N3036

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

OS. 476 OF 2005

BETWEEN:

MOSS WANKI
for and on behalf of Ataveh Clan of Moniau Village
(Plaintiff)

AND:

WAGO UMPUANO
for and on behalf of Owangrompon Clan of Gabensis Village
(1st Defendant)

AND:

SENES NINCHIP
for and on behalf of Orogenan Clan of Gabensis Village
(2nd Defendant)

AND:

ORIM KARAPO,
District Land Court Magistrate
(3rd Defendant)

AND:

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
(3rd Defendant)

LAE: Kirriwom, J
2005:	 20th December
2006: 16th February

JUDICIAL REVIEW – Application for Leave – inordinately long delay – Decision sought to be reviewed questioned – Source of jurisdiction of Plaintiff questioned – Authenticity of critical documents affording review in serious doubt – Lack of explanation or information on the origin and source of the documents – Competency – Power of the National Court as superior court of record to protect the integrity of due process and the judicial system – Proceedings dismissed for incompetence and abuse of process of the court.

Counsel:
Mr Caligan for the Plaintiff/Respondent
No Appearance for the Defendants

16th February 2006

RULING

KIRRIWOM, J:

1.	This is an application by the Applicant Moss Wanki of Moniau village Buang seeking leave to apply for judicial review of the decision of the Provincial Land Court in Lae of 10 September 2004. The application was filed 30 June 2005. 

2.	The decision of the District Land Court that is sought to be reviewed is a decision that comprises one page document of Record of Proceedings (District Land Court) (Form 15) that simply states: (a) Appeal dismissed (b) Deposit of K500 forfeited to the State. It is purportedly certified and signed by Orim Karapo as District Land Magistrate and refers to attachments but there are none. The decision also lacks reasons. It begs the question as to what is sought to be reviewed? Is the leave sought is for the review of the dismissal of what is purported to be or have been an appeal against a Local Land Court decision of 23 June 1989 in respect of dispute over customary ownership of the land on which ‘Mt. O’Omsis Repeater Station’ is situated between Moniau and Gabensis villages or is it the review of the Local Land Court decision of 23 June 1989 itself?

3.	If leave is sought for the review of this one-paged District Land Court decision which is of questionable character, it is an unreliable document for any form of action to be founded on it for these reasons: (a) there is very little or no information on record showing as to how the learned magistrate arrived at the decision he did, (b) who were the parties who appeared and were heard in the District Land Court before the appeal was decided, (c) what were the issues in the District Land Court, (d) what was the reason for the decision reached by the District Land Court Magistrate and more so (e) where are the transcripts of the District Land Court proceedings?

4.	All that I have before me is the one page document Form 15 with the heading Record of Proceedings (District Land Court). I set out the entire document below:

RECORD OF PROCEEDINGS (DISTRICT LAND COURT)

In the District Land Court at		LAE
before MR ORIM KARAPO	 District Land Magistrate on the 10th day of September 2004

1.	Assessors sitting with Court:	N/A

2.	Parties before the Court (i)	Appellant:	Moniau Clan of Buwang
   (ii)	Respondent:	Orogrenan Clan

3.	Matter on Appeal before the Court:	MT O’OMSIS REPEATER STATION LAND

4.	Witnesses heard:	N/A

5.	Land inspected by the Court on the:	N/A

6.	Decision of the Court –

(a)	Appeal Dismissed.
(b)	Deposits of K500-00 forfeited to the State.

I certify that the above and any attachments hereto are a true record of the proceedings of the District Land Court.

							 (signed)
							ORIM KARAPO
							District Land Magistrate

Date:		10/09/2004

NOTE:	Depositions, Reasons for Decision and documents accepted as Exhibits to be attached hereto.

This is all there is as far as the District Court proceedings on this purported appeal is concerned. Without other supporting pages, it is a questionable document as far as I am concerned.

5.	However, if the application for leave is for judicial review of the Local Land Court decision of 23 June 1989, the Plaintiff/ Applicant is already well and truly out of time. If he had not appealed that decision till now, the matter could well be deemed invalid or incompetent. If he had not appealed the Local Land Court decision, to come to this Court after fourteen years is not only too long a delay but tantamount to an abuse of process. But if he appealed and failed to prosecute it by allowing the appeal to become stale or dormant for those many years till now, he cannot take further steps on that appeal without properly reactivating the matter.

6.	Equally questionable is the document headed Notice of Appeal purportedly filed or dated 13 September 1989 which also contains another date showing 8 June 1990 that is witnessing payment of deposit of K500 with a receipt No. BT No. 38537. This document is almost defaced as the result of numerous obliterations of earlier typed and hand-written writings over earlier entries that cast serious doubt as to the authenticity and reliability of the document itself.

7.	For me to rule on this leave application, this document which I call the Notice of Appeal and Form 15 – Record of Proceedings (District Land Court) are the two most crucial documents that I must be satisfied of their reliability and authenticity or genuineness. The Plaintiff’s only avenue that gives him the locus standi for coming to this court as his application shows are these two documents. Both relate to the decision of the District Land Court that is the subject of this review. He cannot directly challenge the decision of the Local Land Court made 23 June 1989 without falling into the trap of being a ‘busy-body’ because delay of fifteen years is a long time.

8.	I strongly question the integrity and authenticity of this document without much said on how this order of the District Land Court dated 10 September, 2004 came to be in existence after fourteen years of the Local Land Court decision and there being no explanation as to why there is this decision after such a long time. Consequently the source of the Applicant’s locus standi to bring this application for leave to apply for judicial review is unclear and questionable.

9.	I am not granting leave to the Applicant for judicial review and I refuse leave essentially on two grounds. Firstly, his source of jurisdiction which is the District Land Court decision that he is seeking review of is based on an order that is unsupported by any legitimate documentary evidence of proper hearing preceding any decision or ruling for the reasons explained below:

(1)	The one-paged document purporting to be a District Land Court decision on the appeal purportedly lodged in September 1989 against the Local Land Court decision between the parties is a suspect without there being any other work-sheets in the District Land Court accompanying it. This document is the only vehicle or source of revival of an appeal purportedly lodged in September 1989 and forgotten and lost its futility and purpose by the passage of time.

(2)	Without any record of proceedings in the District Land Court culminating in the decision which is the subject of this application for leave, the decision remains questionable and unreliable. Notwithstanding the District Court stamp on it, I will not recognize it for whatever it is worth.

10.	And secondly, the Plaintiff is already well and truly out of time to come to this 
Court after fifteen years asking for leave to review the decision made on 23 June 1989. One of the important requirements in judicial review is to act promptly and without delay.

(3)	The Appellant and his people had taken the right step by lodging an appeal against the Local Land Court decision of 23 June 1989. And they did so through their lawyer, the then law firm of Henao Cunningham Priestly Lawyers. But they did not prosecute the appeal until 13-14 years later; they commence this proceeding armed with this one-paged document purporting to be the District Land Court decision on their appeal. Where did it spring up from so suddenly without any explanation? Sudden and unexplained appearances of Court orders in the type now before me raise serious questions of judicial corruption in the lower Courts that superior court like the National Court must be always vigilant to protect itself from being used as rubber stamp. Where such possibility of abuse is suspected or identified, the Court must use its inherent powers to safeguard the integrity of its due process and the judicial system.

(4)	Without there being any original documents such as the Notice of Appeal in question and other supporting documents to the one-page document containing the District land Court decision dated 10 September 2004, showing that there was actual hearing of that appeal for whatever it was worth despite the long delay, there is no real and legitimate basis for this application.

11.	O.16 r.4(1)of the National Court Rules provides:

"(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."

12.	Parties have moved on in fourteen to fifteen years since the decision of the Local Land Court and people want to go on with their lives rather than being dragged into the same dispute that is supposed to have been settled long time ago.

13.	This application and this entire proceeding in my view is an abuse of process and I dismiss it with costs in favour of the Defendants.

Leave refused.

Lawyer for the Plaintiff:	Paula Ivarami Yayabu Lawyers