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Bauno v Gora SPM [2013] PGNC 286; N5201 (3 May 2013)

N5201

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS (JR) NO 653 OF 2012

NELSON BAUNO, BAGI ONI & OTHERS OF OURAMORO & EVAMORO CLANS
Plaintiffs

V

SINCLAIR GORA SPM, PROVINCIAL LAND COURT MAGISTRATE, KIKORI, GULF PROVINCE
First Defendant

VINCENT SIVIORI, AUNI MAKAI & OTHERS OF DOKOVI & ROKOVI CLANS
Second Defendants

Waigani: Cannings J
2013: 28 March, 3 May

JUDICIAL REVIEW – review of proceedings of Provincial Land Court hearing appeal against decision of Local Land Court – whether time limits prescribed by Land Disputes Settlement Act Chapter No 45, Section 54 complied with – whether Provincial Land Court had jurisdiction to hear appeal.

The plaintiffs sought judicial review of the decision of a Provincial Land Court which upheld an appeal against a decision of a Local Land Court dated 15 November 2010. The Local Land Court had decided that ownership of the disputed land was shared between the plaintiffs' two clans and the second defendants' two clans. The second defendants filed two notices of appeal, the first on 8 February 2011, the second, which differed significantly from the first, on 24 September 2011. The Provincial Land Court decided on 25 June 2012 that it would determine the appeal on the basis of the second notice of appeal. It quashed the decision of the Local Land Court and decided that all of the disputed land was owned by the second defendants' two clans. The sole ground of review was that the appeal to the Provincial Land Court was filed contrary to the time limits set by Section 54 (appeal against decision of Local Land Court) of the Land Disputes Settlement Act, which provides that an appeal must be filed within three months unless an extension of time is granted within 12 months, and therefore the Provincial Land Court had no jurisdiction to hear the appeal. The plaintiff sought an order quashing the decision of the Provincial Land Court and a declaration that the decision of the Local Land Court remained in force.

Held:

(1) Section 54(1) provides that subject to Section 54(2) a person aggrieved by a decision of a Local Land Court has three months after the date of the decision to appeal against the decision to the Provincial Land Court. Section 54(2) provides that the Provincial Land Court may extend the time fixed for appeal, provided that it is "of opinion that it is desirable in the interests of justice to do so" and "leave shall not be granted after the end of the period of 12 months after the date of the decision appealed against".

(2) The Provincial Land Court exceeded its jurisdiction as it determined the appeal on the basis of a notice of appeal filed 10 months after the date of the decision of the Local Land Court without granting leave within 12 months after the date of the Local Land Court decision to extend the time for appealing and without forming and expressing the opinion that it was desirable in the interests of justice to do so. The ground of review was upheld.

(3) As the Provincial Land Court acted ultra vires and exceeded its jurisdiction it was appropriate to make a declaration to that effect and to quash its decision and to order that the decision of the Local Land Court was restored.

Case cited

The following case is cited in the judgment:

Abel Ameng v Mathew Poia (1998) N1765

JUDICIAL REVIEW

This was a review by the National Court of the decision of a Provincial Land Court sitting on appeal under the Land Disputes Settlement Act Chapter No 45 against a decision of a Local Land Court.

Counsel

J Apo, for the plaintiffs
E Mugugia, for the first defendant

3rd May, 2013

1. CANNINGS J: This is a ruling on an application for judicial review of the decision of a Provincial Land Court sitting on appeal against the decision of a Local Land Court concerning ownership of customary land known as Burari or Scrapper Station, 35 kilometres west of Kikori town, Gulf Province. The land was covered by forest and natural vegetation until recent times when much of it was cleared. It is now used as a base camp for the pipeline forming part of the LNG Project. Money is evidently owed by the developers of the Project to the customary owners of the land and that is why the question of ownership has become a contentious issue.

2. A dispute between various clans as to ownership of the land was referred to the Kikori Local Land Court in 2010. The Court was constituted by Magistrate Jeff Katenge and Land Mediators David Kouwo, Epi Kaipu, Saila Amuke and Ivoi Nama. The Local Land Court's decision of 15 November 2010 was that ownership of the land was shared between the four clans who were parties to the dispute. In a nine-page written judgment the Court concluded:

(a) Portion of the land as driving up from Kikori Township, left part of the disputed land when road being the broader line where the Scrapper Station is currently being cleared and cleaned up including further north and west where the planned base camp is to be built should lie as far as right to enjoy usage, occupancy and any benefits that may arise as a result of PNG LNG Project development and any others related or similarity in nature with Nelson Bauno, his colleague Bagi Oni and their clan members of Ouramoro and Evamoro clans of Babeio Village. This means land which has been the subject matter of the dispute is split in half, that is 50/50 basis.

(b) Other right hand portion of the land, road still being the borderline including Auni Makai's improvements (buildings) on the land north and eastern part of the land where the Scrapper Station is being built should as far as right to enjoy usage, occupancy and any other related or similarity in nature lie with Auni Makai and his colleague Vincent Siviori and their clan members of Lokovi and Dokovi clans of Omati and Kopi villages respectively on a 50/50 basis. [sic]

3. The above passage is quoted from the judgment or reasons for decision of the Local Land Court and is presumed (in the absence of any separate, formal order) to be the final order of the Local Land Court. Though the decision could have been drafted with greater precision it is sufficiently clear that the Court was deciding that ownership of the disputed land was divided amongst the four clans as follows:

• portion (a), as described, is owned by two clans, Ouramoro clan and Evamoro clan, both of Babeio Village, in equal shares;
  
• portion (b), as described, is owned by two clans, Lokovi (also known as Rokovi) clan of Omati Village and Dokovi clan of Kopi Village, in equal shares.
  

4. On 8 February 2011 Mr Siviori of Dokovi clan and Mr Makai of Rokovi clan – the second defendants in the current proceedings – filed an appeal under the Land Disputes Settlement Act Chapter No 45 against the decision of the Local Land Court in the Provincial Land Court. Four grounds of appeal were set out in the notice of appeal and an order was sought that the decision of the Local Land Court be quashed and that the Dokovi and Rokovi clans own the whole of the land in dispute. On 15 July 2011 Mr Bauno and Mr Oni – the plaintiffs in the current proceedings – filed a notice of objection to competency of the appeal. On 24 September 2011 Mr Siviori and Mr Makai filed another notice of appeal, in significantly different terms to the first notice of appeal, this one containing nine grounds of appeal and various relief in addition to the orders sought in the first notice of appeal.

5. The appeal was set down before Senior Provincial Magistrate Mr Sinclair Gora, constituting the Provincial Land Court, who heard the matter from 18 to 25 June 2012 at Kerema. His Worship delivered what was described as a "Preliminary Ruling on Grounds of Appeal" in the form of a 12-page written judgment on 25 June 2012, which concluded with the following "Preliminary Orders":

1. The Appellants' appeal is upheld.
   
2. The decision of the Local Land Court made in Kikori on the 15th of November 2010 by his Worship Jeff Katenge and a panel of four mediators is quashed.
   
3. All orders sought in the notice of appeal and including an order to recognise the appellants as principal landowners of the land the subject of the dispute is however DECLINED at this stage.
   
4. Pursuant to Section 59(1)(b)(i) of the LDSA 1975, parties to this appeal are hereby directed by way of this order to call key witnesses to give fresh evidence during the hearing of this appeal to identify common land boundaries they share with the disputing parties over the land the subject of the dispute.
   
5. Final determination of the appeal is reserved until the hearing of fresh evidence in this appeal is concluded and full boundaries inspection is carried out.
   
6. Matter adjourned to 1.30 pm for further call over for parties to inform court of availability of their witnesses.
   
7. Costs in the cause.
   

6. On 28 September 2012 his Worship ordered as follows:

1. Auna Makai and Vincent Siviori and all others of the Lokobi and Dokovi Clans are the principal landowners of One-ne-mere Kari land upon which the Scrapper Station now stands.
   
2. All rentals, compensation and payments in terms of royalties and premiums for the use of the Onenemere Kari customary land on which the Scrapper Station is currently established shall be paid to Auni Makai and Vincent Siviori for and on behalf of all members of the Lokobi and Dokovi clans who are the rightful beneficiaries.
   
3. Parties to pay their own costs on solicitor-client basis.
   
4. Time for entry of these orders be abridged.
   

7. It is that decision which is the subject of judicial review. The plaintiffs Mr Bauno of Ouramoro clan and Mr Oni of Evamoro clan are aggrieved by the decision and maintain that the land should be shared amongst the four clans recognised by the Local Land Court decision. They do not seek an order that their clans own all the land. They commenced the present proceedings on 6 November 2012. The defendants are:

• first defendant: his Worship Mr Gora, the Provincial Land Court Magistrate who made the decision under review;
  
• second defendants: Mr Siviori of Dokovi clan and Mr Makai of Rokovi clan, who were the applicants in the Local Land Court and the appellants in the Provincial Land Court.
  

Leave for judicial review of the Provincial Land Court's decision was granted on 22 November 2012.

THE GROUND OF REVIEW

8. Four grounds of review are set out in the plaintiff's statement under Order 16, Rule 3(2)(a) of the National Court Rules but they overlap and Mr Apo for the plaintiffs suggested that they can be reduced to one: that the Provincial Land Court acted ultra vires (without power) by determining the appeal contrary to the time limits set by Section 54 (appeal against decision of Local Land Court) of the Land Disputes Settlement Act, and therefore the Provincial Land Court had no jurisdiction to hear or determine the appeal.

9. Section 54 states:

(1) Subject to this section, a person aggrieved by a decision of a Local Land Court may appeal within three months after the date of the decision to the Provincial Land Court.

(2) Where the Provincial Land Court is of opinion that it is desirable in the interests of justice to do so, it may, whether or not the time fixed for appeal under Subsection (1) has expired, extend the time fixed for appeal, but leave shall not be granted after the end of the period of 12 months after the date of the decision appealed against.

10. Section 54 requires that for an appeal to be properly before the Provincial Land Court:

• the appeal must be filed within three months after the date of the decision of the Local Land Court, or
  
• the Provincial Land Court must within 12 months after the date of the decision of the Local Land Court be of the opinion that it is desirable in the interests of justice to extend the time fixed for appeal and grant leave to extend the time fixed for appeal and the appellant must file the appeal within the extended period.
  

11. The 12-month period referred to means that leave to extend the time fixed for appealing must be granted within 12 months after the date of the decision of the Local Land Court, not that the time fixed for appealing can only be extended to a period of 12 months after the date of the decision of the Local Land Court. On the last point I respectfully disagree with Woods J who indicated in Abel Ameng v Mathew Poia (1998) N1765 that Section 54 imposes a 12-month time limit on an appeal against a decision of a Local Land Court. It would for example be open to the Provincial Land Court to extend the time for appealing to a period of two years after the date of the decision of the Local Land Court provided that leave to extend time was granted within 12 months after the date of the decision of the Local Land Court.

12. Were the requirements of Section 54 complied with here? The key dates are:

• 15 November 2010: decision of the Local Land Court
  
• 8 February 2011: filing the first notice of appeal
  
• 15 February 2011: the date three months after the date of the decision of the Local Land Court
  
• 24 September 2011: filing the second notice of appeal
  
• 15 November 2011: the date 12 months after the date of the decision of the Local Land Court
  
• 25 June 2012: preliminary decision of the Provincial Land Court
  
• 28 September 2012: final decision of the Provincial Land Court.
  

13. If the Provincial Land Court had only dealt with the first notice of appeal there would be no problem of compliance with Section 54 as the first notice of appeal was filed on 8 February 2011, one week before the three month period in Section 54(1) expired. But the Provincial Land Court did not deal with the first notice of appeal. His Worship Mr Gora considered the issues arising from there being two notices of appeal at the start of his preliminary ruling of 25 June 2012 in this way:

At the commencement of hearing of this appeal it became apparent to the court that there were in fact two separate notices of appeal on record filed on behalf of the appellants by two different legal firms. Mr Mathew Limu from South East Legal Group Lawyers who appeared for the appellants in these proceedings was asked by the court to clarify why there were two notices of appeal and two different legal firms acting for the appellants. In response Mr Limu informed the court that Tonge Lawyers were first engaged by the appellants but have ceased to act for them. He says that the South East Legal Group lawyers were subsequently instructed by the appellants and are now acting for them, hence two separate notices of appeal on record. He further informed the court that Tonge Lawyers are yet to file their notice of ceasing to act for the appellants even though they indicated they would do so.

Mr Limu then sought leave of court to substitute the original notice of appeal dated 8 February 2011 with the one filed on 24 September 2011. Leave was granted accordingly and directions issued by the court for the original notice of appeal to be withdrawn and substituted by the notice of appeal filed on 24 September 2011 but made retrospective to 8 February 2011. The court had to issue these directives taking into account the fact that the dilemma was caused by lawyers and not the appellants themselves. The appellants had done the right thing in the first place by filing their notice of appeal originally on 8 February 2011 which is within three months from the date of the Local Land Court decision.

14. It is clear that the appeal was heard and determined on the basis of the second notice of appeal, which was filed on 24 September 2011, 10 months and nine days after the date of the decision of the Local Land Court (15 November 2010). The second notice of appeal was filed seven months and nine days after the end of the three month period in Section 54(1) (15 February 2011). The last day by which it was open to the Provincial Land Court to extend the appeal period was 15 November 2011. But leave was not extended until about 18 June 2012 (the date of commencement of the Provincial Land Court hearing), which was seven months and three days after the end of the 12-month period. On that interpretation of the law and the facts the granting of leave was contrary to Section 54(2).

15. Is there any other way to read this situation? If the second notice of appeal had been in similar terms as the first, it might have been possible to regard it as an amendment of the first. But the second notice of appeal was substantially different and contained more and different grounds of appeal to the first. His Worship regarded them as different documents and allowed the first to be withdrawn and substituted by the second. I do not think it is possible to reasonably avoid the conclusion that what his Worship did was to extend the time fixed for appealing and that he did so after the end of the 12-month period referred to in Section 54(2) and that was something he was not permitted to do. It was not open to his Worship to make the second notice of appeal "retrospective to 8 February 2011". Really, his Worship's powers to do anything other than hear and determine the first notice of appeal were exhausted on 15 November 2011.

16. It must also be observed that his Worship extended the time for appealing without forming and expressing the opinion that it was "desirable in the interests of justice to do so", which is a prerequisite to the valid exercise of power under Section 54(2). I uphold the plaintiff's ground of review and find that the Provincial Land Court acted ultra vires and had no jurisdiction to hear or determine the appeal.

WHAT DECLARATIONS OR ORDERS SHOULD THE COURT MAKE?

17. The plaintiffs' successful ground of review goes to the core of the jurisdiction of the Provincial Land Court. I will exercise the discretion of the National Court to declare that the decision of the Provincial Land Court was made ultra vires and in excess of jurisdiction and to quash that decision. It is not appropriate to refer the matter back to the Provincial Land Court as I cannot see any proper way in which the lack of jurisdiction can be cured. I am guided by what Woods J held in Abel Ameng v Mathew Poia (1998) N1765:

The Land Courts are created by statute and only have the jurisdiction and powers given to them in the legislation. They cannot exercise powers outside the terms of the legislation. ... The appellants had failed to appeal in time and the magistrate had no power to accept the appeal. I must allow the Review and find that the magistrate clearly committed an error and I quash the orders of the magistrate.

18. It is in the interests of justice to make an order that will in effect restore the decision of the Local Land Court. Costs normally follow the event, ie the party that loses a case has to pay the costs of the winning party. But this is a matter of discretion. In view of the nature of this dispute and the circumstances of the case I will order that all parties bear their own costs.

ORDERS

(1) The application for judicial review is granted.

(2) The order of the Provincial Land Court in PLC No 1 of 2011 dated 28 September 2012 is declared to have been made ultra vires and in excess of jurisdiction and is quashed.

(3) The order of the Local Land Court in LLC No 5 of 2010 dated 15 November 2010 is restored.

(4) The parties shall bear their own costs.

(5) Time for entry of this order is abridged to the date of settlement by the Registrar, which shall take place forthwith.

Judgment accordingly.
_____________________________________________________________
Ame Lawyers: Lawyers for the Plaintiff
Solicitor-General: Lawyer for the First Defendant