N8084
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
OS (JR) No. 377 of 2019

BETWEEN
MEMBI MARIAKI in his capacity as CHAIRMAN for KUKUKUKU WATUT LAND GROUP INCORPORATION OF WAU, MOROBE PROVINCE
Plaintiff

And
HIS WORSHIP ORIM KARAPO in his capacity as District Land Court Magistrate in Lae
First Defendant

And
HIS WORSHIP MARK PUPAKA Chief Magistrate of Papua New Guinea
Second Defendant

And
INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Defendant

Waigani: Miviri J
2019: 08th October

PRACTISE & PROCEEDURE – Judicial Review & appeals – Originating summons Order 16 Rule 3 (2) NCR – Application for Leave – Statement of Facts Order 16 Rule 3 (2) (a) NCR – Affidavit verifying facts Order 16 Rule 3 (2) (b) NCR – affidavit in support – Land Court Magistrate decision – No locus Standi – No Arguable case – res judicata – inexcusable inordinate delay – substantial prejudice – leave not made out – Application refused – cost on indemnity basis.

Cases Cited:

Dupnai v Weke [2016] PGSC 43; SC1525 (19 August 2016.) 
Giddings Magistrate of the District Land Court at Laiagam; Ex Parte Koan for the Ambai Clan of Laiagam, The State v [1981] PNGLR 423 (26 June 1981).
Independent State of Papua New Guinea v Toka Enterprises Ltd [2018] PGSC 89; SC1746 (20 September 2018)

Papua New Guinea Supreme court referenced by Director of District Administration v Administration of the Territory of Papua and New Guinea (re Morobe Goldfields) [1973] PNGLR 715
Pipoi v Seravo, National Minister for Lands [2008] PGSC 7; SC909 (10 April 2008)
Mali v State [2002] PNGLR 15 
Tombe v Masket [2009] PGNC 79; N3704 (22 June 2009)

Counsel:

J. Napu, for Applicant
No appearance, for the Defendant
					RULING 
31st October, 2019
1.	MIVIRI, J: This is the Ruling of the Court on the Originating Summons dated the 29th May 2019 by the Applicant seeking Leave for Judicial Review of the Local Land Court decision dated the 14th October 1999 and the District Land Court decision dated the 04th and the 11th April 2003 constituted under the Land Disputes Settlement Act 1975 be brought into court by an order in the nature of a prerogative writ of certiorari and be quashed. 

2.	He is seeking leave to review a 20 years old decision and a 16 years 6 months decision and Order 16 rule 4 of the Rules has significant relevance to it in this regard, “Delay in applying for relief. (UK. 53/4); -
	(1) Subject to this Rule, where in any case the Court considers that there 	has been undue delay in making an application for judicial review or, 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 	judgement, 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.”
3.	Firstly, the rule says the relevant period has expired for him. And this is four months. Here he is in one 20 years since that decision. In the other it is 16 years 6 months since. Both decisions are outdated but the court has discretion to consider material in support to determine delay here. In this regard the applicant tenders and relies on his own affidavit Membi Mariaki sworn 31st July 2019 filed 1st August 2019. He deposes that he has a Chief Status as leader and chairman of an Incorporated land group representing twelve clans of Kukukuku tribe of Upper Watut Morobe Province. The certificate of incorporation of that land group is not before the court in this application. 

4.	The Plaintiff Applicant’s assertion is self-serving without any independent corroboration that indeed by law he has that standing to bring this action at law. He is not a representative of a class action because, "In representative actions, the legal representatives are required by law to have the names of the plaintiffs included in a schedule (to the Writs) or for their written consents to be filed and these consents to be by way of an Authority to Act Form. [Order 5 Rules 3 & 8 of the National Court Rules], Mali v State [2002] PNGLR 15 (3 April 2002). In this regard there is no consent or authority by all members of the plaintiff ILG. Or even a meeting resolution to that effect. This fact is important because this delay is now 20 years initial and then 16 years 6 months in the latter. There is no material that this is a representative class action because if Kukukuku Incorporated Land Group were acting together in this purpose there is no evidence that the other members of the group were interested in pursuing this matter as is the applicant. And how his present action is linked to the other actions by the parties there and the cause of action. He professes this to be that group, but the entire composition has not come forward in support to illuminate that this is indeed a joint and common cause that has seriously affected all and that is the history canvassed by the annexures to the affidavit he swears. If glossed in the light of Mali’s case (supra), there is no head way in the case of the applicant. Standing is not discharged to the required balance given this lack in evidence. 

5.	The subject if it were has gone through the highest court in the then Papua New Guinea Supreme court referenced by Director of District Administration v Administration of the Territory of Papua and New Guinea (re Morobe Goldfields) [1973] PNGLR 715 (19 July 1972). It is res judicata a final decision has been made in respect of the matter by a properly constituted court of Law. Judicial review is concerned not with the substance, but the procedure taken to arrive. It is also not clear from that proceeding how he is affected by that decision. Either by link to the subject land or the parties in that proceeding. Even if it were it would still be the case that he is a busy body inter-meddling into the affairs of others. And leave would not lie for such.

6.	The same is evident by the record of the proceedings (District Land Court at Lae dated the 11th April 2003 presided by the First Defendant here. Which dismisses the appeal for noncompliance of sections 55, 57 and 58 of the Land Dispute Settlement Act. Clearly the matter was not properly before the Court. And the parties are Benny Lenny against Danny Wele. And the matter before the court was Atipami. There is no link between that proceeding and the present proceedings. The parties named are not linked to the present parties. Or the subject land if it were land from the same area is also not linked. As to why the first defendant is inserted as the person whose decision effected the plaintiff applicant and in what way is not clear. 

7.	In fact, this evidence defeats the material relied on in support for the applicant. It reads that he is not a party there. He is not named he is not connected in any way or form by the evidence that he has placed in support here. It boils down to his standing or locus standi. He does not have any standing to bring the matter to this court. He is a busy body intent on meddling in the affairs of good governance and good administration and leave if granted him will be extra ordinary and not consistent with law and practice. It will substantially prejudice and cause undue and unnecessary hardship to good governance and administration of the Independent State of Papua New Guinea who has enjoyed good administration including the People of Morobe and Wau, the grant of leave will not be in order. Even if it were accepted that he is a party he has not taken the matter with available procedure under that law pointed out by the Court there, to put the matter again properly before that court in compliance of that law pointed out by the court when it made that decision. In that way he has not exhausted the internal process within that law and cannot come to this court because leave does not lie given. 

8.	Even the reliance on the letter dated 13th September 1993 under hand of Joseph Aoae Secretary for Lands and Physical Planning does not show his link as a party there given all the above. There is no coherence and cogent ring of truth to show his relationship either to the land or the cause of action. The language used in that letter is inconclusive it is presumed language by the use of the term it is believed. There is no genealogy upon which the Plaintiff Applicant derives to that land because the law is clear in this respect, Mali’s case (supra). Viewed in that light he has no standing. He is not affected by that decision. He is a busy body whose intent is on nothing less than interfering in good administration and governance and leave does not lie given.

9.	Annexure “F” of his affidavit concludes that fact further, what and how he is linked and effected by the law in Mali’s case (supra). Claim to money and the like from Land must be properly linked and ascertained for payment if indeed owing and outstanding. If it is the intent of the Plaintiff Applicant or any others in this regard the grant of leave will not lie in his case. Because to entertain would cause unnecessary hardship prejudice in the words of that letter dated 16th February 1981 under hand of Julius Chan then Prime Minister, “with respect to the claim for K17 million I regret that Papua New Guinea’s financial problems which were not helped by the negative attitude of the former government such a claim cannot be entertained…….” What is asserted to above is made clear by these words. It is also not established how he is linked, even if he was, leave would not lie given. Time, money and resources will be wasted on a matter that has been settled given the courts decisions set out above. Annexure “G” of his affidavit under hand of then Governor of Morobe Honourable Luther Wenge puts K150, 000.00 to K200, 000.00 as the money necessary to do a total investigation and research on the land portions. This was the forecast on the 04th May 2009 that figure given current standard of living no doubt will increase. In my view leave would not lie in favour of the applicant plaintiff given. Because as expressed in that letter by the Honourable Governor, “We wish to ensure that normalcy returns to Bulolo and Wau area with the continuity of ; Business operations, reopening of schools and teachers return to classrooms, health workers to attend to the sick, church workers to attend to their responsibilities, highway must remain free for the travelling public meaning general peace must prevail in the area. Also, be reminded that neither the Morobe Provincial Government nor the peace negotiating committee does have the power to make landownership declarations.”

10.	 In the light of order 16 Rule 4 of the rule’s circumstances have come and gone with time. The Independent State of Papua New Guinea its people of Morobe Province and Wau have carried on in life and have developed with time. Substantial interests both economic, financial, social and related have come up within. Law and order security Justice and protection of all at large is substantial. Even if it were argued that in the interest of justice given, he should be accorded a hearing pursuant, time is not confined to four months, Giddings Magistrate of the District Land Court at Laiagam; Ex Parte Koan for the Ambai Clan of Laiagam, The State v [1981] PNGLR 423 (26 June 1981). The facts set out above do not support that to exercise here. And where the law has been defied and breached time limit does not operate: Tombe v Masket [2009] PGNC 79; N3704 (22 June 2009)"...Those who ill gain value or interests in property through alleged illegality and breach of Statute should not hide behind Statutory time limitations and or the principles of equity. In other word, if they breached law, Statute or common law or the principles of equity we have adopted under the Constitution offers them no protection. The proceedings are not an abuse of the court process."

11.	This is a double-edged sword cutting both sides of the dispute in its application. It not only binds the defendants but also the applicant plaintiff. He must also come with clean hands he must also abide by the law to seek out the hand of Justice not without. Apart from what is set out above, has he demonstrated by credible evidence that he has discharged on the balance of probabilities just cause for his application. He relies on his own affidavit filed set out above which does not support his cause set out above.

12.	The Defendants will cause that leave is not granted, standing has not been satisfied, or enough interest shown by the applicant. That he has no arguable case that there has been inordinate and inexcusable delay in time and all administrative and legal procedure has not been exhausted. Plainly defendants say applicant has neither capacity nor the Standing to sue. Owning land on paper is different to everyday life in Papua New Guinea. That is not demonstrated here prima facie. If glossed in the light of Mali’s case (supra), there is no head way in the case of the applicant. He has not discharged all the requirements to the requisite balance in law. Because it is the case that there is here inexcusable, inordinate and unreasonable delay:  Pipoi v Seravo, National Minister for Lands [2008] PGSC 7; SC909 (10 April 2008) which is in similar vein as Dupnai v Weke [2016] PGSC 43; SC1525 (19 August 2016.) The five requirements for leave for Judicial review must be satisfied on the required balance. Unfortunately for the applicant he has fallen here also in time and delay: Independent State of Papua New Guinea v Toka Enterprises Ltd [2018] PGSC 89; SC1746 (20 September 2018) it was a 13 year delay the decision of the National Court to grant leave was quashed.	

13.	The facts set out above reflect undue delay which will cause substantial hardship including prejudicing the rights of the defendants the State the people of Papua New Guinea at the expense of the plaintiff. I do not say this lightly because time and again major developments benefitting the entire country and the State is grounded to a halt because of people like the applicant here. In his case he does not have standing, he does not have an arguable case, the proceeding have seen the turn of Justice and is res judicata if indeed he is linked and is abuse of Justice in that true sense of that word by its facts here. These must stop. This view is not new alias Pipoi's case (supra). 

14.	Consequently, the application is without merit in all frontiers and fails and is dismissed forthwith.
 
15.	Leave is refused given the reasons set out above and costs will be on an indemnity basis following suit against the plaintiff applicant.
Orders Accordingly.
__________________________________________________________________

Napu Lawyers:  Lawyer for the Plaintiff/Applicant	
Office of the Solicitor General:	 Lawyer for the Defendant