N2120

PAPUA NEW GUINEA

[In the National Court of Justice]

OS NO. 34 OF 1999

BETWEEN

NAKUN PIPOI
on his own behalf and on behalf of Nob 1 tribe of MADANG PROVINCE
Plaintiff

AND

VIVISO SERAVO,
NATIONAL MINISTER FOR LANDS
First Respondent

AND

NATHANIEL MARUM
NATIONAL LANDS COMMISSIONER
Second Respondent

AND

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Respondent

WAIGANI	:	SAWONG, J
2001	:	1st June

Administrative Law - Leave for Judicial Review of Ministerial Act - Declaration of National Land - Sufficient Interests - Whether applicant has sufficient interest - Arguable case - Whether applicant has serious legal issues to be determined - Delay - Application for Leave to review decision on Declaration 10 years after Declaration - Whether there has been undue delay - Order 16 National Court Rules - Leave refused.

Administrative Law - Application for Leave for Judicial Review of Ministerial Act - S. 155 (4) Constitution - Delay - Undue delay - Leave refused.

CASES CITED:
NTN Pty Ltd.v Board of Post & Telecommunication Co-corporation & Ors [1987] PNGLR 70;
Manjin v PTC [1990] PNGLR 288;
Application of Eric Gurupa - Unreported Judgement No.N856 dated 9th January, 1990;
Ombudsman Commission of PNG v Honourable Justice Sakora,  Messrs. Manahu & Karapo & Paul Pora - unreported Judgement No. N1720 dated 6th December, 1996;
The Independent State of PNG v Lohia Sisia [1987] PNGLR 102.

Counsel:
P PARKOP, for Applicants
S ALBERIC, for Respondents

1st June, 2001 

SAWONG, J: This is an application by way of originating summons pursuant to O. 16, r 3 of the National Court Rules seeking leave to apply for the judicial review of the following decisions:

1.	Decision of the National Minister for Lands to declare the Madang Town Lands as national land on the 14th January 1988; and

2.	The decision of the National Land Commissioner to award compensation to various claimants of the Madang Town Land made on the 18th September 1990, 4th October 1991 and 2nd February 1996.

The Respondents oppose the application.

The application is supported by a statement and several affidavits of the applicant as required by the rules. I extract the essence of facts giving rise to this application from the affidavits of the applicant. The essential facts are as follows:

The Plaintiff brings this action on his own behalf and on behalf of the members of the Nob 1 tribe of Madang.

He is 59 years old and comes from Bilbil Village, Madang. He is a member of the Nob Yomba clan which is a member of the Nob 1 tribe. Nob 1 tribe is a tribe that is made up of 18 clans from 16 villages in and around Madang Town. These clans were the original customary landowners of the various pieces of land in and around Madang Town.

On 14th January 1988 the National Minister for Lands declared the Madang Town Land as National Land.

On 18th September 1990 the National Land Commissioner awarded compensation to various claimants for various parts of the Madang Town Land.

On 4th October 1991 the National Land Commissioner made further award of compensation to various other claimants for various parts of the Madang Town.

On 2nd February 1996 the National Land Commissioner also made further awards of compensation to various claimants for various parts of the Madang Town Land.

On 1st January 1997 the Applicant filed an application on behalf of his own clan and entire Nob tribe before the Land Titles Commission seeking to challenge the States ownership over the land over which the Madang Township is based. These included what is generally known as Yomba Plain which covers Portions 71, 71A and 72, Modilon Jomba Plains, Wagol plantation which covers Portion 50, Wagol Reserve which covers Portion 51 and Meiro Plains which covers Portion 77. These lands are known generally as North and South Madang Land. The total land mass claimed in their application before the Land Titles Commission covers approximately 1,500 hectares. (these land)

Their application before the Land Titles Commission was not dealt with and is still pending.

Pursuant to the Ministerial Declaration which was gazetted in the National Gazette G2 of 14 January 1988, the National Lands Commissioner made several awards of compensation for various amounts for various clans, sub-clans and tribes involving parts of different parts of land. It is unclear precisely from the term of the awards made by the Commissioner the exact parts of the land for which compensations were to be paid and which were subsequently paid for.

As a result of these awards the State has made payments for these pieces of land to the various clans.

The Applicant and the members of his clan wished to be compensated for the use of what they say is their customary land from 1887 to today.

The Applicant also relies on the decision of Justice Philips in 1932 relating to the same land. The judge found that the German Colonial Officer who acquired these pieces of land was illegal and that therefore the land remained a customary land. He says that the judge erred in making an order vesting the land on the Custodian of Expropriated Properties.

In 1986 the then Minister for Lands published in the National Gazette No G10 of 20th February 1986 a notice of his intention to declare these land as National Land under the National Land Registration Act. The Applicant says that when this intention was made known to them they registered their objections which was made verbally and in writing in March 1986 by a Mr Kasau Magat and other leaders from his tribe to the District Lands Officer. 

He says that despite their objections no actually hearing or proceedings were held to determine the basis of their objection. Instead the Minister for Lands proceeded and made the Declaration and had it published in the National Gazette.

Since they made their objections they did not brought the matter to the National Court as they were waiting for the State or the Minister for Lands to respond to their objections until 1990 when the National Land Commissioner began to hear applications for compensation relating to these land and other lands in Madang Township area. When members of his clan approached the National Lands Commissioner in 1990, they were told that they were too late as he had already made a decision over a compensation and that their objection could not be entertained.

Thereafter, they did not do anything to bring the matter to the Land Titles Commission (Commission). They say this was so because they did not have the necessary funds to hire a lawyer to bring the matter before the National Land Commission.

In 1995 the Applicant says he approached Mr Parkop who was then given instructions to file the application before the Commission. Mr Parkop then filed an application to the Commission in January 1997. Subsequently the said application was heard by the Commission but the Commission found that the commission did not have jurisdiction to determine questions of ownership over land which had been declared as National Land. The Applicant then through his lawyers filed the present proceedings in January 1999. This was filed at the National Court Registry in Waigani. The National Court in Waigani did not hear the application for leave because it was of the view that the matter ought to be determined by the Commission. Thereafter, the matter protracted and eventually in March 2000 an order was made to have the matter transferred to the Madang National Court. For multiplicity of reasons the application was not heard and on 5th February 2001 the Court directed parties to file written submissions. These they have now done. I have read and considered the submissions that have been filed.

The State has opposed the application for leave.

In an application for leave to apply for judicial review it is trite law that four (4) major legal principles need to be satisfied before the Court exercises its discretion in favour of the application. These principles are:

1.	Whether the Applicant has sufficient interest in the matter to bring the application.
2.	Whether the application raises any fundamental or serious legal issues to be tried that would found an arguable case.
3.	Whether the party or the Applicant should be required to pursue further administrative remedies before bringing the matter to court.
4.	Whether the application is brought within the prescribed or otherwise reasonable time.

(See NTN Pty Ltd v Board of Post & Telecommunication & Ors [1987] PNGLR 70, Manjin v PTC [1990] PNGLR 288, Ombudsman of PNG v Honourable Justice Sakora & Ors - Unreported Judgement No. N1720.)

The first issue, therefore, in this case is whether in the circumstances giving rise to this application, the Applicant has sufficient interest in the substantive matter to have standing to bring this application.

It has been submitted that the Plaintiff does have standing and does have sufficient interest to bring this application on his own behalf and on behalf of his tribe. The Plaintiff deposes in his affidavit that he is a member of the Nob 1 tribe which comprises 18 clans from 16 villages in and around Madang Town. These clans include the Nob Jomba Principal clan of Bilbil village, Nob Sisiak Gagali sub-clan from Sisiak village, Nob Jomba-Bakep (Janu) sub-clan of Krangket, Nob Bakep – Janu sub-clan of Garim village, Nob-Sibo Principal clan of Umin village, Nob Sibo-Kakon sub-clan of Yabob village, Nob Azaupain Palon Principal Clan of Krangket village, Nob-Haribu Principal Clan of Yabob village and other clans and sub-clans.

It has been further submitted that the interest of these clans and of the Applicant are apparent on the face of the records in that by a decision of Justice Philips in 1932, he awarded parts of what is now known as Madang Township Land to members of the Plaintiffs’ clans or tribes. It was submitted that in that judgment the Court found that parts of the land were owned by the Applicants clans and not by the colonial government.

The Respondents submit that the Plaintiff does not have standing or sufficient interest in the matter in so far as the application relates to the whole of the Madang Township land. Further, it is submitted that there is no evidence except for the assertion by the Plaintiff in his affidavit filed on 25th January 1999 of his appointment by the clans or tribes to bring this application.

In view of the submissions that have been made it is necessary to examine closely the evidence filed on behalf of the Applicant. It is also necessary to examine the decision of Justice Philips because it is relied on heavily for claiming sufficient interest to bring this application.

In so far as this ground is concerned the Plaintiff deposes that he is a member of the Nob 1 tribe of Madang. He comes from Bilbil village and is a member of the Nob Jomba clan which is a member of a Nob 1 tribe. He says that Nob 1 tribe is a tribe that is made up of 18 clans and 16 villages in and around Madang Town. He deposes that he is authorised by members of the Nob 1 tribe to bring this application. He says that this tribe includes principal clans and sub-clans who were the original traditional owners of most of the parts of the land on and around Madang Town. He deposes that the application relates to the challenge to be made over the State’s claim of ownership over parts of the land in Madang Town known as "Jomba Plains" which covers Portions 71, 71A and 72, Modilon Jomba Plains, Wagol Plantation which covers Portion 50, Wagol Reserve which covers Portion 51 and Meiro Plains which covers Portion 77 which are collectively known as North and South Madang Land. The total land mass claim in their application covers appropriately 1500 hectares.

Justice Philips dealt with the four (4) pieces of land. These were lands which are set out above. These lands were situated at:

(1)	"Jomba Plain" and comprising Portions 71, 71A and 72.
(2)	"Modilon - Jomba" and comprising Portion 37.
(3)	"Wagol" and comprising Portion 50.
(4)	"Wagol Reserve" and comprising Portion 51.

He gave detailed reasons and made detailed findings in respect of each of the above described pieces of land. He also made findings of ownership of pieces of land within each of the larger portions of the above described lands.

In respect of each of the portions of land the subject of this application, he made the following findings at p. 87 and 88:

"1.	As to the reference relating to land situated at "Jomba Plain" and comprising portions 71, 81A and 72 District of Madang: for the reasons given in this judgment, in particular for the reason that non of this land was ever sold by the rightful native owners thereof, I find that whole of this land is native owned: that is to say:

(a)	as to that portion of this land which lies between Gum and Gogol Rivers and comprises portion 72 aforesaid:- I find that the natives of the tribes of Yo, Sein, Marip, Aguru-Amin, Aguru, Deiwol, Meltab, Mihilon, Meritab, Yagom, Onuru-Mamandaru, Omoro-Dele, Aua-Iaum, Aua-Heb, Taitaba, Maim, Naido, Bag, Mahor, Wabar, Gudine, Salolo, Battan, Wasuk, Gagalu, Sasala-Gala, Soso Propa, Soso Helna, Gesup, Gun, Unuina, Nagi, Bahor, Mahoban and Od have free and unrestricted rights to ownership over respective parts thereof which together make up the whole of Portion 72 aforesaid." 

(b)	As to that portion of the Jomba Plain which lies to the north of the Gum River and comprises Portions 71A (the so-called "Jabob Reserve") and 71 in the District of Madang:- I find that the natives of the GESUP, SISIAK, and MAHOBAN tribes have free and unrestricted rights over respective parts thereof which together make up the whole of Portions 71A and 71 aforesaid; that is to say:- the natives of the GESUP tribe over the pieces of land know as AIAL, BAKAT, WAMALI, WABALI and WASEIHEMA: the natives of the SISIAK tribe over the pieces of land known as IAWOT; and the natives of the MAHOBAN tribe over the pieces of land known as GAUWAN, UNEK, LANTIBUT, PATALAN, BELHON, PARIDAMON, WAGERIM, TUTUM, GAGAHEO, TUTUHOLO, PALATEK, SEKUALIBEN, BAGELAHO, BEBEHULUM, URI and those parts of YAOMALAN, of BALASGO and of WASAIMA that lie within Portions 71A and 71 aforesaid.

In regard to the land situated at "Modilon-Jomba" and comprising Portion 37 the Judge found that this were owned by the natives of BILIAU, UARIBU, NOB, MATULON and MAHOBAN tribes. (See page 90).

As to the land situated at Wagol and comprising Portion 50, his Honour found that this piece of land was owned by the people from UAUIBU, SISIAK and MAHOBAN tribes. (See p. 97).

As to the land situated at "Wagol Reserve" and comprising Portion 51 the judge found that this land was owned by the people of SISIAK tribe.

As can been seen, Philips J expressly found which tribes owned which parts of which land. Further more he named the tribes which owned each of the parts the lands under each reference. As can be seen, (apart from the land comprising Portion 37 to which I will refer below) in respect of all the other land, namely, Portions 71, 72, 71A, Portion 50 and Portion 51 those were owned by the tribesmen from tribes other than the applicant’s. The applicant deposes that he comes from Bilbil village and is a member of NOB 1 tribe. Philips J made no finding that this particular tribe owned any of the above described land.

In so far the land situated at "Modilon Jomba" and comprising Portion 37, Philip J found that different sections of the total land area in that Portion were owned by "the natives of BILIAU, UARIBU, NOB, MATULON and MAHOBUN tribes..." He also found that each tribe owned different sections. For instance he found the Biliau tribe owned MODILON, TURABAD-DAMON, NANULON etc. He found that the UARIBU tribe owned pieces of land known as KUSPAU etc.

In so far as the NOB tribe is concerned he found that they own the portion of land known as JAKUNDU, which was described as the ("former village site").

As can be seen, there is nothing in above part of the judgement which gives any basis to the applicant. The applicant’s tribe or clan as described by the applicant as being a member of is not even mentioned in the above.

The second part of that land was - namely Portions 71A and 71 were found to be owned by tribesmen of GESUP, SISIAK and MAHON tribes. Once again there is no mention of the tribe or clan of the applicant as one of the groups who were the traditional owners of this parts of the land. None of the clan and sub-clan names used by the applicant appear under this category. 

The next piece of land is the land situated at "Modilon Jomba" and comprising Portion 37. In respect of that land Philip J said at p.90: 

"... I have found that different sections, which together comprise the whole, of this land were respectively owned, in 1888, by the natives of BILIAU, UARIBU, NOB, MATULON and MAHOBAN tribes ... ." 

The third group of land that was considered by Philip J was the reference relating to land situated at Wagol and comprising Portion 50. In regard to this land, Philips J said at p. 97:

"... I have found that different sections of this land, which sections together comprise the whole of it, were respectively owned in 1888 by the natives of UAUIBU, SISIAK and MAHOBAN tribes ... ."

No where in the judgment of Philips J is there a finding that NOB 1 tribe own any of the lands. 

After making those findings, Justice Philips, amongst other things, made orders pursuant to Section 27(e) of Land Registration Ordinance to vest these lands in the custodian of Expropriated Properties.

The decision and findings show that the Applicants claim that he represents his clan and the Nob Tribe 1 does not have any basis. Nowhere in the decision of Mr Justice Philips is there any mention of a tribe called Nob Tribe 1. Nor can there be found the other clans, tribes, sub-clans mentioned by the Applicant in his affidavit in support of this application whose names appear in Justice Philips findings. 

 Moreover, there is no evidence that any of the people from the other tribes whose names appear in the judgement of Justice Philips have given any authority to the Applicant to bring this action. For instance, there is no evidence of any authority given to him by the people from Uauibu, Sisiak and Mahoban tribes in relation to the land described as Portion 50.

There are also no evidence to show that the members of the Biliau, Uaribu, Nob, Matulon and Mohaban have authorised the Applicant to bring this claim in respect of the land described or situated at "Modilon-Jomba" comprising Portion 37. Moreover non of the names mentioned by the Applicant in his affidavit show any resemblance to the names of the tribes who own portions of land between the Gum and Gogol Rivers and comprising Portion 72.

Furthermore, there is evidence that some of the people from the other tribes or clans have accepted the declaration made by the Minister and have received payments of compensation for this land.

For instance, Mr Kasa Sapush of Uribu Clan received K24,991.00 as compensation for part of the land, being an area consisting of 427.82 hectares.

Messrs Gabud Balifun and Kudam Aloi who were the representatives of Azaupain and Bilia clans received on behalf the members of those clans the sum of K16,853.50 as compensation for an area comprising of 271.07 hectares.

Such acceptance and payments were made to about 16 different people representing 16 different clans over different portions of land of various sizes.

Indeed there is no evidence of how NOB (1) tribe is connected to or with any of the tribes and clans named in the decision of Phillips J. Thus there is insufficient evidence, in my view, to make any such finding to demonstrate that there is in fact a connection with various clans with NOB (1) tribe.

 I have demonstrated that upon a closer examination of the decision of Justice Philips, the findings in my view do not support the contention made by the Applicant. In my view the findings demonstrate that the Applicant does not in fact have sufficient interest to bring this action. He thus lacks standing to bring this action.

The next principal is whether or not the Applicant has demonstrated an arguable case on the merits in law that warrants grant of leave. An arguable case involves the question of whether the application raises any fundamental or serious legal issues.

The Plaintiff submits that he has an arguable case in that the central Court of New Guinea in 1932 has already found that the acquisitions by the German New Guinea Company in 1887 was illegal. He submits that the Court then found and declared that all the lands were owned customarily by specific tribes or clans named in the judgment. It was submitted that His Honour Mr Justice Philips used his powers under Section 27(e) of the Land Registration Ordinance to "vest" some of the said lands in the custodian of Expropriated Properties. This was conditional upon the colonial government or administration paying some compensation to the customary landowners. The applicant submits that he has an arguable case because the court in 1932 had found that all the land acquired in 1887 were illegally obtained and therefore they remain customary land owned by the various clans or tribes within the Madang Township area.

It was further submitted that the said land were never "acquired" within the meaning of the Land Registration Act and therefore would not be declared as National Land by the Minister for Lands under the said act. It was submitted that the land was only vested in the custodian of Expropriated Properties and by virtue of that it was vested subsequently in the State. It was submitted that therefore the land remains customary land owned by the Plaintiffs clan and tribes and other tribes within and near the Madang Township.

It was further submitted that the intention of the Minister to declare this said land as National Land was opposed to by the Plaintiffs pursuant to section 8 of the National Land Registration Act Ch No 327. And that any such declaration and therefore the acquisition by the State of the said land is and was contrary to the rights of the Plaintiffs under Section 41 and Section 53 of the National Constitution.

For the reasons that I have given in the first issue, I consider the applicant has not demonstrated that there are serious legal issues to be tried and therefore has an arguable case. For this reason I would refuse leave. 

The next principle is whether or not the Applicant has exhausted all administrative remedies. I am of view that the obvious and perhaps the only avenue open to the Applicant is for the Applicant to pursue his challenge in the Land Titles Commission.

However the evidence before this court shows that the Applicants in fact tried to pursue this matter initially before the Land Titles Commission. The Commission did consider the application but adjourned the hearing pending the outcome of this determination due to the legal effect of the Ministerial Declaration under Section 9 of the National Land Registration Act. Furthermore the Applicants are prevented by Section 10 and 19 of the National Land Registration Act from pursuing their claim before another tribunal other than the National Court. Moreover the Commission has found that while it has exclusive jurisdiction to determine questions of ownership of land between the State and customary claimants, it cannot deal with the matter until the National Court revokes the declaration made under Section 9 of the National Land Registration Act. Consequently in my view this consideration need not be considered.

The fourth principal relevant for the purposes of an application for leave to apply for judicial review, is whether the application is brought within reasonable time. In other words, the issue is whether there has been any undue delay in bringing the application.

In his submissions the Applicant concedes that there has been a delay of approximately 10 years before he filed this application. In other words, the Applicant concedes that a period of ten (10) years has lapsed between the date when the Minster made the declaration and the filing of this proceeding.

The Applicant submits that even thought there has been delay, the delay is not and does not amount to undue delay. It was submitted that there are extenuating circumstances to warrant the court invoking its inherent discretion to grant leave despite the fact that there has been delay. Further it has been submitted that the granting of leave would not cause any hardship or prejudiced the rights of other persons and that if leave is refused it would cause hardship to the Applicant.

The Respondents submit that there has been undue delay on the part of the Applicant and thus leave ought not to be granted. It was further submitted that the court ought not to grant leave as this was likely to cause substantial hardship or substantial prejudice to the rights of other persons and would be detrimental to good administration.

O.16 r 4 of the National Court Rules is relevant in considering this issue of delay. It provides in clear terms that where in any case the court considers that there has been undue delay in making an application for judicial review or in a case to which Sub Rule 2 applies, the application for leave under Rule 3 is made after the relevant period has expired, the court may refuse to grant leave for the making of the application if in the opinion of the court, the granting of the relief sought would be likely to cause substantial hardship to or substantial prejudice the rights of, any person or would be detrimental to good administration. Sub Rule 2 provides that in the case of an application for order of certiorari the relevant period for the purposes of Sub Rule 1 is 4 months. There is ample judicial authority that delay is a bar to leave being granted. See NTN Pty Ltd v Board of PTC & Ors (supra), the Application of Eric Gurupa (supra).

In the present case the declaration was made in 1988. The present application was filed on 25th January 1999. That is a period of almost 11 years. I consider that a period of eleven (11) years is too long a delay and it amounts to undue delay.

I am satisfied that there has been undue delay in bringing this application particularly in view of the fact that a relevant period specified by O.16 r 4 (2) for such an application is four (4) months. The clock cannot be wound back eleven (11) years later, for to do so, would unnecessarily cause hardship and prejudice to the rights of other interested persons. In my view it would be detrimental to good administration to do so. I am therefore satisfied on the evidence before me that there has been undue delay in bringing this application and that the court should therefore refuse to exercise its discretion in favour of the applicant.

In my view there has been undue delay in bringing this action. The Applicant has said in his affidavit sworn on 3rd May and filed on 5th May explaining the delay. That evidence show that the Plaintiff/Applicant had access to a number of lawyers who could have made the necessary application for leave when the Declaration was made. It was not as though the Applicant had no access to lawyers and did not have or did not know how to go about challenging the Declaration. In my view there has been undue delay and therefore I am of the view that to grant leave is likely to cause substantial hardship to or substantial prejudice the rights of the State and its sub-leases and would also amount to a detriment to good administration.

In the alternative the applicant has submitted that the court should use its inherent discretionary powers under S. 155 (4) of the Constitution and grant leave. He has submitted that there are extenuating special circumstances of this case which warrants and demonstrates that the court ought to exercise its inherent powers. The extenuating and special circumstances giving rise to this case, so it is submitted, are innumerate in the written submissions of the applicant. I have dealt with those submissions in the earlier part of this ruling and I do not consider it necessary to address those specific circumstances that have been submitted. I consider that the reasons that I have given adequately deal with those.

On this aspect both counsels have referred to the case of Independent State of PNG v Lohia Sisia [1987] PNGLR 107. That case is similar to the present case where the Supreme Court dealt with a ministerial declaration over land pursuant to the provisions of the National Land Registration Act. The Supreme Court held that where there is undue delay in bringing an application under S. 155 (4) of the Constitution that delay will be a bar to the relief sought. In that case the application was made after six (6) years from the date of the declaration. I consider that that case is instructive in this particular instance. In discussing the issue of delay in relation to applications made under S. 155 (4) of the Constitution Bredmeyer J (with whom Cory and Barnett JJ agreed) said at 108:

"..The Constitution is a superior law to a statute, and any statute must be read subject to the Constitution - See S. 10 of the Constitution. Thus S. 155 (4) of the Constitution over-rides S. 9 of the National Land Registration Act which provides that the minister’s declaration under S. 8 shall not be subject to appeal or review nor called in question in any legal proceedings and S. 19 of the Act which states that registration is conclusive evidence of the State’s title to the land. 

I consider that this power under S. 155 (4) of the Constitution to invalidate a minister’s declaration of national land should be used sparingly. The court should give some weight and some respect to parliament’s views expressed in S. 9 and S. 19 that the minister’s decision is not affable or reviewable and that registration is conclusive evidence of the State’s title. The way to do that is to say that the minister’s decision is reviewable by the courts but will only be reviewed in special cases or in exceptional circumstances. I consider that that is the proper way we should exercise our powers under S. 155. The courts have enormous power under S. 155 to review the decision of any minister, tribunal or court. In exercising that power we can ignore any time limits imposed on appeal or review by statute, and any statutory "ouster" provisions excluding review or appeal, of which there are many, such as S. 9 of the National Land Registration Act. I consider that in all this cases if is in the public interest that unreasonable delay should be a barred to review under S. 155. Ministers, officials and tribunals should make their decisions fairly and in accordance with the law, and if they go wrong that can be corrected by the courts, but good government would be frustrated if decisions could be challenged at ad infinitum in the courts. 

Delay reduces to quality of justice. Indeed justice delayed is justice denied. Witnesses disappear, witnesses die, memories fade, and documents get lost. A claim which will fail if brought promptly might succeed to twenty (20) years later when key witnesses are dead and vital documents lost. Conversely a claim which would succeed if brought promptly might fail if brought many years later. Most countries prevent stale cases being brought by statute of limitations. 

.. S. 155 (4) also allows orders in the nature of prerogative writs which in modern terminology are called judicial review. O. 16 of the National Court Rules for 1983 provides a procedure for the remedy. By O. 16 r 4 the application must be made within four (4) months of the declaration under challenge. This time can be extended but not if the court considers that there has been undue delay in bringing the application. The remedies of judicial review and declarations are very similar; they are alternative ways of challenging decision and the power to grant and the remedy comes from S. 155 (4). It is thus logical and reasonable that similar principle should apply to its remedy." 

I would adopt and apply these as if they were my own. In this case what were the reasons for eleven (11) years delay between the minister’s decision and the application to this court. The applicants were well and truly aware of the minister’s proposal and subsequent actions. After the declaration was made he saw several different lawyers to help him. None of these lawyers did much to help him. It is not clear what actions if any of those lawyers took on his behalf. 

The evidence also suggests that he and his people were also trying to negotiate a settlement with the State. They were waiting for responses for the State. They had ample opportunity to challenge the minister’s decision, but chose not to. It appears to me that the truth is that this clan chose not to apply for judicial review of the minister’s decision because in the interim they were pursuing a claim for compensation under the Act. 

I consider the reasons and explanations he has given for eleven (11) years delay are not convincing and that he has show no special circumstances for the long delay. 

For the reasons I have given, the application is refused.

In the circumstances I make no order as to costs.
____________________________________________________________________
Lawyers for Applicants		:	Powes Parkop Lawyers
Lawyers for Respondent		:	Principal Legal Officer
					 Madang Provincial Govt