N5626
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

O.S NO. 467 OF 2013

BETWEEN:

DINAH URANGA MATMAT for herself and on behalf of immediate relatives & children of ISIKIEL TOLUANA, Deceased, in relation to VUNAKALANGAR LAND of Takubar Village, Kokopo, whose names  appear in the schedule attached
Plaintiff

AND:

PAUL TUNIA & GEORGE TUNIA
First Defendant

AND:

TZEN NIUGINI
Second Defendants

AND:

HENRY WASA in his capacity as Registrar of Land Titles
Third Defendants

AND:

LUCAS DEKENAI in his capacity as the Minister for
Lands & Physical Planning
Fourth Defendants

Kokopo: Oli, AJ
2013: November, 19th.
2014: May, 14th.

CIVIL - Practice and Procedures - Application for leave for judicial review – Plaintiff claim inherent error over land title issue over portion of land does not belong to the first defendant –Title issue over customary land where Local Land Court decision favors the plaintiff since 1983 – Consider third defendant register portion of land over Local Land Court decision still remains unchallenged – Hence render the third defendant exercising statutory powers on mistaken belief and issue title to first defendant – When first defendant knowingly exercising bad faith fail to disclose plaintiff interest in the encroach portion of land – First defendant action amount to constructive fraud – Matter appropriate for judicial review– The Plaintiffs' application for leave for judicial review is granted – Court issue directions pursuant to Order 16 Rule 13 (5) of the National Court Rules "Judicial Review (Amendments) 2005" accordingly.

Cases Cited:
Papua New Guinea cases

Peter v SP Brewery [1976] PNGLR 537
NTN v PTC [1987] PNGLR 70
In Re: Attorney General Gene v Hamidian-Rad [1999] PNGLR 444.
Mondiai v Wawoi Guavi Timber Company Ltd [2006] PGNC 4; N3061 (4th July 2006)
Kekedo v Burns Philip [PNGLR] 122

Overseas cases

Council of Civil Service Unions v Minister for Civil Service [1984] 3 All ER 935
In Inland Revenue Commissioners v National Federation of Self-Employed and Small Businesses [1982] AC 617

Counsel:

Mr. Philip Kaluwin, for Plaintiff
Mr. Neserawa Motuwe, for first defendant
Mr.Paul Yange, for second defendant
No appearance for third and fourth defendants

RULING

14th May, 2014

1.	OLI, AJ. The Plaintiff/Applicants' Counsel filed an Originating Summons on 4thSeptember 2013 against the Defendants seeking the following relief: 

(i)	That leave be granted for Judicial Review pursuant to Order 16 Rule 4 of the National Court Rules.

(ii)	The extent of the Title overlapped land was judicially decided as belonging to the Plaintiff/Applicant.

(iii)	That the decision of the Local Land Court in 1983 has effect and stands unchallenged.

(iv)	A declaration that the issuance of title to the property described as Portion 4182 was improper in that it encroaches into the land described as Portion 4184C that has been judicially declared to belong to the Plaintiff/Applicant.

(v)	The issuance of the Title tantamount to fraud only to the extent that it encroaches into Portion 4184C.

(vi)	A declaration that the Title issued to the Defendant is of no effect.

Alternatively;

(vii)	The Plaintiffs have equitable interest to the land and should have been considered when Title was issued.

(viii)	The procedures and processes condition precedent in granting of the Title were not considered when the Title was issued.

(ix)	Costs.

(x)	Interests.

(xi)	Any other Orders the Court deems proper.

2.	The Plaintiff/Applicant files the motion pursuant to Order 16 Rule 4 of the National Court Rules and seeks Restraining Orders against the Defendant/Respondents to cease work on the part of the land described as Portion 4182 Milinch Kokopo until the determination of the substantive matter. The plaintiff/Applicants' motion is supported by lead Plaintiff/Applicant's affidavit dated 2nd September 2013 of Dinah Uranga for and on behalf of the Bitavuvur Clan of Takubar, Kokopo, East New Britain Province. And further affidavit by her again dated 26th November 2013 with relevant attachments. The Defendant/Respondents from the outset objected to the motion and Counsel for second Defendant/Respondent Mr. Yange filed a written submission whilst Counsel for first Defendant/Respondent Mr. Motuwe made verbal submission in response to the motion. The Plaintiff/Applicant Counsel Mr. Kaluwin also made verbal submission in favor of the motion. However, no counsel appeared on behalf of the 3rdand 4thDefendant/Respondent's respectively.

FACTS

3.	The brief facts surrounding this matter is that Plaintiff/Applicant claims that the extent of the Title overlapped land was judicially decided as belonging to the Plaintiff/Applicant. The decision of the Local Land Court in 1983 has legal effect and stands unchallenged, therefore the declaration that the issuance of title to the property described as Portion 4182 was improper in that it encroaches into the land described as Portion 4184C that has been judicially declared and belongs to the Plaintiff/Applicant. It therefore follows that the issuance of the Title is tantamount to fraud, only to the extent that it encroaches into Portion 4184C. The plaintiff/applicant therefore claims that the declaration of the portion of the land under the Title issued to the first defendant/respondent is of no effect. The plaintiff/applicant therefore files this action to correct the error, when third defendant/respondent exercises its' statutory power through mistaken belief, through the fault of the first defendant, amount to constructive fraud and thereby, plaintiff/applicant seek leave for judicial review to be granted and seek relief and remedies accordingly.

ISSUE

4.	The issue in this case is whether the plaintiff/applicant has sufficient interest to seek leave for Judicial Review pursuant to Order 16 Rule 4 of the National Court Rules, to review the issuance and registration of land title to first defendant/respondent by third and fourth defendant/respondents underLand Tenure Conversion Act, over parcel of land that Plaintiff/Applicant had a Local Land Court decision in their favor since 1983.

LAW

5.	The law on Judicial Review is well settled in this jurisdiction under Order 16 Rule 4 of the National Court Rules. In this case the Plaintiff/Applicant is seeking leave for the Court to review the administrative decision by 3rd and 4th Defendant/Respondents when 1st Defendant/Respondent apply to have Title over portion of customary land that did not belong to the 1st Defendant/Respondents. 

4.      Delay in applying for relief. (UK. 53/4)

(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.

(2)     In the case of an application for an order of certiorari to remove any judgement, order, conviction or other proceeding for the purpose of quashing it, the relevant period for the purpose of Sub-rule (1) is four months after the date of the proceeding.

(3)     Sub-rule (1) is without prejudice to any statutory provision which has the effect of limiting the time within which an application for judicial review may be made.

6.	The Plaintiff/Applicant is seeking leave under Order 16 Rule 4 (1) (b) and sub-rule (3) of the National Court Rules,to review the 1st Defendant/Respondents application to 3rd and 4th Defendant/Respondents to issue title over customary land that did not belong to the 1st Defendant/Respondent, when in fact there was a Local Land Court decision per se in existence, unchallenged since 1983 in favour of the Plaintiff/Applicant over the said portion of land in question. On the basis of this facts, the registration of the said customary land title to first defendant/respondent by Registrar of Tiles office was made on mistaken facts, hence on the face of it, the registration of the said customary land title to first defendant/respondent render it improper and may amount to a fraudulent transaction by the first defendant/respondent.

APPLICATION OF LAW TO THE FACTS

7.	The issue this court is tasked to determine is whether the Plaintiff/Applicant has sufficient interest to seek leave for Judicial Review pursuant to Order 16 Rule 4 of the National Court Rules, to review the issuance and registration of land title issued to the first Defendant/Respondent by third and fourth Defendant/Respondents under Land Registration Act over land that Plaintiff/Applicant had a Local Land Court decision, unchallenged in their favor since 1983.

8.	The law on judicial review is sought in circumstances where there are cases in which the decisions of public statutory tribunals or authorities exercising statutory powers vested by statute are questioned or challenged. The proper procedure to follow is by application for judicial review under National Court Rules Order 16. In Re: Attorney General Gene v Hamidian-Rad [1999] PNGLR 444. Judicial Review is concerned with the decision making process. 

The circumstance in which judicial review is available are where decision-making authority exceeds its powers, commits an error of law, commits a breach of natural justice, reaches a decision which no reasonable tribunal could have reached or abuses its powers. Kekedo v Burns Philip [PNGLR] 122.And see the English Case of Council of Civil Service Unions v Minister for Civil Service [1984] 3 All ER 935. The National Court Rules Order 16, as amended by Judicial Review (Amendment) Rules 2005, sets out the procedure for Judicial Review and Rule 3Order 16 of the National Court Rules sets out the requisite requirements for leave when it involves the State as a party, the applicants must comply with the said provision that provides and reads:

3.      Grant of leave to apply for judicial review. (UK. 53/3)

(1)     An application for judicial review shall not be made unless the leave of the Court has been obtained in accordance with this Rule.

(2)     An application for leave must be made by originating summons ex parte to the Court, except in vacation when it may be made to a Judge in chambers, and must be supported—

(a)  by a statement, setting out the name and description of the applicant, the relief sought and the grounds on which it is sought; and

(b) by affidavit, to be filed before the application is made, verifying the facts relied on.

(3)     The applicant must give notice of the application to the Secretary for Justice not later than two days before the application is made and must at the same time lodge with the Secretary copies of the statement and every affidavit in support.

(4)     Without prejudice to its powers under Order 8 Division 4, the Court hearing an application for leave may allow the applicants statement to be amended, whether by specifying different or additional grounds for relief or otherwise, on such terms (if any) as it thinks fit.

(5)     The Court shall not grant leave unless it considers that the applicant has a sufficient interest in the matter to which the application relates.

(6)     Where leave is sought to apply for an order of certiorari to remove for the purpose of its being quashed any judgement, order, conviction or other proceedings which is subject to appeal and a time is limited for the bringing of the appeal, the Court may adjourn the application for leave until the appeal is determined or the time for appealing has expired.

(7)     If the Court grants leave, it may impose such terms as to costs and as to giving security as it thinks fit.

(8)     Where leave to apply for judicial review is granted, then—

(a)  if the relief sought is an order of prohibition or certiorari and the Court so directs, the grant shall operate as a stay of the proceedings to which the application relates until the determination of the application or until the Court otherwise orders; and

(b) if any other relief is sought, the Court may at any time grant in the proceedings such interim relief as could be granted in an action begun by writ.

9.	The parties in this case on foot were not able to assist the Court with any relevant case authority on the issue. However, I have the benefit to draw some legal comparative principles on judicial review, and the issue in this case is, whether Plaintiff/Applicants' application seeking leave for judicial review should be or not be granted leave for judicial review to correct the error committed by first defendant/respondent through third defendant/respondent through mistaken belief, when third defendant/respondent issued the Title over encroach land to first defendant/respondent through constructive fraud by first defendant/respondent. I refer to the following case authorities to draw relevant legal principles and discuss relevant legal grounds that favors the leave for judicial review is applicable and appropriate to grant leave for judicial review. In the case of Mondiai v Wawoi Guavi Timber Company Ltd [2006] PGNC 4; N3061 (4th July 2006),the Applicant Ombudsman Commission of Papua New Guinea applied to be joined as a party to these judicial review proceedings. The Commission had prepared a report into matters raised by substantive proceedings and had made recommendations. There was an allegation that the recommendation of the report had not been followed by the Second Defendant. His Honour Lay J, held that:

"The Applicant was created by the Constitution and Organic Law. Its' power must be found in those constitutional provisions. Its' powers were to investigate, report and recommend. The court could not extend those powers. It was a matter for the Parliament. There is no legislative authority for the Ombudsman Commission to join in the action as a party with sufficient interest. The Ombudsman Commission's power of enforcing recommendations contained in its' reports is confined by Constitution s. 219 (6) to advertising, and recommendations to the Parliament and the relevant authorities. The Ombudsman Commission could not bring proceedings, nor did it have any legal right to enforce.It did not have a "sufficient interest"within its constitutional functions. It could not be made a party to the proceedings. It is matter to a trial judge as to whether the Ombudsman Commission should be heard on the substantive review pursuant to Order 16 Rule 9 (1) of the National Court Rules, although that Rule permits to be heard in opposition, not in favour of the Summons.

10.	The above case can be seen as a clear contrast and can be distinguished with the present case on foot. However, the principle demonstrated in the above case clearly shows that the applicant did not have sufficient interest in the matter when it applied to be joined as a party. The Ombudsman Commission as a Public Institution assumes its judicial functions and powers from Constitution and Organic Law and has power to investigate, report and recommend, however, its' enforcing powers are confined to s. 219 (6) of the Constitution. His Honour Lay J, clearly find in no uncertain terms that Ombudsman Commission did not have sufficient interest in the matter to be joined as a party though it could have the right to be heard during substantive hearing of the judicial review subject to trial judge giving leave to be heard. This is largely due to its' specific entrench partition constitutional functionalities. 

11.	The principles applicable to an application for leave for judicial review are well settled in NTN v PTC [1987] PNGLR 70:

"Application for leave for judicial review involve the exercise of discretion, such discretion must be exercised judicially. Once, a court is satisfied that the applicant has sufficient interest it then exercises its discretion as to whether leave should be granted."

"In exercisingits discretion the court must consider whether the applicant has an arguable case. In Inland Revenue Commissioners – v – National Federation of Self-Employed and Small Businesses [1982] AC 617, Lord Diplock set out the principles upon which the Court should act and I respectfully adopt them – If on a quick perusal of the material the court (that is the judge who has first considers the application for leave) thinks that its discloses what might on further consideration turn out to be an arguable case in favor of granting the applicant relief claimed, it ought, in the exercise of a judicial discretion, to give him leave to apply for the relief. The discretion that the court is exercising at this stage is not the same as that which it is called upon to exercise when all the evidence is in and the matter has been fully argued at the hearing of the application."

12.	In this case, the plaintiff/applicant seek to have judicial review of the process invoked by first defendant/respondent to third defendant/respondent to issue title over land that encroaches plaintiff/applicant portion of land, the subject of Local Land Court decision remains unchallenged. The Review Court ought to remind itself and must be satisfied that the Plaintiff must show four things as requisite legal requirements when seeking leave for application for Judicial Review. The Plaintiff must show firstly, that she has a sufficient interest, secondly, she must show that she has an arguable case, thirdly, she must show that there was no undue delay in filing the application,and fourthly, she must show that she has exhausted all other statutory avenues for appeal or review. See Peter v SP Brewery [1976] PNGLR 537. 

13.	In this case, I am not satisfied that Plaintiff/Applicant has exhausted the fourth legal requisite requirement that she has exhausted all other statutory avenues for appeal or review, as outlined in the above case authority, for an application to seek leave for judicial review be granted pursuant to Order 16 Rule 3 of the National Court Rules. However, the plaintiff's application for judicial review, is somewhat very different in this case. This is simply because plaintiff cannot appeal against the decision of the Local Land Court of 1983, which was decided in its favour over Portion 4184C. However, plaintiff/applicant could have sought redress under Land Dispute Settlement Act 1974 under s. 64 to enforce Local Land Court decision of 1983, but this avenue and prospect for enforcement under Land Dispute Settlement Act is barred by the issuance of legal title to Portion 4182 to the first defendant/respondent by third defendant/respondent. The issuance of title over Portion 4182 to first defendant/respondent triggered the plaintiff/applicant's desire to seek leave for judicial review now, after they have learnt and found out that legal perimeter boundary of Portion 4182 has encroached illegally into their Portion 4184C, the customary land own by Plaintiff/Applicant. 

14.	There is sufficient evidence that Local Land Court decision of 1983, is still unchallenged and has not been overturn by a Court of competent jurisdiction. If, this is the case, then the common sense and logic dictate that, if, third defendant/respondent was made aware of the fact that the Title issue to Portion 4182 has encroached into part of Portion 4184C, owned by the plaintiff/applicant, the application for registration under Land Tenure Conversion Act would have been rejected, until the issue now raised was sorted out by the parties. The unfortunate dilemma that the plaintiff/applicant has been put through this application for leave for judicial review should not have been necessary now, in Court.

CONCLUSION

15.	The Court having heard and digest the materials on file is satisfied that the plaintiff/applicant has demonstrated that it has sufficient legal interest and reasonable cause of action to file application for leave for Judicial Review. The Court hereby grants leave for judicial review by plaintiff/applicant accordingly. The Court is mindful of the fact that third defendant has performed its statutory powers with all good intentions and issue title to first defendant/respondent without really, having to know the historical legal background status of Portion 4182 of the land in question, in that part of Portion 4184C was improperly included in Portion 4182, where third defendant/respondent issued title to first defendant/respondent under the Land Tenure Conversion Act. 

16.	It appears that first defendant/respondent ought to have some local knowledge about the history of the land in question over Portion 4184C, but failed to draw the third defendant/respondent attention to it before pursuing the application for land registration under Land Tenure Conversion Act through the third defendant/respondent, the Registrar of Titles Office with Department of Lands & Physical Planning. It is my humble view, that action by first defendant/respondent, by failing to disclose the plaintiff/applicant's legal interest in the land Portion 4184C,when application was presented to the third defendant/respondent amount to, nothing less than constructive fraud. 

17.	The only forum to correct this statutory error is through the judicial review process, before the National Court under Order 16 Rule 4 of the National Court Rules and or s. 155 (4) of the Constitution.What judicial review process will simply do, if it finds in favour of plaintiff/applicant, is to restate the original perimeter boundary that existed as per the Local Land Court decision of 1983. The judicial review exercise will not in any way, disadvantage any party of what rightly belongs to them, until the issuance of the title to Portion 4182 to first defendant/respondent by third defendant/respondent that encroachment into Portion 4184 C, some(233) yards and (1) feet long and stretches from one end of portion 4184C (from the right of the map) into portion 4182 (to the left of the map) the land that belongs to plaintiff/applicant, since then to this date. It is this parcel of the land mass that is under dispute hence, any economic activity by parties is retrained until finality of this matter before the court.

18.	The Court having some appreciation about the legal status of portion 4184C, the encroachment parcel of land mass about (233) yards and (1) feet long was improperly included into portion 4182. It is quite evident that at no time this parcel of encroached land was part of Portion 4182. However, the title issued to Portion 4182 did include encroached parcel of land of which is legally part of portion 4184C that belongs to the plaintiff/applicant. Therefore, there is an apparent error and real cause for concern, that the parties must be given an opportunity to have the matter reviewed and resolved once and for all under the judicial review process. I therefore hereby invoke the Court's inherent powers under section 155 (4) of the Constitution, in the interest of justice and public policy and public considerations dictate, that judicial review will maintain status quo amongst concerned parties in these proceedings. The Court accordingly grants leave for judicial review in favour of the plaintiff/applicant under Order 16 Rule 4 of the National Court Rule. 

19.	It is clear, that in view of the title by third defendant/respondent to first 
defendant/respondent is under question, the judicial review is the appropriate forum to address the issue. The issue is whether the issuance of title to the property described as Portion 4182,that includes encroached parcel of land from property described as Portion 4184C, that has been judicially declared by Local Land Court decision of 1983,belongs to the plaintiff/applicant.The application for registration under Land Tenure Conversion Act of Portion 4182, the subject of registration by first defendant/respondent through third defendant/respondent would have been rejected,as a matter of principle and law, by third defendant/respondent,if third defendant/respondent was made aware of the illegal encroachment into legal perimeter boundary of Portion 4184C by first defendant/respondent into Portion 4182.

20.	The Court having granted leave for judicial review also invoke requirements according to Order 16 Rule 13 (5) of Judicial Review (Amendment) 2005 of the National Court Rules, and issue directions as to, amongst other things, the following as hereunder referred to. 

ORDER

21.	The Court accordingly makes the following Orders:

(1)	The Plaintiff's application for leave for judicial review is granted.

(2)	Filing of Notice of Motion and supporting affidavits under Order 16 Rule 5 (1) of the National Court Rules.

(3)	Identification of all persons directly affected by the decision the subject of the review, who may be served with the Notice of Motion including the Clerk or Registrar of the Court or Tribunal which made the decision.

(4)	Service of the order granting leave including the directions issued hereunder and Notice of Motion and supporting affidavits and any other documents filed for purposes of the leave application, on persons identified under (2) and filing proof of service.

(5)	Availability of decision and reasons for decision together with any other relevant documents or depositions of the tribunal or public authority which made the decision the subject of review.

(6)	Fix a date for Directions hearing to take place within fourteen (14) days there-from. This date shall be entered on the Notice of Directions Hearing issued by the Registrar under Rule 13 (6) (1) of Order 16 of the National Court Rules under Judicial Review (Amendments)Rules 2005."

(7)	Parties to meet their own cost.

_________________________________________________________________
Public Solicitors Office: Lawyers for the Plaintiff
Motuwe Lawyers: Lawyers for the First Defendant
Kamen Lawyers: Lawyers for the Second Defendant
No appearance for the Third & Fourth Defendants