N1036

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

IN THE MATTER OF YABO SABO FOR NAGI CLAN OF AMELE IN MADANG PROVINCE AND THE MADANG PROVINCIAL LAND COURT

Madang
Doherty J

19 August 1991

EQUITY - Clean hands maxim.

PRACTICE AND PROCEDURES - Certiorari to quash a decision of a land court - Order for giving time for implementation of an original order may not amount to variation - Failure to comply with original order may be a bar to giving leave for certiorari - Whether a party other than the original plaintiff can apply for certiorari.

ADMINISTRATIVE LAW - Certiorari - Locus standi - Whether a party other than the original plaintiff can apply for certiorari.

Facts

The plaintiff sought leave for judicial review of a decision of the Madang Provincial Land Court made four years earlier.

Held

1. The four-months limit stated in O 16 r 4(2) of National Court Rules is not a mandatory provision, but consideration must be given to the cause of the delay and reasons.

2. Equitable remedies are discretionary, and failure to obey the original order may be a bar to relief.

3. Obiter: an order confirming the original court order in the Local Land Court and giving time to implement it may not amount to a variation of the original order.

4. The applicant for certiorari must show that he or she had locus standi in the original hearing.

Cases Cited

Papua New Guinea cases cited:

PNG v District Land Court; ex parte Nuli [1981] PNGLR 192
State v Giddings; ex parte Koan [1981] PNGLR 423
Yap v Tan [1987] PNGLR 227

Other case cited:

Hadkinson v Hadkinson [1952] 2 All ER 567; [1952] P 285; [1952] 2 TLR 416

Counsel

G Langtry for the applicant.

19 August 1991

DOHERTY J: The applicant applies for leave in accordance with the National Court Rules for an order of certiorari against the decision of the Provincial Land Court at Madang quashing an appeal against a decision of the Local Land Court. The Local Land Court made its decision in 1983, but the National Court (Bredmeyer J) granted a judicial review of that decision on the basis that the terms of the order were unclear and not communicated to the parties. The order made was then appealed. This is an application against the decision of the appeal court, viz the Provincial Land Court. Two grounds are mentioned in the originating summons. First is that the learned magistrate had no power to confirm the lower court’s decision and then make his own new orders; and secondly, in the circumstances of the case, no court doing justice would have made the decision complained of.

Counsel for the applicant refers to the case of PNG v District Land Court; ex parte Nuli [1981] PNGLR 192. The applicant says that the decision made by the appeal court differs from the decision made by the lower court. The Provincial Land Court in Nuli’s case made quite different orders by making changes to boundaries of the land and other matters. These are set out in pages 194 and 195 of that judgment.

In the case before me, the Local Land Court first awarded the land to one clan and its representatives. In the Provincial Land Court, this was confirmed and a second order upheld that decision and added a decision which allowed for the implementation. It appears to me that this may not necessarily be a complete variation, but only an upholding of the original decision and an order facilitating its implementation by giving the unsuccessful appellants (current applicants) time to vacate the land.

The matter has a long history going back to 1929, when Justice Phillips of the Supreme Court of New Guinea apparently awarded certain rights to the applicant’s mother. The applicant’s mother came to the area from elsewhere. I say "apparently" because counsel for the applicant is unable to give definite information on exactly what transpired in 1929 and the status of Justice Phillip’s decision, e g if it was a declaration of title or a life usage. It appears to be common ground that there is no right of hereditary transfer of land title or usage through the female line; but despite that consensus, the applicant continued to pursue this claim.

I consider there are four main points in the matter before me.

First is the time for bringing an application for certiorari. A four-month limit is set in O 16 r 4(2) of the National Court Rules. It is not a mandatory limit. It can be extended by the court. I would not go so far as to say that it is a guideline; it is more than that. The appellant makes a long explanation of his attempts to get lawyers; a similar type of situation was held as grounds for extending the four-months period in PNG v Giddings [1981] PNGLR 423, also a land court case. I can see there is difficulty in a place like Madang. There is also a problem (as occurred here) where one set of lawyers may be looking at papers and time elapses. A court, especially in a place like Papua New Guinea, must not be too onerous and strict in its interpretations of these provisions. It should consider how active the applicant was in his pursuance of assistance and when he started in the efforts to find someone. However, I cannot get away from the fact that it is now eight years since the original decision and four years since the appeal decision.

The second point I wish to make regards the locus standi of the applicant. The original appeal was brought by a defendant called Edam Sabo. The applicant here before me never appeared, nor was he a witness in the original court case. His counsel said Edam Sabo and Yabo Sabo are one and the same person; however, it is clear that they are not, and counsel now concedes that they are different people and explains that Edam Sabo has died and Yabo Sabo has taken his place. I note the Provincial Land Court appeal is in the name of Edam Sabo, but the transcript evidence is signed "Yabo Sabo". It could be said that he is a representative of the clan, of a group of claimants. It is a clan action rather than a personal one, but it is a doubtful situation whether one person can bring an action against a decision that was made in favour of another, or against another, when he himself never appeared to give evidence, nor turned up at the hearing, nor took any part in the case. There is no record in the Provincial Land Court clarifying this point or informing the Court that it was a different person, to enable the learned magistrate to rule if Yabo Sabo could continue in a representative capacity.

The third point is whether the applicant comes before this Court with clean hands. This is a court giving equitable relief. That means the Court has a discretion vested in it to decide whether to award relief; it’s not a right written down in a law of the Parliament. The rules of equity say if you want the court to give you certain relief or certain rights, then you must have acted properly.

As was said, moreover, one who has established prima facie grounds for the award of the relief he has sought may be refused a remedy if the court chooses to exercise its discretion against him. Some remedies are obtainable as of right when the legal prerequisites for relief have been established, but others are discretionary, or discretionary in given circumstances, and the principles regulating the exercise of the discretion are not always clearly formulated.

An order was made in the lower court telling Edam Sabo to vacate the land in 1988; that is three years ago. Neither he nor the applicant has made any effort at all to comply with that order. He has not applied for a stay of execution. He has done nothing to show that he is bound by it. In the case of Yap v Tan [1987] PNGLR 227, it was held that where an order is made by a court of competent jurisdiction, it is the obligation of every person against, or in respect of, whom the order was made to obey it, unless and until that order is discharged. The obligation extends to cases where the person affected by the order believes it to be irregular or even void.

Mr Langtry says that the applicant believed that it was not a good order, it was wrong. That is neither here nor there.

The Court adopted with approval the following ruling in Hadkinson v Hadkinson [1952] 2 All ER 567 at 569: "It is the plain and unqualified obligation of every person against, or in respect of, whom an order is made by a court of competent jurisdiction to obey it unless and until that order is discharged. The uncompromising nature of this obligation is shown by the fact that it extends even to cases where the person affected by an order believes it to be irregular or even void." A person who knows of a court order cannot be permitted to ignore it, regardless of whether he thinks it is right, wrong, null, or regular; he is bound by it. This applicant was bound by the order made by the Provincial Land Court. The order was made in his presence. He made no effort to apply for it to be stayed. I do not consider that he has come in a clean and proper way before this court.

The fourth point, which I alluded to above, is the grounds of the application itself. I am in some doubt whether the order is, in fact, a variation, as in Nuli’s case. The court’s powers are clear. They can only affirm the original order or quash it. I do not think that this order goes as far as changing the original order. It upholds it and then makes an order to implement it, giving the appellant some time to vacate the land which he remained on in defiance of the original order. I doubt, therefore, that it is a variation. I make no definite decision on this last point as to the differences between a variation, a different order, or supplementary order to implement the original order, because it was not fully argued.

I consider that this applicant is too late in his application and, having failed to comply with the order of the Provincial Land Court, I exercise the discretion vested in me against him. The application is refused.

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Lawyer for the applicant: Mionzing & Associates