Tapas v Tekum [1999] PGNC 96; N1921 (5 November 1999)

Unreported National Court Decisions

N1921

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

OS NO. 228 OF 1999
BETWEEN: POLAIAP TAPAS
PLAINTIFF
AND: PASIU TEKUM & ORS
FIRST DEFENDANT
AND: SANDAU SIPOKEI & ORS
SECOND DEFENDANT

Waigani

Sevua J
20 October 1999
5 November 1999

ADMINISTRATIVE LAW – Judicial Review – Land dispute – Review of Provincial Land Court Decision – Application for Leave – Sufficient interest – Whether plaintiff applicant has sufficient interest – Delay – Application for Leave to review decision 13^1/2 years after decision – Whether there has been undue delay – Order 16 National Court Rules.

Cases Cited

NTN Pty Ltd –v- The Board of Post & Telecommunication Corporation & Ors [1987] PNGLR 70

Manjin –v- PTC [1990] PNGLR 288

Application of Gurupa – Unreported judgment, N856, 9 January 1990

Application of Evangelical Lutheran Church of PNG [1995] PNGLR 276

Counsel

P. Parkop, for Plaintiff

B. Lomai, for First Defendant

5 November 1999

SEVUA J: The plaintiff has sought leave of this Court pursuant to Order 16 Rule 3 of the National Court Rules to review a decision of the Manus Provincial Land Court given on 23^rd April 1986. The application for leave is opposed by the first defendant.

There have been various court proceedings in relation to land, the subject of this application. From the evidence before me there have been five different court proceedings and the present application for leave is the sixth. On 3^rd June 1949, T.W. White, Officer-in-Charge of Patusi Police Post made a decision, which is of no relevance to this leave application. Patrol Officer Mackay also made a decision on 21^st September 1953.

On 4^th May 1961, Patrol Officer J.M. Wearne made another decision. On 6^th March 1984, the Lorengau Local Land Court handed down yet another decision regarding the border of the land in dispute between the two defendants. The first defendant appealed to the Provincial Land Court whose decision was given on 23^rd April 1986. The Provincial Land Court quashed the decision of the Local Land Court and seemed to have confirmed that the ownership of the land in dispute was vested in the parties named in the order of 4^th May 1961, ie. Pwasiu Tokum of Likum, Kapin Tano and Nyamokei Mundam (f) of M'Buke.

One of the fundamental principles of law in an application of this nature is that the plaintiff must have a sufficient interest in the subject matter.

Order 16 Rule 3(5) states that the Court shall not grant leave unless it considers that the applicant has a sufficient interest in the matter to which the application relates. In the present application, I ask, does the plaintiff, Polaiap Tapas, have a sufficient interest in the land dispute, the subject of previous legal proceedings and the present application?

In the decisions made by the Patrol Officers and the two Land Courts I have alluded to, the plaintiff is not mentioned anywhere as a party to the land dispute. Neither his clan, the Poyai Clan, nor the plaintiff or his father had been named or referred to as a party to the land dispute. It may be that the plaintiff and his clan have an interest in the land, the subject of this dispute, however there is no evidence of that. The law is clear, he cannot make an application for judicial review unless he has sufficient interest.

Although the affidavits of Silis Kapin, Nialam Kapin and Niamukei Nuntam make references to Poyai Clan, there is no evidence that, that clan or the plaintiff were parties to the original land dispute. Even the affidavit of the plaintiff himself who asserts that the land, the subject of this application, belonged to him and his clan, does not say that he and his clan or members of his clan were parties to the original land dispute in 1949 before T.M. White.

There is one very important aspect of the plaintiff’s evidence that strikes me as the most significant factor in finding that the land could not be owned by him and his clan, if this Court were to determine the issue of ownership. But I mention this at this juncture because it is my view, that this aspect of the plaintiff’s evidence defeats his claim of ownership and any right to the land. In his affidavit sworn on 2^nd September 1998, the plaintiff explains his origin. His father was from Tawi whilst his mother was from Poyai clan of M’ Buke Island. The plaintiff’s mother comes from the Poyai clan of M’ Buke Island, which clan name, “Poyai”, was derived from the name of the plaintiff’s mother’s father, Lokes, who was also known as “Poyai”.

I can just take judicial notice of the fact that in many traditional societies of Papua New Guinea, land is inherited through one’s father due to the fact that Papua New Guinea is mostly a patrilineal society. The only people I am aware, who inherit land from their mothers due to their matrilineal society are the Tolais. I believe this is the case in some parts, if not all, of New Ireland and Bougainville. I know, and being from Manus myself, Manus people do not inherit land from their mothers. In this case, the plaintiff, by custom, would inherit land from his father who came from Tawi, not from his mother who came from M’Buke Island. I do not see how the plaintiff could, by custom, own land from his mother’s clan unless a particular piece of land had been given to her by her father in one of several ways that govern the transfer of land ownership by custom. There is no evidence at all in the present case, of any custom that may permit this.

But more so, I refer to the actual decisions of the Patrol Officers which are contained in the evidence before me, and which were made early in time. T.M. White merely referred to the “natives of M’ Buke Island” without specifying any particular person or clan of M’ Buke. Patrol officer Wearne specifically referred to Kapin Tano and Niamoke Mundam of M'Buke. There is no other evidence that the plaintiff or his clan were parties to the land dispute at the time the Patrol Officers dealt with the dispute. There is no evidence either that Tano and Mundam, named in the earlier decisions, were members of the Poyai Clan or represented the plaintiff and his clan. Neither the affidavit of counsel for the plaintiff, most of which is hearsay and inadmissible, nor the affidavit of the plaintiff himself, cast any light on this issue.

Having considered all the evidence before me, and heard counsel’s submissions in this application, I find that the plaintiff does not have an interest in this matter. Although, he asserts in his affidavit that he and his clan own the land in question, there is no evidence at all that his father or ancestors or even his clan had been a party to the early disputes that went before the Patrol Officers.

Applications for leave for judicial review involve a discretion, which is exercised upon being satisfied of the sufficient interest of the applicants. The law is succinctly stated by Wilson, J. in NTN Pty Ltd –v- Board of Post & Telecommunication Corporation & Ors [1987] PNGLR 70; at 74 where His Honour said –

“Application for leave for judicial review involved the exercise of discretion. Such discretion must be exercised judicially. Once a Court is satisfied that the applicant has sufficient interest (Order 16, r 3(5)) it then exercises its discretion as to whether leave should be granted. This discretion is embodied in Order 16, r.3(1).”

It is my view therefore that the plaintiff applicant does not have a sufficient interest in this matter. The evidence in support of his application do not support that principle. The application for leave should therefore be refused for that reason alone.

However, if I were to proceed to consider the other legal principles in this type of application, the decision would not be different.

The application is brought some 13^1/2 years after the decision of the Provincial Land Court in Lorengau. The applicant says he was not aware that this matter had gone to the Provincial Land Court. I do not accept that evidence. In my view, the sensitive nature of a land dispute is such that, many people would have knowledge of the dispute going to Court. A land dispute is something that is common and it is not secretly referred to Court as it is usually public knowledge. The plaintiff would have known or heard about the Provincial Land Court proceedings. However, if he was not aware of such proceedings, the reason is obvious. He was not a party to the original land dispute and earlier Court proceedings before the Patrol Officers, therefore he would have no right to be advised of the hearing. In any event, if he had an interest, I consider that the period of 13^1/2 years is too long a delay and it amounts to undue delay.

I am satisfied that there has been undue delay in bringing this application, particularly in view of the fact that the relevant period specified by Order 16 Rule 4(2) for such an application is four months. I consider that the clock cannot be wound back 13^1/2 years, for to do so, would unnecessarily cause hardship and prejudice to the rights of the parties who were the original beneficiaries of the previous decisions. In the meantime, life has moved on, both for those people and the Courts, and it would be detrimental to good administration. From the evidence before me I am satisfied of the undue delay thus the Court should refuse to exercise its discretion in favour of the plaintiff.

These are numerous cases on the question of delay and I do not intend to repeat what those authorities say. Suffice it to say, the following are some of the cases that address the issue of delay. Manjin –v- PTC [1990] PNGLR 289; Application of Gurupa N.856 and Application of Evangelical Lutheran Church of Papua New Guinea [1995] PNGLR 276.

The principle of exhaustion of other administrative procedures does not apply in this case. Furthermore, I cannot see how the plaintiff has an arguable case when I have found that he has no sufficient interest in this case for the reasons I have adverted to.

In the exercise of my discretion therefore, I refuse to grant leave to the plaintiff to make the application for judicial review. Accordingly, I order that the application for leave be dismissed and the plaintiff pays the costs of the first defendant, to be taxed, if not agreed upon.

Lawyer for the Plaintiff: Powes Parkop

Lawyer for the 1^st Defendant: Lomai & Lomai