Unreported National Court Decisions
N1201
PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]
OS 113 OF 1992
BETWEEN
TONY VAGI HENI ON BEHALF OF THE MEMBERS OF OGONIA CLAN OF HANUABADA VILLAGE,
 NATIONAL CAPITAL DISTRICT
PLAINTIFF
AND
GUBA IDAU MAIMA ON BEHALF OF THE MEMBERS OF THOSE MEMBERS OF THE VARIMANA CLAN OF HANUABADA VILLAGE, NATIONAL CAPITAL DISTRICT EXCLUDING THE SECOND DEFENDANT'S SUB-CLAN
FIRST DEFENDANT
AND
LOHIA TOLANA ON BEHALF OF THE MEMBERS OF THE VARIMANA IDIBANA SUB-CLAN OF HANUABADA VILLAGE, NATIONAL CAPITAL DISTRICT
SECOND DEFENDANT
Waigani
Sheehan J
31 August 1993
1 September 1993
11 March 1994
JUDICIAL REVIEW - challenge to Provincial Land Court decision - claim of award in favour of one, not  party to original proceedings - counter challenge to dismiss the application on grounds of delay.
Counsel
Mr R Vaea for the Applicant
Mr SK Mulina for the First Defendant
Mr J Shepherd for Second Defendant
11 March 1994
SHEEHAN J:  The Plaintiff seeks judicial review of the decision of the late Mr Francis Rau Iramu of the District Land Court Magistrate given on 24 April 1982 at Port Moresby, sitting on an appeal from the Local Land Court.
The decision of the District Land Court was to divide disputed land known as Saivara and Kohegaino in the National Capital District in two.  One part was granted to the living members of the lineage of the Ogoni Gubini clan who are descended from Nioki Goto.  The other portion was awarded to those, the living members of the Varimana Clan descended from Haga Rei.  Heni Heni of the Ogoni Gubini clan was nominated as agent of the owners of the first portion of the land and Lohia Tolana of the Varimana Idibana clan, the agent for, the owners of the second portion.
The grounds on which review is sought are set out in the Statement filed in this application and are as follows:
“(i)     the learned magistrate erred in law in awarding part of the disputed land to the second defendant who was never a party to the dispute or the original proceedings as it had no power to make such orders;
(ii)      the learned magistrate erred in law in substantially varying the orders of the local land court in drawing new boundary lines on the disputed land when it did not have the powers to make those orders;
(iii)     the learned magistrate erred in law and in fact in not quashing the decision of the local land court and awarding the land to the applicant who was the rightful owner.”
In the event, only the first ground was pursued by the Plaintiff.
The First Defendant, that is Kore Auie supported the application for review.  The Second Defendant Lohia Tolana maintained that the decision of the Provincial Land Court was fairly and validly made after due consideration of the claims and submissions of  all parties.  As such he said the decision was not open to review.  But in any case the second defendant submitted that no review should be accorded to the Plaintiff in this case because of the inexcusable delay in bringing this application.  Nearly eleven (11) years have now elapsed since the decision was made.  It is now far too late to seek to overturn it.
In judicial review, unreasonable delay is not only a ground for refusing leave to apply but also a reason for refusal of relief even if leave maybe initially granted.
In this particular case it would appear that in the exparte application for leave to apply for judicial review, the question of delay was not raised.  But the grant of leave to apply in no way disposes of the issue.  It remains very much alive throughout these proceedings.  Indeed given the recent decisions of this Court and the Supreme Court this application could be decided on that issue alone.  But since the application is now before the Court, it can be left in abeyance until the merits of the application are determined.
For the Plaintiff Mr Vaea said that the Second Defendant Lohia Tolana was never a party to the proceedings in the Local Land Court or in the Provincial Land Court.  The parties referred to in either Court don’t include any mention of Lohia Tolana at all.  He said that in the Provincial Land Court decision there is also no mention of the evidence actually advanced by Mr Tolana.  Though he is in fact named there, in the evidence it is not in a “ substantial way”.  Overall he said, the Plaintiff claims the decision of the Provincial Land Court should be overturned as it is not based on just the evidence of either of the actual parties before it.
On the question of delay, Mr Vaea acknowledged that a lengthy period had elapsed since the Provincial Land Court decision and acknowledged too, the decisions of this and the Supreme Court on the issue of delay.  But he went on to say that this case is exceptional in that the decision was made in favour of one, not a party to the original proceedings, or “only a party more or less”.
He submitted that by virtue of the Plaintiff having approached the Public Solicitor and the Ombudsman Commission, (two constitutional office holders which have the obligation to be concerned with the rights of citizens under the Constitution) that in the circumstances the Plaintiff had done all that he could to have his grievances addressed.
Mr Mulina for the First Defendant agreed with Mr Vaea's submissions contending that the objection of the Plaintiff had statutory backing in s. 39 (6) (b) of the Land Disputes (Settlement) Act which states that the Provincial Land Court can make no provision in favour of a person not party to the dispute.  He also asserted that the appeal from the Local Land Court to the Provincial Land Court did not comply with s. 58 of the Land Settlement Dispute Act in that none of the grounds provided by that section were put forward as grounds of an appeal to the Provincial Land Court.  Because of this the Provincial Land Court had no jurisdiction to deal with the matter.  He went on to say that even had there been jurisdiction, the Provincial Land Court acted ultra vires, in that it neither affirmed the order of the Local Land Court, or quashed it and substituted its own decision, as s. 59 of the Act requires.  Like the Plaintiff, he submitted that the Court should exercise its discretion and refer the whole matter back for rehearing.
Mr Shepherd for the Second Defendant submitted that the complaints of the Plaintiff cannot be sustained nor can those arguments advanced by the first Dependant in support.  As the party contending that error had been made, the Plaintiff applicant had introduced no compelling evidence to show that the Local Land Court hearing was anything other than a dispute between contending groups claiming ownership of the disputed land.
The obligation to produce the record of the proceedings lay on the Plaintiff, an obligation not carried out.  The inability to produce that record might not be wholly the fault of the Plaintiff, the lapse of time plainly contributed, but he was stuck with an incomplete record and could not now assert as fact detail not able to be confirmed.
The only portion of the record produced by the Plaintiff did indicate parties as being Kore Auie and Heni Heni, but it is plain from manner in which there are displayed viz “1. Parties before the Court: Yes. (Kore Ahuie/Heni Heni)” that those names were abbreviations, used simply as representative of contending groups.  Counsel for the Plaintiff said that without a complete record the Plaintiffs action is bound to fail.  At best all the Court can do is conclude that the parties present at the hearings, and in whose favour awards, were made were parties to the dispute.  He pointed out too that the second Defendant had sworn to being present, given evidence at the Local Land Court hearing at that time, and there had been no challenge made to that assertion by the Plaintiff or the first Defendant.
Counsel for the 2nd Defendant also pointed to the Notice of Hearing in the District Land Court for the appeal.  It is dated 24/4/81 and reads:
“In the matter of an Appeal by Heni Heni (Vagi) & Ors -V- Kori Aheye of Elevala.”
It was counsel’s submission that the description indicates that the parties are groups rather than just the two persons named.  He went on to point out that the notice is addressed to:
“Heni Heni (Vagi) & Ors of Elevala, Kori Aheye, Kourihu Clans and Ors of Elevala.”
That advice to parties, it was submitted, indicates at least three if not more groups are party to the proceedings.
DECISION
In the learned Magistrate’s “Reason for Decision” is the following passage:
“Two groups namely Kuriu Koitabu headed by Kori Ahuie, and Ogoni Gubini headed by Heni Heni disputed over the ownership of these pieces of land Saivara and Kohegaino.”
That is a plain statement that there were two major parties to the dispute and it is true that the name of the 2nd Defendant does not there appear.  But it is equally plain from such parts of the Local Land Court record that is before the Court and the Provincial Land Court record that those named were representative of the major parties contending for the land in dispute.  It was not simply a matter of one clan versus another.  The Local Land Court and the Provincial Land Court hearings were designed to establish the actual ownership of the land.  There can be no doubt that others apart from Heni Heni and Kore Auie were heard.  The Plaintiff himself summarises the evidence offered by various claimants and there is no complaint on those parts of the record before the Court that the 2nd Defendant was a party not entitled to be present.  Persons and parties represented in one way or another were all heard on their claims and submissions.  Even without the complete records now available all evidence points to this.
The decisions given by the Provincial Land Court also show that this is so, because title to the respective pieces of land was awarded to living members of the actual members of the particular clans that were contending for land.  In the case of the Plaintiff the land was awarded to the “living members of the lineage of the Ogoni Gubuni Clan descended from Noiki Goto”.  While the other portion was awarded to “the living members of that part of the Varamana clan as are descended from Haga Rei”.
In other words part of the land was awarded to the Ogoni Gubini clan headed by the Heni Heni.  But the decision went further than that and spelt out just which members of the Ogoni Gubini clan were entitled to that portion of land.
Similarly the other portion of land was awarded to the Kurui Koitabu headed by Kuri Auie but particularly to those members of the Varamana clan, namely to those of the Varamana Idibana sub clan, the living descendants of Haga Rei.
Such a decision is in accordance with the directives of the Land Disputes Settlement Act to both the Local Land Court and the Provincial Land Court in sections 35 (1) (d) and 50 (e) respectively.  Both sections require those Courts to endeavour to do substantial justice between all persons interested.  By s. 2 of the Act, a party to a dispute includes, a customary kinship group or a customary descent group.  Thus a group having any ‘interest’ recognised by custom (s. 2) may be a party entitled to make claim before the Court.
The Plaintiff himself confirms that this was not just a 2 party case.  In his letter to the Ombudsman Commission the second paragraph states that “the disputed parties were Heni Heni Noki (2) Vagi Heni and Ors of Agoni clan and Kori Auie and Ors of Varamana clan.  (Idau Maima was proper and true leader of Varamana clan and Kori Ahi was as spokeman for the Koui Koitabu people”.  Later in that letter he states that “the submissions were submitted by; Kori Auie, Kuriu clan; Vagi Heni, Ogoni Clan; Lohia Tolana Vahi Clan, Vagi Heni Tatana Village, Dika Maeago, Maha Clan; Idau Maima, Varamana Clan”.
Plainly the Provincial Land Court considered the claims of all parties contesting the ownership of the property and made its findings according to the evidence before it and the custom that applied.  I am satisfied that there is no merit in the Plaintiffs claim that the second Defendant was not a party to the proceedings.
By the Plaintiffs own evidence it is plain that he was.  Certainly no objection was taken to the affidavit of the 2nd Defendant as to his being a party to those proceedings at that time.  This finding also disposes of the first Defendants submission on parties as well.
As for the first Defendants contention that no proper finding was made pursuant to s. 58, I find no substance in this either.  The issue of the appeal was that the decision of the Local Land Court was wrong (s. 58 (c)) and was dealt with by the Provincial Land Court under s. 59 (1) (b) (i) by disposing of the appeal and dispute.
Turning to the question of delay, Counsel for the second Defendant is correct when he said that the principal bar to any relief in judicial review, is delay.
The provision regarding delay are contained in O 16 r 4 where it says the Court may refuse to grant either leave for an application or the relief sought on an application:
“if, in the opinion of the Court, the granting of the relief sought would likely to cause substantial hardship to, or substantially prejudice the rights of, any person or would be detrimental to good administration”.
It is now eleven (11) years since the decision of the District Land Court in April 1992 the Plaintiff says he has tried to challenge the decision but there are large gaps of many years where nothing was done.  He has pleaded trying to have redress to Constitutional office holders and only learned of judicial review last year.  But even with that knowledge he has taken an excessive time in which to come to Court.
Since the decision the second Defendant has prefected the title and even if there were some error, not shown before me, then it is far too late now to re open the matter.
The decisions of this Court and the Supreme Court in NTN Pty Limited v Post & Telecomminication Corporation 1987 PNGLR 70.  The Independent State of Papua New Guinea v Lohia Sisia 1987 PNGLR 102 and David Pitzz and Independent State of Papua New Guinea 1988 PNGLR 89 are 143 all reflects the Courts view that parties seeking to invoke the juridication of the Court  by way of judicial review must act promptly.  Unreasonable delay is fatal.
In the result, I am quite satisfied that there is neither any fault in the decision making process that would warrant interference by this Court, that all who contended for the disputed property were given opportunity and ample opportunity, be heard.  Those decisions are now well past.  Even had there being some discrepancy in the conduct of those proceedings (not shown before me) then the delay in coming to Court must now be regarded as fatal to any relief.
Lawyer for the Applicant:  Vaea Lawyers
Lawyer for the First Defendant:  Mulina & Co Lawyers
Lawyer for the Second Defendant:  Shepherd Lawyers