N3034

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

OS. 176 OF 2005

BETWEEN:

JACK AFING
(Plaintiff)

AND:

MARTIN PARI
(1ST Defendant)

AND:

RAGIGANAZUP CLAN
(2nd Defendant)

AND:

ANZ BANKING GROUP (PNG) LIMITED
(3rd Defendant)

LAE: Kirriwom, J
2005:	 20th December
2006: 14th February

Counsel:
Plaintiff in person
Mr Culligan for the 1st Defendant
Simon John in person as representative for the 2nd Defendant

RULING

KIRRIWOM, J:

1.	This is an application by the Applicant Jack Afing seeking leave to apply for judicial review pursuant to O.16 r.3 of the National Court Rules. Leave sought is to review the decision of the Provincial Land Court in Lae made 12 November 2004 in which the Court ordered that the customary land known as ‘Ngaru No.1’ Land belonged to Martin Pari and Ragiganazup Clan and further ordered that the Applicant was no longer entitled to 40% ownership of the same land as previously stood following decision of the Local Land Court. This decision was arrived at following an appeal against the Local Land Court decision by Martin Pari of Aridagin Clan and Ragiganazup Clan represented by Simon John.

2.	This case has been going on for a while and at times one or more of the parties were legally represented until the fountain dried up when parties continued the fight themselves. The Applicant has no legal representation but the documents and the submission he filed no doubt have been prepared for him by a lawyer.

3.	This case now proceeds under an amended originating summons as ordered by the Court (Davani, J) on 19th July 2005 and 9th September 2005 (Kirriwom, J) naming the Provincial Land Court Magistrate and The State as Defendants. The application is accompanied by an affidavit deposed to by the Applicant, a Statement in Support and a Motion which are the basic requirements under O.16 r.3 National Court Rules.

4.	Application for leave to apply for judicial review in ordinary circumstances are heard ex parte. In this case I heard Mr Culligan for the 1st Defendant as he had a vested interest in the matter.

5.	For the Court to entertain this application, the applicant must satisfy the Court that he has sufficient interest in the matter, he has standing and that he had exhausted other remedies available and that he has an arguable case.

6.	By virtue of section 60 of Land Dispute Settlement Act, there is no appeal from the Provincial Land Court decision. A person aggrieved by the decision of Provincial Land Court must show that he has an arguable case on the merits before he is granted leave to apply for judicial review of the Lower Court’s decision. Conventional appeal process no longer applies to him.

7.	I note that there are several competing parties to the block of customary land in dispute. Over a period of time recorded in this proceeding, recognition has been given and withdrawn to one or two of the competing interests while rejecting the other. Consequently, the dispute continued to linger in the Courts. The situation was made even harder when one or more parties did not cooperate and attend Court ordered mediation. Mediation is a good process where everyone can win and leave satisfied. This can only work where everyone is willing for such a settlement. In a Court of Law where parties bring their disputes to, there can be only one winner. That may be the end of the case, does that end the dispute or disagreement between the parties?

8.	The applicant’s grounds for seeking leave to apply for judicial review are, inter alia:

a)	The District Land Court committed gross errors on the face of the record by firstly ordering withdrawal of the appeal against the Local Land Court decision by Martin Pari and another and after it was already functus officio it made another order removing the applicant altogether as having any customary interest in Ngaru No.1 Land of which the Court earlier accorded him 40% interest of the said land and 60% to Martin Pari.

9.	I am satisfied that the applicant has sufficient interest in the matter and is gravely affected by the decision of the District Land Court sought to be reviewed.

10.	I am also of the view that the applicant has an arguable case.

11.	A further observation I also wish to acknowledge and point out here is that although the dispute in this review application is between the applicant and the First Defendant, the Second Defendant is also a strong contender for an equal slice to the piece of land in question. This Court has no power to deal with dispute over customary land ownership but a process of guided mediation could assist in resolving this dispute once and for all. The Land Dispute Settlement Act provides for this medium of dispute resolution, assisted by a mediator or mediators parties reach agreements.

12.	But for purpose of this application, I am satisfied that the Plaintiff has sufficient interest, he acted promptly in coming to the National Court and he has an arguable case on its own merits. I therefore grant leave to the Plaintiff to apply for judicial review.

13.	I further order that ANZ Bank Lae Branch is restrained from paying any money from the Trust Account into which funds are deposited by Rumion Piggery Ltd for the use of the disputed Ngaru No.1 Land for the benefit of the Landowners to anyone including the First and Second Defendants, their servants and assigns until the issue of customary ownership is resolved or until further orders of this Court.

14.	Cost shall be in the cause.

Plaintiff in person
1st Defendant:		Paula Ivarami Yayabu Lawyers
2nd Defendant:	Simon John in person as representative