Carrol v Daniels [2020] PGNC 356; N8591 (22 October 2020)

N8591

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS (JR) NO. 686 OF 2019

BETWEEN:
ELIZABETH TINARONG CARROL
Plaintiff

AND:
EMOS EMES DANIELS as Chairman of Tasukolak Ltd
First Defendant

AND:
TASUKOLAK LIMITED
Second Defendant

AND:
OSWALD TOLOPA as Secretary for the Department of Lands
Third Defendant

AND:
HON. JOHN ROSSO as The Minister for Department of Lands & Physical Planning Board
Fourth Defendant

AND:
INDEPENDENT STATE OF PAPUA NEW GUINEA
Fifth Defendant

Waigani: Miviri J
2020: 10^th September, 22^nd October

PRACTISE & PROCEEDURE – Judicial Review & appeals – Originating summons – Leave application Order 16 Rule NCR – Standing – effected by decision – Inordinate delay – Arguable case – Alternative remedies time barred – application for leave for Judicial Review refused – cost follow event.

Cases Cited:

Innovest Ltd v Pruaitch [2014] PGNC 288; N5949
Dupnai v Weke [2016] PGSC 43; SC1525
NTN Pty Ltd v The Board of Post & Telecommunication Corporation & Ors [1987] PNGLR 70

Counsel:

S. Tongamp, for Applicant

No appearance for Respondents

RULING

22^nd October, 2020

1. MIVIRI, J: This is the ruling of the court on an application seeking leave to file Judicial Review out of time to review the decision of the Land Board in granting title to Portion 16 & 17 Milinch Muliama, Fourmil Feni, New Ireland Province to the Second defendant in 2012.
   
2. The application is pursuant to Order 16 Rule 3 of the National Court Rules. Which is initiated by the Plaintiff’s originating summons filed 02^nd October 2019, coupled with the statement in respect of Order 16 Rule 3 (2) (a), an affidavit verifying of the 28^th October 2019, a notice to the Secretary of Justice affidavit of service of one Victor Lovai dated the 04^th September 2020. Annexure “A” of that affidavit is letter dated the 27^th August 2020 advising that the matter is listed for hearing before this court on the 03^rd September 2020. On that day, the State is not in attendance and so the matter is adjourned further to satisfy the requirements of the Claims By and against the State Act section 8 so as to have the State attend to respond. On the 10^th September 2020 when the matter is called the State is not in attendance despite the notice to that effect and the adjournment to effect by the affidavit set out above. Therefore, in the exercise of its discretion by section 155 (4) Constitution, the court grants Leave for the applicant to move by the originating summons for leave for judicial review out of time.
   
3. By that fact very good reasons must be advanced by the applicant/plaintiff as to why the delay because the terms of order 16 Rule 4 are clear that it is 4 months for an action to be instituted. Here the decision was made in 2012 that is the subject of the leave application. That is 8 years since the decision was handed down. Reliance is placed by the applicant on her own affidavit dated the 28^th October 2019 where she has written to the Lands office to rezone so that the subject land which is adjoining hers is made part of her land. That has not been done by the lands Department. She is not aware of the land being granted to the second defendant as she never saw any advertisement of it so that she could also lodge her interest to acquire it. She was made aware that it was granted to the second defendant when they wrote to her notifying. She asserts that the subject land is customary land, but her letter dated the 23^rd July 2010 says to reclaim the customary land. She is clearly not the owner or the legal custodian by the correspondences she attaches to her affidavit addressed to the defendants. She asserts to rezone so that it becomes part of the portions that she holds. She supplied no material to assert her claim by custom including land hearings and the like to confirm. It is self-serving from herself.
   
4. In her affidavit she also attaches that process in law was followed for the second defendant to be accorded the subject portions of land. And the defendant is a company who has carried on its business since grant on the 2012 on that land up to the present 8 years since. This is coupled with the fact that the applicant/plaintiff is the registered proprietor of the adjourning portions of 29 and 34 Muliama Milinch Fourmil Feni, New Ireland Province. What is begging is that having lived there adjacent and adjoining for over 40 years She has done nothing materially to bring this matter out and to see out a remedy in law immediately but has slept to come out at the end of 8 years. It is not the duty of the court to wake her up to her rights when she has demonstrated no equitable cause for the court to so accord.
   
5. She contends that she had requested the Department of Lands to rezone and include them as part of the adjourning portions. This is not the same as being the registered proprietors to the subject land and of being evicted or ejected off that land. Rather it is an intention to acquire which is a matter in the discretion of the land board to consider and determine and give. Here it is clear that has not happened so that applicant/plaintiff is at a loss to come and pray for leave She is not in the same vein as in Innovest Ltd v Pruaitch [2014] PGNC 288; N5949 (17 March 2014). Nor is she in the same as in the facts of Dupnai v Weke [2016] PGSC 43; SC1525 (19 August 2016). Judicial review is time conscious and delay as here must have very good reasons to sway in favour.
   
6. Her affidavit particulars which I set out above advance no good reasons to waive that she be accorded leave to move the application out of time. She lives within the reaches of Kavieng and Namatanai. She has access to the headquarters of the lands Department here in Port Moresby. Her children have flown here to voice her cause at that office but not engagement and pursuit of a legal action on the subject for 8 years. In that 8 years the second defendant has carried on its business after having acquired the registered proprietor status by process of law and compliance thereof. Should he be inconvenienced at the expense of the plaintiff. Is there material beyond the balance of preponderance advanced so that it is tilted to waive the 4 months stipulated and allow in road in even after 8 years in favour of the applicant. Considering all the material that has been placed the answer is in the negative. Leave will not be granted because there is inordinate non meritious delay of 8 years to bring the cause of action. The rights of the registered proprietor are indefeasible and must be respected and here there is no reasons substantial to so deviate.
   
7. Aside from time also to be satisfied on the balance of preponderance three basic grounds. She must have standing in the matter. By the evidence discussed and set out above the applicant/plaintiff has no standing in the matter. She is the registered proprietor of the adjoining portion. That does not make her rights over and above the second defendant who has acquired through the process of law no fault on his part. It means the applicant not the registered proprietor has locus standi in the matter and this ground is not satisfied on the balance in her favour. She fails on this ground.
   
8. Having equitable rights apparent or identifiable in law will entail that she has arguable basis to pursue the claim. As it is, she has fundamentally no rights to the subject portions. She is an adjoining registered proprietor it does not extend from the parameters with those portions she holds into the next adjoining. It follows that no arguable case has been demonstrated to the requisite balance to intrude upon the second defendant’s enjoyment of the said portions. These are prima facie required but that balance set by NTN Pty Ltd v The Board of Post & Telecommunication Corporation & Ors [1987] PNGLR 70 has not been discharged in favour of the applicant. Accordingly, this ground fails.
   
9. Obviously, she has resorted to an administrative process by the letters that she wrote but that is now way past their prime and cannot be the basis for grant of leave here. The totality is that applicant has not demonstrated on all grounds to the required balance, so that leave is accorded for Judicial Review. Accordingly leave is refused.
   
10. The formal orders of the Court are:
    
    • (i) The plaintiff’s application for leave is refused.
      
    • (ii) The costs will follow the event.
      

Orders Accordingly.

__________________________________________________________________

Sabos Lawyers: Lawyer for the Plaintiff/Applicant