Application of Philemon Toizik of the Katronmolan Clan [2004] PGNC 111; N2657 (18 June 2004)

N2657

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

WS. NO: 53 OF 1997

IN THE MATTER OF AN APPLICATION FOR JUDICIAL REVIEW

AND:

IN THE MATTER OF AN APPLICATION OF PHILEMON TOIZIK OF THE KATRONMOLAN CLAN
- Applicant/Plaintiff

AND:

IN THE MATTER OF THE POTZLAKA DISTRICT LAND COURT OF 10TH AUGUST 1994 IN FAVOUR OF LAMATLIK CLAN
- 1st Respondent

AND:

LIHIR MANAGEMENT COMPANY LIMITED
-2nd Respondent

KOKOPO : Lenalia, J.
2004 : 6, 18 April, June

CIVIL LAW – JUDICIAL REVIEW – Whether the Court can dismiss judicial review which had been granted by another judge – Application to dismiss judicial review proceedings – Motion by Notice – Judicial review of Provincial Land Court Decision.

CIVIL LAW – Application by a Motion on Notice to dismiss the judicial review proceedings granted by another judge – Whether grant of leave for judicial review binds the later Court – Reasons for Notice by Motion – Missing original files –Whether Court should proceed on copies of documents from lower Court – Dangerous precedents – Exercise of judicial powers and discretion of Court – Inherent powers – Constitution s. 155 (4) and (5).

Facts:

On 1st September, 1997, the National Court sitting either in Kimbe or Kavieng granted leave to Philemon Toizik and his clan to review the decision of the Provincial Land Court sitting on Potzlaka on Lihir Island. The decision by the Provincial Land Court of 2nd August 1994 affirmed the Local Land Court determination on the issue of customary ownership of the disputed land known as "Landolam" also commonly described as "block 39". The Local Land Court decided the issue of ownership on 10th May, 1993. Due to the missing original files the Applicant/Respondents applied by a Motion on Notice to dismiss the judicial review proceedings.

CASES CITED:
Reva Mase -v- The Independent State of Papua New Guinea (1980) N260 (Unreported).
Mauga Logging Co. Pty Ltd -v- South Pacific Oil Palm Development Pty Ltd [1977] PNGLR 80.
Premdas -v- The Independent State of Papua New Guinea [1979] PNGLR 329.
Avia Aihi -v- The State [1981] PNGLR 81.
New Guinea Cocoa (Export) PNGLR 205.
Dent -v- Kavali [1981] PNGLR 488.

Counsel:
K. Latu, for the Applicant/Respondent
D. Lidgett, for the Applicant/Plaintiff

18 June 2004

LENALIA, J.: In early April this year, a Notice of Motion was filed by the Lawyers for the Applicant/Respondents seeking orders that the whole of these proceedings for judicial review be dismissed and for the Plaintiff/Applicants in the judicial review proceedings to meet the costs of such proceedings.

The Judicial Review proceedings have been outstanding since 1st of September, 1997. On that date, Woods, J. (as he then was) granted leave to the Katronmolan Clan for Judicial Review of the Potzlaka Provincial Land Court decision in relation to a portion of customary land located on Lihir Island. The decision the subject of the judicial review was pronounced by the Provincial land Court on 2nd August 1994. The land is known as "Landlom" or which the parties refer to as "SML Block 39". The Provincial Land Court upheld the decision by the Local Land Court upheld the decision by the Local Land of 10th May 1993. Out of that decision, the Katronmolan Clan applied for judicial review pursuant to O.16 of the National Court Rules.

When the parties were preparing their cases for judicial review, somehow and somewhere, the original files went missing. The original files are not supposed to have been taken out from the custody of the Registry Clerk and the Clerk of Court at the Namatanai Court House. On 19th December 2003, this Court made a finding that Philemon Toizik, Peter Kabas and Clement Dadar were responsible for the missing file.

The Court through the process of discovery examined the three above named persons together with their former lawyer Mr. Sebulon Watt on the issue of where the original file was and according to Mr. Watt, he said, to his surprise, he saw the original file in the possession of Peter Kabas in presence of Philemon Toizik and Clement Dadas at the Lihir Hotel when he received instructions from the three of the above persons at the end of February 1997.

On 6th August 1999, Jalina, J. ordered that the judicial review proceedings could not proceed unless the original file was produced. That order stills and even this Court cannot proceed by accepting copies of the missing files for the danger of concoction or manufacture of evidence. I hinted on 19th December last year that to overcome the issue of missing files, this Court should discharged the orders by Jalina, J. and proceed by resorting to copies of the Provincial Land Court file.

Let me say here that both the orders by Woods and Jalina, JJ do not bind this Court by the doctrine of "precedent". No authorities were cited to this Court on the issue and if this Court is right, such orders are not authoritative precedents unless those two decisions are distinguishable.

I am thankful to both counsels’ written submissions. Mr. Latu of counsel for the Applicants in the application to dismiss the judicial review proceedings submitted that this Court must dismiss the judicial review proceedings. He cited the case of Application of Evangelical Lutheran Church [1995] PNGLR 676 for the proposition that, the grant of leave was obtained irregularly due to the time period called for in O.16 r.4 of the National Court Rules which is 4 months. The case of the National Executive Council, The Attorney General and Luke Lucas and Others -v- Public Employees Association of Papua New Guinea [1993] PNGLR 264 was also cited for the issue of the abuse of the process of the Court where the Supreme Court said that it would be wise to indicate what circumstances amount to the "abuse of the process of the Court".

Another issue raised in submission by Mr. Latu is the issue of failure to comply with s.5 of the Claims By and Against the State Act of 1996. Mr. Latu submits that the Respondent/Plaintiff had attempted to cure the irregularity by filing a Notice of Motion on 24th November, 1997 on which they sought orders in the nature of "certiorari" to quash the decision of the District Land Court of 2nd August 1994. They also point out the requirement of O.16 r.5 (1) of the Rules.

Mr. Lidgett of counsel for the Respondent/Applicants submitted that the long delay in expediting the judicial review was not caused by the Applicant/Respondents. The real reason is because the original file had been missing causing such a long delay. They submit that because of the missing files, this Court should direct that the mater be heard "de novo".

As rightly submitted by counsel for the Applicants for the judicial review, the issue of ownership of land is further complicated by a substantive dispute involving several millions of kina in royalty payments which is also attached to the land in dispute. According to Mr. Lidgett these royalties run for the life of the mine.

Just to add to what counsel submitted there. Land issues in Papua New Guinea are always sensitive. The definition of land under s.2 of the Land Dispute Settlement Act defines land in the following manner.

""Land" means customary land, and includes—

(a) a reef or bank; and

(b) a house or other structure built on land or over water; and

(c) things growing on land or in water over land, earths and minerals on or under land; and

(d) an interest in land;"

(see Sch.1.2 of Constitution & s.3 (1) Interpretation Act).

Land actually forms part of the life of the people of Papua New Guinea. One can say, land is connected to life, land is connected to the sea, it is connected to the reefs, banks, hills, rivers, mountains, forests, lakes and minerals, the cultures, beliefs and even now with socio-political and the economic aspirations and the stewardship of the ecosystem for future generations. There is in fact in the concept of ownership an imagined interconnectedness to ancestral ties to the past, present and future are all encompassed in the concept of land tenure in Papua New Guinea.

The issue really is can this Court dismiss the judicial review proceedings commenced way back in 1997. No cases were cited to this Court as authority for me to dismiss these proceedings (Judicial Review). It could be argued that this Court should take judicial notice of signatures of all documents in the copies of the Provincial Land Court file then to proceed to judicial review, see s. 70 of the Land Dispute Settlement Act.

I am of the view that, this Court would be setting up a dangerous precedence to proceed by way of relying on copies of documents of the tribunal below. In relation to s. 155 (4) and (5) of the Constitution where it could be argued in favour of the Applicants in the judicial review that the circumstances of the current proceedings would require the Court to apply its "inherent" powers to use the copies of the Provincial Land Court files. The Supreme Court has said in a number of cases including Mauga Logging Co. Pty Ltd -v- South Pacific Oil Palm Development Pty Ltd [1977] PNGLR 80 see also Premdas -v- Independent State of Papua New Guinea [1979] PNGLR 329, Avia Aihi -v- The State [1901] 81, New Guinea Cocoa 81, New Guinea Cocoa (Export) Co. Pty Ltd -v- Basis Vedback [1980] PNGLR 205 and Dent -v- Kavali [1981] PNGLR 488 that the words "such other orders as are necessary to do justice in the circumstances of a particular case" in Subsection (4) of the Constitution should be used disjunctively as compared to the orders in the nature of prerogative writs and the question of whether a claimant has a legal right should be decided by substantively law independent of s. 155 (4).

It is my opinion that from those decided cases, the latter part of s. 155 (4) of the Constitution should apply where there are procedural lack encountered and that provision should apply to enable the Court to tailor its remedies to the circumstances of an individual case and to ensure that the primary rights of the parties are protected.

Given the circumstances of the instant proceedings, the parties have been given sufficient time to relocate the missing original file. This Court directed on 19th of December last year that Philemon Toizik, Clement Dadar and Peter Kabas and or their agents tender up possession of the Original File. On 5th of February, 2004, the three named persons above appeared to explain to the Court their inability to locate the original file. In fact on the Court’s finding on 19th December last year, the Court found the same three persons were and are responsible for the missing original file.

Mr. Latu cited cases such as Yap -v- Tan and B & T Engineering Pty Ltd and Wong and Baptiste and Tau [1987] PNGLR 227 and Re Central Prov. Govt. [1987] PNGLR 249 and other cases for non compliance with the Court Order of 19th December of last year. However the proceedings before me are not contempt proceedings. With respect to the argument raised by counsel for the Applicant in this Application for the Court which granted leave on 1st of September 1997, and I am of the view that this is not the appropriate venue to raise those procedural issues now.

Perhaps, the Applicants in the judicial review proceedings are expecting some miracles to happen when in fact the Court has no original file. I do not feel comfortable if I were to make a ruling that the hearing of the review should proceed by way of accepting the copies of the Original File or Files as it can open up all sorts of arguments including concoction and manufacture of evidence. At least the danger is there.

Had the parties agreed to the dismissal of the judicial review in terms of O.16 r.8 (2) of the National Court Rules, it would have been a lot better. Be that as it may, to do justice to all parties and to protect their primary right, this Court must make an order for the dismissal of the judicial review proceedings.

I also reject the submissions by counsel for the Applicant/Plaintiffs in the Judicial Review proceedings that this Court should direct or order that he dispute be heard de novo. Bearing this in mind that the land dispute has been tested twice. The first test was in the Local Land Court, then to the Provincial Land Court on appeal, which decided in favour of the Applicant/Respondents. The application the subject of this ruling is for the judicial review proceedings to be dismissed. Had the Court ruled otherwise would make it the third time for the Applicant/Plaintiffs to have their rights tested and tried. Although that is their rights in law, the parties must learn and realise the importance of co-operation with the judicial process to achieve justice.

The Court therefore is of the view that, if there is no Original File, what is there for this Court to review in the judicial review. These proceedings have been dragged on for the same old reasons that, the original files are missing when in fact Mr. Watt, former lawyer for Philemon Toizik, Clement Dadar and peter Kabas and their clansmen and clanswomen had observed the original file taken out from Peter Kabas black brief-case at the Lihir Hotel.

The Court must grant the application for the dismissal of the judicial review proceeding. The judicial review proceedings are now dismissed. The party which applied for judicial review shall pay all costs involved in these proceedings.

Orders accordingly.
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Lawyer for the Applicant/Respondents : LATU Lawyers
Lawyer for the Plaintiff/Applicants : WARNER SHAND Lawyer