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Tongop v Awam [2024] PGNC 412; N11092 (13 November 2024)

N11092

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS (JR) NO. 340 OF 2022

KEPAS TONGOP
First Plaintiff

JOSEPH TONGOP PUIPUI for himself and on behalf of APUTUBUNMILEK sub-clan of TEBGAWOM clan whose names are set out in the Annexure to this Writ
Second Plaintiff

-V-

PAUL AWAM for and on behalf of TINETALGO CLAN
First Respondent

PATRICIA TIVESE, sitting as the NEW IRELAND PROVINCIAL LAND COURT
Second Respondent

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Respondent

Kavieng: Kariko J
2024: 18^th October & 13^th November

JUDICIAL REVIEW – review of decision by Provincial Land Court hearing appeal] from Local Land Court – appeal upheld – whether errors of law committed – whether no reasonable tribunal could have reached the decision

Facts

The plaintiffs sought review of the decision of the Provincial Land Court. They argued the Provincial Land Court erred in law (1) in finding that ownership of the land was earlier determined by the Local Land Court and (2) by not visiting the subject land and not considering the evidence on custom, contrary to requirements of the Land Disputes Settlement Act.

Held:

1. Judicial review is concerned not with the decision, but with the decision-making process.
   
2. On the evidence before it, the PLC was entitled to find that the earlier Local Land Court order was valid and in force, and the appealed Local Land Court hearing was conducted in breach of s 71 of the Land Disputes Settlement Act.
   
3. The PLC did not commit an error of law or a breach of natural justice, nor was its decision one that no reasonable tribunal could have reached.
   

Cases Cited:

Bais v Bipu (2003) DC103

Kekedo v Burns Philip Ltd [1988-89] PNGLR 122

Counsel:

T Yai, for the Plaintiffs

C Nara, for the First Respondent

No appearance for the Second & Third Respondents

13^th November 2024

1. KARKIO J: This is an application for judicial review after the plaintiffs were granted the requisite leave on 8 March 2023.
   

BACKGROUND

2. The proceedings concern the ownership of customary land known as Ailaia located at Putput Village, Lihir, New Ireland Province (the Disputed Land).
   
3. The Kavieng Local Land Court determined on 2 February 2021 that the land belonged to the Tengawom Clan (2021 Decision).
   
4. Th first respondent, Paul Awam, appealed the decision to the Provincial Land Court (PLC) which heard and upheld the appeal on 8 April 2022 at Lihir (PLC Decision). The PLC set aside the 2021 Decision after finding that there was already in existence an earlier LLC decision made on 30 July 1996 at Potzlaka, Lihir, that endorsed the Tinetalgo Clan as the customary landowner of the Disputed Land. This was evidenced by a copy of the relevant order (1996 Order) which was produced to the Court.
   
5. Aggrieved, the plaintiffs filed for judicial review to review the PLC Decision.
   

APPLICATION FOR REVIEW

6. In this application for review, the plaintiffs alleged that the PLC erroneously accepted the 1996 Order as valid because they are not aware of the purported LLC hearing in 1996 and the copy of the Order was not clear and doubtful. They further contended that if there was such a hearing it was not conducted in accordance with the LDS Act. The plaintiffs also claimed that the PLC breached the LDS Act in that there was no visit to the Disputed Land and the Court did not properly consider the evidence regarding customary ownership of the land.
   
7. The Statement filed pursuant to O16 r 3(2)(a) of the National Court Rules sought several reliefs:
   

Declarations that the PLC Decision was unreasonable because:

• the PLC breached s 50(4) of the Land Disputes Settlement Act (the LDS Act) by not visiting the Disputed Land.
• the PLC breached s 50(2)(a), (c) and (d) of the LDS Act by accepting 1996 Decision as valid over the evidence of the applicants.
• the PLC wrongfully considered the 1996 Decision whose existence the applicants were not aware of.
  

Declarations that the PLC erred by:

• not considering applicable custom in breach of s 69 and s 50(2)(e) of the LDS Act.
  

CONSIDERATION

8. The law on judicial review is settled. The Supreme Court in Kekedo v Burns Philip (PNG) Ltd & Others [1988-89] PNGLR 122 stated:
   

...the circumstances under which judicial review may be available are where the decision making authority exceeds its power, commits an error of law, commits a breach of natural justice, reaches a decision which no reasonable tribunal could have reach or abuses its powers.

The purpose of judicial review is not to examine the reasoning of the subordinate authority with the view to substituting its own opinion. Judicial review is concerned not with the decision, but with the decision-making process.

(Emphasis added)

9. The PLC dealt with two grounds of appeal which disputed the 2021 Decision:
   
   • (1) That there was a breach of natural justice (because no notice of the appealed LLC hearing was given to parties who have interest over the land, including the Tinetalgo Clan), and
   • (2) That no court doing justice would have made the decision (as the 1996 Order had decided ownership of the Disputed Land).
     
10. After being satisfied the appeal was properly filed, the PLC heard from the first respondent for the Tinetalgo Clan and three witnesses for the Tengawom Clan – Kepas Tangop, Julie Rose Pule and Peter Kare.
    
11. Paul Awam testified that his clan is the recognized landowner of the Disputed Land pursuant to the 1996 Order, but neither he nor his clan were notified of the LLC hearing on 2 February 2021 that was initiated by the Tengawom Clan.
    
12. In response, the witnesses for the Tengawom Clan gave evidence on how according to custom, their clan was the owner of the Disputed Land. They disputed having knowledge of the 1996 Order and the LLC hearing in 1996. They admitted however that no notice of the LLC hearing on 2 February 2021 was given as required by the LDS Act.
    
13. The PLC determined that s 71(1) of the LDS Act was breached. According to this provision, notice of the hearing shall be:
    • sent to all interested parties,
    • published at the relevant LLG office and the LLG formally informed also,
    • given to the Village Court connected to the disputed land, and
    • broadcasted on radio serving the area of the dispute.
      
14. This finding, which favoured one of the grounds of appeal, was not seriously challenged in this application for review. The reasons given by the plaintiffs to the PLC for not giving notice was basically that they were unhappy that since the 1990s, Paul Awan and the Tinetalgo Clan had been wrongfully receiving benefit payments from the mining companies on Lihir for the land. This is not a valid excuse, and the PLC therefore made no error in its finding.
    
15. The Tengawom Clan witnesses testified in the PLC that they never knew of the 1996 Order nor were they ever aware that the LLC held a hearing at Potzlaka in 1996 regarding the Disputed Land.
    
16. In this review application, the plaintiffs sought to rely on evidence of searches conducted for the records of the 1996 LLC hearing. That evidence was not before the PLC. As leave was not obtained to introduce this fresh evidence in the present proceedings, it is disregarded.
    
17. The plaintiffs argued that because no reasons for decision accompanied the 1996 Order, the PLC erred in acting on it. They relied on the case of Bais v Bipu (2003) DC103 for the proposition that the without the reasons for decision from a LLC, the decision by must be set aside if appealed. This is a District Court decision and therefore does not bind me. In any case, the PLC in the present case was not dealing with an appeal against the decision concerning the 1996 Order.
    
18. The PLC had before it a copy of the 1996 Order. As it was issued nearly 30 years ago, it is naturally old and worn out, but it is clearly in the proper form issued under the LDS Act (s 38), and duly signed under seal by Magistrate M Zacchaeus. It was noted that the Tengawom Clan was a party in hearings. On the evidence presented, the PLC was entitled to find that the 1996 Order was valid and still in force and on that basis, the PLC was permitted to hold that the 1996 Order could not be supersede by the 2021 LLC Decision – that the latter decision must be set aside. It is noteworthy that while denying the LLC hearing, the plaintiffs acknowledge that Paul Awan and the Tinetalgo Clan have been receiving monetary benefits from the mine since the 1990s.
    
19. The evidence of customary ownership was not relevant to the issues in the appeal heard by the PLC and was properly disregarded by that court. The same evidence was further expanded in this application for review, but I am only concerned with the evidence that was before the PLC and how that was treated by that court.
    
20. The argument that the PLC erred in law by not visiting the Disputed Land is misconceived. The visit was not necessary for the PLC to answer the issues in the appeal.
    
21. In the end, I am not satisfied that the PLC in reaching its decision on 8 April 2022 committed an error of law or a breach of natural justice. Nor am I persuaded that the decision of the PLC is one that no reasonable tribunal could have reached.
    

ORDER

1. The application for review is refused.
2. The decision of the Provincial Land Court at Lihir made on 8 April 2022 at Lihir in appeal proceedings PLC No. 04/21 is confirmed.
3. The plaintiffs shall pay the defendant’s costs of and incidental to these proceedings, to be taxed if not agreed.
4. Time for entry of the order be abridged to the time of settlement which shall take place forthwith.

________________________________________________________________
Bristle Lawyers: Lawyers for the Plaintiffs
Public Solicitor: Lawyer for the First Respondent