Kuarilomo v Maru [2023] PGNC 359; N10508 (13 September 2023)

N10508

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS (JR) NO. 91 OF 2023 (IECMS)

EFEX WAMAWALE KUARILOMO for himself and on behalf of Huanje Javahama Clan as Authorized Clan Representative.
Plaintiffs

V

HON. RICHARD MARU, MP personally and in his capacity as the Member for Yangoru Saussia District
First Defendant

And
YANGORU SAUSIA DISTRICT DEVELOPMENT AUTHORITY
Second Defendant

And
EAST SEPIK PROVINCIAL ADMINISTRATION
Third Defendant

And
BENJAMIN SAMSON in his capacity as Secretary for Department of Lands and Physical Planning.
Fourth Defendant

And
HON. JOHN ROSO MP, MINISTER FOR DEPARTMENT OF LANDS & PHYSICAL PLANNING.

Fifth Defendant
And
DEPARTMENT OF LANDS & PHYSICAL PLANNING.
Sixth Defendant

And
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Seventh Defendant

Waigani: Miviri J
2023: 12^th & 13^th September

PRACTICE & PROCEDURE – Judicial Review & appeals – Originating Summons – Order 16 Rule 3 (1) & (2) Leave for Judicial review – Review of Decision of Fifth Defendant to Acquire Plaintiff’s Customary Land – Survey & Registration Portion 178C Without Consent – Allegation of Fraud In Acquisition – Locus Standie – Arguable – Delay – No Other Administrative Avenue – No Evidence Contrary – Materials Sufficient – Leave Granted – Costs follow Event.

Cases Cited:

Asakusa v Kumbakor, Minster for Housing [2008] PGNC 39; N3303
Geno, Lawton and Mambu v The State [1993] PNGLR 22
Kekedo v Burns Philp (PNG) Ltd [1988-89] PNGLR 122

Counsel:
M. Murray & L. Kuaken, for Plaintiff
H. Wangi, for Defendants

RULING

13^th September 2023

1. MIVIRI, J: The plaintiff applicant applies by originating summons of the 10^th August 2023 invoking Order 12 Rule 1 and Order 16 Rule 3 (1) and (2) of the National Court Rules for Leave for Judicial review against: -
   
   • (a) The decision of the Fifth Defendant to acquire the Plaintiff’s customary land surveyed and described as Portion 178C which decision was based on falsified information that was carried in the land investigation report dated the 23^rd July 2015 by the third defendant and as such was unlawful and contrary to Section 53 of the Constitution and section 10 of the Land Act 1996. And Further the Conduct of the Provincial Division of lands attached to the third defendant and by which the land investigation carried out was under fraudulent circumstances with intention to fraudulently acquire the plaintiff’s customary land Portion 178C breaching section 53 of the Constitution.
     
2. The plaintiff applicant relies on his own affidavit sworn of the 05^th September 2023 filed of the 06^th September 2023. He is from Huanje Javahama clan of Wamaian Village, Ward 03 in Numbo LLG, Yangoru Saussia District East Sepik Province. And authorized by his clan, annexure “A” Consent Authority signed by all his Huanje Javahama Clan members of the 27^th June 2023. That his clan is the principal landowner of the customary land known as Wirohusase located at the centre of Wamaian Village where the roadside market is located. And registration of the subject land was affected by his late father Francis Wamawale Kuarlomo who had it surveyed subdivided into two portions 178C comprising 1.92 hectares and 179C. comprising 1.50 hectares, annexure “B” is the

Copy of that survey map showing out the subject portions.

3. Part of Portion 178C is adjacent to the main Sepik Highway and my father who was our late ward councillor of our village Wamaien Village from 1997 to 2008 verbally sought approval of our clan and had the Wamaien Market built on the subject land by the villagers who used bush material to build. And it has become a main stop over for public travellers between Wewak and Maprik who stopover to buy food and other produce from the market sellers. We were surprised when our clan land “Wirohusase” surveyed to date described as portion 178C Milinch Kubalia was illegally acquired by the State leasing back to the Yangoru Saussia District Development Authority without our concern. Initially we filed the proceedings WS (HR) No. 07 of 2022- Efex Wamawale Kuarilimo for himself and on behalf of Huanje Javahama Clan of Wamaian Village for damages for trespass to Land and for damages done to our properties but upon sighting the title sought leave to withdraw that proceeding and to file the present. Because we uncovered fraudulently acquisition of our land the subject portion by the First and Second Defendants. And we have detailed particulars within the affidavit relied on of Efex Wamawale Kuarilimo.
   
4. Essentially the applicant contends that the subject land was illegally and fraudulently converted into it becoming Portion 178 Milinch Kubalia East Sepik Province because it was customary land that belonged to his father which he assumed by Birth. Both first and second defendants by a falsified Land Investigation Report of the 23^rd June 2015 registered it at the Department of Lands to the final where the fifth Defendant as Minister responsible applied section 10 of the Land Act to acquire it. In so doing he never complied or gave effect to the conditions imposed by section 10 of the Land Act. In that he never provided a notice of intention to compulsorily acquire the subject land on the Plaintiffs. The effect of which was to prompt the plaintiffs as to whether or not they objected to the compulsory acquisition or not. And if they considered asking for compensation to do that, and to high light any appeal against incorrect implementation of the procedures within to acquire. The defendants had failed to explain the basis, the reasons for the compulsory acquisition to the Plaintiffs. Because it was their customary land identified to be acquired. Without any information disseminated their rights as landowners were breached and they were deprived of their land without just compensation by the State defendants. And there was no physical inspection conducted by the Valuer General which if made was not derived from foot patrol and inspection report pertaining. Valuation that was made was unverified uncertain in multiple amounts which amounted to unjust deprivation of property. And by the discretion of the fifth defendant, it was exempted from public advertisement because the subject land would be provided to the second defendant which is what eventuated because initially it was Portion 178 but when allocated to the second defendant became Portion 178C. And which the first defendant facilitated together with the sixth defendant made illegal payment of K 671, 000.00 to a person who misrepresented the plaintiff. And entered the subject land destroying damaging the properties and burning down the principal high convenient house causing destruction to the Plaintiff and his family properties.
   
5. This aggrieved the plaintiffs who have now filed this proceeding because the decision of the defendants was unreasonable contrary to the Wednesbury principles of reasonableness. And in so doing the defendants notably the first and second defendants committed errors of law. There was coupled breach of the principles of natural justice.
   
6. The facts set out above in the affidavit relied of the applicant plaintiff show that he is directly affected by the actions of the defendants. His house was recently demolished as a result by the First and Second defendants. He has locus standie because he is directly affected. He has promptly sought and filed this action because of that fact. And therefore, there is no delay in seeking out the hand of Justice in the matter. And he has done so because there are no administrative avenues to resolve the matter as it is given the facts deposed to in his affidavit filed. It is an arguable case given the issues of law that arise against the conduct of the defendants which must be the subject of a proper hearing on Judicial review. Because there is subsumed into the midst of the facts alleged, allegations of Unreasonableness and principles within the Wednesbury’s principles of like. Including allegations of errors of law and fraud.
   
7. Given it is consistent with Kekedo v Burns Philp (PNG) Ltd [1988-89] PNGLR 122 that the applicant plaintiff has discharged the balance that leave be accorded to for Judicial review. It is grave given the consequences that come out of the facts raised and would fall in similar vein in law as observed in Geno, Lawton and Mambu v The State [1993] PNGLR 22 including Asakusa v Kumbakor, Minster for Housing [2008] PGNC 39; N3303 (10 April 2008) which are satisfied by the Statement filed pursuant to O 16 r 3 (2) (a) of National Court Rules and material filed in support of application for leave. And in my view considering all the balance has been discharged that leave be accorded the applicant plaintiff for Judicial review. Accordingly, the applicant plaintiff is granted leave for Judicial review. He will file and serve the substantive notice of motion by or before Wednesday 04^th October 2023. And the matter will be called up at Directions on Monday the 09^th October 2023 at 9.30am. And costs will follow the event.
   
8. The formal orders of the Court are:
   
   • (i) Leave is granted.
   • (ii) The plaintiff will file the substantive Notice of Motion by or before Wednesday 04^th October 2023.
   • (iii) The matter will be called for Directions Monday 09^th October 2023 at 9.30am.
   • (iv) Costs will follow the event.
     

Orders Accordingly.

__________________________________________________________________

Murray & Associate: Lawyer for the Plaintiff/Applicant

Office of the Solicitor General: Lawyer for the Defendants