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National Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
CIA NO 172 0F 2011
MANUB EDOM
Appellant
V
WANOR AGUN
Respondent
Madang: Cannings J
2013: 10, 24 May
LAND – Customary land – Land Disputes Settlement Act Chapter 75, Section 64 (failure to comply with orders) – appeal against conviction and sentence by District Court re offence under Section 64 – whether open to District Court to order eviction of person convicted of offence under Section 64 – whether District Court erred in interpretation of order of Local Land Court – whether District Court gave person charged a reasonable opportunity to be heard.
The District Court convicted the appellant of an offence under Section 64 of the Land Disputes Settlement Act, refusing to comply with an order of the Local Land Court, and sentenced him to two months imprisonment and ordered that he and his family be "forcefully removed with the assistance of Police from the subject land". The appellant appealed against his conviction and sentence on four grounds: (1) excess of jurisdiction as the District Court lacked power under Section 64 to order eviction; (2) misinterpretation of the order of the Local Land Court the subject of the charge; (3) failure to take account of the appellant's and his ancestors' equitable interest in the land; (4) failure to give a reasonable opportunity to be heard.
Held:
(1) There was an excess of jurisdiction in the sentence in two respects: (a) no law gives the District Court power to include in the penalty for an offence under Section 64 an order for eviction; and (b) the Local Land Court order the subject of the offence made no provision for eviction. Ground 1 of the appeal was upheld.
(2) The District Court misinterpreted the Local Land Court order, which gave the appellant's ancestors (and by implication the appellant) usufructuary rights over the subject land. Ground 2 was upheld.
(3) The question of whether the appellant and his ancestors had equitable interests in the land was irrelevant to the primary question before the District Court which was whether the appellant had failed to comply with the order of the Local Land Court. There was no error of law in that regard. Ground 3 was dismissed.
(4) There was insufficient evidence that the appellant was denied the opportunity to be heard. Ground 4 was dismissed.
(5) Two grounds of appeal having succeeded, the National Court was satisfied that there had been a substantial miscarriage of justice and allowed the appeal and quashed the conviction and sentence and entered a verdict of not guilty.
(6) Remarks: as to suggested methods by which the appellant and the respondent might resolve their dispute.
Cases cited
The following cases are cited in the judgment:
Francis Tarei v The State (2008) N3539
Gawi v png Ready Mixed Concrete Pty Ltd [1984] PNGLR 74
Gaya Nomgui v The Administration (Re Lae Administration Land) [1974] PNGLR 349
Re Yabo Sabo [1995] PNGLR 13
The State v Bruno Tanfa Chilong (2009) N3578
APPEAL
This was an appeal from a decision of the District Court.
Counsel
S Tanei for the appellant
O Ore for the respondent
1. Cannings J: The Madang District Court convicted the appellant, Manub Edom, of an offence under Section 64 (failure to comply with orders) of the Land Disputes Settlement Act for refusing to comply with an order of the Local Land Court. He was sentenced to two months imprisonment (the sentence has been stayed pending determination of this appeal) and he and his family were ordered to be "forcefully removed with the assistance of Police from the subject land". The appellant appeals against his conviction and sentence on four grounds:
(1) excess of jurisdiction as the District Court lacked power under Section 64 to order eviction;
(2) misinterpretation of the order of the Local Land Court the subject of the charge;
(3) failure to take account of the appellant's and his ancestors' equitable interest in the land;
(4) failure to give a reasonable opportunity to be heard.
GROUND 1: EXCESS OF JURISDICTION
2. Mr Tanei for the appellant submitted that the District Court (Mr S W Seneka SPM presiding) exceeded its jurisdiction by including in its order of 16 December 2011 a form of punishment – eviction from land – which is not provided for by Section 64 of the Land Disputes Settlement Act or any other law and which did not relate to the Local Land Court order with which the appellant was found guilty of not complying. Section 64 states:
A person who refuses to comply with an order or direction lawfully given by a Provincial Land Court or Local Land Court is guilty of an offence.
Penalty: A fine not exceeding K200.00 or imprisonment for a term not exceeding six months.
3. The order of 16 December 2011 stated:
(1) The respondent is guilty of refusing to comply with an order or a direction of the Local Land Court under Section 64 of the Land Disputes Settlement Act.
(2) The respondent be punished accordingly and he is sentenced to imprisonment for a period of two months forthwith.
(3) The respondent, his family, relatives, servants or agents be forcefully removed with the assistance of Police from the subject land forthwith.
4. I uphold Mr Tanei's submission and find that there was an excess of jurisdiction in two respects. First, no law allows the District Court to impose a penalty of eviction from land on a person who has been convicted of an offence under Section 64. Except in the case of contempt of court, no court in Papua New Guinea can impose whatever penalty it thinks appropriate on a person who has been convicted of an offence. The court is always constrained by laws which prescribe the available penalties. This is an important aspect of the right of all persons to full protection of the law guaranteed by Section 37(2) of the Constitution, which states:
Except, subject to any Act of the Parliament to the contrary, in the case of the offence commonly known as contempt of court, nobody may be convicted of an offence that is not defined by, and the penalty for which is not prescribed by, a written law.
5. In the case of an offence under Section 64 of the Land Disputes Settlement Act the available penalties are prescribed by Section 64 itself and by Section 65 (orders for compensation) which states:
(1) A court trying an offence against Section 63 or 64 may order the payment of compensation in addition to or instead of any penalty under this section.
(2) A person who fails to comply with an order under Subsection (1) is guilty of an offence.
Penalty: A fine not exceeding K200.00 or imprisonment for a term not exceeding six months.
6. Thus if a person is convicted of an offence under Section 64 the available penalties are:
7. Eviction is not one of the available penalties. Eviction might be ordered by the District Court if the owner of customary land commences civil proceedings for example based on the tort of trespass against the person who is allegedly occupying the land unlawfully. But that was not the case here. The appellant was charged with an offence under Section 64. He was convicted and could only be sentenced in accordance with the available penalties.
8. The second way in which there was an excess of jurisdiction is that the order of the Local Land Court the subject of the offence did not provide for anybody's eviction. If it had provided for eviction there might have been an argument that the District Court was simply enforcing the Local Land Court order; not that the argument would have succeeded as it is clear that the District Court imposed a penalty which it had no power to impose. Ground 1 is upheld.
GROUND 2: MISINTERPRETATION OF LOCAL LAND COURT ORDER
9. Whereas ground 1 addressed the sentence this ground challenges the conviction. The appellant was convicted of failing to comply with an order of the Madang Local Land Court dated 14 January 1983 which determined a dispute over two areas of customary land known as "Bamgail" and "Gobile" near Umin village, close to Madang town. The dispute was between on the one hand the appellant's father Edom Saho and his lain and on the other hand ancestors of the respondent to this appeal (and the person who was the informant in the District Court) Wanor Agun. The Local Land Court decided that the two areas of land were owned by the respondent's ancestors but that the appellant's ancestors had user rights over the land, expressed in the following terms:
Edom Saho is to use Bamgail land as in the past and only can use Gobile to harvest what he has in that land such as coconut, betel nut etc. If and when he wants to cut bush material from Gobile he has to ask permission from Galu and Lave [another of the respondent's ancestors] first. NO NEW CASH CROPS TO BE STARTED ON GOBILE by Edom or his brothers.
10. Having examined the reasons for decision of the learned trial Magistrate I find myself in agreement with Mr Tanei's submission that his Worship misinterpreted the Local Land Court order by not recognising the user rights, also known as usufructuary rights, of the appellant's father. A usufructuary right exists where the law recognises a person's right to enjoy the use and advantages of another person's property provided that the user does not destroy or waste the owner's property (Gaya Nomgui v The Administration (Re Lae Administration Land) [1974] PNGLR 349, The State v Bruno Tanfa Chilong (2009) N3578).
11. His Worship failed to identify how the appellant was failing to comply with the Local Land Court order. In particular it is not clear whether the failure to comply was in relation to Bamgail or Gobile. If it was in relation to Bamgail, how was the appellant using it other than Edom Saho had in the past? If it was in relation to Gobile, was the appellant cutting bush material without permission? Had he started new cash crops? The only evidence in support of the charge was an affidavit by the respondent which contained the allegation that "the respondent, his family and his group intentionally again ignored the orders and continue to settle there, built houses, make new gardens, collect building materials and plant commercial crops". The affidavit failed to identify where the appellant had settled. On Bamgail or Gobile? It was crucial for the evidence to be specific as the nature of the usufructuary rights of the appellant varied according to the area of land. Another issue which was not addressed by his Worship was whether the appellant was actually subject to the order. The dispute was between the appellant's ancestors and the respondent's ancestors. It was presumed by his Worship that the rights and obligations conferred by the Local Land Court order apply to the descendants of the parties to the dispute in the same way that they applied to the parties to the dispute. That was probably a reasonable presumption to make but there was at least an argument to be made that the 1983 order did not apply to the appellant and therefore he could not be found guilty of refusing to comply with it.
12. I do not think that the Local Land Court order was clear and unambiguous in its terms. It was inherently vague. Not only that, there is doubt about whether the Local Land Court order is still valid arising from a decision of Doherty J in a National Court case relating to that order, Re Yabo Sabo [1995] PNGLR 13. Overall I consider that his Worship has not examined the elements of the offence and this came about because of a misinterpretation of the 1983 order: his Worship regarded it as a clear order awarding ownership of the two pieces of land to the respondent's ancestors and failed to give sufficient consideration to the usufructuary rights of the appellant. Ground 2 is upheld.
GROUND 3: FAILURE TO TAKE ACCOUNT OF EQUITABLE INTERESTS
13. Mr Tanei submitted that the appellant and his ancestors have been living at Umin for many years, even before 1983, and this gave them an equitable interest to the disputed land, which was ignored by the District Court.
This argument is misconceived. The proposition that the appellant has an equitable interest in the land (of the sort recognised by the Supreme Court in the leading case Gawi v png Ready Mixed Concrete Pty Ltd [1984] PNGLR 74) arising from his and his ancestors' continuing occupation of the land (even though they were not the owners) is probably correct. But it was not a relevant consideration in the District Court. The only issues that needed to be determined were whether the elements of the offence had been proven beyond reasonable doubt. The elements were:
14. The question of whether the appellant had an equitable interest was not relevant to either of those issues. His Worship committed no error by failing to consider the question of equitable interests. Ground 3 is dismissed.
GROUND 4: FAILURE TO GIVE REASONABLE OPPORTUNITY TO BE HEARD
15. Mr Tanei submitted that the District Court failed to give the appellant a reasonable opportunity to be heard in a number of respects, most acutely by finding the appellant guilty in his absence. This is a very serious allegation which if proven would amount to a violation of the appellant's rights to the full protection of the law under Section 37 of the Constitution, in particular those conferred by Sections 37(3), (4) and (5), which state:
(3) A person charged with an offence shall, unless the charge is withdrawn, be afforded a fair hearing within a reasonable time, by an independent and impartial court.
(4) A person charged with an offence—
(a) shall be presumed innocent until proved guilty according to law, but a law may place upon a person charged with an offence the burden of proving particular facts which are, or would be, peculiarly within his knowledge; and
(b) shall be informed promptly in a language which he understands, and in detail, of the nature of the offence with which he is charged; and
(c) shall be given adequate time and facilities for the preparation of his defence; and
(d) shall be permitted to have without payment the assistance of an interpreter if he cannot understand or speak the language used at the trial of the charge; and
(e) shall be permitted to defend himself before the court in person or, at his own expense, by a legal representative of his own choice, or if he is a person entitled to legal aid, by the Public Solicitor or another legal representative assigned to him in accordance with law; and
(f) shall be afforded facilities to examine in person or by his legal representative the witnesses called before the court by the prosecution, and to obtain the attendance and carry out the examination of witnesses and to testify before the court on his own behalf, on the same conditions as those applying to witnesses called by the prosecution.
(5) Except with his own consent, the trial shall not take place in his absence unless he so conducts himself as to render the continuance of the proceedings in his presence impracticable and the court orders him to be removed and the trial to proceed in his absence, but provision may be made by law for a charge that a person has committed an offence the maximum penalty for which does not include imprisonment, (except in default of payment of a fine), to be heard summarily in his absence if it is established that he has been duly served with a summons in respect of the alleged offence.
16. The insurmountable difficulty for the appellant is that the record of the District Court does not support the argument. It is not clear from the record that the appellant was tried in his absence or that he was not given notice of the hearing. If an appellant wants to argue that there was some procedural irregularity in the court below, he must prove that that irregularity occurred. This is done by pointing the appellate court to the record of the court below, clearly identifying when and how the irregularity occurred. If the record of the court below is incomplete or unreliable, leave should be sought to adduce evidence to prove the procedural irregularity (Francis Tarei v The State (2008) N3539). All that the National Court has is a vague allegation unsupported by reference to the record of the District Court or by any evidence of irregularity. Ground 4 is dismissed.
CONCLUSION
17. Two grounds of appeal have been upheld. Each one discloses significant errors of law on the part of the District Court, especially ground 2 as it shows that the appellant was wrongfully convicted and penalised. The consequences of these findings are to be determined in accordance with Section 230 of the District Courts Act (power of National Court on appeal), which states:
(1) On the hearing of an appeal, the National Court shall inquire into the matter, and may—
(a) adjourn the hearing from time to time; and
(b) mitigate or increase a penalty or fine; and
(c) affirm, quash or vary the conviction, order or adjudication appealed from, or substitute or make a conviction, order or adjudication which ought, on the evidence before the National Court, to have been made by a District Court; and
(d) remit the case for hearing or for further hearing before the Court which made the conviction, order or adjudication or any other competent court; and
(e) exercise a power that the Court that made the conviction, order or adjudication might have exercised; and
(f) make such further or other order as to costs or otherwise as the case requires.
(2) An appeal shall be allowed only if it appears to the National Court that there has been a substantial miscarriage of justice.
18. There has been a substantial miscarriage of justice and the appeal will be allowed. The conviction and the sentence will be quashed pursuant to Section 230(1)(c). I see no reasonable prospect of the appellant being convicted if he is re-tried, given the inherent vagueness in the Local Land Court order and the lingering question of whether it is still valid, so I will enter a verdict of not guilty pursuant to Section 230(1)(e). As the appellant was represented by the Public Solicitor whereas the respondent was represented by private counsel I will order the parties to bear their own costs.
19. As to how the long-running dispute between the appellant and his ancestors and the respondent and his ancestors might be resolved, I make two suggestions. First, the matter could be examined by the Madang Provincial Land Disputes Settlement Committee with a view to declaring the subject land to be a land mediation area, which would set in play the mediation procedures under the Land Disputes Settlement Act. Secondly either of the parties could commence fresh proceedings in the National Court seeking a declaration to enforce the 1983 Local Land Court order. Once the National Court is seized of jurisdiction it could decide to either conduct a trial or refer the dispute to an accredited mediator. Both parties have been ably represented by competent counsel and I suggest that both counsel continue to assist their clients and help them work through these issues in an orderly and peaceful way.
ORDER
(1) The appeal is allowed.
(2) The order of the Madang District Court of 12 December 2011 in LLC No 7 of 2011 is quashed and substituted by an order that the appellant is found not guilty of the subject charge.
(3) The parties will bear their own costs of the appeal.
Judgment accordingly.
_______________________
Public Solicitor : Lawyer for the appellant
Thomas More Ilaisa Lawyers : Lawyers for the respondent
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