National Land Registration Act c. 357 Sections 11, 12 and 13, and 43 
Land Registration Act
Land Disputes Settlement Act c.45

Counsel:

Veronica Yobone, for the Plaintiff
Peter Sapu, for the First Defendants
Jacinta Bamin, for the Second and Third Defendants

DECISION 

18th November, 2016

1.	KASSMAN J:  The Plaintiff applies for judicial review of a decision of the Mendi Provincial Land Court made by His Worship Vincent Linge on 17 February 2014.  The Mendi Provincial Land Court matter or file is referenced Appeal No. 2 of 2011, In the matter of a Provincial Land Court Appeal and In the matter of Kimpulu/Kumepugl Land and Between Torombena Puruno for and on behalf of himself and the Ipuluma Nombu Nombu Clan, Appellant and Francis Karaie for and on behalf of himself and the Kumetagigi Clan Respondent.  The written decision of the Learned Magistrate His Worship Mr Vincent Linge comprises twenty-one pages and can be found at pages 26 to 49 of the Review Book and is an annexure to the affidavit of Francis Koraie filed 23 April 2014.

2.	This proceeding was filed in the National Court in Madang on 23 April 2014.  Leave for judicial review was granted by the National Court in Madang on 11 July 2014.  The court file was transferred to Mendi by order of the court of 9 September 2014. 

3.	In Kekedo v Burns Philip (PNG) Ltd and Others [1988-89] PNGLR 122 at 124, the National Court set out the principles applicable on an application for judicial review of administrative or quasi judicial decisions or actions. “The circumstances under which judicial review may be available are where the decision-making authority exceeds its powers, commits an error of law, commits a breach of natural justice, reaches a decision which no reasonable tribunal could have reached or abuses its powers”.

4.	In the originating summons filed 1 August 2014, the Plaintiffs sought the following orders: 

1.	Order’s in the nature of CERTIORARI that the Mendi Provincial Land Court decision made on 17th February, 2014 by presiding Magistrate, Vincent Linge, be recalled before this Honourable Court to be reviewed and quashed, and

2.	An interlocutory Order that the Defendant, his tribe and its members are restrained from  causing any threat, violence intimidation and or causing any hard to the Plaintiff his family members, and members of his tribe as a consequence of the decision or the outcome of this Judicial Review, and

3.	An Interlocutory Order that the Defendant, his tribe and its members, supporters and wantoks are further restrained from causing and or damaging the Plaintiff’s property and properties of any of the tribe members of the Plaintiff, as a consequence of the decision or the outcome of this Judicial Review

4.	A Declaration that the Local Land Court decision by Magistrate Robert Teko made at Ialibu Southern Highlands Province, on 12th May 2011, be respected by all parties and enforced and, or

5.	An Order that the matter be referred back to the Provincial Land Court for rehearing of the Appeal subject to the following prerequisites – 

a.	The appeal be heard at Mt. Hagen Provincial Land Court by a Senior Land Court Magistrate to be appointed by the Chief Magistrate

b.	All expenses of the rehearing of the appeal be met from the Magisterial Services Funds not from funds sourced by parties to these proceeding or then their supporters and or companies associated with the parties to these proceedings.

5.	The Documents before the court for hearing on 19 May 2016 were the Review Book filed 19 May 2015 [# 52], the Plaintiff’s Submission filed 2 February 2016 [# 6], the first Defendant’s submission filed 16 March 2016 [# 63] and the second & third Defendants’ submission filed 19 May 2016 [# 64]. The court noted a number of preliminary matters were raised in submissions by the First Defendants filed on 16th March 2016. Those matters were also addressed by the Second and Third Defendants in submissions filed 19 June 2016.  Those preliminary issues were not addressed by the Plaintiff in their written submissions filed on 2 February 2016.  It was then agreed this court should first deal with the preliminary matters before hearing the substantive matters raised in the Plaintiffs’ originating summons.  It was also agreed these issues should be better articulated and thoroughly considered in detailed written submissions from all parties. 

6.	The two preliminary issues were (a) Does this court have jurisdiction to hear the preliminary issues raised below by the Defendants? (b) If so, was the referral of 24 August 2000 by the National Land Commission to the Local Land Court lawful and did the Local Land Court and Provincial Land Court have jurisdiction to hear and make the various decisions in this matter?

7.	The defendants argue; (i) The State issued Notice of Intention to Acquire the land by gazettal notice G72 on 5 September 1996, (ii) Any party aggrieved or wishing to make representation, including the Kumetangigi Clan, to the Minister had 60 days to lodge such representation pursuant to Section 12 of the National Land Registration Act, (iii) No such representation was made by anyone including the Kumetangigi Clan,  (iv) The land was declared as State Land by Declaration published in gazettal notice G30 on 25 February 1999, (v) The claims and representations by the Kumetangigi Clan are time-barred, (vi) Further, the claims and representations by the Kumetangigi Clan should have been lodged with the Minister and Attorney General.  The claims and representations by the Kumetangigi Clan were lodged with the National Land Commission and, as such, are void, (vii) Furthermore, claims for settlement payment under the Land Registration Act apply only to land acquired prior to Independence (16 September 1975).  The land in issue before this court was acquired by the State on 25 February 1999 which is a date after independence.

8.	Parties were then directed to file further submissions addressing those issues. The First Defendants filed submissions on 7 June 2016.  The Second and Third Defendants filed submissions on 28 July 2016.  The Plaintiffs filed submissions on 18 July 2016.  The hearing was conducted on 10 August 2016.

(a)	Does this court have jurisdiction to hear the preliminary issues raised below by the 	Defendants?

9.	The Constitution provides this court with the foundation and authority to hear and determine the preliminary issues.  Section 155(3) provides “The National Court – 

(a)	has an inherent power to review any exercise of judicial authority; and
(b)	has such other jurisdiction and powers as are conferred on it by this Constitution or any law, except where – 
(c)	jurisdiction is conferred upon the Supreme Court to the exclusion of the National Court; or 
(d)	The Supreme Court assumes jurisdiction under Subsection (4); or
(e)	The power of review is removed or restricted by a Constitutional Law or an Act of the Parliament

10.	Further, Section 155(4) provides “Both the Supreme Court and the National Court have an inherent power to make, in such circumstances as seem to them proper, orders in the nature of prerogative writs and such other orders as are necessary to do justice in the circumstances of a particular case.” And Section 166 provides “Subject to this Constitution, the National Court is a court of unlimited jurisdiction.”  

11.	The Supreme Court and National Court have an inherent constitutional supervisory jurisdiction that cannot be ousted by provision of statutory administrative alternate remedies.  In Mauga Logging Company Pty Ltd v. South Pacific Oil Palm Development Pty Ltd (No. 1) [1977] PNGLR 80, the National Court said “I do not consider that the power to make “Such other orders as are necessary to do justice in the circumstances of a particular case” can be confined to matters of procedure only.  Giving the words their fair and liberal meaning as required by the Constitution, Sch. 1.5.(2), the provision, in my opinion, extends to jurisdiction also, and enables a court to make an order in the nature of an interlocutory injunction, if the requirements of the section are met, even although no jurisdiction to make the order exists under the principles of common law or equity.  The express reference “to the circumstances of a particular case,”, in my opinion, leave no room for a more restrictive construction to be adopted”.

12.	I am satisfied that I have the jurisdiction to hear the preliminary issues raised by the First Defendants.

(b) Was the referral of 24 August 2000 by the National Land Commission to the Local 	Land Court lawful and did the Local Land Court and Provincial Land Court have 	jurisdiction to hear and make the various decisions in this matter?

13.	There is no dispute to the fact the land in issue is registered as Portions 201, 202 and 203 Milinch Kaugel Fourmil Karimui (“the land”) and that is where the Paunda Hydro Scheme is located in the Southern Highlands Province. It is also not disputed that the land was compulsorily acquired by the State by publication of a declaration in the National Gazette No. G30 on 25 February 1999.  The State also claims it has been in occupation of the land since 1980 principally through the PNG Electricity Commission which is now known as PNG Power Ltd.    

14.	Following the declaration that the land was National Land on 25 February 1999, the First Defendants lodged a claim for settlement payment with the National Land Commission.  On 8 August 2000, the National Land Commission admitted the First Defendants claim and issued an Order for Settlement Payment for an amount of K950,000 payable to “MESSRS MICHAEL KEREPA, TOROMBENA PURUNO, SAMUEL ANDOIYE spokesmen/landowners who shall cause the sum distributed accordingly to the Customary Land Tenure System practiced locally.” Soon after, the Plaintiffs made representation and claim to the National Land Commission in respect of the land and the award made to the First Defendants.  On 24 August 2000, the National Land Commission wrote a letter to the Senior Provincial Magistrate in Mendi referring the “Paunda Hydro Scheme Land” dispute to that court pursuant to Section 43 of the National Land Registration Act for determination “on the question of ownership over the land”. 

15.	The First Defendants, supported by the Second and Third Defendants, raise three issues and I will deal with them in this sequence:

a.	They argue the Plaintiffs’ claim to the National Land Commission is time-barred.

b.	They also argue the Plaintiffs’ claim, if any, should have been made to the Minister and not the National Land Commission.

c.	They also argue the National Land Commission erred in law in referring to the Mendi Local Land Court the claim raised by the Plaintiff which contradicts the claim by the First Defendant and the Order for Settlement Payment issued by the National Land Commission of 8 August 2000.

Is the Plaintiffs’ claim to the National Land Commission time-barred?

16.	The defendants argue the State issued Notice of Intention to Acquire the land by gazettal notice G72 on 5 September 1996.  Any party aggrieved or wishing to make representation to the Minister, including the Kumetangigi Clan or the Plaintiff, had 60 days to lodge such representation pursuant to Section 12 of the National Land Registration Act. No such representation was made by anyone including the Kumetangigi Clan.  The land was declared as State Land by Declaration published in gazettal notice G30 on 25 February 1999.  The claims and representations by the Kumetangigi Clan or the Plaintiffs are time-barred.

17.	The Defendants argue there is a distinction between land acquired before and after independence.  Reference is made to Division 2 “Land Acquired before Independence Day” which comprises sections 5 to 10 inclusive and Division 3 “Land Acquired on or after Independence Day” which comprises sections 11 to 13 inclusive of the National Land Registration Act c.357. 

18.	Both Divisions provide the process to be followed where the Minister gives notice by publication in the national gazette of the State’s intention to declare certain land as National Land, any person aggrieved by such notice may make representation within 60 days to the Minister and the power to the Minister to declare the land as National Land by publication in the national gazette.  The process is identical for land acquired before and after independence. Further, I note Part VI of the Act provides in section 39 the process for lodgment to the Commission of claims for a settlement payment by persons aggrieved by a declaration in relation to land acquired prior to independence and land acquired after independence. 

19.	The only difference I read is in section 10(1) which deals with land acquired before independence and which states that the declaration “is not subject to appeal or review and shall not be called in question in any legal proceedings’.  Further, section 10(2) states that “A person aggrieved with a declaration … may make a claim for a settlement payment.” There is no similar provision in Division 3 for land acquired after independence.  Despite this, there is no difference as section 39 gives the Commission the power to consider claims for settlement payment in relation to land acquired before (a section 9 declaration) or and land acquired after independence (a section 13 declaration). 

20.	The time bar argument pursuant to section 12 relates to representations by aggrieved persons following the Minister’s publication of notice of intention to declare certain land as National Land.  From my perusal of the claim documents by the Plaintiffs, they claimed a settlement payment pursuant to section 39.  The Plaintiffs are not making representation in response to the publication of the notice of intention to declare the land as National Land.  The time bar issue raised by the defendants is not applicable and is dismissed.

The claim by the Plaintiffs should have been lodged with the Minister and not the National Land Commission?

21.	My discussion above addresses this issue.  Representation to the Minister is only applicable where a person is aggrieved with the Minister’s publication of notice of intention to declare certain land as National Land.  The claim by the Plaintiffs is one that was made and considered by the National Land Commission pursuant to section 39.  The National Land Commission is the appropriate body which received the Plaintiffs claim.  This issue raised by the Defendants is dismissed.   

Did the National Land Commission err in law in referring to the Mendi Local Land Court the claim raised by the Plaintiff?

22.	The Defendants argue the National Land Commission did not have the power to refer the dispute to the Local Land Court for determination pursuant to the Land Disputes Settlement Act c.45 as the power to make such referral only applies to land declared as National Land prior to independence. 

23.	On 24 August 2000, the National Land Commission wrote a letter to the Senior Provincial Magistrate in Mendi referring the “Paunda Hydro Scheme Land” dispute to that court pursuant to Section 43 of the National Land Registration Act for determination “on the question of ownership over the land”. That was after the National Land Commission had made the order for settlement payment in favor of the First Defendants and soon after the Plaintiffs lodged their claim with the Commission. As discussed above, the claim by the Plaintiffs is one that was made and considered by the National Land Commission pursuant to section 39.

24.	As discussed above, Part VI of the Act comprises sections 39 to 46A and is titled “Settlement Payments”.  Section 39 provides the process for lodgment to the Commission of claims for a settlement payment by persons aggrieved by a declaration in relation to land acquired prior to independence and land acquired after independence.  Where there is more than one claim which are in conflict, Section 43 provides in mandatory terms that the National Land Commission shall “order that the matter of the conflict or inconsistency be dealt with under the Land Disputes Settlement Act as if it were a dispute as to the ownership of an interest in customary land within the meaning of that Act”. Nothing in Part VI particularly in sections 39 and 43 states or provides that those provisions do not apply to land declared as National Land after independence. 

25.	The Land Disputes Settlement Act c.45 is an Act to provide for the settlement of disputes in relation to interests in customary land and for related purposes.  That law provides for the establishment of Local Land Courts and Provincial Land Courts in and for a province and for the practice and procedure of those courts. 

26.	For the reasons stated above, the National Land Commission did not err in law in referring to the Mendi Local Land Court the claim raised by the Plaintiff. 

The Orders of the Court are:

27.	The preliminary issues raised by the First Defendants and supported by the Second and Third Defendants are dismissed.

28.	The First, Second and Third Defendants (in equal parts) shall pay the Plaintiffs’ costs of the determination of the preliminary issues, such costs on a party and party basis to be taxed if not agreed.  

Directions and Listing

29.	The substantive judicial review application is tentatively set for hearing at 9:30am on 6th December 2016 in Mendi, subject to confirmation by counsel for the Plaintiffs and counsel for the Second and Third Defendants. 

Judgment accordingly:
____________________________________________________________________
Yobone & Co. Lawyers: Lawyers for the Plaintiff  		
Tonges Lawyers (after Daniel Kop Lawyers): Lawyers for the First Defendants
Office of the Solicitor General, Mt. Hagen: Lawyers for the Second and Defendants