Piu Land Group Inc v Somare, Minister for Lands & Physical Planning [2004] PGNC 117; N2660 (23 September 2004)

N2660

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE AT WAIGANI]

OS NO. 662 OF 2003

IN THE MATTER of an Application for Leave
to Apply for Judicial Review under Order 16,
Rule 3 of the National Court Rules

BETWEEN:

PIU LAND GROUP INC
-Applicants

AND:

SIR MICHAEL SOMARE in his capacity as the
MINISTER FOR LANDS & PHYSICAL PLANNING
-First Respondent

PEPI S. KIMAS as the SECRETARY, DEPARTMENT
OF LANDS & PHYSICAL PLANNING
-Second Respondent

AND:

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
-Third Respondent

WAIGANI : INJIA, DCJ
2004 : September 20th – 22nd & 23rd

JUDICIAL REVIEW – PRACTICE AND PROCEDURE - Application to review decision of Lands Minister revoking earlier decision made by previous Lands Minister, to grant State Lease under S.11 and 102 of the Lands Act - Final decision made by the National Court in substantive application – Subsequent application by incorporated customary land groups not party to the proceedings, to be joined as parties, and to set aside final decision – Whether Court should re-open case – Application dismissed – Applicants to apply for judicial review against final decision.

JUDICIAL REVIEW – PRACTICE AND PROCEDURE – Special nature of judicial review process discussed – All persons directly affected by decision the subject of review must be served Notice of Motion and be heard on the application, even though they are not named as parties in the proceedings - Duty of the Court to conduct a full hearing on the merits of the application before a final order is made, notwithstanding the absence of parties or position taken by the parties present at the hearing, discussed – National Court Rules Order 16 rule 5(2), (5) & (6) and Rule 9(1).

Counsel:
T.Nonggor with R. Lindsay for the Applicants
Dr. Nwokolo with J. Sasingiam for the Plaintiff
J. Lilih for the Fourth Respondent

23rd September 2004

INJIA, DCJ.: This is an application by the Hengambu Landowners Association Inc. and the Yanta Development Association Inc (the "Applicants") for leave to be joined as parties to these proceedings pursuant to O 5 r 8 of the National Court Rules (NCR). The Applicants then seek orders setting aside the Court order made by Hinchliffe J on 18th August 2001 and entered on 19th August 2004 pursuant to NCR, O 12 r 8 NCR or alternatively under NCR, O 16 r 5(2) or O 1 r 9 of the NCR.

The order made on 18th August 2004 was an order for certiorari made in a judicial review application made under O 16. It was made inter partes after hearing counsel for both parties. The State was represented by Ms J Lilih of the Solicitor General’s office and the Plaintiff was represented by Dr. Nwokolo. I accept Ms Lilih’s explanation that she informed His Honour that she had no instruction to either consent to or oppose the application. In other words the Defendant took no position on the application. The Court was told by the parties that the Minister had no power under the Land Act to revoke a grant of lease made earlier by the Minister for Lands under S.11 and 102 of the Land Act. There was no full hearing on the merits of the explanation. The order granting certiorari and other declaratory orders made are:

"ORDER OF CERTIORARI.

"UPON READING the Originating Summons on behalf of the Applicant PIU LAND GROUP INC. dated 18th May 2004 together with the Statement in Support lodged on the application for leave to issue application for Judicial Review and the Affidavits of Martin Tapei, the Chairman of PIU LAND GROUP INC. and the exhibits therein referred to filed in support of the Notice of Motion, and

AND UPON HEARING Dr. Nwokolo of Counsel for the Applicant and Miss Jacqueline Lilih of Counsel for the Respondents the National Court of Justice ordered an Order in the nature of Certiorari to bring up and quash the decision of the Minister for Lands and Physical Planning made on the 18th July 2001 and published in the National Gazette Number G.96 of 24th July 2003 revoking the grant of a Special Agricultural and Business Lease to the Applicant.

IT IS ORDERED that the Applicant is declared the leaseholder of Portion 8C, Milinch of Wasus, Fourmil of Markham, Morobe Province pursuant to the grant of 4th July 2001 and notice gazetted on the 26th July 2001 in National Gazette No. G94.

AND IT IS FURTHER ORDERED THAT THE Applicant be issued an instrument of lease of the said Portion described as Portion 8C, Milinch of Wasus of Fourmil of Markham, Morobe Province without further delay.

AND THAT the Respondents pay the Applicant costs of these proceedings.

The time of the entry of this Order be abridged to the date of settlement which shall be forthwith.

ORDERED: the 19th day of August, 2004.

ENTERED: the 20th day of August, 2004.

BY THE COURT

(Signed)....

REGISTRAR"

Extensive submissions were made by counsel for the Applicants and the Plaintiff and it is not necessary to set them out in detail. It suffices to set out the essence of the case for each side.

The application is made on the basis that the Applicants "were directly affected" by the Second Lands Minister’s decision to revoke the grant of lease by the First Lands Minister under S.11 and 102 of the Land Act; in a lease-back arrangement with the Plaintiffs. They say the "Wafi River Prospect" area, which constitutes Portion 8C Milinch of Wasus, Fourmil of Markham, Morobe Province is customary land and it had been the subject of dispute between the Plaintiff and the Applicants before the Local and District Land Courts which then went on review in the National Court, resulting in decisions favourable to the Applicants. They say the Plaintiff applied for a Special Business Lease for 6,420 ha. of land, but the First Lands Minister granted 50,000 ha. which includes land owned by the other traditional landowners including the Applicants. They also say that in earlier proceedings before the National Court at Waigani, in OS 69/03, the Plaintiff and the Applicants were opposing parties wherein the Plaintiff sought declaratory orders that the Plaintiff be declared the owners of Portion 8C and therefore entitled to receive royalty monies to the exclusion of the Applicants. Whilst those proceedings were still pending, the Plaintiff filed the present judicial review application without the knowledge of the Applicants. The Applicants were conveniently not joined as parties by the Plaintiff in these proceedings and the Plaintiff obtained the order of certiorari in the Applicants’ absence. They say the Plaintiffs knew that the Applicants were interested parties who were "directly affected" by the decision under review and they should have been served the Notice of Motion under O 16 r 5(2) of the order for them to attend the hearing and be heard on the matter before the final decision was made. They say even if they were not served with the Notice of Motion, they were entitled to be heard, pursuant to O 16 r 9. They say the order was irregularly entered for these reasons and leave should be granted for them to be included as parties to the proceedings pursuant to O 16 r5(2) and r 9, that the order of 18th August 2004 should be set aside and the matter proceed to proper substantive hearing.

The Respondents, through Ms Lilih say they do not oppose the application because it is in the interest of the State that the Gold Mining Project located in the subject area should proceed with all customary landowners’ interests taken into consideration.

The Plaintiff however contests the application. The Plaintiff says the nature of the decision in an application for judicial review is final and the same Court cannot re-open the case at the invocation of a person who is not a party to the proceedings. Such application should have been made at the hearing or before the final decision. The Applicants should have been aware of these proceedings. As they did not appear at the hearing, the Applicants have no standing to making this application. They should either appeal or apply for judicial review in the Supreme Court. In any event, the Applicants do not have any ownership interest in the land. All the previous proceedings in the Land Courts and the National Court involved the Applicant’s right to compensation over damage to surface of the land and not ownership right. The proceedings in OS 69/03 seeks similar orders. The Plaintiff is the sole owner of this land. All interested customary landowners in the area were properly consulted by the First Minister and a decision made to grant the lease. The Second Minister’s decision was made without lawful authority under the Land Act and the Court quashed the decision on that basis. Whether the Applicants had any interest in the land were irrelevant for the purpose of this review.

I am satisfied on the evidence before me that the Applicants have ownership interests in the land in Portion 8C of the size described in the grant of 50,000 ha. I also find that the Plaintiff’s application for the size of the land was only 6,240 ha. but the First Minister may have wrongly granted a lease in the size of 50,000 ha. Such a vast area of land must no doubt include land owned by other landowner groups such as the Applicants. I am also satisfied that the Applicants’ interest in the land was recognized in the Local and District Land Court decisions and also in a subsequent National Court decision on review presided by Los J. Further their interest was recognized when they were made defendants in OS No. 69 of 2003, which is still pending determination. Some of these proceedings involved compensation to damage to land surface as submitted by Dr. Nwokolo, but in my view, compensation for land and land ownership are inter-related in customary land tenure systems and in most cases, inseparable.

I am also satisfied that the Applicants ought to have been served the Notice of Motion under O 16 r 5(2) to provide them an opportunity to be heard on the application before a decision was made, even though they were not parties in the proceedings. The requirement to serve the application on all persons "directly affected" by the decision the subject of the review, is specific, mandatory and fairly elaborate: Order 16 r 5(2), 5(5) and (6) provide:

"5(2) The notice of motion must be served on all persons directly affected and where it relates to any proceedings in or before a court and the object of the application is either to compel the court or an officer of the court to do any act in relation to the proceedings or to quash them or any order made in them, the notice of motion must also be served on the clerk or registrar of the court and, where any objection to the conduct of the Judge is to be made, on the Judge. ....

(5) An affidavit giving the names and addresses of, and the places and dates of service on, all persons who have been served with the notice of motion must be filled before the notice of motion is entered for hearing and, if any person who ought to be served under this Rule has not been served, the affidavit must state that fact and the reason for it, and the affidavit shall be before the Court on the hearing of the notice of motion.

(6) If on the hearing of the notice of motion the Court is of opinion that any person who ought, whether under this Rule or otherwise, to have been served has not been served, the Court may adjourn the hearing on such terms (if any) as it may direct in order that the notice of motion may be served on that person."

Also O 16 r 9 reinforces O 16 r 5(2, 5(5) and 5(6) and takes it one step further in recognizing the right of an interested party to be heard on the application. It recognizes the right of a person directly affected by the decision to be heard, even though the person is not a party to the proceedings and even though the person is not served with a Notice of Motion under O 16 r 5(2). O 16 r 9(1) provides:

"9(1) On the hearing of any notice of motion under Rules 5, any person who desires to be heard in opposition to the notice of motion, and appears to the Court to be a proper person to be heard, shall be heard, notwithstanding that he has not been served with the notice of motion."

I find that the Applicants were "directly affected" by the decision of the Second Minister and even of the First Minister and they ought to have been heard. O 16 r 5(2), (5) and (6) and r 9(1) provide an exhaustive procedure for any such person having an interest in the matter under review, and who is directly affected by the decision, to be afforded an opportunity by the Applicant or the Court, to be heard on the matter, even though they were not joined as parties to the initial proceedings (Also see my recent judgment in Jack Nou v Michael Cherake N2539 30th April 2004) and even if they are not served with the Notice of Motion under O 16 r 5(2).

In the present case, the Plaintiffs knew that the Applicants had an interest in the land but they failed to serve the Notice of Motion on them in order to give them an opportunity to be heard. This point was not raised by the Plaintiffs or the defendants before His Honour. No affidavit containing a list of interested persons served with the Notice of Motion under O 16 r 5(2) was filed and no such inquiry was conducted to establish if they ought to be served under r 5(5) and (6). Also, an inquiry was not conducted under O 16 r 9(1) to ascertain the Applicants’ obvious interest in the land and opportunity given to them to be heard. The final decision was made without a full hearing on the merits of the case, with all interested parties being heard.

A judicial review application is special in nature. Once leave is granted, a full and proper hearing, with all interested parties being heard, is necessary before a final decision is made. The Court should independently satisfy itself that the merits of the case warrant the grant of a pre-rogative writ, notwithstanding the default of a party in failing to attend Court or the position taken by the parties attending the hearing. The Court must independently conduct its own inquiry to see if the decision was properly made. That was not done in the present case. I accept Mrs Nonggor’s submission that the order was irregularly entered because it was made without compliance with the mandatory requirements of O 16 r 5(2)(5) and (6) and r 9(1).

Four things emerge from the evidence and submissions presented before me and they are clear – this is not an ex parte order, it is not a consent judgment, it is a final judgment which took effect once it was entered by the Registrar on 20th August 2004, and the order was granted irregularly in the sense that the procedural requirements of O 16 r 5(2), (5) and (6) and r 9(1) were not addressed, thereby shutting out other interested parties such as the Applicants from being heard.

In these circumstances, the question is whether I have the jurisdiction to grant the relief sought by the Applicants. In my view, the court’s power to join a person as a party to the proceedings and the power to vary or set aside a previous order under provisions of the NCR relied upon is available, either before the hearing or after the hearing but before final judgment is given. Only parties named in the proceedings would be entitled to invoke the Court’s jurisdiction under these provisions to vary or set aside the orders, even if the order is expressed to be final. Therefore, the only proper option open to an interested person not a party to those proceedings such as the Applicants is to apply for judicial review in the Supreme Court under S.155(2)(b) of the Constitution. All the evidence and arguments raised before me could be raised before the Supreme Court in an application for judicial review. I do not think it is appropriate for me to re-open the case, allow the Applicants to be joined in the proceedings, quash or set aside the final decision of another National Court judge of equal jurisdiction, and allow the matter to proceed to a full substantive review.

I also think it is inappropriate for me to reserve any point for consideration or direct any case or point to be argued before the Supreme Court, under S.15 of the Supreme Court Act, as requested by Mrs Nonggor because all relevant issues including those argued before me, could be argued on an application for judicial review instead of splitting up the issues between this Court and the Supreme Court under S.15 procedure.

In the end, I dismiss the application. In view of the comments I have made about their regularity of the proceedings and the erroneous nature of the of grant lease by the First Lands Minister, in order to do justice to the Applicants, pursuant to the inherent powers conferred on me by S.155(4) of the Constitution, I will extend the interim injunctions I granted previously to remain in force for sixteen (16) days to allow them to file an application for judicial review of the decision of the National Court made on 18th August 2004. The interim injunction will be automatically discharged at the expiry of these sixteen (16) days. If an application for judicial review is filed within this period, the Applicants may apply for fresh interim restraining orders in the Supreme Court. I recommend to the Applicants to file an application for judicial review of the decision of the National Court made on 18th August 2004, under S.155(2)(b) of the Constitution. I will now hear parties on the issue of costs.
_______________________________________________________________
Lawyer for the Applicants : Gadens Lawyers
Lawyer for the Plaintiff : Ikenna Lawyers
Lawyer for the Respondents : Solicitor General