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Gele v Selefkariu [2022] PGNC 51; N9430 (11 February 2022)

N9430

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS(JR) NO. 575 OF 2019

BETWEEN:
LUKA GELE of Garuboi Baio Baio Clan of Goilanai,
Milne Bay Provine for herself and on behalf of the members
of BEBESIGA FAMILY of Goilanai, whose names are listed
on the schedule to this Originating Summons marked Schedule A
Appellant

AND:
MARK SELEFKARIU, Principal Magistrate,
Milne Bay Provincial Land Court
First Respondent

AND:
INDEPENDENT STATE OF PAPUA NEW GUINEA
Second Respondent

Waigani: Dingake J
2021: 7^th February
2022: 11^th February

JUDICIAL REVIEW – plaintiffs seek orders in the nature of certiorari to quash decision of provincial land court not to recognise their portions of land as subjects of the LTC decision – plaintiffs also seek orders recognizing them as beneficiaries of the LTC decision – plaintiffs also seek orders that all monies accrued should be paid to them – whether plaintiffs have made out a case for the relief sought - evidence is compelling and demonstrates that Portion 584c and Portion 585c falls within the boundaries of Goilanai Customary Land the subject of the Land Titles Commission decision of 1969 and Supreme Court ruling of 1976 - First Respondent committed an error of law when he made a finding that Portion 584c and Portion 585c were not within the boundaries of Goilanai, the subject of LTC decision 1969 - relief sought in the originating summons is granted

Counsel:

Mr. Adam Token, for the Appellant
Mr. Ephraim Bua, for the Respondents

11 February, 2022

1. DINGAKE J: This is an application to review the decision of the First Respondent holding that the ownership issue of Goilanai Customary Lands in particular reference to Portion 584c and Portion 585c were not subject of the Land Titles Commission (LTC) decision of 1969 and Supreme Court ruling of 1976.
   
2. The full prayers of the Notice of Motion filed with this Court on the 7^th of September 2021 are as follows:
   1. An Order in the nature of Certiorari to bring to this Court and quash the decision of the First Defendant holding that the ownership issue of Gaoilanai Customary Lands in relation to Portion 584c and Portion 585c were not subject of the LTC decision of 1969 and Supreme Court ruling of 1976 pursuant to Order 16 Rule 2 (2) (a) of the National Court Rules.
   2. A Declaration that the Plaintiff and members of BEBESIGA FAMILY of Goilanai, whose names are listed on the schedule to the Originating Summons filed herein and marked Schedule A are beneficiaries of the LTC decision of 1969 and Supreme Court decision of 1976 pursuant to Order 16 Rule 1 (2) (a) of the National Court Rules.
   3. An Order that all moneys including all accrued interest held in trust by Milne Bay Provincial Administration relating to the Second Defendant’s compulsory acquisition of Portion 584c and Portion 585c Goilanai, be paid to the Appellant forthwith.
   4. Costs of this Application.
      
3. My brother Miviri J. having been satisfied that the applicant had an arguable case, amongst other considerations, granted leave on the 25^th of September, 2020.
   
4. The relief sought by the Plaintiff/Applicant as set out in paragraph two (2) above is not opposed by the Respondents.
   
5. The above concession notwithstanding, I need to satisfy myself that the Plaintiff/Applicant has made out a case for the relief sought.
   
6. As indicated the impugned decision of the First Respondent was to the effect that Portion 584c and Portion 585c were not within the boundaries of Goilanai Customary Land the subject of the Land Titles Commission decision of 1969 and the Supreme Court ruling of 1976.
   
7. It is not necessary given the non-opposition stance of the Respondents to burden this judgment with unnecessary background detail, suffice to say that the facts set out in the supporting Affidavit of Potuan Pakop filed on the 10^th of October, 2019, are not disputed and consequently the Court accepts same as truthful.
   
8. The Plaintiff/Applicant has relied on a number of well-known administrative law grounds to challenge the decision of the First Respondent ranging from error of law to Wednesbury unreasonableness.
   
9. I have reviewed the undisputed evidence in support of the application with a fine comb. I am referring in particular to the supporting Affidavits of Mr. Luka Gele sworn on the 29^th of October, 2019 (document 6 filed of record) and that of Mr. Potuan Pakop sworn on the 7^th of October 2019 (document 5 filed of record).
   
10. In my mind the above evidence is compelling and demonstrates that Portion 584c and Portion 585c falls within the boundaries of Goilanai Customary Land the subject of the Land Titles Commission decision of 1969 and Supreme Court ruling of 1976.
    
11. In the result, I am satisfied that the First Respondent committed an error of law when he made a finding that Portion 584c and Portion 585c were not within the boundaries of Goilanai, the subject of LTC decision 1969, when he overruled the Applicant’s objection to tender the survey plans or maps and when he failed to take judicial notice and place reliance on the seal of the Land Titles Commission on the original map (of LTC decision of 1969) tendered by the Applicant in the Local Land Court proceeding LLC No. 08 of 2015.
    
12. It also seems plain to me that the issue of ownership was settled in 1969 by the Land Titles Commission and confirmed by the Supreme Court in 1976 and the First Respondent fell into error in turning a blind eye to it.
    
13. In all the circumstances of this case, I am satisfied that the Plaintiff/Applicant has made out a case for the relief sought.
    
14. On the question of costs, the general rule is that costs follow the event. I see no reasons why this should not be so in this case.
    
15. In the result, the Court makes the follow orders:
    1. An Order in the nature of Certiorari to bring to this Court and quash the decision of the First Defendant holding that the ownership issue of Gaoilanai Customary Lands in relation to Portion 584c and Portion 585c were not subject of the LTC decision of 1969 and Supreme Court ruling of 1976 pursuant to Order 16 Rule 2 (2) (a) of the National Court Rules.
    2. A Declaration that the Plaintiff and members of BEBESIGA FAMILY of Goilanai, whose names are listed on the schedule to the Originating Summons filed herein and marked Schedule A are beneficiaries of the LTC decision of 1969 and Supreme Court decision of 1976 pursuant to Order 16 Rule 1 (2) (a) of the National Court Rules.
    3. An Order that all moneys including all accrued interest held in trust by Milne Bay Provincial Administration relating to the Second Defendant’s compulsory acquisition of Portion 584c and Portion 585c Goilanai, be paid to the Appellant forthwith.
    4. Costs of this Application.

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Office of the Public Solicitor: Lawyers for the Appellant
Office of the Solicitor General: Lawyers for the Respondents