Abura v Willie [2024] PGNC 312; N10992 (6 September 2024)

N10992

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS (JR) NO. 148 OF 2023

BETWEEN:
SEBEYAR ABURA & ORS
Plaintiffs

AND:
CHARLES GOASA WILLIE & ORS OF VAGA CLAN, NATIONAL CAPITAL DISTRICT
First Defendant

AND:
PETER MAKAO & ORS OF GEREHU, NATIONAL CAPITAL DISTRICT
Second Defendant

AND:
HER WORSHIP DARO K FRANK IN HER CAPACITY AS THE PROVINCIAL LAND COURT MAGISTRATE
Third Defendant

AND:
INDEPENDENT STATE OF PAPUA NEW GUINEA
Fourth Defendants

Waigani: Purdon-Sully J
2024: 22^nd August

JUDICIAL REVIEW - Preliminary issue as to standing – Plaintiff does not have sufficient interest to bring proceedings to sue - proceedings dismissed

Cases Cited:

Papua New Guinean Cases
Innovest Ltd v Pruaitch [2014] PGNCS 288; N5949
Wahgi Savings and Loan Society v Bank South Pacific Ltd [1980] PGSC 4; SC185
Ronald Imbao v Don Pandan [2011] SC1098
Stephen Mendepo v NHC [2011] SC1169
PNG Pilots Association v Director of Civil Aviation [1983] PNGLR 1
Mondiai v Wawoi Guavi Timber Co Ltd [2007] SC886
Medaing v Gabut [2016] N6431
Steamships Trading Limited v. Garamut Enterprises Ltd [2000] N1959
Wapi v Kwa [2022] PGNC 597; N10362
Mali v The State [2002] PNGLR 15
Malewo v Faulkner [2007] PGNC 150; N3357

Overseas Cases
Inland Revenue Commissioners; ex parte National Federation of Self-Employed and Small Business Limited [1980] 2 All ER 378

Legislation:
Land Dispute Settlement Act 1975
Claims By and Against the State Act 1996, s 8
National Court Rules, Order 16 Rule 3
Land Dispute Registration Act 1981

Counsel
Mr G Bon, for the Plaintiff
Mr J Ole, for the First and Second Defendants
Ms R Mobiha, for the Third and Fourth Defendants

6^th September 2024

1. PURDON-SULLY J: The Defendants seek dismissal of the Plaintiff’s application for judicial review by reason of want of competence, namely lack of standing, failure to otherwise meet the requirements for leave for judicial review and abuse of process.
2. The dispute, the subject of the proceedings concerns a piece of customary land within land known as Baudo land (the land), located at Taurama Valley in the National Capital District.
3. The Plaintiff purports to be the principal landowner through male patrilineal of the land customarily owned through a VAGA ILG, Central Claim No 45. In 2012 the plaintiff sold the land to David Raim Rakadui (the developer) and/or his company Dalas Property Management Ltd (the company) who then surveyed, registered, occupied and developed the land.
4. The First Defendant also purports to be a principal landowner, the land passed down to him over generations through genealogical inheritance rights. He asserts legal ownership by court order. On 20 February 2014 he entered into a Deed of Agreement by which he sold the land to the Second Defendant without the knowledge of the plaintiff or VAGA ILG.

BACKGROUND FACTS

5. The evidence with respect to the history of this matter is long and confusing involving claim and counter claim. The unchallenged and/or documentary evidence reveals the following.
6. On 2 February 2014 the First Respondent and his father sold a portion of the land to the second defendants pursuant to a Deed of Arrangement.
7. On 20 October 2014 in Local Land Court proceedings LLC 025 of 2014 instituted by Mataio Rabura, Sebea Rabura, Kabua Patana and Michael Mangai Geita as applicants against the First Respondent’s father Rev Morea Willie, Kira Kira Village NCD, the court dismissed the application of the Plaintiff and others for want of jurisdiction pursuant to s 27(4)(b) of the Land Dispute Settlement Act. The proceedings concerned who owned the land.
8. On 26 September 2018 and notwithstanding the dismissal of its proceedings the VAGA ILG under the hand of its then Chairman Mr Goasa Geita Sebea notified the company of its consent and approval to survey and develop the land.
9. On 30 November 2018 the VAGA Land Group Incorporated through its ILG Chairman Mr Goasa Geita in the presence of Mr Gadiki Matthew in his capacity as Deputy Chaiman and on behalf of the ILG entered into a contract of sale of the land with the Plaintiff (the contract) on behalf of his company Dalas Property Management Ltd (the company).
10. The contract provided inter alia for the payment of K6,000,000 by way of three instalment payments, comprising an initial cash payment of K700,000, K5,000 on the signing of the contract and K5,295,000 on approval and issuance of Title by the Department of Lands and Physical Planning with the company entitled to commence work on the land pending the grant of a State Lease over the land.
11. On a date unknown a Certificate of Title was issued in favour of Mr Goasa Geita Sebea as Chairman of the VAGA ILG albeit the document annexed to the Plaintiff’s affidavit filed 23 December 2023 evidences a transfer to the Plaintiff on 23 December 2019 and then again on 28 April 2020 with no reference to Mr Goasa Sebea;
12. On 28 April 2020 transfer deeds were executed in favour of the developer.
13. Under the Land Dispute Settlement Act 1975, the matter went to mediation and boundary walking on 15, 22 and 27 April 2021. No agreement was reached due to the non-appearance of the defending parties, Gowi Dowa and others. A report to the Court by the mediation panel and filed in the proceedings recommended the claims of the First and Second defendants in the current proceedings be recognised based on usufructuary rights.
14. Attempts to evict failed and the First Defendant and others commenced proceedings in the Local Land Court (LLC No 005 of 2021) against Gowi Dowa & Others of Vada Vada, NCD and the plaintiff and others.
15. On 16 July 2021 the Local Land Court at Port Moresby by court order entered on 20 July 2021 recognised the First Defendant as the rightful owner of the land (the order). Relevantly the order provided inter alia that:
    1. the sale of the land by Gowi Dowa & others of Vada Vada, NCD to the Plaintiff and others was illegal;
    2. the First Defendant and others were the legal owners of the land;
    100. the First Defendant and others had the legal right under custom to dispose of the land and the occupation of the land by the first and second respondents was legal;
    4. Gowi Dowa & others of Vada Vada, NCD and the Plaintiff and others was to deliver vacant possession of the land to the First and Second Defendants within 60 days;
    5. Gowi Dowa & others of Vada Vada, NCD and the Plaintiff and others were ‘barred to bring the same dispute before this court as they deliberately did not attend mediation after 3 notices served on them and no attempt to appear before this court after summons was issued and served on them”.
16. On 7 September 2021 the Plaintiff appealed the order to the Provincial Land Court.
17. By Notice of Motion filed 4 February 2022 the Plaintiff sought that the order be set aside
18. On 24 February 2022 the order was stayed by a Magistrate in the Provincial Land Court.
19. On 7 November 2022 the land was converted to State Lease and notwithstanding the history as outlined on 18 October 2022 the developer issued a lease of the land for 99 years.
20. On 23 December 2023 the appeal was dismissed by the Provincial Land Court as an abuse of process.
21. That order was served on the developer who was then evicted from the land on 2 February 2022.
22. On 23 December 2023 the Plaintiff filed an application for leave for judicial review.
23. On 22 March 2024 a Judge of this court granted the Plaintiff leave.
24. I have been unable to locate a Notice of Motion for substantive relief and no orders with respect to the filing of a Notice were made by the Court.
25. The State was not represented at the hearing for leave for judicial review. From my perusal of the endorsements on the court file the listing of the leave application had been made two days before on 20 March 2024, at which time the State was represented. The leave application proceeded to a hearing on 22 March 2024 in the absence of the State, the order made as endorsed on the file recording that the State had been served as stipulated by the Rules.
26. It is convenient at this juncture to deal with two issues raised by the Third and Fourth Defendants.
27. Firstly, I do not accept the argument that the decision is not amenable to judicial review. This is because in making the decision the Third Defendant was performing a public function under the Land Disputes Settlement Act which deals with the resolution of disputes in relation to interests in, or boundaries, of customary land.
28. Secondly, with respect to the argument that the State was not heard on the leave application, by virtue of s 8 of the Claims By and Against the State Act and Order 16 Rule 3 of the National Court Rules, the State has a right to be heard, however there is a discretion vested in the court to hear an application for leave for judicial review in the absence of the State. It is a discretion that may be exercised where the State has been served and without reasonable explanation fails to appear at court to argue the application (Innovest Ltd v Pruaitch [2014] PGNC 288; N5949 at [17] - [20].) There is no evidence that the State was not served and no explanation afforded as to why having been made aware of the hearing by virtue of their presence in Court when the matter was listed for hearing, the State did not attend. The Judge by reasonable inference was aware of the statutory requirements and concluded that he was prepared to hear the matter in the absence of the State. That said, standing is an important issue. It is a matter that can be raised at any stage of the proceedings. In my view the absence of a filed Notice of Motion for substantive relief by the Plaintiff should not preclude the issue being raised. This is because the proceedings for judicial review remain on foot, the State is seeking to be heard on the matter, the Court has an inherent power to prevent abuse and it in the interests of all parties that the matter be heard with expedition.

THE LAW

29. The first issue to be considered, then, is whether the Plaintiff has a right to be heard. If he does not, then it is not necessary to consider the other arguments raised. This is because locus standi or standing goes to whether the Plaintiff, who is challenging the decision, is a proper party to seek the court’s adjudication on whether the decision was lawful. The Court, in the exercise of its inherent power to control its own proceedings, must then strike out the proceedings as incompetent (Wahgi Savings and Loan Society v Bank South Pacific Ltd [1980] SC 185, [1980] PGSC 4; Ronald Imbao v Don Pandan [2011] SC1098; Stephen Mendepo v NHC [2011] SC 1169).
30. A person will have standing if they have a “real” or “sufficient interest in the matter to which the application relates” (PNG Pilots Association v Director of Civil Aviation [1983] PNGLR 1; Mondiai v Wawoi Guavi Timber Co Ltd [2007] SC886; Medaing v Gabut [2016] N6431).
31. In Steamships Trading Limited v. Garamut Enterprises Ltd [2000] N1959, Sheehan J said:

Sufficient interest is essentially a mixed question of fact and law, a matter of fact and the degree of the relationship between the Plaintiff and the subject matter of his complaint. Generally, a Plaintiff will have standing if he can show that he has reasonably arguable claim that by an invalid exercise of statutory power, some private right in law has been affected or that he has suffered some prejudice. But the right to invoke the Court’s supervisory jurisdiction is not restricted to protection of personal rights only. It can extend to more public issues. A broad brush analogy may be drawn with the status of citizen witnessing an indictable offence being committed. He has no legal obligation to intervene or to stop that offence but he does have the status to affect a citizens arrest.

32. In Wapi v Kwa [2022] PGNC 597; N10362, Kandakasi DCJ outlined the following relevant principles at [20]:

There is a large body of case law clearly establishing the principles governing the issue of a person’s locus standi or standing to bring judicial review proceedings. Firstly, locus standi is a threshold issue which must be determined first: See Inland Revenue Commissioners; ex parte National Federation of Self-Employed and Small Business Limited [1981] UKHL 2; [1981] 2 WLR 722 per Lord Diplock, as adopted and applied in Jim Kas v. Sevua (2000) N2010 by Sakora J. Secondly, depending on the nature of the relief being sought, a plaintiff will in general have locus standi when he can show actual or apprehended injury or damage to his property or proprietary rights, to his business or economic interests and perhaps to his social or political interests: See Australian Conservation Foundation Inc. v. Commonwealth of Australia (1980) 146 C.L.R. 493; 54 A.L.JR. 176, per Mason J; Papua New Guinea Air Pilots Association v. The Director of Civil Aviation and the National Airline Commission trading as Air Niugini [1983] PNGLR 1, per Andrew J. Thirdly, the cases are various and so much depends in each case on the nature of the relief sought because, what is sufficient interest in one case may be less than sufficient in another: See Robinson v. The Western Australian Museum (1977) 138 C.L.R. 283, per Mason J. Fourthly, the Courts have on many occasions expended (sic) the categories or situations in which a person could have locus standi simply by reference to having ‘sufficient interest’ in the matter, which may not necessarily be a right: See NTN Pty Limited v. The Board of Post & Telecommunications Corporation [1987] PNGLR 70, per Wilson J; Arawe Logging Pty Ltd v. The State [1988-89] PNGLR 216, per Brunton AJ; and National Capital District Interim Commission v. Crusoe Pty Ltd [1993] PNGLR 139, per Brunton J. Fifthly, the concept of “sufficient interest’ is essentially a mixed question of fact and law and the degree of the relationship between the Plaintiff and the subject matter of his complaint. Generally, a plaintiff will have standing if he can show that he has a reasonably arguable claim that by an invalid exercise of statutory power, some private right in law has been affected or that he has suffered some prejudice: see Steamships Trading Limited v. Garamut Enterprises Ltd (2000) N1959, per Sheehan J as endorsed by the Supreme Court in Aquila Sampson v. NEC (2019) SC1880, per Anis J with Kassman and Toliken JJ agreeing; David Kabomyap Allolim v Biul Kirokim (2018) SC1735, per Batari J, David & Frank JJ. Sixthly, the right to invoke the Court’s supervisory jurisdiction is not restricted to protection of personal rights. It can extend to more public issues. In determining standing, Court decisions in our jurisdiction lean strongly towards the granting of locus standi to citizens seeking to complain of what is seen as breaches of laws of the country: See Steamships Trading Limited v. Garamut Enterprises Ltd (supra), endorsed by the Supreme Court in Aquila Sampson v. NEC (supra). Finally, the relevant decisions on point show an inclusive rather than an exclusive view of applicants with standing, holding that, challenges by citizens to the validity of decisions of statutory or public authorities should not too readily be excluded from the Courts on grounds of lack of direct personal interest or right. Very often determination of standing is only possible with an examination of the complaint itself: Steamships Trading Limited v. Garamut Enterprises Ltd (supra) as endorsed by the Supreme Court in Aquila Sampson v. NEC (supra).

CONSIDERATION

33. The question for the Court is a simple one: does the Plaintiff evidence a “sufficient interest’ to complain about the decision of the Third Defendant. Is he directly affected by it? Does he have a genuine grievance? Will he suffer an actual or apprehended injury to his property or property interests? Has he been prejudiced by the decision? Or is he effectively meddling in the affairs of others who are directly affected? The question is one that is decided objectively (Inland Revenue Commissioners; ex parte National Federation of Self-Employed and Small Business Limited [1980] 2 All ER 378).
34. It is submitted on behalf of the Defendants that the Plaintiff does not have standing to bring the current proceedings. He does not hold title to the land. It is submitted that it is the developer who is the legitimate party. It is his title that is protected under s 33 of the Land Registration Act 1981 and as a result it is he who has the right to question any irregularities regarding the land. It is further submitted that the Plaintiff has not evidenced authority to act on behalf of the developer who holds title or the VAGA ILG who entered into the contract for sale of the land with the developer on behalf of all members of the Plaintiff and all members of his family. It is the Plaintiff’s case that he has a sufficient interest to bring the proceedings.
35. I am unable to conclude that Plaintiff has demonstrated a sufficient interest or grievance to ground his application. Put another way, the degree of the relationship between the Plaintiff and the subject matter of his complaint is not sufficient to conclude standing. On a plain reading of the Plaintiff’s affidavit filed 23 December 2023, he appears to have assumed to himself a responsibility or interest that belongs to others.
36. The Plaintiff’s institution of proceedings in the Local Land Court did not lead to a factual finding or declaration as to his ownership or interest in the land. The contract for the sale of the land was entered into between the developer on behalf of the company and VADA ILG by its Chairman in the presence of its Deputy Chairman. Its terms, and any obligations imposed on the Plaintiff thereunder, do not rise to a height such as to suggest an interest sufficient to ground these proceedings. On the Plaintiff’s own evidence at [9] of his affidavit filed 23 December 2023, the Certificate of Title to the land was issued to Mr Goasa Geita Sebea, the Chairman of the ILG prior to the land vesting in the developer.
37. While the Court acknowledges, on the authorities, expanded categories or situations in which a person could have locus standi by virtue of a sufficient interest which may not necessarily be a legal right, the facts of this case fall short of such a finding.
38. Nor, notwithstanding the reference to ‘others’ on the title page of his Originating Summons and supporting documents does the Plaintiff adduce evidence of an entitlement to conduct judicial review proceedings in any representative capacity on behalf of VADA ILG or his clan or unnamed others. It is settled law that all actions of a representative nature would require all intended plaintiffs to be named and duly identified in the originating process with each of the intended plaintiffs to give specific instructions to their lawyer evidenced in writing to act for them (Mali v The State [2002] PNGLR 15; Malewo v Faulkner [2007] PGNC; N3357). That is not the case here. These are proceedings brought by the Plaintiff on his own behalf, purportedly as principal landowner, that deposition, however, unsupported by the terms of the order.
    

CONCLUSION AND ORDERS

39. The Plaintiff’s lack of standing is fatal to the proceedings for judicial review. In consequence the following orders are made:
    1. That the proceedings for judicial review be dismissed.
    2. That the Plaintiff pay the costs of the Defendants on a party and party basis to be agreed or taxed.
    3. Time to abridge.

Gibson Bon Lawyers: Lawyers for the Plaintiff
Redman Lawyers: Lawyers for the First and Second Defendants
Office of the Solicitor General: Lawyers for Third and Fourth Defendants