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Yaklamia v Babia [2001] PGNC 57; N2153 (20 June 2001)

N2153
PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

OS 477 OF 2000

APPLICATION FOR JUDICIAL REVIEW PURSUANT TO SECTION 155(3)(a) OF THE CONSTITUTION

AND:

IN THE MATTER OF ORDER 16 OF THE NATIONAL COURT RULES

AND:

IN THE MATTER OF THE LAND DISPUTES SETTLEMENT ACT CHAPTER NO. 45

AND:

PAULUS YAKLAMA
for and on behalf of the WUBLE CLAN
-Plaintiff-

AND:

GREGORY BABIA
for and on behalf of ANGHWO/PANTEI CLANS
-Defendant-

LAE: INJIA, J.
2001: JUNE 15, 20

CIVIL – PRACTICE AND PROCEDURE – Judicial Review – Decision of District Land Court - Leave granted – Hearing on substantive application –Statement in Support of application for leave disclosed no arguable legal issue – No evidence led by applicant in support of application – Affidavit of applicant’s counsel only evidence supporting application – Leave granted previously revoked – Proceedings dismissed with costs – National Court Rules O16.

Cases cited:

Emas Estate Development Pty Ltd v. John Mea & Others [1993] PNGLR 215
R v. Secretary of State for India [1941] 2 KB 169

Counsel:

L. Manua for the applicant

D. Poka for the respondent

20 June 2001

INJIA, J.: This is an application for judicial review under Order 16 of the National Court Rules. Leave to apply for judicial review was granted to the applicant on 25 September 2000.

The decision sought to be reviewed is the decision of the Provincial Land Court held at Vanimo on 1 September 2000, in which the Court dismissed the applicant’s appeal against the Local Land Court decision, pursuant to S.59 of the Land Dispute Settlement Act (Ch. No. 45). Even though S.60 of that Act prohibits an appeal from a decision of the District Land Court, this application for review is permitted by S.155(3)(a) of the Constitution, the procedure for which is supplied by Order 16 of the National Court Rules.

There is only one ground of the review set out in the Amended Statement in Support, filed pursuant to O16 r3(1) of the National Court Rules, which the applicant pursues, which Mr. Poka of counsel for the applicant says it raises a question of law. This ground is:

The relief sought pertinent to the above ground, as set out in the Amended Statement in Support, is in para 2 and it reads as follows:

"An order in the nature of certiorari to remove into this Honourable Court and quash the decision made by the Provincial Land Court at Vanimo on 1 September 2000 confirming the decision of the Local Land Court at Vanimo on 3 August 2000 that a certain Land called the "Yah wang Reef" on portion 53 in the township of Vanimo, Sandaun Province is by custom owned by the Anghwo/Pantei Clans".

In support of the application, the applicant has not filed any substantive affidavit himself. I say substantive because the only affidavit he has filed is in the form of an "Affidavit Verifying Facts" endorsed on the Amended Statement in Support.

The only other affidavits in this review for the applicant are two affidavits deposed to by his counsel Mr. David Poka, both sworn on 7/9/00, one filed on 7/9/00 (first affidavit) and the other filed on 8/9/00 (second affidavit). In the first affidavit, Mr. Poka relays to the Court the background facts of the application, as per instructions received from his client. The second affidavit merely annexes copy of the written judgment of the District Land Court Magistrate.

At the commencement of the hearing, Mr. Manua of counsel for the applicant objected to
the use of Mr. Poka’s affidavit, in particular, the first affidavit saying it contained hearsay information from his client. I accepted this submission and indicated to Mr. Poka that such matters of fact should be deposed to by his client and not him. I said then that there is authority for this view. The Supreme Court decision in Emas Estate Development Pty Ltd v. John Mea & Others [1993] PNGLR 215 per Brown J, states the principle succinctly:

"The appropriate role of counsel as advocate does not include that of witness. Mr Karingu’s affidavit relates to issues which go to the very crux of the judicial review....

In this case, Mr Karingu has given evidence of material facts. The judicial reviewing authority, Los J, is faced with hearsay, and it cannot be tested by cross examination. It is not a mere matter of ethics. There should be a rule that counsel may not give evidence. A lawyer may be counsel in a case but cannot be both counsel and witness (see R v. Secretary of State for India [1941] 2 KB 169. Judges should not decide on hearsay statements of counsels".

In the course of arguments, I raised the point that the applicant has not filed any affidavits to support his application for judicial review whereas the respondents have filed four (4) affidavits in defence of the application, and questioned whether Mr. Poka was vigorously pursuing his own interest or that of his client.

Mr. Poka nonetheless submitted that because the question on the review is one of law only, the verified Amended Statement in Support is sufficient for the purpose of the application. Mr. Manua submitted the verified Amended Statement in Support does not comply with Order 16 rule 3(1) because there is no facts pleaded in the Amended Statement in Support. He submits the Statement only contains the relief sought and the grounds on which the relief is sought.

I accept Mr. Manua’s submissions in respect of the state of the pleadings in the Statement in Support. In my view, Order 16 rules 5-6 deal with the substantive application for judicial review. Nowhere in these two provisions is there a requirement that an applicant file affidavits in support of the substantive application. Indeed it appears to be optional. However, the crux of the review falls on the information supplied in the Statement in Support which is verified by affidavit. Therefore, it is important that the Statement in Support must contain all the information necessary for conducting the review of the decision which is on record. In the present case, the Amended Statement does not contain essential facts giving rise to any arguable issue of law to be tried, and the issue of law itself, if any, is not clearly disclosed in the ground stated. For instance, this ground does not say in what respect the Local Land Court exceeded its jurisdiction and the District Land Court affirmed that erroneous decision. I realise now that in the absence of the pleading of the necessary facts and in the absence of clear and precise pleading of the ground giving rise to an arguable legal issue, I should not have rushed into granting leave for review in the first place. I have said in other judicial review cases before me that the procedural requirements of Order 16 must be strictly complied with in order to invoke the inherent power of this Court to review decisions of judicial or quash judicial tribunals, particularly when the relevant statute prohibits further appeal or review from a decision of that Court, such as it is in the present case.

In the present case, I am not satisfied that the necessary facts and grounds of review have been properly pleaded, to raise an arguable case, for leave to have been granted in the first place to merit a substantive review. For these reasons, in the exercise of my inherent discretion, I revoke the grant of leave for review and strike out the proceedings as being incompetent, with costs to the respondent. I also order that the interim orders made on 8/9/00 be discharged forthwith, and the sum of K36,000.00 held in trust by the Clerk of Court at Vanimo be paid to the respondents forthwith.
______________________________________________________________________
Lawyer for the applicant : Pryke and Bray Lawyers
Lawyer for the respondent : Harricknen Lawyers