Lita v Wange [2020] PGNC 405; N8650 (20 November 2020)

N8650

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]
OS (JR) NO. 706 OF 2018

BETWEEN:
THOMAS LITA
First Plaintiff

AND:
SAM WANGE as Chairman of the PNG Land Board & Members of the PNG Land Board
First Defendant

AND:
HON. JOHN ROSSO as Minister for Lands & Physical Planning
Second Defendant

AND:
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Defendant

AND:
WOODEN POLE SUPPLIES LIMITED
Fourth Defendant

Waigani: Miviri J
2020: 06^th October, 20^th November

PRACTICE & PROCEDURE – Judicial Review & appeals – Originating Summons Order 16 Rule 3 (1) NCR – Leave application – Locus Standi – Arguable Case – delay inordinate – No primary decision – Material lacking & insufficient – balance not discharged – leave refused – cost on indemnity basis to follow the event.

Cases Cited:

Kekedo v Burns Philip (PNG) Limited [1988-89] PNGLR 122

Dupnai v Weke [2016] PGSC 43; SC1525

Asakusa v Kumbakor, Minster for Housing [2008] PGNC 39; N3303

Opi v Telikom PNG Limited [2020] PGNC 168; N8290

Gei Guni Raga v National Executive Council & 2ors [2020] N8505

Counsel:

R. Lains, for Plaintiff
F. Kuvi, for Fourth Defendants
H. White, for the State

RULING

20^th November, 2020

1. MIVIRI, J: This is the ruling on the originating summons of the plaintiff filed the 10^th October 2019 pursuant to Order 16 Rule 3 (1) of the National Court Rules “the Rules” for leave to be granted to judicially review decisions by the Papua New Guinea Land Board on the 14^th March 2016 to grant State Lease to the Fourth Defendant. And of the Second defendant to grant State Lease to the fourth defendant on the 16^th June 2016. Also for costs of the proceedings and any other orders as deemed appropriate.
   
2. The plaintiff has also filed a Statement in accordance with the National Court Rules Order 16 Rule 2 (a) and (b), an affidavit verifying, both documents dated the 10^th October 2019. Both documents do not evidence or point to the decision by the land board of the 14^th March 2016 pointed out in the originating summons. Or of the second defendant to grant State lease to the fourth defendant of the 16^th June 2016. There is no document styled or named as originating from the meeting room of the Papua New Guinea Land Board meeting deliberating a decision where the plaintiff is unsuccessfully removed or denied land in law or equity for the consideration of this judicial review proceeding. There must be a decision emanating from a public Body that has in equity or in law caused the plaintiff to be aggrieved to bring out the matter here: Kekedo v Burns Philip (PNG) Limited [1988-89] PNGLR 122. This is elementary without which there is nothing to be reviewed in a judicial review proceeding. The action of the plaintiff is not founded on a decision from a public body or official, it defeats his cause of action even before it has started out.
   
3. Because it will come out from that decision as to whether or not the plaintiff has locus standi, whether he has demonstrated an arguable case on the merit and whether internal administrative proceedings have been exhausted or have run the mill fully so that the matter is open into the court from that fact. And lastly whether or not there has been undue or inordinate delay in bringing forth the matter. These are elementary to all judicial review proceedings and if there is no decision there is nothing to be reviewed because all set out above do not fall in, Dupnai v Weke [2016] PGSC 43; SC1525 (19 August 2016).
   
4. In the affidavit of the plaintiff of the 21^st October 2019 filed the 5^th of March 2019 there is no annexure within all the annexure from “A” to the last “Z” a document in the letter head or inscription bearing the Papua New Guinea Land Board advice to the plaintiff or a record from that office of the decision it made dated firstly the 14^th March 2016 and then of the 16^th June 2016 relating to the assertions made by the plaintiff that the land was granted to the fourth defendant on both occasions.
   
5. Annexure “A” is an application for planning permission it does not contain at the outset the location of the proposal in particular the Milinch Section lot or sub lot portion or sub portion of the land applied for planning permission. It is specifically for land clearly demarcated out and registered within the Land Act by this description set out. The applicant/plaintiff merely states vacant land there is no vacant land and this is clear by answer in that box where the plaintiff/applicant states he is not the owner of the land. The form then asks for a list of names of the owners of the subject land to accompany his application. Including importantly a statement that the owners of the land have been informed by the plaintiff/applicant. It is clear to rezone there is presumption that the land is zoned initially for a purpose which means it is known to the holder of title to that land for which the application for planning permission is made. The form specifically asks for list of the owners, a statement of the notification of the owners, previous board decision, location plan, site plan, building plan with the fee.
   
6. It means in law the plaintiff is not the owner or a lease holder by this application for planning permission. It does not advance his cause for leave for judicial review. His letter dated 1^st February 2010 annexure “B” clearly without any ray of doubt confirms that he is not the holder of a State lease. He does not have authority in law to create and clearly takes it upon himself to search for unregistered vacant land. It begs as to how he was able to identify an unregistered land from what records of lands kept was he able to say with precision as to where registered land was and where it was not registered. The letter is worded that maybe the Land Board might give him land which he created himself and initiated. That would be appearing to be the case here by these facts that he squatter on land without formal grant. And that is clear that he located the subject land area and invited himself to sit on it without authority hoping that the physical planning proposal of the National Capital District Physical Planning Board would approve the application he made. Even if that were the case he lacked locus standi in law and equity.
   
7. This is very strong evidence self serving at the hands of the plaintiff that he is on land that is not the subject of an application properly before the Papua New Guinea Land Board pursuant to notice that it is vacant land and the plaintiff is applying for it and has secured by the decision of the Land Board to move onto it and settle. Rather it is evidence of self help onto land without title putting up and hoping to be made clean in law. Here is classical evidence of he who comes to equity must do equity or come with clean hands. It is clear by this evidence that the plaintiff is not clean in equity and therefore can seek equity. He is not a person in law to the subject land.
   
8. This is followed onto in annexure “C” letter under hand of the plaintiff applicant evidencing this fact that he is illegally sitting on that land without a formal allocation by the Land Board by reference to a State lease granted to him. And that on that basis he is seeking water and sewerage into it from the National Capital District Physical Planning Board. That is clearly not the case. He is not a person seen by equity because he is not doing equity by this evidence. He cannot be accorded equity if he has not done equity by this evidence from his lips. And this is confirmed that there is no title to the land issued or a State lease from the letter presumably from a Tiri Wanga. It is not verified as to where this letter originates from and why an interest would be registered where there is no State Lease or title document evidencing. It would appear to be a case to make out what is not there in law and equity. This is detrimental to an application as here for leave because there must be standing or locus standi which is derived from a right both in equity and at the highest in law. That is not the case from this evidence for the plaintiff’s case. His cause for Leave is defeated right there and then. Annexure “E” does not evidence that his status in equity and the law has not arisen such that he has standing to bring this cause of action here in leave for judicial review. It further confirms that he is not seen in law or in equity. He has self invited without even a land board allocation or hearing he holds no rights in law or equity to the subject occupation.
   
9. This view is clear by the evidence annexure “F” and “G” which specifically confirms the subject area as vacant. It refused your application because the site is preserved as open space and must be maintained for that purpose. The proposal would defeat that purpose and it was undesirable to so grant. It is dated 30^th September 2010 and signed by Michael Malabag OBE chairman of the National Capital District Physical Planning Board. And emanates from meeting number 09/2010 including the application number of PB.10.150 and is headed notice of determination of an application for planning permission made under the Physical Planning Act 1989 addressed to the Plaintiff. It is clear here by this evidence that the plaintiff does not have any evidence of a State lease or registered title planning intended is not on the basis of a right in law or equity. It is not remedied by an appeal made. Without locus standi there cannot be any rights flowing and for leave application it is clear this is not the case in favour of the plaintiff.
   
10. There is nothing in the annexure that advances so that he has rights in law or equity emanating or his material relied on to show that he has an arguable case. Because this will be measured back against the initial and primary decision by the Public Body as in the Physical Planning Board of National Capital District set out above. That is not the case here and for all intent and purposes there is no decision deriving to extend forth to this proceedings. The plaintiff is bringing forth a matter without proceedings originally so that it cannot be measured whether or not there is an arguable case on the merit. Because this is not demonstrated to the required balance it means the plaintiff has not discharged this to the balance in law to sustain his plea forward.
    
11. To look even out ahead of a leave application where can it be deduced that there is observance of natural justice and the rule of law prima facie to his case. Further where would it be derived that there is no unreasonableness in the Wednesbury sense for an arguable case demonstrated both procedural ultra vires and in substantive ultra vires in the decisions leading to his demise. These are all depended on there being a decision at first instance. That is not the case here by the evidence and the plaintiff has not sustained discharging the balance. His action does not advance.
    
12. It is fundamental and elementary that he must demonstrate that in equity he has standing or even higher he has standing in law title documents or State lease evidencing so that for an application for leave for judicial review it would fall his way in his plea. None of that is here by the evidence that he has brought. The evidence he has brought establishes beyond the balance of probabilities that he does not have any standing in law or equity. He is a busy body intend on entering into the domain of judicial review without justification of standing in law or equity. His evidence defeats his cause of action: Asakusa v Kumbakor, Minster for Housing [2008] PGNC 39; N3303 (10 April 2008).
    
13. This is a matter that does not for all intent and purposes fall within Order 16 Rule 4 because there cannot be undue delay and the application is made by a litigant the plaintiff who has no rights established as to his standing in law and equity on the subject. Because certiorari arises from an equitable right or even higher right in law to remove into court and to quash the series of decisions and that time within. Even if it were to be considered that the plaintiff has a cause of action and that leave is to be considered, this is a matter drawing from 2009 which does not bring the cause of action any closer to the 4 months after those proceedings. It is clear time will be calculated from a decision which is lacking here. There are no proceedings because there are no rights or standing in equity or law upon the plaintiff hence there is no decision from the land board concerning.
    
14. Judicial review is concerned with the process rather than what is the substance: Asiki v Zurenuoc Provincial Administrator [2005] PGSC 27; SC797 (28 October 2005. That is the law which has been followed and applied by this court in Innovest Ltd v Pruaitch [2014] PGNC 288; N5949 (17 March 2014). Which also boldly sets in place the requirement to satisfy all grounds set out above before the grant of leave to judicially review an administrative decision. Because it is a restrictive procedure and guard against busy bodies and the like from mingling into its tracks leave application has jealously observed guarded over the years since, Kekedo (supra). It would be no different here and there has not been advanced any matters by the materials relied to deviate or waive what has been settled.
    
15. I am fortified in all the circumstances on the law and evidence drawn out above both for and against that the balance of probabilities has not been discharged to the required level by the plaintiff. He has not satisfied the requirements lacking set out above for leave for Judicial Review. The consequences which directly follow in law and fact are that this proceeding is dismissed forthwith.
    
16. It is clear there is no basis in law or equity for the action to be instituted and what has happened is clearly negligence or unprofessionalism on the part of the plaintiff and his lawyer. By their action clear by law and evidence set out above they have unnecessarily drawn the parties to the proceeding and this court with unnecessary wastage of judicial time to hear a matter that was not open in law or equity. It is proper for costs to follow on an indemnity basis so that litigants and counsel at law are versed that judicial time is lacking and cannot be discharged on actions that are not there in law from day one. In so doing, I am fortified by Opi v Telikom PNG Limited [2020] PGNC 168; N8290 (29 April 2020) which was adopted and followed in Gei Guni Raga v National Executive Council & 2ors [2020] N8505 (21 September 2020). And here costs are therefore on an indemnity basis to be paid by the plaintiff to the defendants.
    
17. The formal orders of the court are:
    
    • (1) The application of the plaintiff is without merit.
    • (2) There is no cause of action
    • (3) Leave is refused forthwith.
    • (4) The proceeding is dismissed in its entirety forthwith.
    • (5) Costs will be on an indemnity basis upon the plaintiff to follow the event.

Orders Accordingly.

__________________________________________________________________

Hardy & Stocks Lawyers: Lawyer for the Plaintiff/Applicant

Office of the Solicitor General: Lawyer for Defendants