Orami v Kilepak [2021] PGNC 303; N9065 (17 August 2021)

N9065

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS (JR) NO. 62 OF 2021 (IECMS)

BETWEEN:
FREDDY ORAMI FOR HIMSELF AND HIS AIYURA CLAN
Plaintiff

AND:
MOLEAN KILEPAK IN HIS CAPACITY AS THE DEPUTY CHIEF COMMISSIONER OF NATIONAL LAND COMMISSION
First Defendant

AND:
NATIONAL LAND COMMISSION
Second Defendant

AND:
INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Defendant

Waigani: Miviri J
2021: 04^th & 17^th August

PRACTICE & PROCEDURE – Judicial Review & appeals – Leave Application for Judicial Review – Statement Pursuant to Order 16 Rule 3 (2) (a) NCR – Affidavit verifying Facts – Notice to Secretary Department of Justice – Affidavit in Support – Delay – Locus Standi – Arguable Case – Failure to Convene hearing for Claim for Settlement payment Land – Exhaustion of Internal Process – Land Titles Commission Act – Materials insufficient – Balance not discharged– Leave refused – Costs follow the event.

Cases Cited

NTN Pty Ltd v The Board of the PTC, PTC and Media Niugini [1987] PNGLR 70
Makeng v Timbers (PNG) Ltd [2008] PGNC 78; N3317
Innovest Ltd v Pruaitch [2014] PGNC 288; N5949
Sahale v Karogo [2021] PGSC 53; SC2129
Asiki v Zurenuoc, Provincial Administrator [2005] PGSC 27; SC797

Counsel

J.F. Unua, for Applicant
E. Bua, for First, Second & Third Defendants

RULING

17^th August, 2021

1. MIVIRI, J: This is the ruling of the court on the Plaintiffs plea by his originating summons of the 28^th April 2021 for leave to apply for judicial review of the decision of the First Defendant dated 05^th October 2020 in failing to reconvene hearing for the purpose of considering Plaintiffs clan claim for settlement payment by the State relating to Portions 200 and 201, Milinch Okapa, Fourmil Markham, Kainantu, Eastern Highlands Province. To reconvene means internal process has not completed.
   
2. The plaintiff has all originating documents by the rules in satisfaction of :
   
   • (a) Statement pursuant to Order 16 Rule 3 (2) (a) of the National Court Rules filed of the 28^th April 2021;
   • (b) An affidavit verifying the facts filed also of the 28^th April 2021;
   • (c) Notice to the Secretary, Department of Justice & Attorney General of the same date 28^th April 2021;
   • (d) His own affidavit in support of the 28^th April 2021.
     
3. And service of all in law has been settled by the affidavit of service deposed to by Kembert Muro Filing and Service Clerk of the Office of the Public Solicitor. He affected service of all documents on the 12^th May 2021 on the Secretary of the Department of Justice at level 10 of the Sir Buri Kidu haus Waigani National Capital District. And is proofed by annexure “A” acknowledgement of receipt by Ms. Slady Suture. This is fulfillment that the defendants are on notice as to the intent of the plaintiff in the matter. They have been given opportunity to defend the case. Hence the appearance of the state.
   
4. The essence of his challenge is that the Minister declared portions 200 and 201 Milinch Okapa, Fourmil Markham, Kainantu, Eastern Highlands Province as National Land in the Gazettal Notice G43 of 25^th April 1991. And that is clear from form 5 Notice dated 03^rd August 2018 issued by the First Defendant. He commenced to hear the claims relating to the Settlement payment for the said portions of land. And this he did so as Deputy Commissioner and Acting Chief Commissioner. In the course he found the claims to be conflicting and referred them to the Eastern Highlands Province Senior Provincial Magistrate by letter dated 03^rd August 2018.
   
5. Plaintiff was not a party to that proceeding but when he became aware he applied to the local Land Court and his claim together with the others were considered and determined by the Kainantu Goroka Local Land Court. It determined on the 28^th January 2020 that the plaintiff’s Aiyura Clan and four other clans as genuine landowners and were qualified and entitled to be included in the claims for settlement payment hearing before the first defendant. He has not reconvened to hear prompting this application for leave for judicial review of that decision. Because if he convenes, he will determine and make orders for settlement of payment. He has followed up to no avail hence this application. He has advised that he would not reconvene to hear by letter dated the 29^th April 2020 and 05^th October 2020.
   
6. To pursue this allegation, he relies on his affidavit dated the 28^th April 2021. He is the plaintiff in the matter. The subject land was declared by the Minister in the National Gazettal notice G43 of 25^th April 1991. That in 2008 the second defendant commenced hearing of claims relating to settlement payment for Portions 200 and 201 Milinch Okapa, Fourmil Markham Kainantu, Eastern Highlands Province. In 2018 the hearing was presided by the First Defendant Deputy Commissioner and Acting Chief Commissioner. In the course he considered those claims as conflicting and so referred them to the Eastern Highlands Province Senior Provincial Magistrate by letter of the 03^rd August 2018, annexure “B”. Which read that the referral was made under section 43 (1) (a) of the National Land Registration Act. And it was pursuant to the Land Disputes Settlement Act.
   
7. It was therefore upon the local Land Court to determine that dispute or conflict that was identified by the Land Titles Commission under section 43 of the National Land Registration Act and referred to it, to determine it and bring the conflict to an end. If it can resolve it, it does so, but if there is need to have it referred to a customary authority by Custom that is done, after which it determines and settles. It may also conduct mediation in respect of the conflict should that be the case out of the case referred. The subject referral was made because the said customary land was acquired by the State prior to Independence and the role to be discharged was to ascertain if any settlement awards could be made to these former customary landowners. And the proceeding before the Land Titles Commission was adjourned pending the determination by the local land Court to assist. The subject letter is dated 03^rd August 2016 addressed to the Goroka Senior Provincial Magistrate. It is referred by the First Defendant as Acting Deputy Chief Commissioner.
   
8. The plaintiff was not a party to the initial hearing conducted by the First Defendant. He became aware of the referral to the Local Land Court and applied there and his claim together with the others referred was considered and determined by the Kainantu Goroka Local Land Court. Because by section 35 of that Act the Local Land Court is not bound by law or rule of law, evidence or practise, or procedure other than the subject Act itself in determining what is before it. It may call and permit the parties to call such witnesses as it thinks fit and may otherwise inform itself on any question before it in such manner as it thinks proper. Primarily it is concerned to do substantial justice as between the parties.
   
9. This may have been the basis upon which the plaintiff came into the picture in the matter. But it was not initially a party before the Land Titles Commission hearing. By section 15 determination of dispute of the Land Titles Commission Act:
   

(1) The Commission has, subject to this Act, exclusive jurisdiction to hear and determine all disputes concerning and claims to the ownership by custom of, or the right by custom to use, any land, water, or reef, including a dispute as to whether any land is or is not customary land and may make all such preliminary inquiries and investigations as it deems necessary for the purpose of hearing and determining the disputes and claims.

(2) After the period limited by Part V for review of or appeal against a decision of the Commission has expired, and any proceedings on review have been completed and any appeals have been decided–

(a) a determination of the Commission under this or any other Act is, subject to Section 16, for all purposes and as against all persons conclusive evidence of the ownership as at the date of the decision, of the land the subject of the decision and of rights, titles, estates and interests in the land as set out in the decision; and
(b) the Commission shall forward a copy of its decision to the Registrar of Titles, who shall make such entries in Registers kept by him and issue such documents as are necessary, or as are directed by the Commission, to give effect to the decision of the Commission.

10. This section authorizes the Commission to determine disputes concerning claims to ownership by custom to Land use or rights to use of land. Hence it was empowered to determine ownership in custom if that was the case here. Here the subject referral made drew out annexure “C” decision of the Local Land Court on the subject land. That is LLC No 01 of 2019 which also sets out the various applicants by their clan and village name. There are 9 such claimants in this regard set out. At page 6, the Local Land Court observes, “There are nine (9) separate purported former Customary Landowner Clan Groups to deal with in this referral that this Court will endeavour to hear, receive evidence and ultimately make determinations based on the evidentiary materials the Claimants will each have presented before this Court.
    
11. The learned Magistrates examines further and observes, “It should be made absolutely clear that; unlike most customary landownership dispute cases, this matter is not so much a customary land ownership dispute where one of the disputing parties most often than not is declared the owner and awarded the ownership rights of the subject disputed land to the exclusion of all others. Rather the subject (SL Land) Portions 200 and 201 in our present case is State Land through and through; purchased by the Colonial Administration during the pre-Independence era at lesser values and subsequently later declared (State) National Land through notice in the National Gazette No G42 of 25^th April 1991.
    
12. That means that the dispute is not so much as to ownership of the subject customary land, because that is resolved it is State Land. So, the plaintiff is not the original party in the proceedings that were referred by the Land Titles Commission. He was not before the court on record when the referral was made. The referral for all intent and purposes was a procedure of law set out by the relevant provisions of the law I set out above. In that it does not mandate that any other party comes into the picture from the original referred. It is not an exercise to bring on board further parties to the cause of action in the initial process in the Land Titles Commission hearing. His standing is questionable as he was not the party originally on the record of the Land Titles Commission in respect of the subject.
    
13. Judicial review stems to whoever is the subject effected by the decision here allegedly by the Land Titles Commission: NTN Pty Ltd v The Board of the PTC, PTC and Media Niugini [1987] PNGLR 70. What is before me is a decision that is subject to further actions called under the National Land Registration Act section 43 (1) (a) of the National Land Registration Act. A decision has been made by the Local Land Court Kainantu Goroka annexure “C” to the affidavit of Freddy Orami. A process of law has taken place. That decision will come back to the hearing of the Land Titles Commission, the First Defendant who referred to complete that matter. It is a matter between the parties and their lawyers, if any to inform the Land Titles Commissioner first defendant and to get the hearing under way to complete the matter in the proceedings. The proceeding is still open not concluded. It must be completed not by being forced by this Court to so effect, because that is contrary to the Land Titles Commission Act and related laws set out above. Leave for declaration and mandamus for judicial review both do not lie given.
    
14. Because the process has not being completed started by the Land Titles Commissioner the first defendant. He started a process by that law read with the National Land Registration Act. It has not been completed so that decision has now come out in respect of the subject land, when the proceedings that he instituted is not completed pending the issue he raised, now answered by the Local Land Court decision of the LLC No 01 of 2019 annexure “C” to the affidavit of the plaintiff set out above. He must complete the process by getting that decision and continue as he has started. He will not be compelled by an order either a declaration or mandamus, and that is not in the interests of justice in the matter, nor is it by the Land Titles Commission Act. The plaintiff has the prerogative to complete the process if he is indeed the original party that was on the record of that proceedings referred. If he came on board in the Local Land Court by leave there, he will seek appropriately before the Land Titles Commission hearing, as he is not before it and record. It means for all intent and purposes he does not have standing to bring the matter here.
    
15. It follows that he cannot rely that there has been no delay in bringing the action. Because he was not on the records of the initial proceedings. It will not be made good that he became after the referral. As it is Judicial review abides with internal process relating particularly with decisions by public bodies administrative in nature: Makeng v Timbers (PNG) Ltd [2008] PGNC 78; N3317 (23 April 2008) or Innovest Ltd v Pruaitch [2014] PGNC 288; N5949 (17 March 2014). This is not purely administrative because it is still within the realm of the Land Titles Commission Act. A hearing is in progress with a referral on a point in conflict to the Local Land Court who has made a ruling. It is now for the Land Titles Commission presided by the first Defendant to complete that process. The internal processes are far from being a completed process and therefore open to scrutiny in judicial review proceedings. And therefore, leave be granted as pleaded here. That is not the fact as posed here. Leave is not warranted. Because there is no locus standi by the Plaintiff. Further internal process has not been exhausted. And there is no arguable case demonstrated.
    
16. The matter is still within the discretion of the Land Title Commission Act in the hearing commenced and still pending there. It is not ceased of the jurisdiction of that proceeding not by the plaintiff but others. It will remain in that domain and jurisdiction until it, the Land Titles Commissioner deals and determines the matter. As it is, it cannot be brought into this court by leave. Because it is not the same situation given its facts as in the case observed in Sahale v Karogo [2021] PGSC 53; SC2129 (9 July 2021). The process has been completed, error has been shown in the learned Judges determination and so appeal was upheld to have it remitted before another Local Land Court Magistrate to be heard anew. That is not the situation here; this is a referral to determine the conflict so that it comes back again to the first defendant to complete what he has started. It is still there for him to complete. He will complete that with the decision he referred for. Process has not been completed internally.
    
17. Leave for Judicial review does not lie considering, Asiki v Zurenuoc, Provincial Administrator [2005] PGSC 27; SC797 (28 October 2005). The totality is that plaintiff has not satisfied that leave lies for judicial review. His application does not sustain because he has not discharged by the material, he relies that there is merit to warrant that leave lies in his favour for judicial review. Leave is therefore refused with costs forthwith
    
18. The formal orders of the are that:
    
    • (i) The application is dismissed as being without merit.
    • (ii) Leave is refused.
    • (iii) Costs follow the event forthwith.
      

Orders Accordingly.

__________________________________________________________________

Office of the Public Solicitors: Lawyer for the Plaintiff/Applicant

Office of the Solicitor General: Lawyer for the fifth Defendant