Monai v Lisio [2013] PGNC 75; N5084 (4 February 2013)

N5084

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

O. S. NO. 724 OF 2007

BETWEEN:

FRANCIS MONAI for and on behalf of Bargin Clan of Awiklo Island, Kandrian, West New Britain Province.
First Plaintiff

AND:

THOMAS VILAIO for and on behalf of Awisu Clan of Awiklo Island. Kandrian, West New Britain Province.
Second Plaintiff

AND:

SAM KUSUK for and on behalf of Ainim Clan of Awiklo Island, Kandrian, West New Britain Province.
Third Plaintiff

AND:

OSCAR LISIO for and on behalf of Akaidi 1 of Coastal Kandrian, West New Britain Province.
First Defendant

AND:

JELIO LESKI for and on behalf of Akaidi 1 of Coastal Kandrian, West New Britain Province.
Second Defendant

AND:

MANDIK KAPIN presiding as Kimbe Provincial Land Court Magistrate
Third Defendant

AND:

THE INDEPENDENT STATE OF PAPUA NEW GUINEA (N0.3)
Fourth Defendant

Kokopo: Lenalia, J.
2011: 6th December
2013: 4th February

CIVIL LAW – Application to set aside an order for dismissal for want of prosecution –Order 12 Rule 8 (3) (a) of the National Court Rules.

CIVIL LAW – Practice & Procedure – Land dispute – Decision of Provincial Land Court – No records of proceedings in that Court –Appeal could not be dismissed for want of prosecution unless it had not been heard – Provincial Land Court decision quashed.

Case cited:

Kekedo-v-Burns Philip & Ors [1988-89] PNGLR 122
Chan-v-Ombudsman Commission [1998] PNGLR 171
Ombudsman Commission-v-Yama (2004) SC747
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)
Balus Tara-v-Rachel Gugu (1982) N374 (M)
Thomas Kavali-v-Thomas Hoihoi [1984] PNGLR 182
Bougainville Copper Foundation-v-Minister for Trade and Industry (1989) N747)
Martina Jimmy & Other-v-Kevemuki Clan (2010) N4101

Counsel

Mr. N. Motuwe, for the Applicants/Plaintiffs
Mr. A. Edo, for the Fourth Defendant/Respondent

4th February, 2013

1. LENALIA; J. The plaintiffs represent three distinct clans in Kandrian District, West New Britain Province. The disputed land referred to as 'NUMUD' went through the three processes defined in the Land Dispute Settlement Act from mediation to the Local Land Court then to the Provincial Land Court. The three processes covered are provided for in PART 111 ss.17-20, mediation process, PART IV ss.31-38, the process taken in the Local Land Court in hearing and PART 5 Division 3 ss.53-60 Provincial Land Court on appeal of the above Act.

2. The plaintiffs clan BARGIN, AWAISU and ANINI are all from Awiklo Island in the Kandrian District, West New Britain Province. The two respondents both represent the AKAINDI clan on coastal Kandrian also in Kandrian District. The dispute was mediated and since there were no agreement reached, the dispute was transferred to the Local Land Court at Kimbe.

The Local Land Court sat and heard the dispute from 18th, 19th, 20th, April 2006.
The presiding Magistrate who presided with the Land Mediators was His Worship Mr. Luke Vava and Land Mediators Joseph Aon and Tobias Divu. On 24th of that month, the Local Land Court, in the absence of Joseph Aon handed down the decision in which they held that the land known as Numud, the subject of the dispute belonged to the Akaidi 1 of the Coastal Kandrian.

3. The applicants being aggrieved by that decision of the Local Land Court, appealed to the Provincial Land Court pursuant to s.57 and 58 of the Land Dispute Settlement Act Ch. 45. That appeal was prosecuted on 20th July 2007. The decision of that appeal was to be handed down on 5th October of that year. However, unknown to the parties, the decision had been delivered the day before the date it was set to deliver the decision. The decision on that appeal was that, the appeal was dismissed for want of prosecution.

4. The presiding Magistrate in the Provincial Land Court late Mr. Madik Kapin informed the parties that, he was to produce a written judgment but he never did until his passing. This was one of the reasons for the late filing of the application for judicial review.

5. The Originating Summons on which the applicants applied for judicial review was filed on or about 12th December 2007. On 13th August 2009 the application for judicial review was dismissed by Kandakasi, J for want of prosecution. On 10th April 2011, this Court set aside the orders dismissing the application seeking leave for judicial review. On 23rd November of that year, this Court granted leave for the plaintiff to apply for judicial review.

6. The matter was left there until 6th December 2012, the substantive review was dealt with. I now deliver that decision on this judicial review.

Counsels' Submissions

7. On arguing the plaintiffs case, Mr. Motuwe argued that the decision to dismiss was erroneously made and the Provincial Land Court acted ultra vires its powers as that court dismissed the appeal the day before the date the decision was set down for hearing.

8. Counsel went through some administrative processes where the respondents did not turn up to argue their appeal in the court below. Mr. Gah prosecuted the appeal on 20th July 2007. On that date, the respondents did not turn up to argue their case on the appeal.

9. According to Mr. Francis Monai's affidavit filed 31st July 2008, the appeal had been heard and the decision was to be handed down on 17th August 2007. On the request of Bob Lisio, the brother of the First Defendant/Respondent requested for adjournment because the respondents wanted to engage a lawyer.

10. Then on that date, no lawyer appeared. Only Oscar Lisio turned up and raised a number of issues including asking the court to strike out the affidavits of the applicants and their witnesses. After deliberations the magistrate adjourned to 5th October for decision.

11. However on that date, the appellants went to the Court House at Kimbe and found out that the decision had been delivered on 4th, the day before the date set for delivery of the decision.

12. Counsel submitted that even that, no decision has been made on the appeal and this court should grant the orders sought in their application.

13. Mr. Edo representing the Fourth Respondent/Defendant briefly submitted that the matter had gone through both in the Provincial Land Court then on to the Nation Court and this Court should determine the issues raised by the Applicant /Plaintiffs.

Law

14. The power of this court to review a decision of an administrative body or quasi legal authority comes from a number of sources. First s.59 of the Constitution states:

"Principles of natural justice.

(1) Subject to this Constitution and to any statute, the principles of natural justice are the rules of the underlying law known by that name developed for control of judicial and administrative proceedings.

(2) The minimum requirement of natural justice is the duty to act fairly and, in principle, to be seen to act fairly."

15. Secondly, s.155 (3) and (4) further gives the Supreme and National Courts the power to review decisions of administrative authorities. This section states:

"(3) The National Court—

(a) has an inherent power to review any exercise of judicial authority; and

(b) has such other jurisdiction and powers as are conferred on it by this Constitution or any law,

except where—

(c) jurisdiction is conferred upon the Supreme Court to the exclusion of the National Court; or

(d) the Supreme Court assumes jurisdiction under Subsection (4); or

(e) the power of review is removed or restricted by a Constitutional Law or an Act of the Parliament

(4) Both the Supreme Court and the National Court have an inherent power to make, in such circumstances as seem to them proper, orders in the nature of prerogative writs and such other orders as are necessary to do justice in the circumstances of a particular case."

16. The principles in relation to judicial review are that this Court has inherent power to review a decision of judicial authority or decisions made by quasi judicial authorities or administrative bodies. Such power comes from the sections quoted above and Order 16 of the National Court Rules. Rule 5 of the above Order states:

"(1) Subject to Sub-rule (2), when leave has been granted to make an application for judicial review, the application shall be made by notice of motion to the Court.

(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."

17. It is an established law that the reviewing court is not a court of appeal: Chan-v-Ombudsman Commission [1998] PNGLR 171 or Ombudsman Commission-v-Yama (2004) SC747. The purpose of judicial review is to examine the procedure followed or the steps taken by a person in authority whether a quasi judicial or administrative decision-maker to reach the final decision he reached and which the plaintiff complaints of to determine whether the process or procedure was proper and in accordance with the law.

18. The principles of judicial review of actions or exercise of powers by administrative authorities are well settled in our jurisdiction. It is a process whereby this Court sitting as the reviewing Court to review the process taken when the Local Land Court made its decision. Judicial review therefore involves reviewing the legality of the process and procedures followed to arrive at a decision: Kekedo-v-Burns Philip & Ors [1988-89] PNGLR 122.

19. It is establish law that an applicant who applies for leave to apply for judicial review has to satisfy the court about four major legal principles or elements in order for the court to grant leave for judicial review. They include:

(a) An applicant must show that he or she has sufficient interest and standing.

(b) Is there is an arguable case?

(c) That he or she has exhausted alternative statutory or administrative remedies.

(d) Has there been delay in bringing the application.

20. The principles of law enunciated in cases such as Kekedo-v-Burns Philp (PNG) Ltd & Others (supra), and Ila Geno and Others-v-Independent State of Papua New Guinea [1993] PNGLR 22 have been adopted and re-stated in many subsequent cases. Those principles say that in order for leave to be granted, an applicant must satisfy the court on the above four factors.

21. The appeal to the Provincial Land Court was made under s.54 of the Land Disputes Settlement Act. Under s.60 of that Act a decision of a Provincial Land Court on an appeal "is final and is not subject to appeal". However, that does not rule out a review. Under s.155 (3) (a) of the Constitution, the National Court "has an inherent power to review any exercise of judicial authority".

22. It is now well established law that the National Court has power to review decisions of Provincial Land Courts: 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).

23. Local Land Court and Provincial Land Court are established under the Land Disputes Settlement Act Chapter No. 45 and are thus creatures of statutes to hear appeals against decisions of Local Land Courts. They have got limited jurisdiction. They form part of the National Judicial System under s. 155(1) (c) and s.172 (1) of the Constitution. As such the Provincial Land Court is the creature of legislation and must act fairly and in accordance with its creator (Legislations) in all cases that come before it. Be it an appeal or the Land Court sitting on its original jurisdiction.

24. All Courts have a duty to conduct their proceedings in accordance with the principles of natural justice, the minimum requirement of which under s.59 (2) of the Constitution is the duty to act fairly and, in principle, to be seen to act fairly: Balus Tara-v-Rachel Gugu (1982) N374 (M), Thomas Kavali-v-Thomas Hoihoi [1984] PNGLR 182, Bougainville Copper Foundation-v-Minister for Trade and Industry (1989) N747), Martina Jimmy & Other-v-Kevemuki Clan (2010) N4101.

Findings

25. My finding from the evidence by the two or three plaintiffs is that, the appeal from the Local Land Court though heard, no decision was read in that Court for record purposes. The Third Respondent acted ultra vires its powers by erroneously dismissing the appeal when it was set down for handing down its decision when in fact the Provincial Land Court could have handed down its decision in absence of the appellants.

26. If that Court had not heard or taken evidence from the parties then it would be fair for it to have dismissed for want of prosecution. For whatever reasons, it would seem like, the Third Respondent did not or had not completed the hearing by 4th October 2007 when decision to dismiss was pronounced. The actual date for delivery of the decision was to be the next day.

27. It is my findings and expression of concern that, had the Third Defendant made any rulings or decision in relation to the NUMUD land, His worship could not just dismiss for want of prosecution, but deliver the decision in absence of the parties. To dismiss for want of prosecution means the appeal had not been prosecuted.

27. It is settled law that the reviewing court is to correct any procedural errors made during the proceedings.: Chan-v-Ombudsman Commission [1998] PNGLR 171 or Ombudsman Commission-v-Yama (2004) SC747. The purpose of judicial review is to examine the procedure followed or the steps taken by a person in authority whether a quasi judicial or administrative decision-maker to reach the final decision it reached and which the plaintiff complaints of to determine whether the process or procedure was proper and in accordance with the law.

28. Going through the evidence by the Applicants/Plaintiffs, I am satisfied that the presiding magistrate in the Provincial Land Court exceeded its powers, thus committing an errors of law thereby committing breach of natural justice and therefore it was an abuse of the processes of the District and Provincial Land Courts and unfair to both parties on the instant review. I make the following declaration and orders:

1. It is declared the decision by the Kimbe Provincial Land Court made on 4th October 2007 where it dismissed the applicants' appeal for want of prosecution was made ultra vires its powers.
   
2. This Court quashes the decision made by the Provincial Land court on 4th October 2007.
   
3. This Court orders that, the case be referred back to the Provincial Land Court at Kimbe to either deliver the decision if it is ready or if not, the appeal will be set for hearing by another Provincial Land Court Magistrate.
   
4. The order for costs to be in the cause.
   

_____________________________________________________________
Motuwe Lawyers: Lawyer for the Applicant/Plaintiffs
Solicitor General: Lawyer for the Fourth Respondent/Defendant