Kwayok v Singomat [2017] PGNC 377; N7097 (11 December 2017)

N7097

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS (JR) NO. 466 OF 2013

BETWEEN:

BEN KWAYOK SPOKESMAN FOR THE KUBREN CLAN OF SISIMAKAM VILLAGE NIGERUM NORTH FLY DISTRICT WESTERN PROVINCE
First Plaintiff

AND:
KUBREN CLAN OF PRIMIN TRIBE
Second Plaintiff

AND:
JEREMY SINGOMAT sitting as the PROVINCIAL LAND COURT MAGISTRATE IN KIUNGA
First Defendant

AND:
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Second Defendant

AND:
NOKIM FAIWOLOK SPOKESMAN FOR WOPKEINIM CLAN OF MIN TRIBE BULTEM VILLAGE TABUBIL WESTERN PROVINCE & WOKEINIM CLAN OF THE MIN TRIBE
Third Defendant

Waigani: Nablu, J
2017: 7^th June &11^th December

JUDICIAL REVIEW – Decision of theProvincial Land Court of Kiunga – Dismissal of appeal – representative action – mandatory requirement – evidence of authority or consent to act - s.50, Land Dispute & Settlement Act – Provincial Land Court’s original or appellate jurisdiction – wide discretion – application for judicial review dismissed.

PRACTICE AND PROCEDURE – Judicial Review application – grounds of review – in sufficiently pleaded – lack of legally recognised grounds of review – proper grounds of judicial review must be pleaded.

Cases cited:

Dale Christopher Smith v. Minister for Lands (2009) SC 973

Kekedo v. Burns Philip [1988-89] PNGLR 122

Malewo v. Faulkner [2007] N3357

MisionAsiki v. ManasupeZurenuoc (2005) SC 797

21 ILGs of Gobe Project Area Incorporated Land Group v. ImaweBogasi ILG (2006) N3096

Simon Mali v. The State (2002) SC 690

Counsel:
Mr L. Kari, for the First and Second Plaintiff
Mr N. Yano, for the First & Second Defendant
No appearance for the Third Defendant

JUDGEMENT

11^th December, 2017

1. NABLU, J: The first and second plaintiff seeks to review the decision of the first defendant which was made on 9^th November 2012. The learned Magistrate sitting as the Kiunga Provincial Land Court affirmed the decision of the Local Land Court which was made on 23^rdAugust 2011 which effectively vested the ownership of the customary land under dispute to the third defendant. The customary land which was in dispute is Mt Fubilan, in Western Province which is the subject of a Special Mining Lease and where the Ok Tedi Mine is located.
   
2. Leave was granted to the plaintiff on 12^th December 2013. In the substantive notice of motion the plaintiff soughtvarious declaratory orders and an order in the nature of certiorari to quash the decision of the Provincial Land Court dated the 9^th November 2012 and other orders that are deemed appropriate. During the hearing, the plaintiff provided a supplementary submission, seeking additional or alternative orders. The plaintiff argued that this Court had the jurisdiction under Section 155(4) of the Constitution to make orders that are appropriate in the interest of justice. Mr Kari of counsel for the plaintiff submitted that if this Court granted the plaintiff’s application for judicial review then instead of remitting the matter back to the Provincial Land Court, this Court should consider that the plaintiff’s had been unjustly deprived of their customary land and therefore consider the matter and determine the ownership of the customary land in dispute.
   
3. At the outset, it is trite law that judicial review applications proceed in two steps. First, an applicant must establish one or more grounds of review. If the applicant is successful, the next step is for the applicant to establish a case for the relief sought: See Mision Asiki v. ManasupeZurenuoc (2005) SC 797 and Dale Christopher Smith v. Minister for Lands (2009) SC 973.
   
4. It is also trite law that the grant of relief is discretionary. Despite the grant of judicial review, a Court may refuse relief if it is of opinion that the grant of relief may substantially prejudice the rights or interests of other persons and that the grant of relief may be detrimental to good administration. The Court may also refuse relief where there is evidence that there is inordinate delay (see Order 16 Rule 4(1) of the National Court Rules).
   
5. The third defendant has showed no interest in this judicial review application. They did not enter an appearance in this matter and were not represented at the substantive hearing. The Statement of Agreed and Disputed facts was endorsed by counsel for the plaintiff. I note it was not signed by the other defendants. It was also not filed (see pages 285 to 287 of the Review Book). Due to the lack of interest by the defendants the requirement to have the review book certified was also dispensed with by the Court on 9^th August 2016 (see pages 288 to 289 of the Review Book). The application is supported by the affidavit of Ben Kwayok which was filed on 7^th July 2014.
   
6. Therefore, the facts of the matter are provided in the affidavit of Ben Kwayok. The first plaintiff stated that he is the chairman of the Primin Incorporated Land Group and the leader of the Primin tribe. He is a member of the Kubren Clan. He claims that his clan is the customary landowner of the land from his village Sisimakam to the top of Mt Fubilan. Which was the subject of this land dispute. The Local Land Court had determined the customary land dispute and found that the third defendants were the customary land owners. The plaintiff was aggrieved and appealed to the Provincial Land Court. The Provincial Land Court after considering the appeal then dismissed the appeal.
   
7. According to the plaintiff’s written submissions they argued the grounds in paragraph 4.13, 4.14 and 4.15 of the Statement in Support should be considered by the Court first. It is necessary to set out the grounds of review:
   

“ 4.13 All these were not challenged and having examined the unchallenged evidence that the plaintiffs’ filed in the Local Land Court on the 23^rd of August 2011 made a decision that was totally against the weight of the evidence and decided that the land was originally owned by the third defendant and his clan.

4.14 The Provincial Land Court on the 31^st October 2012 sat and wrongly asked the appellants to file affidavit material establishing original ownership despite the fact that there was evidence already from material on the file and it was meant to elaborate on the grounds of Appeal that direction was not forth coming.

4.15 The Provincial Land Court Magistrate wrongly advised parties to file affidavits of evidence without further explaining anything else and the parties were led to believe that it was about ownership and filed such further affidavits which was wrong in law and in practice under the Land Dispute Settlement Act.”

8. The State through counsel argued that the grounds of review were numerous and not properly pleaded. Mr Yano of counsel for the State was of the view that there were two (2) main grounds of review. They are:
   

a. The Tabubil Local Land Court erred in law in that it conducted its’ hearing in a manner contrary to the principles of Natural Justice.

2. The Tabubil Local Land Court Magistrate erred in law in that in the circumstances of the case no Court in doing justice between the parties would have made the decision appealed against.

9. There are numerous grounds of review stated in the Statement of Support pursuant to Order 16 Rule 3(2)(a) of the National Court Rules (see pages 12 to 14 of the Review Book). The grounds are vaguely drafted, repetitious and convoluted.
   
10. But before considering the grounds of review, there is a preliminary issue which must be considered at the outset. This issue goes to the jurisdiction of the Court to consider the judicial review application and in particular the standing of the plaintiff to bring these judicial review proceedings. The Court has to be satisfied that the matter is properly before this Court. The preliminary issue is in regard to the plaintiff’s standing to bring this class action on behalf of the Kubren Clan of Primin Tribe.
    
11. It is trite law, that the plaintiff or parties in legal proceedings must be properly identified and named. For cases where the principle plaintiff is holding themselves out as representatives of other plaintiffs, it is mandatory that there is evidence of such authority. The plaintiffs are required to attest to the fact that they authorize the lead plaintiff to represent them. See the cases ofMalewo v. Faulkner [2007] N3357, 21 ILGs of Gobe Project Area Incorporated Land Group v. ImaweBogasi ILG (2006) N3096 and the Supreme Court case of Simon Mali v. The State (2002) SC 690.
    
12. In the case of Simon Mali, the Supreme Court was of the view, that in such representative actions or class actions the lead plaintiff must get the consent or authority of all clan members or people they purportedly represent. There is no evidence before me that supports the plaintiff’s case that he is the spokesman for and on behalf of the Kubren Clan.
13. He states that he is the former councillor and clan leader of the Primin tribe of Sisimakam Village, Nigerum District. He also stated that he was the chairman of the Primin Incorporated Land Group and the leader of the Primin tribe and is of the Kubren Clan. I note there is no evidence that the Incorporated Land Group is duly registered and whether he is the Chairman. There is also no evidence that the members of the Kubren Clan have authorized him to represent them.
    
14. I ask myself the question; whether he can present theClan without the authority of the clan members. I am of the view, that he cannot represent the interest of the clan without proper instruments of consent and authority. The evidence before me indicates that the plaintiff brought this action as lead plaintiff without the authority of the clan or the members of the clan whom he is purportedly representing.
15. I am of the view that evidence of authority or consent by the clan members must be produced before the Court. There must be direct evidence provided to the Court. The other plaintiffs should file affidavits or consent to act notices, which they have signed, to prove that the plaintiff is representing them and their interests. The basic reason for this mandatory requirement is that if the Court awards costs or damages against them, who will pay for the costs or damages (see the case of Simon Mali)? It is imperative that the parties are clearly named and identified and in a class or representative actions like this, the lead plaintiff must obtain the written consent and authority from each and every individual he represents.
16. The failure of the Plaintiff to properly obtain the consent and authorization of the plaintiffs which he acts for in my view is detrimental to his application for judicial review because it goes to the very issue of standing and sufficient interest.
17. Therefore, I find that the plaintiff does not have sufficient interest, because there is no evidence that he was duly appointed as theChairman of the purported Incorporated Land Group, compounded with the absence of evidence of consent or authorization of the other plaintiffs.
18. I am of the view that this matter cannot properly go before this Court for consideration. There are two reasons why this matter is not properly before the Court. The first reason is that theplaintiff does not have the authority or standing to represent the Kubren Clan. The second reason is that the pleadings especially the grounds of review are convoluted and ambiguous.
    
19. I am of the view that the issue of standing is paramount and the Court still has the power to consider whether the applicant for judicial review is properly before the Court. It is not a review of the decision of the Court to grant leave but the Court needs to be properly satisfied that the applicant is properly before the Court, has standing and sufficient interest inorder for the Court to grant the relief sought. Even at the substantive hearing of the judicial review application in my view, it is still open to the Court to revisit the issue of standing when all the evidence of the parties are before the Court.
    
20. Even if I am wrong, with respect, the grounds of review are not properly pleaded and therefore it is unclear what the grounds of review are. The initial grounds which the plaintiff stresses are provided in 4.13 to 4.15 of the Statement of Support which can be found at page 13 of the Review Book and referred to earlier in this Judgement do not plead a legally recognised ground of review. It is imperative that the grounds of review are sufficiently pleaded, succinct and state a legally recognised ground of review. The legally recognised grounds of review as concisely stated by Deputy Chief Justice Kapi (as he then was) in the landmark case of Kekedo v. Burns Philip [1988-89] PNGLR 122 at page 124 which is still applicable today. His Honour stated that:
    

“ The circumstances under which judicial review may be available are where the decision-making authority exceeds its powers, commits an error of law, commits a breach of natural justice, reaches a decision which no reasonable tribunal could have reached or abuses its powers.”

21. It appears that the plaintiff argues that the first defendant did not follow the provisions of the Land Disputes Settlement Act. It was submitted that the Provincial Land Court committed an error of law and did not follow the prescribed process under the Land Disputes Settlement Act. The First defendant committed an error by accepting new evidence which was not available at the Local Land Court hearing; and the Provincial Land Court failed to properly weigh the evidence before it. The other grounds of review can be summarized as follows:
    
    1. The Provincial Land Court decision was unreasonable within the Wednesbury sense, because it took into account irrelevant considerations such as the dispute was one of customary ownership of land not royalty payments from OK Tedi Mine; there was no evidence to support the decision of the First Defendant.
       

2. The plaintiff’s right to natural justice was denied because the first defendant failed to give an opportunity to make submissions.
   

22. Even if I am wrong in regard to the plaintiff’s lack of standing to represent the Kubren Clan, I am of the view that these grounds of review as pleaded have no merit. Section 50 of the Land Disputes Settlement Act is clear. It is necessary to set out the relevant provision:
    

50. Practice, procedure and powers of Provincial Land Courts

1. Subject to this Part, the practice and procedure of a Provincial Land Court are as prescribed.
   
2. Subject to this Part and the regulations, a Provincial Land Court –
   1. is not bound by any law, evidence, practice or procedure other than this Act; and
   2. may call and examine, or permit the parties to call and examine, such witnesses as it thinks fit; and
   100. may receive freshevidence; and
   4. may otherwise inform itself on any question before it in such manner as it thinks proper; and
   5. subject to any guidelines laid down in the regulations, shall endeavour to do substantial justice between all persons interested, in accordance with this Act and any relevant custom.
      
3. Where a Provincial Land Court informs itself on any question in accordance with Subsection (2)(d), it shall –
   1. make the information available to the parties; and
   2. call for and hear argument on the information.
      
4. A Provincial Land Court may, where in its opinion it is necessary to do so, inspect the land in dispute before or during a hearing. (Emphasis mine)
   

23. It is trite law that Provincial Land Courts are creatures of Statute. The Provincial Land Courts are established under Section 45 of the Land Disputes Settlement Act. The Provincial Land Court is constituted by a Provincial Land Magistrate. The Court has original jurisdiction where a matter is brought directly to it and an appellate jurisdiction where a matter is brought by way of an appeal from a Local Land Court (Section 47 of the Land Disputes Settlement Act). I am of the view that when exercising its original jurisdiction or its appellate jurisdiction, the Provincial Land Court has a wide and unfettered discretion and powers as prescribed in Section 50(2) of the Land Disputes Settlement Act.

24. Therefore, even if I am wrong as to the issue of standing, the plaintiffs grounds of review are not meritorious. The Provincial Land Court can receive fresh evidence. The Provincial Land Court is not subject to any law of evidence, practice or procedure other than the Land Disputes Settlement Act. The Court can also inform itself of any question in such manner as it deems proper. Therefore, the plaintiffs application for judicial review has no merit and is incompetent.

25. For the foregoing reasons and in the exercise of my discretion the application for judicial review is refused and is dismissed with costs. The first plaintiff Ben Kwayok shall pay the costs of the first and second defendant’s to be taxed if not agreed.

PNG Legal Services: Lawyer for the Plaintiff
Office of the Solicitor General : Lawyer for the First & Second Defendants