Bizei v Gabut [2014] PGNC 141; N5669 (11 July 2014)

N5669

PAPUA NEW GUINEA
IN THE NATIONAL COURT OF JUSTICE

OS (JR) NO 290 OF 2013

GABRIEL MIAI BIZEI, FOR AND ON BEHALF OF MEMBERS OF MAURE MIRIGUA CLAN
Plaintiff

V

JOSEPH GABUT, BENEDICT BATATA & KUTT PAONGA, RAMU NICKEL/COBALT SPECIAL LAND TITLES COMMISSION
First Defendants

RAMU NICKEL/COBALT SPECIAL LAND TITLES COMMISSION
Second Defendant

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Defendant

Madang: Cannings J
2014: 15 May, 19 June, 11 July

JUDICIAL REVIEW – decision of Special Land Titles Commission to refuse to register and hear plaintiff's claim of interest in customary land – whether reasons for decision sufficient – whether decision unlawful under Constitution, Section 41 – whether decision made in breach of a National Court order.

The plaintiff claimed that his clan was the true customary owner of two blocks of land over which mining tenements were granted. He applied to the Special Land Titles Commission, which had been established to determine disputes over customary ownership of the two blocks, to register his clan's claim. The application was refused and the Commission proceeded to determine the disputes without hearing from the plaintiff and made a determination that failed to recognise him or his clan as having any interest in the two blocks. The plaintiff was aggrieved and, having been granted the leave of the Court, applied for judicial review of three decisions of the Commission that culminated in his and his clan's interests not being recognised. Those decisions (or sets of decisions) were: (1) to refuse to register the plaintiff as a disputing claimant (the decision dated 23 November 2011), (2) to register another person as a disputing claimant for the plaintiff's clan, thereby giving effect to an order of the National Court, while applying to set aside another order of the National Court which had ordered the Commission to register the plaintiff as a disputing claimant (decisions dated 23 November 2011 and 11 January, 15 March and 25 May 2013) and (3) to declare that persons and clans other than the plaintiff and his clan have ownership and user rights over the two blocks of land (decision dated 12 August 2013). Various grounds of review were argued in relation to each decision, in that: (1) the first decision was made in breach of the principles of natural justice as no reasons were given for it; (2) the second set of decisions was unfair, unjust, harsh, oppressive and disproportionate to the requirements of the particular case and otherwise not in the circumstances reasonably justifiable in a democratic society, contrary to Section 41 of the Constitution; (3) the final decision was unlawful as it was made in contravention of an order of the National Court.

Held:

(1) As to the first decision: the requirement to give reasons for a decision varies according to the circumstances of each case. Here it was clear the Commission was relying on a previous decision (for which detailed reasons were given) for refusing the plaintiff's application; in those circumstances the reasons for the decision were obvious and self-explanatory and there was no need to repeat them or give a fresh statement of reasons. Hence there was no denial of natural justice.

(2) As to the second set of decisions: the Commission, having evidently decided not to challenge a National Court order that required it to register another person as a disputing claimant, was entitled to apply to the National Court to set aside a similar sort of order, made ex parte, that required it to register the plaintiff as a disputing claimant. Its decisions were not harsh or oppressive or in any way contrary to Section 41 of the Constitution.

(3) As to the final decision: it could not be said to have been made unlawfully as there was no evidence that the order of the National Court, which restrained the Commission from making a final decision without the leave of the Court, was served on the Commission.

(4) As all grounds of judicial review failed the application for judicial review and all relief sought by the plaintiff was refused.

Cases cited

The following cases are cited in the judgment:

Gabriel Miai Bizei v Joseph Dunguru Yonguru, Patrick Nasa & The State (2012) N4812
Godfrey Niggints v Henry Tokam [1993] PNGLR 66
Mision Asiki v Manasupe Zurenuoc (2005) SC797
Ombudsman Commission v Yama (2004) SC747

Counsel

G Pipike, for the plaintiff
S Phannaphen, for the defendants

11th July, 2014

1. CANNINGS J: This is a ruling on an application for judicial review by the plaintiff, Gabriel Miai Bizei. He has claimed for some years that he is the leader of a clan, Maure Mirigua, which is the true customary owner of two blocks of land in the Kurumbukari area of Madang Province over which a Special Mining Lease, known as SML 8, has been granted for the purposes of the Ramu Nickel-Cobalt Project. The blocks are Block 1, known traditionally as "Imuruba", and Block 2, known traditionally as "Maure".

2. In March 2011 he applied to the second defendant, the Special Land Titles Commission, which had been established to determine disputes over customary ownership of the two blocks, to register his clan's claim. The application was refused and the Commission (constituted by the first defendants, Commissioners Gabut, Batata and Paonga) proceeded to determine the disputes without hearing from the plaintiff. On 12 August 2013 the Commission made a final determination that failed to recognise the plaintiff or his clan as having any interest in the two blocks.

DECISIONS SUBJECT TO REVIEW

3. The plaintiff was aggrieved by that determination and decisions leading up to it and, having been granted the leave of the Court, applies for judicial review of three decisions of the Commission that culminated in his and his clan's interests not being recognised. Those decisions (or sets of decisions) are:

1 the decision to refuse to register the plaintiff as a disputing claimant (the decision dated 23 November 2011),

2 the decision to register another person, Joseph Dunguru Yonguru, as a disputing claimant for the plaintiff's clan, thereby giving effect to an order of the National Court, while applying to set aside another order of the National Court which had ordered the Commission to register the plaintiff as a disputing claimant (decisions dated 23 November 2011 and 11 January, 15 March and 25 May 2013), and

3 the final decision to declare that persons and clans other than the plaintiff and his clan have ownership and user rights over the two blocks of land (decision dated 12 August 2013).

Various grounds of review are argued in relation to each decision.

THE FIRST DECISION, TO REFUSE TO REGISTER THE PLAINTIFF AS A DISPUTING CLAIMANT

4. The first defendants were appointed in early 2011 to constitute the Special Land Titles Commission, following the death of the previous Commissioner, Mr Patrick Nasa. A public notice was published requiring landowners, clans and tribes in the affected areas to "re-lodge notice of their intention to participate at the hearing" with the Registrar of the Commission within 14 days. The plaintiff lodged such a notice in respect of SML 8, Blocks 1 and 2, dated 16 March 2011, on behalf of Maure Mirigua clan, by way of an application to register his clan's claim. On 23 November 2011 the Commission refused the application in respect of each block, stating:

MAURE MIRIGUA CLAN – GABRIEL BIZEI

Interim order – will not entertain his application until a court order is produced. Decision to be reviewed when a National Court order has been produced.

5. Mr Pipike for the plaintiff submitted that this decision was made in breach of the principles of natural justice as no reasons were given for it. He submitted, relying on the decision of the Supreme Court in Ombudsman Commission v Yama (2004) SC747, that whenever any decision is made, reasons must be given, and relying on the decision of the National Court in Godfrey Niggints v Henry Tokam [1993] PNGLR 66, that if no reasons are given for a decision it must be presumed that there were no good reasons.

6. I have two difficulties with these submissions. First it seems to be argued, based on Ombudsman Commission v Yama, that there is an overriding duty imposed on every person making an administrative decision to give reasons for their decision. No such principle exists in the laws of Papua New Guinea. The duty to give reasons exists if there is a duty to comply with the principles of natural justice. To establish that there is a duty to give reasons the plaintiff must first show that there was a duty to accord natural justice (Mision Asiki v Manasupe Zurenuoc (2005) SC797). It is not clear that such a duty arose in this case, where the Commission was making a decision on whether to accept or refuse an application by the plaintiff and his claim to be registered as a disputing claimant.

7. However, if it is presumed that the Commission had a duty to give reasons for its decisions, the second difficulty I have with the submissions is that they gloss over the principle that the nature and extent of the requirement to give reasons for a decision varies according to the circumstances of each case. And they overlook the history of the plaintiff's application. The plaintiff made a similar application in early 2009 to Mr Nasa, who refused it as it was made almost seven years after potential claimants had been publicly invited to lodge their claims with his Commission. Mr Nasa gave written and detailed reasons for his decision, which was subsequently the subject of an application for judicial review. I was the presiding Judge in that case, Gabriel Miai Bizei v Joseph Dunguru Yonguru, Patrick Nasa & The State (2012) N4812. The application for judicial review was refused. The Commissioner's decision to refuse the plaintiff's application was found not to be unreasonable. It was a considered and rational decision for which written reasons were given and the Commissioner had a wide discretion to determine the procedures of the Commission. There was no denial of natural justice. The plaintiff had a reasonable opportunity to register a claim with the Commission but failed to avail himself of the opportunity. The Commissioner acted fairly and would have been seen by any reasonable observer to have acted fairly in refusing the application.

8. Here it was clear the Commission was relying on Mr Nasa's decision of March 2009 for refusing the plaintiff's application. That was a reasonable position to take. For the Commission to say that it would not entertain the plaintiff's application until an order of the National Court was produced, was a sensible approach to take. The reasons for its decision were obvious and self-explanatory. There was no need to repeat the reasons given by Mr Nasa or give a fresh statement of reasons. There was no denial of natural justice. The grounds put forward for review of the decision of 23 November 2011 are refused.

THE SECOND SET OF DECISIONS, TO FOLLOW A COURT ORDER IN FAVOUR OF ANOTHER PARTY BUT TO CHALLENGE A COURT ORDER IN FAVOUR OF THE PLAINTIFF

9. The plaintiff argues that the Commission made a set of decisions that was unfair, unjust, harsh, oppressive and disproportionate to the requirements of the particular case and otherwise not in the circumstances reasonably justifiable in a democratic society, contrary to Section 41 of the Constitution. Put more simply the plaintiff argues that the Commission acted inconsistently in the approach it took to his application and the approach it took to a similar application (to be registered as a disputing claimant) by another person, Joseph Dunguru Yonguru, who also claimed to represent the Maure Mirigua clan.

10. Mr Pipike points out that on 22 April 2009 the National Court (Yalo AJ) made an ex parte order at Wabag requiring the Commission (which was then constituted by Commissioner Nasa) to register Mr Yonguru as a disputing claimant. Despite what Mr Pipike asserts to be the "questionable" nature of the order (it was made ex parte, in another province), it was given effect and never challenged by the Commission. Its decision of 23 November 2011 set out whose applications had been accepted and whose had been rejected. Mr Yonguru's application was amongst those accepted and the plaintiff's application was amongst those refused.

11. The Commission's inconsistency in approach (and the alleged harsh and oppressive conduct etc) manifested itself in 2013, Mr Pipike submits, when the plaintiff commenced fresh National Court proceedings, OS No 152 of 2013, aimed at requiring the Commission to accept his application to be registered as a disputing claimant. On 26 April 2013, in those proceedings, Gavara-Nanu J, sitting in the National Court at Madang, made an order ex parte, requiring the Commission to register the plaintiff on behalf of the Maure Mirigua clan as a disputing claimant. However, rather than accepting that order and complying with it, as it had done in relation to the order of 22 April 2009 in favour of Mr Yonguru, the Commission engaged a private law firm, Thomas More Ilaisa Lawyers of Madang, to challenge the order. The challenge was successful in that the National Court (Cannings J presiding) on 14 June 2013 upheld a motion by the Commission and set aside the order of 26 April 2013. Why was the Commission so keen to challenge an order that favoured the plaintiff, yet so willing to comply with the order of 22 April 2009 that favoured Mr Yonguru? That is the question raised by Mr Pipike and he submits that there is no satisfactory answer to it, and this shows that the Commission was acting inconsistently and unfairly, unjustly, harshly and oppressively and disproportionately to the requirements of the particular case and that its conduct was not in the circumstances reasonably justifiable in a democratic society, contrary to Section 41 of the Constitution.

12. I am not impressed by these submissions. I find that the Commission, having evidently decided not to challenge the order of 22 April 2009, was entitled to apply to the National Court to set aside a similar sort of order, made on 26 April 2013 that required it to register the plaintiff as a disputing claimant. It was entitled to form the view that the plaintiff had exhausted his right to have his voice heard by the National Court's rejection of his application for judicial review in Gabriel Miai Bizei v Joseph Dunguru Yonguru, Patrick Nasa & The State (2012) N4812, a decision that was handed down on 5 October 2012. It was also entitled to argue that the fresh proceedings the plaintiff commenced in 2013 were an abuse of process and that he should have, if he were genuinely aggrieved by the National Court decision of 5 October 2012, appealed to the Supreme Court against that decision, rather than waiting six months and then commencing fresh National Court proceedings.

13. Having considered all the prevailing circumstances, the plaintiff has fallen well short of persuading me that the second set of decisions of the Commission was harsh or oppressive or in any way contrary to Section 41 of the Constitution. The grounds put forward for review of the second set of decisions are refused.

THE THIRD DECISION, TO NOT RECOGNISE THE PLAINTIFF OR HIS CLAN'S INTEREST IN THE LAND

14. The final determination of the Commission as to ownership and user rights for Blocks 1 and 2 was made on 12 August 2013. The Commission declared that persons and clans other than the plaintiff and his clan have ownership and user rights over the two blocks. It should be noted that the Maure Mirigua clan was listed as a disputing claimant in respect of each block, and that Mr Yonguru was regarded as the clan's spokesman.

15. The plaintiff argues that the Commission erred in law in its final determination as it was made contrary to the National Court order of 14 June 2013. At first glance there appears to be merit in this argument. Though it set aside the order of 26 April 2013, the Court's order of 14 June 2013 included the following, as order No 3:

The Special Land Titles Commission shall not make a final decision rejecting any claim by the plaintiff without leave of the Court.

16. It is undisputed that the Commission did not obtain the leave of the Court before making its final determination, which involved a rejection of the plaintiff's claims. On the face of it the Court's order has been breached. But was the order ever served on the Commission? Did the Commission have notice of the order? No. There is no evidence that the order was served on the Commission or that it had notice of it. In these circumstances the Commission cannot be said to have acted unlawfully or to have made an error of law. The grounds put forward for review of the Commission's final determination are refused.

CONCLUSION

17. As all grounds of judicial review have been refused the application for judicial review must fail. Costs will follow the event.

ORDER

(1) The application for judicial review is refused.

(2) All relief sought in the plaintiff's notice of motion under Order 16, Rule 5 of the National Court Rules is refused.

(3) The plaintiff shall pay the defendants' costs of the application on a party-party basis which shall, if not agreed, be taxed.

Judgment accordingly.
________________________________________________________
GP Lawyers: Lawyers for the Plaintiff
Solicitor-General: Lawyer for the Defendants