Home | Databases | WorldLII | Search | Feedback National Court of Papua New Guinea

Lolot v Ivlie [2012] PGNC 278; N4933 (26 August 2012)

N4933

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS (JR) 255 OF 2012

IN THE MATTER OF AN APPLICATION
FOR JUDICIAL REVIEW

BETWEEN:

BERNARD LOLOT for himself and on behalf of TALINGA/TLING CLAN
Applicant

AND:

LUDWIG IVLIE for himself and on behalf of the KAIMUN CLAN
First Respondent

AND:

RAGET MARUM, Provincial Land Court Magistrate
Second Respondent

Kokopo: Hartshorn J
2012: 24th July,
: 26th October

Application for Judicial Review of Provincial Land Court decision – Provincial Land Court Magistrate conducted two hearings of same appeal – whether functus officio after first decision pronounced – whether Provincial Land Court without jurisdiction

Facts

This is an application for the judicial review of a decision of the Provincial Land Court at Kokopo. The decision concerned an appeal from a decision of the Local Land Court at Kokopo which had amongst others, awarded the customary ownership of land known as Meakis Land to the Mioks of Tling/Talinga Clan, represented by the applicant.

Held:

(1) When the Provincial Land Court Magistrate dismissed the two grounds of appeal, he made a final decision on the appeal and thereafter was functus officio.

(2) To continue on with the appeal hearing as to alleged bribery and then pronouncing another decision was without jurisdiction and wrong.

Cases cited:

Eric Sam v. Lamus Lom (1981) N284
PNG Forest Authority v. Iare Tribe (2008) N4022
Ronny Wabia v. BP Petroleum Development Ltd (2009) N4337
Isaac Lupari v. Sir Michael Somare (2010) SC1071

Counsel

Mr. O. G. Kivu, for the Applicant
Mr. N. M. Motuwe, for the First Respondent

26th October, 2012

1. HARTSHORN J: This is an application for the judicial review of a decision of the Provincial Land Court at Kokopo (PLC decision). The PLC decision was given orally on or about 26th May 2011 and is contained in an undated written decision that was made available to the parties on or about 10th June 2011.

2. The PLC decision concerned an appeal from a decision of the Local Land Court at Kokopo which had amongst others, awarded the customary ownership of land known as Meakis Land to the Mioks of Tling/Talinga Clan, represented by the applicant.

3. The PLC decision quashed the Local Land Court decision and ordered that the case return to the Local Land Court for a hearing before another Land Tribunal. The Provincial Land Court Magistrate, the second respondent, though served, has not entered an appearance in this review. The first respondent opposes the application.

4. Some of the grounds of review in the Statement filed pursuant to Order 16 Rule 3 (2) (a) National Court Rules are:

"(a) The Provincial Land Court Magistrate acted in bad faith and erred when he quashed the Local Land Court Decision in the second leg of his judgment after he had dismissed the two grounds of the Appeal in the first leg of his judgment.

(b) The Magistrate acted in bad faith when he instructed himself to continue under Section 50 (1) (d) (e) Land Disputes Settlement Act after he had dismissed all of the two grounds of the Appeal in the first leg of his judgment.

(c) The Provincial Land Court Magistrate acted in bad faith in the second leg of his judgment when he informed himself that his judgment was still open for continuation under Section 50 (1) (d) (3) (a) and (b).

(d) The Provincial Land Court Magistrate acted in bad faith when he applied Section 50 (1) (d) (e) outside of the second ground of Appeal and outside of Section 58 (c) Land Disputes Settlement Act.

(e) In the manner it conducted itself the Provincial Land Court Magistrate placed undue reliance on Section 50 (1) (d) (e) to quash the Land Court Decision instead of on Section 58 Land Disputes Settlement Act......

(h) The conduct of the second leg of hearing was done contrary to the principles of natural justice as enshrined in Section 59 Constitution and the Provincial Land Court Magistrates judgment was therefore in excess of Section 158 Constitution of Papua New Guinea.

(i) The Provincial Land Court Magistrate acted in bad faith when he remitted the matter back to the Local Land Court for rehearing after findings on the evidence that the Local Land Court had made the right decision and therefore dismissed all of the Appellant's grounds of appeal.

(j) The Provincial Land Court Magistrate acted in excess of Section 58 and 59 Land Disputes Settlement Act and undermined established principles of Natural Justice as enshrined in 59 and Schedule 2.2 Constitution of Papua New Guinea."

5. The first issues for determination that arise from the grounds of review are whether the Provincial Land Court Magistrate erred in purporting to continue with the appeal after he had given a decision in which he dismissed the two grounds of appeal and then gave another decision that was contrary to his first decision.

6. The evidence of the applicant which is not challenged by the first respondent is that amongst others:

(a) the first respondent then appellant only pursued grounds (b) and (c) of his appeal before the Provincial Land Court Magistrate.

(b) on 14th February 2011, the Provincial Land Court Magistrate announced in court in the presence of both parties that he dismissed the two grounds of appeal that were pursued by the first respondent then appellant. That the two grounds were dismissed is clear from the undated written decision.

(c) after reading his decision in which he dismissed the grounds of appeal, the Provincial Land Court Magistrate directed that in regard to the issue of alleged bribery, he would set the appeal for another hearing, and that amongst others, particulars of inducement and affidavit evidence were to be filed.

(d) there was a second hearing, at which further submissions were directed to be filed and served.

(e) on 26th May 2011, the Provincial Land Court Magistrate read his plc decision in which amongst others, it was ordered that the Local Land Court decision was quashed.

(f) an undated written decision was provided on 10th June 2011.

7. Counsel for the first respondent in his submission confirmed that the Provincial Land Court Magistrate had conducted two hearings and submitted that he did not err by so doing.

8. Counsel for the applicant submits amongst others that it was procedurally incorrect for the Provincial Land Court Magistrate to conduct two hearings and deliver two decisions. The Provincial Land Court Magistrate erred in that after he had heard and dismissed the two grounds of appeal pursuant to s. 58 Land Disputes Settlement Act, he then held a second hearing purportedly pursuant to s. 50 (1)(d) and (e) Land Disputes Settlement Act, and ordered that the Local Land Court decision be quashed. This second decision had the effect of quashing the first decision that he had made.

9. To determine this application, I need do no more than cite from a decision of Injia DCJ (as he then was), in PNG Forest Authority v. Iare Tribe (2008) N4022 with which I respectfully agree:

"In my view, the PLC is a creature of statute and the court cannot assume a power that it is not expressly conferred by statute. There is no express power given to the PLC by the Land Dispute Settlement Act to vary a final decision on an appeal made under s 59 of the Act. Sections 59 and 60 are clear on this. They provide as follows:

"59. Powers on appeal.

(1) In determining an appeal under this Division, a Provincial Land Court may-

(a) affirm the order; or

(b) quash the order and-

(i) make such order as, in the opinion of the Court, will dispose of the appeal and the dispute; or

(ii) where, in the opinion of the Court, justice demands that the matter or part of the matter of the appeal be remitted to the Local Land Court, remit the matter, or that part of the matter to the Local Land Court...........

60. Effect of decision on appeal.

A decision of a Provincial Land Court on an appeal under this Part is final and is not subject to appeal."

....... In my view, the magistrate misconceived his appellate powers conferred by Div. 3, in particular under s.59 and 60,.......... the PLC is given no power to vary its decision or orders made under s 59 of the Act,..... Once a final decision is made, the magistrate is functus officio."

10. I am satisfied from the unchallenged evidence of the applicant and from a perusal of the undated written decision, that when the Provincial Land Court Magistrate dismissed the two grounds of appeal, he made a final decision on the appeal and thereafter was functus officio. To continue on as the Provincial Land Court Magistrate purportedly did with the appeal hearing as to alleged bribery, and then pronouncing another decision, however well meaning, was without jurisdiction and wrong.

11. Any supposed consent by the applicant to the second hearing does not in some way rectify what the Provincial Land Court Magistrate did. In this regard I refer to the words of Pratt J. in Eric Sam v. Lamus Lom (1981) N284 that I adopted in Ronny Wabia v. BP Petroleum Development Ltd (2009) N4337 which are relevant to the position of a Provincial Land Court:

"We're not dealing here with a superior court where consent to jurisdiction is not an uncommon thing. We have an inferior court, a court of statute whose jurisdiction is clearly defined in the terms of the statute and a court which must live within the four corners of that statute."

12. The application for judicial review should be granted. As to the remedy that should be granted, in Isaac Lupari v. Sir Michael Somare (2010) SC1071, it was held amongst others, that the National Court, upon upholding a judicial review application, has a discretion whether to grant a remedy and if it decides to grant a remedy, the type of remedy. As I have found that the Provincial Land Court made a final decision, it is only necessary to quash the purported orders made on 26th May 2011 without referring the matter back to the Provincial Land Court.

13. Given the above, it is not necessary to consider the other submissions of counsel.

Orders

14. The Orders of the Court are:

(a) the application for judicial review is granted.

(b) an order for certiorari is issued quashing the orders of the Kokopo Provincial Land Court made on or about 26th May 2011 and contained in the undated written decision No. PLC No 4 of 2008 between Ludwig Ivlie for himself and on behalf of Kaiman Clan (Appellant) v. Bernard Lolot for himself and behalf of Talinga Clan (Respondent)

(c) the order of the Kokopo Provincial Land Court made on or about 14th February 2011 dismissing the two grounds of appeal and thereby dismissing the appeal No. PLC No 4 of 2008 between Ludwig Ivlie for himself and on behalf of Kaiman Clan (Appellant) v. Bernard Lolot for himself and behalf of Talinga Clan (Respondent) is affirmed.

d) the respondents are to pay the costs of the applicant of and incidental to this application on a party party basis.

e) Time is abridged.

___________________________________________________________
Kivu & Associates: Lawyers for the Applicant
Motuwe Lawyers: Lawyers for the First Respondent