Geamsa v National Land Commission [2022] PGNC 574; N10123 (1 December 2022)

N10123

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]
OS (JR) NO. 743 OF 2019

NORM GEAMSA FOR HIMSELF AND ON BEHALF OF GEMUMLABU CLAN OF FINCHAFEN DISTRICT MOROBE PROVINCE
Plaintiff

V
THE NATIONAL LAND COMMISSION
First Defendant

AND
SAMSON ACQUILA IN HIS CAPACITY AS THE NATIONAL LAND COMMISSIONER
Second Defendant

AND
SASA INKUNG IN HIS CAPACITY AS THE FINCHAFEN DISTRICT LOCAL LAND COURT MAGISTRATE
Third Defendant

AND
KAWI-IU KEWE IN HIS CAPACITY AS THE MOROBE PROVINCIAL LAND COURT MAGISTRATE
Fourth Defendant

AND
IGA LAMU IN HIS CAPACITY AS THE CLAN LEADER OF GAGIDU CLAN FINCHAFEN MOROBE PROVINCE
Fifth Defendant

AND
AWADUANG JACOB IN HIS CAPACITY AS THE CLAN LEADER OF LAUNGI CLAN FINCHAFEN MOROBE PROVINCE
Sixth Defendant

AND
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Seventh Defendant

Waigani: Miviri J
2022: 30^th November, 1^st December

PRACTICE & PROCEDURE – Judicial Review – Section 155 (4) Constitution review – Leave for Judicial Review – Gagidu Township Land - Local Land Court Hearing – Locus Standi – Arguable Case – Cogent & Convincing Reasons – Delay – Materials Relied Insufficient – Balance Not Discharged – Leave Refused – Costs Follow Event.

Cases Cited:

NTN Pty Ltd v Board of the Post & Telecommunication Corporation [1987] PNGLR 70
Dupnai v Weke [2016] PGSC 43; SC1525
Makeng v Timbers (PNG) Ltd [2008] PGNC 78; N3317
Innovest Ltd v Pruaitch [2014] PGNC 288; N5949
Aihi v The State (No 1) [1981] PNGLR 81
Pipoi v Seravo, National Minister for Lands [2001] PGNC 97; N2120
Seravo v Bahafo [2001] PGNC 122; N2078
Kelo v Ipu [2020] PGSC 92; SC2003
Premdas v The State [1979] PNGLR 329
Asiki v Zurenuoc, Provincial Administrator [2005] PGSC 27; SC797

Counsel:

W. Donald, for Plaintiff
No appearance for Defendants

DECISION

1^st December, 2022

1. MIVIRI, J: This is the ruling on the Plaintiff’s application for Judicial Review pursuant to section 155 (4) of the Constitution.
   
2. On calling the matter at 9.30am the plaintiff was vigilant and intent to with his attendance. Which wasn’t the same for his Lawyer. And so, the matter was adjourned to 10.00am for the appearance of his lawyer who appeared reasoning that he was late working on his submission which did not materialize because of the blackouts experienced. And was caught in traffic coming. His apologies were accepted despite there being no material filed to evidence. His record evidenced good attendance prior on the matter.
   
3. The State made no appearance despite notice proofed firstly by affidavit dated the 04^th November 2022 filed by the plaintiff/applicant that he had on the 31^st October 2022 appeared in person before the Court where he was directed to inform the State for the third time that the matter was adjourned to the 31^st October 2022. And on the 03^rd November 2022 at 1.58pm at the Department of Justice and Attorney General West New Britain House he did serve a letter dated the 1^st November 2022 upon that office informing of the new trial date in the matter set for the 07^th November 2022. And the person to whom he delivered on that day was one Ms Carmeline Tauwole Executive Assistant of that Department who signed the Process Service Form dated the 04^th November 2022. Which is annexure “B” and the subject letter is annexure “A”.
   
4. And again, he repeated in his affidavit dated the 29^th November 2022, filed the 30^th November 2022 of that fact. That on the 17^th November 2022, which was the fifth time, there was no appearance by the State despite appearance of his lawyer. So, on the 28^th November 2022 he served yet another letter dated the 28^th November 2022 stating the new date on the hearing of the matter on the 30^th November 2022. Again, he personally served on the executive assistant Ms Carmeline Tauwole. And annexure “A” is that letter to the Solicitor General Tauvasa Tanuvasa. And as earlier annexure “B” is the process service form signed by that witness receiving the same.
   
5. This is clear and uncontradicted evidence that ample and adequate opportunity has been given to the State to be heard following their notice of intention to defend filed the 11^th December 2019. It would not be prejudicial to hear the application for leave without the appearance of the State. It is not as if no opportunity has been accorded them to appear and to defend the cause levelled against them. The application has been heard ex parte because the plaintiff has served the State who has made no appearance on the date set on the matter. Given the evidence set out above no prejudice would be suffered by the State to have the matter heard ex parte. They have exercised their own choice not to come forward on the date of the hearing. Accordingly, the matter is now heard ex parte.
   
6. The Applicant by his originating summons seeks leave for judicial review of the decision by the First Defendant to refer the determination of customary ownership of Gagidu Township land in Finschhafen, Morobe Province for the purposes of land compensation under the National Land Commission Act to the Local Land Court to determine ownership under the Land Dispute Settlement Act 1974 whereas the subject land was at all material times registered land owned by the Evangelical Lutheran Church of New Guinea Property Trust and Evangelical Lutheran Church of Papua New Guinea described as:
   
   • (a) Being whole of the land described as Portion 256, Milinch Dreger, Fourmil Huon, Finchafen, Morobe Province, and
   • (b) Being the whole of the land described as Portion 262, Milinch Dreger, Fourmil Huon, Volume 21 Folio 212, Finchafen, Morobe Province.
     
7. He further seeks leave pursuant to section 155 (4) of the Constitution to seek Judicial review of the local land Court proceedings convened before the third defendant in 2006 under the Land Dispute Settlement Act 1974 to determine customary ownership of the Gagidu township land because of conflicting claims between the Fifth and Sixth Defendants and the decision of the Court made on January 31^st 2008 in which the third Defendant awarded customary ownership of the land to the fifth defendant whereas the land was at all relevant times registered land owned by the Evangelical Lutheran Church of New Guinea Property Trust and Evangelical Lutheran Church of Papua New Guinea described as set out above.
   
8. This pleading affirms that the subject land is not of the plaintiff/applicant because in both instances it belongs to the Evangelical Lutheran Church of New Guinea Property Trust and Evangelical Lutheran Church of Papua New Guinea. By this affirmation pleaded at the outset the plaintiff/applicant acknowledges in no uncertain terms that the subject land is not his, nor has he missed out as a result of injustice at the hands of the owners of the subject land. This pleading without reservation questions his standing in the cause of action that he has instituted. It does not belong to him in law. He does not hold a licence on that property. Nor does he have any rights in law on the subject property. He has no interest in law on the subject property and therefore does not hold any rights in law to question as to how it is dealt with. In law of Contract, he is not bound in that relationship in any way. Annexure “A” to his affidavit dated the 03^rd of October 2019 filed the 21^st October 2019, shows the transfer of land by a Native to the Administration dated the 05^th of January 1952. And the consideration for the subject land is One hundred & twenty-two pounds Nineteen shillings and four pence paid over as price of the subject land. It is duly signed by Government officials of that era and administration accepting sale in exchange for valuable consideration receiving the subject on the other side the natives who sold it consideration in exchange. For all intent and purposes that is a relationship in contract privy to the parties in the subject contract, one of whom is certainly not the plaintiff/applicant.
   
9. In law this Document evidence title has passed the land to the hands of then Colonial Administration. There is no sale of that land back to the original owners it has remained in the hands of the Administration. Any talk as to compensation and the like emanating is in law to, he who holds the title to the land. And the affidavits of the applicant do not evidence that he is the holder of the title to the subject land. He himself acknowledges that the subject land belongs to the Evangelical Lutheran Church of New Guinea Property Trust and Evangelical Lutheran Church of Papua New Guinea described as set out above. He must have sufficient interest or locus standi to bring the cause of action for judicial review: NTN Pty Ltd v Board of the Post & Telecommunication Corporation [1987] PNGLR 70. As it is he does not qualify as holding standing or locus standi to bring and institute the cause of action.
   
10. This is evident in annexure “A5” to his affidavit which is power of Attorney which does not evidence that he is named or that he is one of the persons within. And the decision of the Provincial Local Land Court Appeal No. 09 of 2006, annexure “A6” does not show that he is one of the parties to the proceedings. The proceedings is titled, Sarry O Mesa QPM for and on behalf of Laugi Clan Appellant against Iga Lamu for and on behalf of Gagidu Clan. He is not a party to that proceeding. Nor is he a party to the proceedings Annexure “ A7” record of the proceedings ( Local Land Court) form 14 of the Land Disputes Settlement Act 1975. It is not necessary to get to the correspondences that are attached as annexure because it is the proceedings in court that speak on the matter. They do not evidence that the plaintiff applicant was one of the parties to the proceedings in any way at all.
    
11. His second affidavit of the 07^th February 2022 does not add to his cause for leave for judicial review. Reiterating history and genealogy does not improve his cause for leave because the original title holder set out above by the Annexure “A” to his affidavit dated the 03^rd of October 2019 filed the 21^st October 2019, shows the transfer of land by a Native to the Administration dated the 05^th of January 1952. It settles in law as to who is the owner of the subject land and an equivalent document in the name of the plaintiff/applicant will advance his cause. Re arguing the case a new or de nova is not the basis upon which judicial review is sought. Because even contextualized in and within section 155 (4) applicant must demonstrate that it is an exceptional case by its facts and circumstances for the discretion of the Court to be invoked to grant leave for review. And that substantial injustice is manifest and apparent. It is the reason why leave should be granted. Judicial review is about the procedure starting with whether or not the plaintiff has standing or locus standi of course against a decision that affects him: Dupnai v Weke [2016] PGSC 43; SC1525 (19 August 2016). Is there an arguable case demonstrated on the merits to allow obviously that is not possible in the way it is pleaded here, especially what is the process and procedure that was supposed to have been not followed to end in the decision, that has affected the plaintiff, NTN Pty Ltd (supra). Here it is not worked out where lies the decision that is being interjected against in this judicial review. And primarily that the applicant has been involved in that decision which has affected his rights and if leave is not granted him substantial injustice is manifest. It is an exceptional circumstance that draws that leave be accorded him for judicial review.
    
12. Further Judicial review abides with internal process and does not allow circumventing: Makeng v Timbers (PNG) Ltd [2008] PGNC 78; N3317 (23 April 2008) or Innovest Ltd v Pruaitch [2014] PGNC 288; N5949 (17 March 2014). The plaintiff will have a cause of action if the process has affected him. He will have an arguable case if the process has affected him. By his pleading at the outset, he acknowledges that the subject land is not of his. He does not have any rights to it in law. By that fact he is a busy body who has slept over the matter since transfer of land by a Native to the Administration dated the 05^th of January 1952. That document is in law evidence of title to the subject property which does not bear his name at all. Along the way from that document there is no evidence that he is indeed in law the title holder to both subject land. And to raise the matter now by an originating summons seeking leave for judicial review 03^rd October 2019 from 05^th January 1952 is a very long delay in bringing the matter for leave for judicial review. It is an inordinate delay of 67 years to bring a matter for judicial review relying on the terms of section 155 (4) of the Constitution.
    
13. Because that is not the spirit of that section when viewed in the light of Aihi v The State (No 1) [1981] PNGLR 81. She was convicted of wilful murder and serving life sentence for that crime. The appeal period had expired because she did not have the benefit of a lawyer in that jail to bring her appeal against the sentence that was imposed by the primary court. Giving effect to the 40-day appeal period by the law would have denied her quarrel against the sentence imposed. Section 155 (4) facilitated so that she could exercise her right to seek substantial justice that would have been denied had there being stiff adherence to the time limitation imposed by Section 27 of the Supreme Court Act, 1975. She was seriously affected should section 27 be heeded hence section 155 (4) facilitated to hear her appeal and to derail the initial sentence imposed because as the Court said, “The orders that can be given under s. 155(4) of the Constitution are based on two assumptions. Firstly, that the person who seeks the order has the right (or standing) to apply for the order and secondly, the Supreme Court has the power or jurisdiction to make the order sought. The provision itself does not give the right and the power.”
    
14. That is not the case of the applicant/plaintiff here. He does not have standing and section 155 (4) does not confer rights on him. So, his action does not have the legs to rise to seek justice. It has not seen it for 67 years since the transfer of the 05^th January 1952 and cannot be revived by the originating summons of 03^rd October 2019 because there is no substantial injustice manifest so that leave is prima facie made to be granted. This is a situation similar as in Pipoi v Seravo, National Minister for Lands [2001] PGNC 97; N2120 (1 June 2001) where the delay is unexplained by material and prominently the plaintiff really has no standing in the matter and which do not come out of that fact by the application of section 155 (4) of the Constitution. What is apparent and overt is what this Court did in Pipoi (supra) and also in Seravo v Bahafo [2001] PGNC 122; N2078 (21 March 2001) that this proceedings must be dismissed as there is no reasonable cause of action by the material relied to sway that leave does lie for judicial review. There is no arguable basis upon which to bring the matter within leave for judicial review. Section 155 (4) does not give rights upon the plaintiff applicant it facilitates rights he has. Here the evidence does not support and his own admissions in the pleadings denotes that he has no rights to the subject land. It is of the Evangelical Lutheran Church of New Guinea Property Trust and Evangelical Lutheran Church of Papua New Guinea described as set out above. It will not be enforced and justice accorded by grant of leave.
    
15. He really has demonstrated no cause of action for leave on the balance of preponderance. What is here is an action that is frivolous and vexatious within Kelo v Ipu [2020] PGSC 92; SC2003 (24 September 2020). It is an action that unnecessarily stops the development of the Country because instruments of transfer exerted out by the then colonial administration did not just occur out of the air without any roots. The land is livelihood of the People there which exchanged hands for valuable consideration in that period and time. People who had capacity to conduct the dealings conducted and land was transferred to the colonial administration. And by his own mouth the plaintiff/applicant acknowledged the subject land is not his but of the Evangelical Lutheran Church. To bring section 155 (4) he must have a right that substantially exceptional case has been demonstrated that justice will be denied his cause of action. He has arguable merit to bring that leave be accorded him. He has not done that here to the required balance to be accorded his pray for leave. His action must fail considering particularly also in the light of Premdas v The State [1979] PNGLR 329. He does not have any rights in law to enforce and his action is without merit arguably. Here the pleadings do not show this out at all. Even if recourse is had to the Legal issues the determination of true customary ownership of the Gagidu Land is not a process or procedure it relates to the substantive issue in the matter before that court. That is not the concern of a judicial review proceedings: Asiki v Zurenuoc, Provincial Administrator [2005] PGSC 27; SC797 (28 October 2005).
    
16. Accordingly, this proceedings will fall by what is evident from its material relied and that is that the balance has not been discharged for leave to be granted for judicial review. The application the originating summons is dismissed with costs to follow the event against the plaintiff in favour of the defendants if not agreed to be taxed. In this regard cost would have been on a solicitor client basis if the State had appeared and had defended this case. They have not therefore the costs is on a party party basis to be taxed if not agreed. As is set out by the material above the order of the costs must be paid evidence filed in this Court before any further action is taken on the matter.
    
17. The formal orders of the Court are:
    
    • (i) Leave for Judicial review is refused
    • (ii) Costs will follow the event forthwith on a party party basis which must be paid in full before any further action is taken on the matter by the plaintiff.
    • (iii) Evidence of payment must be filed into Court before any further action is taken on the matter by the plaintiff.
      

Orders Accordingly.

__________________________________________________________________

Donald & Company Lawyers: Lawyer for the Plaintiff/Applicant

Office of the Solicitor General: Lawyer for Defendants