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Waura v Purari Development Association Inc. [2011] PGNC 186; N4464 (12 December 2011)

N4464

PAPUA NEW GUINEA
IN THE NATIONAL COURT OF JUSTICE

OS (JR) NO. 819 OF 2011

BETWEEN:

JAMES WAURA,
for an on behalf of the PEIHO CLAN,

AMOS NERIVE f
or an on behalf of JAOHO CLAN,

JOMU PENIAI
for and on behalf of the
NEMINA CLAN, ALL OF THE PAWAIA TRIBE, BAIMURU, GULF PROVINCE
Plaintiffs

AND:

PURARI DEVELOPMENT ASSOCIATION INC
First Defendant

AND:

ROMILY KILA PAT,
ACTING SECRETARY FOR LANDS & PHYSICAL PLANNING
Second Defendant

AND:

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Defendant

Waigani: Manuhu, J 2011: 8 & 12 December

JUDICIAL REVIEW – Leave – Ministerial grant of Special Agricultural and Business Lease to an incorporated association – Procedural errors –Substantive deficiencies.

Cases cited:

Geno & Ors v The Independent State of Papua New Guinea [1993] PNGLR 22, Kekedo v Burns Philp Ltd [1988-89] PNGLR 122, Asakusa v Kumbakor, Minister for Housing (2008) N3303.

Counsel:
B. Ovia, for the Plaintiffs. I. Mugugia, for the Second and Third Defendants.

12 December, 2011

1. MANUHU, J: This is an application for leave for judicial review of grant of Special Agricultural and Business Lease (Lease) to Purari Development Association Inc (Association) in respect of customary land described as Portion 8C Milinch Auri Fourmil Kikori & Karimui in Gulf Province containing an area of 656,034 hectares.

2. Granting leave is a discretionary matter: Geno & Ors v The Independent State of Papua New Guinea [1993] PNGLR 22, Kekedo v Burns Philp Ltd [1988-89] PNGLR 122 and Asakusa v Kumbakor, Minister for Housing (2008) N3303.

3. The gist of the Plaintiffs' case is that they represent clans that own customary land that is within Portion 8C but they were not part of any agreement for the creation and grant of the Lease to the Association. They attribute their exclusion to lack of adequate investigation on customary land ownership. There appears to be a genuine or arguable case for this Court to enquire into the process of identification of customary land and land owners, and the eventual grant of the Lease.

4. However, there are a number of procedural errors and substantive deficiencies in the application. Firstly, there is no evidence that the Plaintiffs have the consent of their clan members to institute this proceeding. This is a procedural requirement that should not be easily swept aside especially when, by judicial notice, clan leadership and customary land ownership generate a lot of protracted land disputes in this country. The Plaintiffs have instituted the proceeding "for and on behalf of" other persons. They have not instituted this proceeding on their own behalf. In the absence of consent, I am unable to ascertain the Plaintiffs' authority and locus standi to be acting on behalf of other persons.

5. Secondly, the Lease in question was granted by the Minister for Lands and Physical Planning. It was signed by the Acting Secretary as a delegate of the Minister. However, the Minister is not a party to the proceeding. This is clearly a procedural error. The signature of a delegate performing ministerial responsibility is a ministerial act. The Minister should have been named as a party. This irregularity undermines the merits and arguability of the Plaintiffs' case.

6. Thirdly, relevant to the issue of arguable case, there is no evidence before the Court on the exact location of the Plaintiffs' customary land in relation to Portion 8C. A sketch or map of the area covered by Portion 8C and the Plaintiffs' customary land is all that is required. This is to avoid the Court embarrassing itself if it was found later that the Plaintiffs customary land was well outside of Portion 8C. More importantly, such evidence is relevant to the gist of the Plaintiffs' case.

7. Furthermore, also relevant to whether the Plaintiffs have an arguable case, the Plaintiffs assert that the Association, which has been granted the Lease, does not act on their behalf. This is a claim that this Court is unable to ascertain. I do not have the Association's Constitution before me to ascertain its Objects and its relationship, if any, with the Plaintiffs. About 49 clan and tribal representatives signed an agreement for the creation of the Lease. Their non-involvement in this proceeding suggests that the Plaintiffs are in the minority. The majority are probably satisfied with the Association. To nullify grant of Lease in the circumstances would cause hardship to the majority.

8. Moreover, on the basis of their claims, the Plaintiffs remain owners of their respective customary land. The Lease does not deny them their customary ownership rights. The decision is theirs to either participate or withdraw their participation from the scope of the Lease. This is an option that is better than seeking to nullify the Lease that is supported by 49 stakeholders.

9. In addition, I am of the view that the Lease is for the benefit of the customary landowners whose land is within Portion 8C. It is not a bad concept for an incorporated association to act on behalf of landowners. In this case, the Association is the vehicle for customary landowners to benefit from use of their customary land in accordance with the Lease. It should also be mentioned that any disagreement with officials of an association should not be mixed up with the concept of empowering customary landowners, through an association, to utilize use of customary land for agricultural or commercial purposes. I sincerely hope that this is not the case here.

10. In that context, revocation of the Lease is probably not the correct approach, particularly when the three Plaintiffs are up against 49 signatories and the State. I am of the view that the correct approach is for the Plaintiffs to genuinely present their grievance to the Association (and the State) to deal with. If the Plaintiffs have a genuine grievance, I do not see any difficulty in the Association and the State accommodating their interest within the scope of the Lease. To ask for nullification of grant of Lease when 49 others are not complaining is irresponsible.

11. In the end, the application is plagued by procedural errors and substantive deficiencies. In the circumstances, I am reluctant to exercise my discretion in the Plaintiffs' favour. The application for leave is refused with cost.
________________________

Kundu Legal Services: Lawyer for the Plaintiff
N. Devete, Solicitor General: Lawyer for the Second & Third Defendants