Alai v Waina [2012] PGNC 98; N4773 (24 August 2012)

N4773

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS (JR) NO 135 OF 2012

FELIX ALAI
ON BEHALF OF THE ANOSOS CLAN OF TUMLEO ISLAND
Plaintiff

V

NAKOT WAINA
First Defendant

MASO APAI & MOSES ROWAI
Second Defendants

CONRAD C KARO
Third Defendant

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Fourth Defendant

Madang: Cannings J
2012: 18 May, 24 August

JUDICIAL REVIEW – application for leave to seek review of decision of District Land Court, dismissing appeal against decision of Local Land Court – requirements for granting of leave – whether undue delay in making application.

The plaintiff applied in 2012 for leave to seek judicial review of the decision of a District Land Court made in 1995, dismissing an appeal by the plaintiff against a decision of a Local Land Court, which decided that the plaintiff's clan shared ownership of customary land with three other clans.

Held:

(1) There are five requirements for granting of leave to seek judicial review: (a) locus standi; (b) decision must be of a public body; (c) arguable case; (d) exhaustion of administrative remedies; (e) no undue delay.

(2) One of the requirements was not met: (e) no undue delay. Leave was accordingly refused.

Cases cited

The following cases are cited in the judgment:

Anis v Morissa (2011) N4307
Jack Afing v Martin Pari (2006) N3034
Jack Nou v Richard Cherake, Magistrate, Provincial Land Court, Port Moresby (2004) N2539
Leto Darius v Commissioner of Police (2001) N2046
Louis Medaing v Minister for Lands and Physical Planning (2010) N3917
Martha Limitopa and Poti Hiringe v The State [1988-89] PNGLR 364
Martina Jimmy v Kevemuki Clan (2010) N4101
Nakun Pipoi v Viviso Seravo, Minister for Lands (2008) SC909
NTN Pty Ltd v PTC [1987] PNGLR 70
Otto Benal Magiten v Bilding Tabai and Lawrence Acanufa trading as Acanufa & Associates Lawyers (2010) N3916
Reference by the Attorney-General (2010) SC1078
Richard Dennis Wallbank and Jeanette Minifie v The State [1994] PNGLR 78
Small Business Development Corporation v Danny Totamu (2010) SC1054
The State v Colbert [1988] PNGLR 138
The State v District Land Court at Kimbe; ex parte Casper Nuli [1981] PNGLR 192
The State v Downer Construction (PNG) Ltd (2009) SC979
The State v Lohia Sisia [1987] PNGLR 107

Counsel

F Alai, the plaintiff, in person
B Tabai, for the first defendant
R Gelu, for the fourth defendant

24 August, 2012

1. CANNINGS J: The plaintiff, Felix Alai, is seeking leave to apply for judicial review of a decision of a District Land Court that dismissed an appeal against a decision of a Local Land Court. At the centre of those Land Court cases was the question of disputed customary ownership of land at and around Aitape, Sandaun Province, an area of 470 hectares, which was declared National Land under the National Land Registration Act Chapter 357. The National Land Commission had ordered under Section 43 (conflicting claims) of that Act that conflicting claims to "settlement payments" due to the customary landowners be dealt with under the Land Disputes Settlement Act Chapter 45.

2. The Local Land Court, constituted by Land Court Magistrate Mr Karopo and Land Mediators Mr Anis and Mr Saiu decided on 17 November 1992 that customary ownership of the land was divided equally among four clans, one of which was the plaintiff's, the Anosos clan of Tumleo Island. All clans were aggrieved by the decision, apparently each holding the view that it should have been declared as the sole customary owner of the land, and each appealed to the District Land Court, constituted by District Land Court Magistrate Mr Karo. His Worship on 3 July 1995 dismissed all appeals and affirmed the Local Land Court's decision. It is the District Land Court decision, the reasons for which are contained in a 17-page written judgment, which the plaintiff wishes to have reviewed by the National Court. The plaintiff claims that the District Land Court failed to properly address his clan's grounds of appeal, misconceived the nature of the appellate jurisdiction being exercised, erred in law by endorsing the erroneous view of the Local Land Court that there can be more than one clan holding customary ownership of the same piece of land and made a decision so unreasonable that no court doing justice could make.

JURISDICTION OF NATIONAL COURT

3. The decision of 3 July 1995 was "final and is not subject to appeal" by virtue of Section 60 of the Land Disputes Settlement Act. However, that does not rule out a judicial review. Under Section 155(3)(a) of the Constitution the National Court "has an inherent power to review any exercise of judicial authority". It is well established that the National Court has power to review, as distinct from hearing an appeal against, decisions of a District or Provincial Land Courts, subject to it first granting leave to apply for judicial review in accordance with Order 16 of the National Court Rules (The State v District Land Court at Kimbe; ex parte Casper Nuli [1981] PNGLR 192, Jack Nou v Richard Cherake, Magistrate, Provincial Land Court, Port Moresby (2004) N2539, Jack Afing v Martin Pari (2006) N3034, Martina Jimmy v Kevemuki Clan (2010) N4101).

REQUIREMENTS FOR GRANTING LEAVE

4. The question of whether leave to apply for judicial review should be granted is a matter of discretion and turns on whether five requirements are met:

(a) Does the plaintiff have locus standi, ie a sufficient interest in the subject matter of the decision?

(b) Is the decision sought to be reviewed that of a public authority?

(c) Does the plaintiff have an arguable case on the merits?

(d) Have administrative remedies, if any, been exhausted?

(e) Has the application been made promptly without undue delay?

5. If all five are satisfied the court's discretion should be exercised in favour of the plaintiff: leave will be granted. If one or more is not satisfied leave should be refused (NTN Pty Ltd v PTC [1987] PNGLR 70, Leto Darius v Commissioner of Police (2001) N2046, Louis Medaing v Minister for Lands and Physical Planning (2010) N3917).

6. I am satisfied as to four of the requirements. The plaintiff has a sufficient interest as the evidence shows that he was actively involved in the Land Court hearings in 1992 and 1995. The decision sought to be reviewed is of a court exercising the judicial power of the People, it is quintessentially a public body. The plaintiff has established an arguable case for review. In particular it is arguable that the District Land Court did not adequately address all the grounds of appeal, the importance of which was highlighted in the recent Madang case of Anis v Morissa (2011) N4307, a successful application for judicial review of a decision of a Provincial Land Court which had dismissed an appeal against a decision of a Local Land Court concerning customary land in the vicinity of the Ramu Sugar estate. There are no administrative remedies available to the plaintiff as a further appeal is prohibited by statute. So (a), (b), (c) and (d) are satisfied. What about (e), delay?

THE REQUIREMENT THAT THERE BE NO UNDUE DELAY

7. This requirement must be precisely addressed under Order 16, Rule 4 of the National Court Rules, which states:

(1) Subject to this Rule, where in any case the Court considers that ... in a case to which Sub-rule (2) applies, the application for leave under Rule 3 is made after the relevant period has expired, the Court may refuse to grant —

(a) leave for the making of the application; or

(b) any relief sought on the application,

if, in the opinion of the Court, the granting of the relief sought would be likely to cause substantial hardship to, or substantially prejudice the rights of, any person or would be detrimental to good administration.

(2) In the case of an application for an order of certiorari to remove any judgment, order, conviction or other proceeding for the purpose of quashing it, the relevant period for the purpose of Sub-rule (1) is four months after the date of the proceeding.

(3) Sub-rule (1) is without prejudice to any statutory provision which has the effect of limiting the time within which an application for judicial review may be made.

8. As the plaintiff is seeking leave to apply for an order in the nature of certiorari to quash the District Land Court decision the "relevant period" is four months after "the proceeding", ie four months after 3 July 1995: 3 November 1995. The application for leave was filed on 12 March 2012, 16 years, 4 months, 1 week and 2 days after the expiry of the relevant period. The plaintiff is obliged to provide a satisfactory explanation for that delay and the court is required to form an opinion on the matters set out in Rule 4(1).

9. The longer the delay the better the explanation should be. In The State v Lohia Sisia [1987] PNGLR 107 and Nakun Pipoi v Viviso Seravo, Minister for Lands (2008) SC909 delays of six years and 11 years in seeking leave to apply for review of decisions concerning declaration of National Land under the National Land Registration Act were held to be unreasonable and not satisfactorily explained; so when it is considered that the delay in the present case is considerably longer than in those cases it is apparent that the plaintiff needs to provide a very good explanation. The plaintiff's explanation is that the task of challenging the District Land Court's decision was given to four different law firms each of which mishandled the matter. He deposes in a lengthy and detailed supporting affidavit the details of instructions given to the law firms and fees paid and how the matter was allegedly mishandled. The plaintiff's argument is essentially that he has been vigorously pursuing the matter since 1995 but his attempts to challenge the decision have been thwarted by a lack of diligence on the part of successive lawyers who have had carriage of the matter.

10. I accept that the plaintiff has maintained a genuine interest in the decision of the District Land Court and that instructions have been given to a number of different law firms. I am in no position, however, to form an opinion on how well those firms have handled the matter or whether certain lawyers have been guilty of professional negligence. Even if I were to have concluded that a particular lawyer was negligent and responsible for the delay in making the application for leave that would not provide a good excuse. The general rule is that a client is bound by his lawyer's conduct of a matter. If a lawyer fails to file process within a stipulated time and the client's interests are prejudiced that is usually not a good reason for the court to extend time or to disregard the failure to meet a time limit (The State v Colbert [1988] PNGLR 138, Small Business Development Corporation v Danny Totamu (2010) SC1054); though it might enable the client to establish a cause of action in negligence against the lawyer and an entitlement to damages (Martha Limitopa and Poti Hiringe v The State [1988-89] PNGLR 364, Otto Benal Magiten v Bilding Tabai and Lawrence Acanufa trading as Acanufa & Associates Lawyers (2010) N3916). I conclude that there is no satisfactory explanation for the delay of 16 years, 4 months, 1 week and 2 days.

11. As to the matters set out in Rule 4(1) it must be considered whether the granting of the relief sought (quashing the District Land Court decision and ordering that the plaintiff's clan is the sole customary owner of the disputed land) would be:

• likely to cause substantial hardship to any person;
  
• likely to substantially prejudice the rights of any person; or
  
• detrimental to good administration.
  

12. Having regard to the extensive delay, I am of the opinion that quashing the District Land Court decision 17 years after it was made would be likely to cause substantial hardship to the three other clans whose joint customary ownership of the land was recognised. It would be likely to substantially prejudice their rights. It would also be detrimental to good administration, which entails adherence to the principle of finality of litigation (Richard Dennis Wallbank and Jeanette Minifie v The State [1994] PNGLR 78, The State v Downer Construction (PNG) Ltd (2009) SC979, Reference by the Attorney-General (2010) SC1078). There comes a point when everyone must accept that a decision has been made by a lawfully constituted court, which must be respected and enforced. Those aggrieved by court decisions have avenues available to challenge them but they must act expeditiously to enforce their rights. Once the time for appeal or review has lapsed and nothing has been done to challenge the decision, everyone must move on and conduct their business, their affairs and their lives in accordance with the decision.

13. To sum up, the no undue delay requirement: the extensive delay in filing the application for leave has not been satisfactorily explained and granting the relief sought by the plaintiff would be likely to cause substantial hardship to and substantially prejudice the rights of other persons, namely members of clans whose interests in the disputed land were recognised by the 1995 District Land Court decision, and detrimental to good administration.

CONCLUSION

14. One of the five requirements for granting leave has not been met so leave will be refused. Though two of the defendants appeared at the hearing it was not necessary for them to do so, so it is appropriate that the parties bear their own costs.

ORDER

(1) The application for leave to apply for judicial review of the decision of the Aitape District Land Court of 3 July 1995 is refused.

(2) The parties shall bear their own costs.

Judgment accordingly.
____________________________
Tabai Lawyers: Lawyers for the First Defendant
Solicitor-General: Lawyer for the Fourth Defendant