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Nou v Cherake [2004] PGNC 227; N2539 (30 April 2004)

N2539

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE AT WAIGANI]

OS NO. 306 OF 2002

Between:

JACK NOU
on behalf of HAGWAIPI CLAN of Madai Village
- Plaintiff-

And:

RICHARD CHERAKE,
Magistrate, Provincial Land Court, Port Moresby
-First Respondent-

And:

DOGOME NAIME
-Second Respondent--

In re an application by IDAU MOREA
-Applicant-

Waigani: Injia, DCJ
2004: April 23rd, 30th

JUDICIAL REVIEW – Provincial Land Court decision – Application to be joined as a party to substantive application for judicial review – Applicant not a party to Provincial and Local Land Court proceedings – Relevant test – Whether Applicant is "directly affected" by the two Land Court decisions – National Court Rules, O16 r 5(2).

No cases cited in the judgement.

Counsel:
D. Dawidi for the Plaintiff
N Vassi for the First Respondent
D. Koeget for the Second Respondent/Applicant

30th April 2004

INJIA, DCJ.: This is an application by Mrs Idau Morea to be joined as a party to the pending application for judicial review of the decision of the Provincial Land Court on 28th March 2002, presided by Mr Richard Cherake. Leave to seek review was granted by this Court on 26th July 2002.

The application is supported by the affidavits of the Applicant, Igo Rei, Oala Pipi, Momoru Vani and Frank Pipi, all sworn on 8th December 2003 and filed on 15th December 2003. The application is contested by the Plaintiff.

The Applicant is the only surviving child of the late Morea Morea. Her only brother, the late Bau Morea Morea, lived and died as a bachelor. She says the Morea family is the customary owner of the land described as NL 157 Portion 722C-Varuabilalo situated in the Hanuabada area. This land she says is included in the decision of the Local Land Court made on 28th April 2002. The two Land Court decisions are the subject of these review proceedings. She says she was not a party to those proceedings. She says she was not a party to those proceedings before both Courts because she is old, illiterate like all the other members of the Morea family and Hanuabada being a big area, she was not aware of the proceedings to be able to join in those proceedings. She has now been made aware of those proceedings to be able to join in those proceedings. She has now been made aware of those decisions and these present proceedings and am able to make this application, in order for her family to be given an opportunity to be heard as to her interest.

Mr Koeget for the Applicant submits that she is directly affected by both decisions and has an interest in the two decisions under review and she should be granted leave to be joined as a party to these proceedings, to be heard.

Mr Dawidi for the Respondent submits she, by her own conduct in showing no interest in the public land court hearings in both Land Courts has not shown that she has a genuine interest in the land, that she chose not to be a party to those proceedings in both courts and she should be estopped from raising any interests in he land in these judicial review proceedings. In other words, she should not be joined as a party to these proceedings. He also submits there is no evidence to show that she has been appointed as a representative of the Morea family to represent that family’s interest in the land.

In my view, as I intimated to counsel during argument, the relevant test on the standing of parties to be heard on the substantive review is set out in O 16 r 5(2) of the National Court Rules. That is whether that person is "directly affected" by the decision the subject of the review, and if so, that person is entitled to be served copies of the application for judicial review, affidavits, etc. Implicit in this is the right of such person to be heard on the substantive application, as a person directly affected by the decision. Such a person need not be a party to the Originating Summons seeking leave for judicial review which application after all is made ex parte. Therefore, the appropriate application before this Court should be one seeking an order that the said documents be served on the Applicant as a person directly affected by the decision under review and be given an opportunity to be heard on the substantive application.

On the affidavits and other material before me, I am satisfied that the subject land the Applicant says her family owns is included in the decisions of the two courts. The land is also included in the decisions the subject of this judicial review application: see Statement in Support of application for leave, para. 1 & 2. I am also satisfied that the Morea family which she represents may have an interest in the land and, as the only surviving child of the late Morea Morea, she is entitled to speak on her family’s land interests in the review. The purpose of the present application before me is not for me to determine her land rights, if any, over the subject land but merely to join her as a party to these proceedings in order to facilitate her right to be heard on the application as a person directly affected by the two decisions. Under O 16 r 5(2), it really does not matter that she was not a party to the proceedings before the land court, for whatever the reason might be. The determinative test is whether she is "directly affected" by the decisions. Whilst I accept that a person who is not a party to a legal, judicial or quasi-judicial proceeding cannot be said to be "directly affected" by the decision, customary land ownership and usage right issues are more complex than they appear to be on the face of record of those proceedings and the National Court reviewing such decisions must be careful in ensuring that persons genuinely affected by those decisions, albeit strictly not parties in person in those proceedings, are heard on the application, before a decision is made.

I am satisfied that the Applicant may have a genuine interest in the subject land and she should be given the opportunity to be heard on the application – an opportunity she did not have before the two Land Courts below. For these reasons I grant the application. Costs of this application shall be costs in the substantive application.
____________________________________________________________________
Lawyer for the Second Respondent & Applicant : Kassman Lawyers
Lawyer for the First Respondent : Solicitor General
Lawyer for the Plaintiff/Respondent : Pato Lawyers