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National Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
OS (JR) NO. 332 OF 2023
BETWEEN:
DANNY JAMES for himself and for and on behalf of Zaganza Tribe of Kanagogi, Menyamya District
Plaintiff
AND
JOB TALAU for himself and for and on behalf of Yanguya Tribe of Tsewi Menyamya District
First Defendant
AND
ROAP GEMUNG in his capacity as the Local Land Court Magistrate
Second Defendant
AND
SAPANO MATAN & WAGO UMPUNO their capacity as land Mediators
Third Defendants
AND
JAMES MOROG in his capacity as Local land Court Magistrate
Fourth Defendant
Lae: Dowa J
2024: 16th and 21st February
PRACTICE & PROCEDURE – Originating Summons – Order 16 Rule 3 (1) & (2) NCR- Application for leave to apply for Judicial review – application to review decision of Local Land Court-–prerequisites of leave- whether grounds exists for leave-where there is undue delay leave can be granted where the gravity of the case so warrants- and in the interest of justice-all requirements met-leave granted
Cases Cited:
NTN -v- PTC [1987] PNGLR 70
Asakusa -v- Kumbakor (2008) N3303
Counsel:
K. Aisi, for the Plaintiff
E. Kibikibi, for the Defendants
DECISION
21st February 2024
1. DOWA J: This is a ruling on the Plaintiff’s application for leave to apply for judicial Review.
2. The Plaintiff applies for leave to apply for judicial review of two decisions:
Background Facts
3. The Plaintiff, Danny James, acts for himself and on behalf of his tribe, the Zaganza tribe of Kanagogi, Menyamya District, Morobe Province. The Zaganza tribe has a customary land dispute with the first Defendant and his Yanguya tribe, also of Menyamya District, over customary land known as “Kwapeki”.
4. The dispute started in 2001. A land mediation was conducted early February 2001 and ended in November 2001. On 5th November 2001, the third defendant handed down his decision awarding ownership of the land to the Defendant’s tribe.
5. The Plaintiff appealed the decision to the Provincial Land Court, Lae in May 2002. The Provincial Land Court did not set the matter for hearing. The Plaintiff made many requests over several years, but each time were told that there was no Principal or Grade V Magistrate to hear the appeal.
6. In August 2023, the First Defendant filed a Notice of Motion in the Menyamya Local Land Court seeking orders against the Plaintiffs to give up vacant possession of Kwapeki land to the Defendants. On 2nd October 2023, the fourth Defendant gave orders for the Plaintiff to deliver up vacant possession of the Kwapeki land to the Defendants.
7. Aggrieved by the two decisions of 5th November 2001 and 2nd October 2023 the Plaintiffs seek leave to apply for judicial review of the decisions.
8 The Plaintiffs rely on the following documents:
Issue
9. The issue for consideration is whether the Plaintiff is entitled to be granted leave to apply for judicial review.
Law
10. The principles applicable to an application for judicial review are settled in this jurisdiction: refer NTN -v- PTC (1987) PNGLR 70 and Asakusa -v- Kumbakor (2008) N3303. The Court has a discretion to grant leave where the Court is satisfied as to the following considerations:
11. On the use of discretion, the Court in NTN v PTC, said this at page 7 of the judgment:
“Applications for leave for judicial review involve the exercise of discretion. Such discretion must be exercised judicially. Once a court is satisfied that the applicant has sufficient interest (O 16, r 3(5)) it then exercises its discretion as to whether leave should be granted. This discretion is embodied in O 16, r 3(1).
In exercising its discretion, the court must consider whether the applicant has an arguable case. In Inland Revenue Commissioners v National Federation of Self-Employed and Small Businesses Ltd [1981] UKHL 2; [1982] AC 617, Lord Diplock set out the principles upon which the Court should act and I respectfully adopt them. Lord Diplock said (at 644):
"If, on a quick perusal of the material then available, the court (that is the Judge who first considers the application for leave) thinks that it discloses what might on further consideration turn out to be an arguable case in favour of granting to the applicant the relief claimed, it ought, in the exercise of a judicial discretion, to give him leave to apply for the relief. The discretion that the court is exercising at this stage is not the same as that which it is called upon to exercise when all the evidence is in and the matter has been fully argued at the hearing of the application."
Sufficient Interest
12. The Plaintiff and his tribe are currently living on Kwapeki land. They have been living on the land from time immemorial. The decisions of the Local Land Court affect their proprietary rights and interest in the subject land and thus have sufficient interest.
Arguable Case
13. The Plaintiff’s main argument is that the decision of 5th November 2001 was made contrary to the evidence of ownership provided by the Plaintiffs. The Plaintiffs argue they own the Kwapeki land and have been living on this land from time immemorial, even up to now. The decision was unreasonable and made against the weight of evidence.
14. I am satisfied that the Plaintiffs have an arguable case. The Kwapeki land involves thousands of hectares. The record of proceedings and orders do not reflect the gravity of the dispute. The decision of 5th November 2001 are not recorded in the usual Forms 7 and Form 10 pursuant to Sections 18 and 19 of the Land Disputes Settlement Act. The records show the learned Magistrate made a finding that the Kwapeki land was originally used by the Plaintiff’s Kanagogi clan of Zaganza tribe but was subsequently taken over by the first defendants’ Yanguya tribe in a tribal fight. This is sufficient to show that the Plaintiffs have an arguable case. The Plaintiffs have since been living on the land, and it is arguable that the decision of 2nd October 2023 is based on a flawed decision made on 5th November 2001.
15. In addition, the eviction orders were made by the Local Land Court. It is arguable that the Local Land Court has no jurisdiction to make such orders as they remain in the jurisdiction of the District Court exercising civil jurisdiction.
Undue Delay
16. The application is made after 23 years in respect of the decision of 5th November 2001.That is a very long delay. However, the Plaintiff provided an explanation for the delay. The Plaintiff explains that immediately after the decision was made, they filed an appeal to the Provincial Land Court in Lae on 9th May 2002. They paid K500 for the filing fee. They engaged Yayabu lawyers to pursue the appeal. The appeal was lodged but not registered, and no hearing was conducted. They made several enquires and attendances on the Provincial Land Court, over several years. They were told by the Lae District Court, that no Grade V Magistrate was available to hear their case. The latest correspondence from the Court was 21st February 2006 which confirms the reason for not setting the matter for hearing. It seems the Plaintiffs have since given up pursuing the appeal. On the same token, the Defendants made no moves to enforce the Orders of 5th November 2001 until August 2023, about 22 years later. Despite the orders of 5th November 2001, the Plaintiffs have continued to live on the land undisturbed until the recent orders of 2nd October 2023.
17. Order 16 Rule 5 of the NCR provides that an application for judicial review be made within four (4) months from the date of decision. It is generally accepted that the period of four months is not mandatory. The court has the discretion to enlarge that period provided the application is brought within a reasonable time, and a reasonable explanation for the delay is given. What amounts to undue delay depends on the circumstances of each case. The following cases illustrate this point.
18. In NTN v PTC (1987) PNGLR 70, the leave application was refused for undue delay after it was brought 11months late. The Court was of the view that the grant of leave that late would be detrimental to good administration.
19. In State & Sali v Sisia (1987) PNGLR102, the Supreme Court held, in upholding an appeal, that a delay of five years was undue delay.
20. In Tepas v Tekum (1999) N1921, the Court refused leave for undue delay. The application was made 13 years after the administrative decision, the subject of the
leave application.
21. In Pipoi v Seravo (2008) SC209, the Supreme Court, in dismissing an appeal, held that a delay of 11 years was undue delay and affirmed the decision of the National Court which refused the leave application. explanation.”
22. In the present case, the first decision was made more than 22 years. The Plaintiff has explained the reasons for the delay.
23. In the case, Independent State of Papua New Guinea vs Toka Enterprises Ltd (2018) SC 1746, the Supreme court said where a special gravity of the case so warrants, leave must be granted. At paragraph 11 of the ruling the Court said:
“11. The second part of Sub-rule 1 was given little or no consideration at all. No consideration was given to whether to grant
leave would cause “substantial hardship to, or substantial prejudice to the rights of any person” or “would be
detrimental to good administration”. The subject land formed part of the land occupied by the National Broadcasting Corporation,
a public institution. The land was given to the respondent by way of a town sub-division lease for commercial development. The term
of the original sub-division lease was a fixed 5 year term. Had the position of the parties substantially shifted in those 13 years?
Were the improvement conditions complied with? Were there any subsequent renewal of the sub-division leases? Was the land rezoned?
Did any third party acquire any interest in the land? Had there been any improvements erected on the land, by whom and of what value?
No such inquiry on the part of the Court occurred. These were important considerations that if considered would have produced a just
outcome of the case.“
24. The present case is grave enough. It involves land containing thousands of hectares of land which the Plaintiffs are currently
occupying. Even the Mediators, and the Local Land Court have recognised that the Plaintiffs were once owners of the customary land.
25. For these reasons, I hold, even though there is undue delay the gravity of the case warrants a review in the interest of justice.
Has the Plaintiff exhausted all other administrative avenues for appeal?
26. Under Section 54 of the Land Disputes Settlement Act, the Plaintiff is required to appeal the decision of the Local Land Court to the Provincial Land Court within three (3) months or
such extended time not exceeding twelve (12) months. The evidence shows, the Plaintiff did appeal the decision to the Provincial
Land Court on 2nd May 2002.They paid the necessary filing fees of K500.00. Due to unavailability of a Provincial Land Court Magistrate, the appeal
was not heard. I am satisfied that the Plaintiff did exhaust the appeal process, although the appeal was not satisfactorily dealt
with.
Interest of Justice
27. Apart from the four (4) requirements discussed above, in my view, interest of justice should be an additional consideration. In the present case, the Plaintiff should be granted leave in the interest of justice. The Court notes that, the learned Magistrate made a finding that the Plaintiffs were the original owners but were chased away by the Defendants. The Defendants have since moved back to their own land and the Plaintiffs have likewise moved back to Kwapeki land and have been living on the land for many years. It is arguable that the original owners are the Plaintiff’s tribe. The Plaintiffs appeal to the Provincial Land Court was frustrated. The Plaintiffs were not given the opportunity to have their appeal heard. And finally, the Plaintiffs are still living on Kwapeki land as testament of ownership over land covering thousands of hectares of land. On the other hand, the first Defendants have waited far too long to enforce the orders of the Local Land Court. It is therefore in the interest of justice; the Plaintiff be given a chance to apply for the review of the orders given on 5th November 2001 and the enforcement orders of 2nd October 2023.
ORDERS
28. The Court orders that:
Aisi Lawyers: Lawyers for the Plaintiffs
Solicitor General: Lawyer for the Defendants
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