Jimberi (trading as Parox Reg No. 6-230460) v Wange [2021] PGNC 307; N9085 (2 June 2021)

N9085

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]
OS (JR) NO. 76 OF 2020 (IECMS)

JOHNSON JIMBERI TRADING AS PAROX REG No. 6-230460
Plaintiff

AND:
SAM WANGE IN HIS CAPACITY AS CHAIRMAN OF PAPUA NEW GUINEA LAND BOARD
First Defendant

AND:
BENJAMIN SAMSON IN HIS CAPACITY AS THE SECRETARY DEPARTMENT OF LANDS AND PHYSICAL PLANNING
Second Defendant

AND:
ALE ANE THE ACTING REGISTRAR OF TITLES DEPARTMENT OF LANDS AND PHYSICAL PLANNING
Third Defendant

AND:
JOHN ROSSO MINISTER FOR LANDS AND PHYSICAL PLANNING
Fourth Defendant

AND:
HON. KEVIN ISUFU MEMBER FOR WEWAK OPEN AND MANAGING DIRECTOR OF WEWAK AUTO PORT
Fifth Defendant

AND:
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Sixth Defendant

Waigani: Miviri J
2021: 10^th February, 02^nd June

PRACTICE & PROCEDURE – Judicial Review & appeals – Originating Summons – Leave for Judicial Review – Notice pursuant to Order 16 Rule 3 (3) NCR – Statement pursuant to Order 16 Rule 3 (2) (a) NCR – Undertaking as to Damages – Affidavit verifying Facts – Affidavit of Applicant – Substantive relief pleaded – Abuse of Process – Leave refused – cost follow the event.

Cases cited:

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

Pipoi v Seravo, National Minister for Lands [2008] PGSC 7; SC909
Counsel:

A. Narokobi, for Plaintiff
M. Tukuliya, for State Defendants

RULING

02^nd June, 2021

1. MIVIRI, J: This is the ruling on the Plaintiff’s originating summons of the 10^th February 2021 pursuant to Order 16 Rule 3 of the National Court Rules where the applicant applies for leave for judicial review.
   
2. The originating summons is in the following terms, “The plaintiff claims:
   
   1. An order for leave to apply for Judicial review pursuant to Order 16 Rule 1 and 3 and all other rules enabling of the National Court Rules 1983 for Orders by way of:
      • (a) An order, pursuant to Order 16 Rules 1 (2) and 3 (1) of the National Court Rules 1983, in the nature of certiorari to bring up to this Honourable Court and quash the decision of the First, Second, Third and Fourth Defendants on 2^nd November 2020 and Published Gazette Notice G731 on 2^nd November 2020 to award State Lease for Commercial purposes over land described as Section 1, Allotment 28, Yawasoro Wewak Urban, East Sepik Province to the fifth defendant when an exemption was already in place pursuant to Order 16 Rule 3 of the National Court Rules 1983 and sections 15, 16, and 145 of the Land Registration Act 1981 chapter 191 requiring the defendants, within fourteen days of the date of the order, to register the plaintiff’s interest to all that land contained in section 1 Allotment 28, Yowasoro Wewak Urban, East Sepik Province to the Plaintiff.
        
      • (b) A declaration that the plaintiff is entitled to be registered as the proprietor of the entire estate and interest in all that Land contained in State Lease section 1, Allotment 28, Yowasoro Wewak Urban, East Sepik Province by virtue of Notice of exemption dated 20^th July 2012 endorsed by the then Minister for Lands and Physical Planning.
        
      • (c) An order pursuant to Order 16 rule 1 (2) and (1) of the National Court Rules 1983, in the nature of Certiorari to remove into this Honourable Court and quash the decision of the First Defendant published in the Gazette Notice G731 02^nd November 2020 and uphold the decision of the fourth Defendant to grant exemption to the Plaintiff by Notice of Exemption under section 69 (2) (d) of the Land Act No. 45 of 1996 dated the 20^th July 2012.
        
      • (d) An Order in the nature of a Declaration pursuant to Order 16 Rules 1 (2) and 3 (1) of the National Court Rules 1983 that the decision of the First Defendant published in the Gazette Notice G731 of the 2^nd November 2020 to award a lease over the land described as section1, Allotment 28, Yowasoro, Wewak Urban, East Sepik Province is ultra vires pursuant to sections 67, 68, 74, 87 and 88 of the Land Act 1996 and therefore null and void.
        
      • (e) An Order for Leave to apply for Judicial Review pursuant to order 16 rules 1 (2) and 3 (1) of the National Court Rules 1983, for an order by way of a Declaration that the decision of servants or agents of the First Defendant to refuse to provide the Inspection report 2016 to the First Defendant is in breach of the principles of natural justice pursuant to Section 59 of the Constitution of Papua New Guinea.
        
      • (f) An order for leave to apply for Judicial review pursuant to Order 16 Rules 1 (2) and 3 (1) of the National Court Rules 1983 by way of Declaration that the decision of the First Defendant on the 2^nd November 2020 to award a State Lease for Commercial Purposes described as Section 1, Allotment 28 Wewak Urban, East Sepik Province to the Fifth Defendant is unreasonable, illegal, and null and void pursuant to sections 67, 68, 69, 74, 87, and 88 of the Land Act 1996.
        
      • (g) The defendants pay the Cost of this application and the entire proceedings.
        
      • (h) The defendants pay damages such damages to be assessed.
        
      • (i) Time for entry of these orders be abridged to the time of the Settlement to take place forthwith.
        
      • (j) Any other orders as deemed appropriate in these circumstances.”
        
3. Order 16 Rule 3 Grant of Leave to apply for judicial review has very definite and specific language, “(1) An application for judicial review shall not be made unless the leave of the Court has been obtained in accordance with this Rule.

(2) An application for Leave must be made by originating summons ex parte to the court..”

4. This is very clear language that leave proceeds before all else it must be obtained, then the other reliefs follow. Here the originating summons pleads substantial relief and in this sense is convoluted which is clearly in breach of the rule set out above. The pleadings would not be proper in accordance and by Asakusa v Kumbakor, Minster for Housing [2008] PGNC 39; N3303 (10 April 2008) there is no cause of action open to the applicant in the way he has pleaded. The originating summons is not according to the Rules and must be dismissed. Because leave is only sought not any other substantive relief which is the case here.
   
5. The reason is quite simple judicial review is not for busy bodies and the like it is a very restrictive domain and the grounds to invoke by leave are very restrictive and stringent: Pipoi v Seravo, National Minister for Lands [2008] PGSC 7; SC909 (10 April 2008). The totality is that leave has not been pleaded by the plaintiff on the material he has filed, and the law relating set out above do not entail as the pleadings are not according to the Rules of Court.
   
6. By operation of Order 16 Rule 13 (13) (2) (a) (b) (ii) of the National Court Rules the originating summons is dismissed. Because the pleading is not within the rules of Court in particular Order 16 rule 3 (1) (2) and by operation thereof dismissal is in order with Costs.
   
7. The formal orders of the Court are:
   
   • (i) Leave is refused for judicial review.
   • (ii) The proceedings are dismissed forthwith.
   • (iii) Costs will follow the event.
     

Orders Accordingly.

__________________________________________________________________

Torricelli Legal: Lawyer for the Plaintiff/Applicant

Office of the Solicitor General: Lawyer for the Defendant