N3035

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

OS. 337 OF 2001

BETWEEN:

KELVIN RUMPIA
for and on behalf of Ngarungaun Clan
(Plaintiff/Respondent)

AND:

ABARIS BURI
of Ngarungaun
(1st Defendant)

AND:

PETRUS SALI
of Gangutsmaran Clan
(2nd Defendant/Applicant)

AND:

SASA INKUNG,
Local Land Court Magistrate
(3rd Defendant)

LAE: Kirriwom, J
2005:	 20th December
2006: 15th February

Cases cited:
OS 117 of 2004 John Anis on behalf of Dumana Akiki Clan of Nahu Rawa Rai Coast Madang v. Nabura Morris on behalf of Bumbu, Bopirumpun, Sankiang & Musam villagers, Mari Usino-Bundi & Provincial Land Court Magistrate
Kelly Keruwa v. The University of Papua New Guinea N2534
Roland Nicholas v Commonwealth (NG) Timbers [1986] PNGLR 133

Counsel:
Ms Tunian for the Plaintiff/Respondent
Petrus Sali in person
No Appearance for the 1st & 3rd Defendants

15th February 2006

RULING

KIRRIWOM, J:

1.	This is a dispute over customary land known as Ragiaramunt located between Yang Creek below Kassam Pass on Okuk Highway and stretches some distance towards the lowland in the direction of Watarais junction.

2.	The two competing clans over ownership of the land in dispute are Ngarungaun and Gangutsmaran Clans.

3.	Following series of mediations that span over ten (10) years since 1987, a mediation agreement was reached in April 6, 1998 which recognized Petrus Sari, the Applicant in this case and his Gangutsmaran Clan as the rightful owners of Ragiaramunt Land. That agreement also recognized that need there be any development on that land, Ngarungaun Clan led by its Spokesperson then Abaris Yari shall go along with whatever decision he makes and actively assist him.

4.	On 6th August 2001 Injia, J (as he then was) granted leave to Kelvin Rumpia to apply for judicial review. The Plaintiff was represented by Gamoga & Co. Lawyers while the Second Respondent Petrus Sali, the Applicant in this case, was representing himself.

5.	Since then the substantive review application remains pending. It is well over four years. What is now before me for hearing is an application by the Second Respondent Petrus Sali to dismiss the Plaintiff’s judicial review application for want of prosecution and for abuse of process. The Applicant is appearing in person and the Respondent Kelvin Rumpia is now represented by Ms Lydia Tunian from Warner Shand Lawyers who have taken over carriage of this case from Gamoga & Co. Lawyers since 14th April 2005.

6.	In pursuing this application the Applicant relies on his affidavit filed in support sworn 8 December 2005 and submits that in failing to diligently prosecute this case, the Plaintiff is already in gross violation of the law as stipulated (in O.4 r.36 and) under O.16 r.5 of the National Court Rules. He says that the minimum requirement that the Plaintiff must meet was that within 21 days of leave being given to him, the Plaintiff must set the application down for substantive hearing. But he did not do that and procedurally his application is an abuse of process. He relied on a recent decision of Sawong, J (as he then was) in OS 117 of 2004 John Anis on behalf of Dumana Akiki Clan of Nahu Rawa Rai Coast Madang v. Nabura Morris on behalf of Bumbu, Bopirumpun, Sankiang & Musam villagers, Mari Usino-Bundi & Provincial Land Court Magistrate which was delivered on 21st July 2005. I have read the judgement from the copy he handed up to the Court which I will be referring to later in the judgment. He therefore argues that under O.4 r.36 National Court Rules the Court has power to dismiss this proceeding for want of prosecution.

7.	The Applicant further argues that the Plaintiff who was unhappy with the Local Land Court decision should have appealed to the Provincial Land Court and not come directly to the National Court without having exhausted that process. This is therefore an abuse of process. By this argument the Applicant is challenging leave granted to the Plaintiff to apply for judicial review without him having exhausted this remedy. I will return to this later in the judgement if the case survives the earlier argument.

8.	Ms Tunian for the Plaintiff filed an affidavit in reply sworn by herself on 19th December 2005. She deposes to the time she became involved in this matter and the steps she took in progressing the matter. The relevant paragraphs in her affidavit are from 2-7 which I set out below.

2.	We first took carriage of the matter in April 2005. The matter was previously in the courage of Gamoga & Associate. At that time the matter was set for trial before His Honour, Justice Injia, however His Honour revert the matter back to the registry to be listed for the next call-over as it has been granted leave for judicial review.

3.	In May of 2005, we wrote to the Assistant Registrar of the National Court to have the matter listed for the next call-over. Annexed and marked with the letter "A" is a true copy of the letter.

4.	On the May 2005 Call-over, Mr Ousi of our firm appeared but was not able to obtain any hearing date as we were allowed only two (2) cases per firm for the month. Mr Paul Ousi took up two (2) cases with urgent matters. Annexed hereto and marked with the letter "B" is a true copy of the File Note made by Mr Paul Ousi.

5.	There were only six (6) call-over held though out this year. The first being in February, then in March, May, July, September and October 2005.

6.	We were unable to obtain trial dates since then, the reason being that we have so many case on the Call-over List that have not been given any dates as yet, and we try to obtain dates, for those long outstanding and those that are of urgency.

7.	In the October Call-over, Justice Gabi listed the October outstanding vacated trial date to November and the ones for November to December as the October days were over loaded by cases, so same had to be vacated.

9.	Of course Ms Tunian’s affidavit and submission does not cover the period before her firm took carriage of the matter which is from 6th August 2001 to 14th April 2005, which is a period of three years and some months.

10.	The Applicant in response to Ms Tunian’s submission informed the Court that he attempted similar application in 2002 but the Plaintiff’s lawyers assured him that they would obtain a trial date and he withdraw his application.

11.	The law on judicial review application is already well settled in this jurisdiction. The Court recognizes the need to strictly adhere to what the Statutes provide because they are the guide to people’s conformity with the law. There will be wholesale chaos and disorder if the laws set down by the Statutes are allowed to be defied without due recourse. And this is such an application where a procedural law is being defiantly given lip-service by a party and the need to enforce that law.

12.	Both provisions of O.16 r.5 & O.4 r.36 National Court Rules are set out below.

Order 16 rule 5 provides:

Mode of applying for judicial review.

(1)	Subject to Sub-rule (2), when leave has been granted to make an application for judicial review, the application shall be made by originating summons to the Court

(2)	The summons must be served on all persons directly affected and where it relates to any proceedings in or before a court and the object of the application is either to compel the court or an officer of the court to do any act in relation to the proceedings or to quash them or any order made in them, the summons must also be served on the clerk or registrar of the court and, where any objection to the conduct of the Judge is to be made, on the Judge.

(3)	Unless the court granting leave has otherwise directed, there must be at least 14 days between the service of the summons and the day named in it for the hearing.

(4)	The summons must be listed for hearing within 21 days after the grant of leave.

(5)	An affidavit giving the hames and addresses of, and the places and dates of service on, all persons who have been served with the summons must be filed before the summons is entered for hearing and, if any person who ought to be served under this Rule has not been served, the affidavit must state that fact and the reason for it, and the affidavit shall be before the Court on the hearing of the summons.

(6)	If on the hearing of the summons the Court is of opinion that any person who ought, whether under this Rule or otherwise, to have been served has not been served, the Court may adjourn the hearing on such terms (if any) as it may direct in order that the summons may be served on that person

Order 4 rule 36 provides:

Want of prosecution

(1)	Where a plaintiff makes default in complying with any order or direction as to the conduct of the proceedings, or does not prosecute the proceedings with due despatch, the Court may stay or dismiss the proceedings.

(2)	Sub-rule 91) applies, with any necessary modifications, in relation to a cross-claimant as it applies in relation to a plaintiff.

13.	Order 4 Rule 36 is the general provision empowering the Applicant to pursue this application because the Plaintiff has not prosecuted the proceeding with due despatch or that he has defaulted in his compliance with the requirement of Order 16 rule 5(4) which provided that the summons must be listed for hearing within 21 days after the grant of leave.

14.	Judicial review is a special procedure that circumvents conventional process or procedures because of exceptional circumstances surrounding a given case and avails jurisdiction to a party who has either lost his right or his prohibited by Statute from going further through the normal appeal process. Because of this special nature of its jurisdiction, there is a degree of urgency in the matter being disposed of expeditiously.

15.	This special nature of judicial review and the urgency that it demands is reinforced by the National Court Rules in Order 16 rule 4(1) which provides:

Order 16 rule 4(1)

Delay in applying for relief

(1)	Subject to this Rule, 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

(a)	leave for the making of the application; or

(b)	any relief sought on the application,

if, in the opinion of the Court, the granting of the relief sought would be likely to cause substantial hardship to, or substantially prejudice the rights of, any person or would be detrimental to good administration.

16.	This rule gives the Court wide discretion to dismiss an application for judicial review or leave to apply for judicial review if it considers that there has been undue delay in the making of the application, if the Court is of the opinion that granting the relief sought by the Plaintiff would be likely to cause substantial hardship to or substantially prejudice the rights of any person or would be detrimental to good administration. 

17.	I note that the only explanation for the delay from the Plaintiff’s current lawyers are set out in the affidavit of Lydia Tunian and I can appreciate their position. But she was referring to the difficulty she had since becoming engaged in this matter by the Plaintiff. However there is a dark period between August 2001 and April 2005 that remains unexplained except what the Applicant told the Court.

18.	I do note that some attempt was made in April 2004 by the Plaintiff’s lawyers filing a Notice of Hearing of the matter but what then happened thereafter is unclear. It seems that a trial date set in May 2004 was vacated several times and thereafter the matter failed to find a permanent place on the trial list.

19.	However in my view the long delay in having this matter prosecuted must not only be viewed from the efforts made in the recent times immediately preceding the new lawyers taking over this case and since the new lawyers took carriage of the matter. The Plaintiff’s commitment and diligence to have this matter prosecuted with due despatch must be assessed from the time leave was granted in August 6, 2001. What happened in the balance of that year, the whole of 2002 and 2003?

20.	The requirement to set the review down for hearing within 21 days following grant of leave has been amply discussed in John Anis v. Nabura Morris & Anor (supra). Sawong, J said:

"It is quite clear that after leave has been granted the Plaintiff must make an application for judicial review by filing a Notice of Motion to bring the application for judicial review on for hearing, as prescribed by O.16 r.5(i) National Court Rules."

His Honour was apparently relying on what Injia DCJ said in Kelly Keruwa v. The University of Papua New Guinea N2534 which was a judicial review application of the decision of the University Council Disciplinary Appeals Committee made rejecting the Plaintiff’s appeal against his termination from continuing his studies on disciplinary grounds. Leave was granted on 13 June 2003 and judicial review itself was heard on 24 March 2004. The comments made were obiter but quite relevant for purpose of this case because they relate to the essence of time. This is what His Honour said:

‘In a judicial review application, time is of the essence. The Rules recognized and emphasized this point by requiring the Registrar to fix a date for the hearing of the substantive application within a fixed time frame after the grant of leave…
It is incumbent upon the Registrar to consult with the parties within the prescribed 21 days and fix a date for the substantive hearing to take place as soon as it is practicable for the parties and the Court. The date for hearing will be fixed on the Notice of Motion filed by the Applicant under O.16 r.5(i).’

21.	According to my reading of sub-rule (i), that sub-rule refers to Originating Summons as opposed to Notice of Motion. Therefore reference to filing of Notice of Motion as mandatory stipulation by sub-rule (1) of rule 5 of Order 16 of the National Court Rules could be misleading without proper qualification or clarification of that proposition where the Rule is not specific.

22.	However while on the issue of the essence of time His Honour continued:

‘A reasonable or practical time frame is not infinite number of weeks or months and even a year or years as my own experience in some judicial review cases show. I am speaking of a week to a few weeks or perhaps, and in the exceptional cases a month or two at the most. It is equally incumbent on the parties, Applicants in particular, to enquire with the Registrar within twenty-one (21) days to fix a date for the hearing.

…… If for some good reason, it is not practicable for the Registrar to fix a date for the hearing within twenty-one (21) days, he must seek directions from the Court.

23.	Considering the long history of this matter, I am of the view that there has been an inordinate delay. This case has been inundated by delay from the time it was commenced that this Court dealing with the leave application did not directly focus on this issue. The National Court entertained the leave application without directing its mind to the Plaintiff’s failure to appeal to the Provincial Land Court bearing in mind that the decision appealed or sought to be reviewed is a decision of the Local Land Court. There was an appeal process that needed to be exhausted before judicial review jurisdiction could be invoked. This procedural over-sight was not addressed by the Court that granted leave.

24.	The other matter that the Court did not direct its mind to is that the Plaintiff in this proceeding is a member of the same clan that the Applicant belongs to and recognized as the Clan Leader or Spokesman for their clan. The Plaintiff’s challenge to the Local Land Court decision of April 6, 1998 is a dispute over leadership of the clan as opposed to customary ownership which this Court is probably inappropriately being dragged into. After all, it is common knowledge that no one person owns a block of customary land by himself. Customary land is communally owned by all members of that clan and amongst themselves they decide on apportionment of the land according to the size of their families.

25.	I cannot but question the Plaintiff’s motive for challenging the Local Land Court decision which simply endorsed an Approval of Agreement between two clans having competing interests in the land in question which recognizes the land as belonging to the clan to which both Plaintiff and the Applicant are members of and as a gesture of ending many years of dispute, extending to the opposing clan the right to use the land but subject to proper consultation with the Gangutsmaran Clan.

26.	Applying the principles set out in Roland Nicholas v Commonwealth (NG) Timbers [1986] PNGLR 133, I am satisfied that there has been a inordinate and inexcusable delay on the part of the Plaintiff and his former lawyers thereby giving rise to a substantial risk of fair trial being denied the Applicant.

27.	In the circumstances I grant the Application for dismissal of this proceeding pursuant to O.4 r.36 National Court Rules for want of prosecution and dismiss this proceeding.

28.	Costs follows the event.

Lawyer for the Plaintiff/Respondent:		Warner Shand Lawyers
2nd Defendant/Applicant:			Petrus Sali in person