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National Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
CIA NO 40 OF 2014
CHIEF JOSEPH GENE FOR HIMSELF AND ON BEHALF OF TIGINA CLAN OF UPPER RAMU
Appellant
V
GAMO KOITO FOR AND ON BEHALF OF
KOITO FAMILY OF UPPER RAMU
First Respondent
MATHEW DENGUO TIGAVU FOR HIMSELF AND ON BEHALF OF TIGAVU FAMILY OF UPPER RAMU
Second Respondent
JOSEPH GABUT, BENEDICT BATATA & KUTT PAONGA, COMPRISING THE RAMU NICKEL/COBALT
SPECIAL LAND TITLES COMMISSION
Third Respondent
RAMU NICKEL/COBALT SPECIAL LAND TITLES COMMISSION
Fourth Respondent
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Fifth Respondent
Madang: Cannings J
2016: 23 May
2017: 7 September
APPEALS – appeal against decision of Special Land Titles Commission re ownership of customary land – Land Titles Commission Act 1962, Section 38 (right of appeal) – whether Commission has power to determine distribution of benefits arising from mining project on disputed land – whether Commission obliged to inspect land – whether Commission obliged to take into account a memorandum of agreement of parties – whether Commission observed principles of natural justice – whether proper consideration given to principles of adverse possession.
The appellant appealed to the National Court against the decision of a Special Land Titles Commission that amongst other things declared that an area of customary land was exclusively owned by the first respondent’s family and that the appellant’s clan was only a sub-clan, which had only land use rights over the land, and deciding that the first respondent’s family was entitled to 50% of land use benefits and that the appellant’s clan was entitled to only 5% of those benefits. The appeal was made under Section 38 of the Land Titles Commission Act, on five grounds: (a) the Commission exceeded its jurisdiction by determining how benefits derived from the mining project undertaken on the land would be distributed to the various disputing parties; (b) the Commission erred in law by failing to inspect the disputed land as required by Section 29A(1) of the Land Titles Commission Act; (c) the decision was against the weight of the evidence, which was that the customary practice in the area of the disputed land was that land is owned by clans, not by family groups; (d) the Commission’s decision was wrong in law as it failed to take into account a memorandum of agreement between the parties; and (e) the Commission did not observe the principles of natural justice as it failed to consider the appellant’s submissions on the principle of adverse possession. The respondents raised two preliminary points: first, that the appellant was not a party to the Commission’s proceedings and therefore lacked standing, secondly that the appeal was misconceived as the decision appealed against no longer existed due to a successful appeal against it, in separate proceedings.
Held:
(1) A person does not have to have been a party to the proceedings of a Land Titles Commission to have standing as a “person aggrieved” by its decisions. In any event, the decision of the Commission was evidence that the appellant was a party, not just a witness. The respondents’ first preliminary argument was dismissed.
(2) The fact that the decision appealed against has been substituted by an order of the National Court in a separate appeal does not extinguish the capacity of the appellant to argue his case against the original decision. However, that fact is a matter to be taken into account by the Court in the event that one or more of the grounds of appeal is sustained. The respondents’ second preliminary argument was dismissed.
(3) The Commission has, under Section 15(1) of the Land Titles Commission Act, “jurisdiction to hear and determine all disputes concerning and claims to the ownership by custom of ... land”. A dispute as to distribution of benefits is a dispute concerning ownership of customary land as it is a dispute incidental to a dispute as to ownership. Ground (a) was dismissed.
(4) Section 29A(1) of the Land Titles Commission Act obliged the Commission to inspect the disputed land. The written decision of the Commission was evidence that that obligation was discharged. Ground (b) was dismissed.
(5) The appellant failed to establish that the Commission’s decision was against the weight of the evidence. Ground (c) was dismissed.
(6) There was insufficient evidence that the memorandum of agreement relied on by the appellant represented a meeting of minds of all parties to the Commission’s proceedings. The Commission was not obliged to incorporate the agreement into its decision. Ground (d) was dismissed.
(7) It is correct that (as found by the Court in the related appeal) the Commission did not fully take into account the principle of adverse possession. However, it does not follow and it was not proven that there was a failure to observe the principles of natural justice. Ground (e) was dismissed.
(8) As all grounds of appeal were dismissed, the appeal was dismissed. The justice of the case required that the Court not amend the decision it made in the related appeal, which was confirmed as the prevailing decision.
Cases cited:
The following cases are cited in the judgment:
Application of Ambra Nii on behalf of Toisap Clan [1991] PNGLR 357
First Assistant Secretary, Department of Prime Minister v Michael James Leahy and Highlands Products Pty Ltd (1981) N311 (L)
Gima Raka v Philip Maimu (2013) N5200
John Anis v Nabura Morissa (2011) N4307
Lelete Plantation Ltd v Paul Rame (2007) N5020
Mathew Denguo Tigavu v Gamo Koito & Special Land Titles Commission (2016) N6170
Re Hides Gas Project Land [1993] PNGLR
Re Wangaramut (No 2) [1969-70] PNGLR 410
Stabie Gason v Mangu Clan & Special Land Titles Commission (2016) N6163
Tawindi Clan v Kaimari Clan (1998) N1775
APPEAL
This was an appeal by a person aggrieved by a decision of a Special Land Titles Commission as to ownership of customary land.
Counsel:
B Koke, for the Appellant
G Pipike, for the second Respondent
S Maliaki, for the third, fourth and fifth Respondents
7th September, 2017
1. CANNINGS J: Chief Joseph Gene, for himself and on behalf of the Tigina Clan of Upper Ramu, appeals against the decision of the Ramu Nickel-Cobalt Special Land Titles Commission concerning customary ownership of land at Kurumbukari, Usino-Bundi District, Madang Province. The land is the site of the mine for the Ramu Nickel-Cobalt Project. It is formally described as “‘Nokomboi’, Blocks 3 & 4, ME [Mining Easement] 77, LMP [Lease for Mining Purposes] 44 and Block 79”.
DECISION UNDER APPEAL
2. The Commission decided on 12 August 2013 that:
3. The full text of the decision, which was supported by a 36-page statement of reasons, is:
The Ramu Nickel/Cobalt Project Special Land titles Commission:
¾ The boundary starts at the point where the small Ibindungu Creek meets the Ainagiri Creek and follows Ainagiri Creek upstream and comes up to Warinabunda village where Oro Creek and Ainagiri Creek meet at their head waters, this being the boundary between Nokomboi Clan and Tsringami clan;
¾ The Nokomboi boundary then follows the Oro creek downstream until it meets Gagaio River – this being the boundary between Nokomboi and the Tigina Kwuiava sub-clan;
¾ The Nokomboi boundary then follows the Gagaio river downstream and goes up to Andemi Hill and goes further up to Narekemi Hill – this being the boundary between Nokomboi and Pagaizi;
¾ The Nokomboi boundaries with Immuruba and Maure start at Miai (old village);
¾ The Nokomboi boundary then follows the small Miai creek down to “daun wara” (swamp) and follows the small Ibindungu Creek until it meets the Ainagiri Creek – this being the boundary with Maure clan and where the small Ibindungu Creek meets the Ainagiri Creek is also where the Nokomboi boundary starts and ends there.
APPELLANT’S GRIEVANCE
4. The appellant is aggrieved by the decision. He argues that the Commission should have decided that his family was the exclusive owner of the land, having acquired it by dint of the principle of adverse possession. The appeal is made under Section 38 of the Land Titles Commission Act, which allows a “person aggrieved by a decision of the Commission” to appeal to the National Court within 90 days after the decision.
GROUNDS OF APPEAL
5. Five grounds of appeal are set out in the notice of appeal, filed 23 May 2014:
(a) the Commission exceeded its jurisdiction by determining, in percentage terms, how benefits derived from the mining project undertaken on the land would be distributed to the various disputing parties;
(b) the Commission erred in law by failing to inspect the disputed land as required by Section 29A(1) of the Land Titles Commission Act;
(c) the decision was against the weight of the evidence, which was that the customary practice in the area of the disputed land was that land is owned by clans, not by family groups (it being the Commission’s finding that the land was owned by the first respondent’s family);
(d) the Commission’s decision was wrong in law as it failed to take into account a memorandum of agreement between the parties, contrary to Section 38B of the Land Titles Commission Act; and
(e) the Commission did not observe the principles of natural justice as it failed to consider the appellant’s submissions on the principle of adverse possession.
REPRESENTATION
6. Mr Koke of Parua Lawyers represented the appellant. Gamo Koito was named as first respondent but did not appear at the hearing of the appeal. Mr Pipike of GP Lawyers represented the second respondent, Mathew Denguo Tigavu. The three Commissioners, the Commission itself and the State were named as third, fourth and fifth respondents. They were represented by Ms Maliaki of the Office of Solicitor-General.
PRELIMINARY POINTS
7. Mr Pipike, supported by Ms Maliaki, raised two preliminary points, which he argued warrant summary dismissal of the appeal. First, that the appellant was not a party to the appeal and therefore lacked standing. Secondly that the appeal was misconceived as the decision appealed against no longer existed due to a successful appeal against it, in separate proceedings, CIA No 84 of 2013, by the second respondent, which led to a decision of the National Court of 23 January 2016 being substituted for that decision (Mathew Denguo Tigavu v Gamo Koito & Special Land Titles Commission (2016) N6170).
8. As to the appellant’s standing, a person does not have to have been a party to the proceedings of a Land Titles Commission to have standing (Stabie Gason v Mangu Clan & Special Land Titles Commission (2016) N6163). The appeal is made under Section 38 of the Land Titles Commission Act, which allows a “person aggrieved by a decision of the Commission” to appeal to the National Court within 90 days after the decision. I am satisfied that the appellant is a “person aggrieved”. In any event, the decision of the Commission was evidence that the appellant was a party, not just a witness. The respondents’ first preliminary point is dismissed.
9. As to the second preliminary point, it is correct that the decision appealed against has been substituted by an order of the National Court, made on 23 January 2016, in a separate appeal against the same decision, CIA No 84 of 2013: see Mathew Denguo Tigavu v Gamo Koito & Special Land Titles Commission (2016) N6170.
10. I find that the existence of that new decision does not extinguish the capacity of the appellant to argue his case against the original decision. However, that fact is a matter to be taken into account by the Court in the event that one of more of the grounds of appeal is sustained, in the course of exercising its discretion under Section 38A(2) of the Land Titles Commission Act as to what orders to make in determination of the appeal. The respondents’ second preliminary point is dismissed.
11. I will now consider and determine the five grounds of appeal.
GROUND (a): EXCESS OF JURISDICTION
12. Mr Koke submitted that the Commission exceeded its jurisdiction when it set out the percentage of benefits each of the disputing parties would receive from the land. He submitted that the Commission’s function was to determine the question of ownership of the land and who had the right to use it, but it was not required, and it had no power, to decide on how benefits generated by the land should be distributed.
13. The power to decide on how benefits would be distributed is not a power expressly conferred on the Commission. Its jurisdiction is primarily set out in Section 15(1) (determination of disputes) of the Land Titles Commission Act, which states:
The Commission has, subject to this Act, exclusive jurisdiction to hear and determine all disputes concerning and claims to the ownership by custom of, or the right by custom to use, any land, water or reef, including a dispute as to whether any land is or is not customary land and may make all such preliminary inquiries and investigations as it deems necessary for the purpose of hearing and determining the disputes and claims.
14. However, I decide this issue in the same way as in Mathew Denguo Tigavu v Gamo Koito & Special Land Titles Commission (2016) N6170. The Commission’s “jurisdiction to hear and determine all disputes concerning and claims to the ownership by custom of ... land” is broad enough to encompass determination of the question of distribution of benefits.
15. A dispute as to distribution of benefits is a dispute concerning ownership of customary land as it is a dispute incidental to, and part-and-parcel of, the dispute as to ownership. A determination as to distribution of benefits flows so naturally from a determination of rights of ownership, possession and use of the land as to be properly regarded as forming part of such a determination, and therefore within the jurisdiction of the Commission. I dismiss ground (a).
GROUND (b): FAILURE TO INSPECT THE LAND
16. Section 29A (duty to inspect the land) of the Land Titles Commission Act obliged the Commission to inspect the disputed land. It states:
(1) Subject to Subsection (2), the Commission shall inspect the relevant land during the hearing of a matter at first instance.
(2) The duty imposed by Subsection (1) may be discharged by assessors selected under Section 10C(2) inspecting the land and reporting to the Commission on the inspection.
The written decision of the Commission is evidence that that obligation was discharged. I am satisfied that in fact the members of the Commission inspected the land. Ground (b) is dismissed.
GROUND (c): DECISION WAS AGAINST THE WEIGHT OF THE EVIDENCE
17. The appellant argued that the evidence before the Commission showed that the customary practices in the area of the disputed land was that land is owned by clans, not by family groups, and that the decision to declare the first respondent’s family group was contrary to that evidence.
18. Determination of the question whether the Commission’s decision was against the weight of the evidence requires, requires application of the principles set out in Re Wangaramut (No 2) [1969-70] PNGLR 410. The pre-Independence Supreme Court held that if an appellant wishes to argue that a decision of the Land Titles Commission was against the weight of the evidence, the appellant is obliged to:
The appellant has not met those requirements. He has failed to establish that the Commission’s decision was against the weight of the evidence. Ground (c) is dismissed.
GROUND (d): FAILURE TO TAKE INTO ACCOUNT MEMORANDUM OF AGREEMENT
19. The appellant argued that the Commission’s decision was wrong in law as it failed to take into account a memorandum of agreement between the parties under which land ownership would be decided in a fundamentally different way to that set out in the Commission’s decision. The memorandum relied on was dated 24 March 2011. It was an agreement between the appellant and the first respondent and one other person (who is not a party the present appeal). The appellant relied on Section 38B (agreements for settlement) of the Land Titles Commission Act, which states:
(1) At any stage of any hearing or proceedings before the Commission or the National Court under this Act or the New Guinea Land Titles Restoration Act 1951, the parties may agree upon an amicable settlement of the matter, upon such terms and conditions as are agreed upon.
(2) The agreement for settlement may include a waiver of any rights or alleged rights by any party, including—
(a) the Custodian for Trust Land in any capacity, in defeasance of the rights of any person holding under or through him; and
(b) the owners or alleged owners of any customary land not only on behalf of themselves but also on behalf of all other persons who would otherwise have subsequently become entitled to the land by custom, and in defeasance of the customary rights of those persons.
(3) An agreement for settlement shall be made or incorporated into the decision of the Commission on the matter in question or the decision of the National Court on appeal, as the case may be, unless the Commission or the Court is satisfied that it would be improper so to do.
(3A) Where an agreement for settlement provides for payment of compensation, that provision may be enforced—
(a) where the amount or value of the compensation, as agreed, does not exceed K2,000.00 — as if it were an order of a District Court; and
(b) where the amount or value of the compensation, as agreed, exceeds K2,000.00 — as if it were an order of the National Court.
(4) For the purposes of any appeal to or from the National Court, a refusal to make or incorporate an agreement for settlement into
a decision of the Commission or the National Court shall be deemed to be a decision or order of the Commission or the Court, as the
case may be.
I find that Section 38B does not apply. The memorandum of agreement relied on did not represent a meeting of minds of all parties
to the Commission’s proceedings – only some of them. The Commission was not obliged to incorporate the agreement into
its decision. Ground (d) is dismissed.
GROUND (e): FAILURE TO OBSERVE PRINCIPLES OF NATURAL JUSTICE
20. The appellant argues that the Commission did not observe the principles of natural justice as it failed to consider his submissions on the principle of adverse possession.
21. The principle of adverse possession is the notion that, if a person who does not actually own a piece of land occupies or takes possession of it for a long time without objection from the real owner, the person in possession can be regarded, with the passage of time, to be the owner (Gima Raka v Philip Maimu (2013) N5200). It is a principle that has been adapted in PNG for the purposes of determining ownership of customary land.
22. Its importance was emphasised in the landmark decision of Amet J, as he then was, sitting in the Land Titles Commission in Re Hides Gas Project Land [1993] PNGLR 309. It is a principle that applies whenever an authorised authority such as a Local Land Court or the Land Titles Commission – or as in this case, a Special Land titles Commission – is determining ownership of customary land. (However, it does not apply to Government land: First Assistant Secretary, Department of Prime Minister v Michael James Leahy and Highlands Products Pty Ltd (1981) N311 (L), Lelete Plantation Ltd v Paul Rame (2007) N5020).
23. The principle of adverse possession means that ownership of customary land depends not only on the question of which disputing party had the earliest claim to the land, by reason of genealogical or ancestral evidence, but also which disputing party has actually possessed the land (without opposition) in recent years. The National Court has in a number of cases endorsed and applied the principle, also commonly known as ‘the Hides Gas principle’, in the course of determining judicial reviews of decisions of a Provincial Land Court. See, for example, Application of Ambra Nii on behalf of Toisap Clan [1991] PNGLR 357, Tawindi Clan v Kaimari Clan (1998) N1775 and John Anis v Nabura Morissa (2011) N4307.
24. I agree with Mr Koke that the Commission was obliged to apply the Hides Gas principle’ in the course of determining ownership of the Nokomboi land. As I found in Mathew Denguo Tigavu v Gamo Koito & Special Land Titles Commission (2016) N6170, it did not do that. It was preoccupied with the question of which clan was the ‘historical’ or ‘true’ owner of the land and which persons were the living descendants of that owner.
25. Mr Koke submitted that the appellant put the argument before the Commission, about his family being the occupants of the land for multiple generations, but the Commission ignored the argument and did not say in its final decision why it had rejected the argument. It therefore acted unfairly contrary to the principles of natural justice.
26. I reject this submission for the same reason I rejected a similar argument in Tigavu’s case. First, I am not convinced that the appellant’s argument about the Hides Gas principle was put to the Commission clearly and coherently, in the same way that Mr Koke has put it to the Court. Secondly, I am not convinced that the failure of the Commission to give proper weight to the argument can be regarded as a failure to hear the appellant or a manifestation of any bias against the appellant.
27. The minimum requirement of natural justice is, under Section 59(2) of the Constitution, the duty to act fairly and, in principle, to be seen to act fairly. I am satisfied that the manner in which the Commission conducted its many public hearings, in particular the hearings it conducted regarding Nokomboi land, met that requirement. It cannot reasonably be said to have conducted its hearings in a manner contrary to natural justice. Ground (e) is dismissed.
CONCLUSION
28. As all grounds of appeal have been dismissed, the appeal must be dismissed. The question of what order the Court should now make is a matter of discretion, to be exercised under Section 38A(2) (powers of National Court on appeal) of the Land Titles Commission Act, which states:
Upon the hearing of the appeal, the National Court shall inquire into the matter and may—
(a) adjourn the hearing from time to time;
(aa) receive fresh evidence if in the opinion of the Court that evidence is relevant and the party seeking to rely on it was not negligent in failing to adduce it before the Commission;
. . .
(c) if the justice of the case so requires, substitute for the decision any decision that might have been given by the Commission; or
(d) remit the case in whole or in part for hearing or for further hearing before the Commission.
29. The justice of the case requires that the Court not amend the decision it made in the related appeal, in Tigavu’s case, CIA No 84 of 2013 of 23 January 2016, which will be confirmed as the prevailing decision. Costs will follow the event.
ORDER
(1) The appeal is dismissed.
(2) All relief sought by the appellant is refused.
(3) The order of the National Court in CIA No 84 of 2013 of 23 January 2016 is, for the purposes of Section 38A(2) of the Land Titles Commission Act, confirmed as being the decision of the Court made in substitution for the decision appealed against.
- (4) The appellant shall pay the costs of the appeal to the second respondent on a party-party basis, to be taxed if not agreed. Other parties shall bear their own costs.
- (5) The file is closed.
Judgment accordingly,
____________________________________________________________
Parua Lawyers: Lawyers for the Appellant
GP Lawyers: Lawyers for the second Respondent
Solicitor-General: Lawyer for the third, fourth & fifth Respondents
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