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Raimase v Borema [2020] PGNC 338; N8583 (10 March 2020)

N8583

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS(JR) NO. 836 OF 2019

BETWEEN:
AISA RAIMASE & OTHERS OF NOUBADA FAMILY AND MEMBERS OF LAURINA CLAN OF TATANA VILLAGE
First Applicant

AND:
NAMODIA ASIGAU HORSBURH AND OLIVER HORSEBURH OF LAURINA CLAN OF TATANA VILLAGE
Second Applicant

AND:
HARAKA BOREMA – CHAIRMAN OF KAEVAGA INCORPORAED LAND GROUP OF BARUNI VILLAGE
First Respondent

AND:
GAUDI REI FOR HIMSELF AND ON BEHALF OF TAMONOTU CLAN OF BARUNI VILLAGE
Second Respondent

AND:
ANDY MALO – DIRECTOR OF CUSTOMARY LAND REGISGRATION, DEPARTMENT OF LANDS &
PHYSICAL PLANNING
Third Respondent

AND:
HENRY WASA – ACTING REGISTRAR OF TITLES, DEPARTMENT OF LANDS AND PHYSICAL PLANNING
Fourth Respondent

AND:
TIRI WANGA – ACTING SECRETARY, DEPARTMENT OF LANDS AND PHYSICAL PLANNING
Fifth Respondent

AND:
THE INDEPENDENT STAT OF PAPUA NEW GUINEA
Sixth Respondent

Waigani: Dingake J
2020: 10^th March

JUDICIAL REVIEW – application for leave to apply for judicial review – decision sought to be reviewed is from the third, fourth and fifth respondents – review application filed three years after decision subject of review was made - application was brought late - applicants failed to demonstrate they have an arguable case – applicants failure to meet “the proper and sufficient pleading test” – leave application dismissed

Case Cited:

Paul Asakusa v Andrew Kumbakor;(2) Paul Asakusa v National Housing Corporation Board; (3) Paul Asakusa v Andrew Kumbakor N3303" title="View LawCiteRecord" class="autolink_findcases">(2008) PG NC; N3303).

Counsel:

Mr. Zacchary Gelu, for the Appellants
Solicitor General, for the Respondents

10^th March 2020

1. DINGAKE J: This is an application for leave to apply for Judicial Review of the decision of the third, fourth and fifth respondents in granting, certifying, registration and issuing to the first respondent a Certificate of title under Section 34 l of the Land Registration (Amendment) Act, 2009 described as Volume 1 Folio 4 of Portion 3646 C, Granville, Port Moresby, National Capital District on the 20^th of December, 2016.
2. The applicants filed the application for leave on or about the 18^th of November, 2019, close to three (3) years after the decision sought to be reviewed was taken.
3. It is trite learning that the application for leave involves an exercise of discretion, which discretion must be exercised judicially, and not arbitrarily.
4. In order to succeed to obtain the leave sought the applicants should establish or demonstrate that they have sufficient interest in the matter before the Court; that the application was brought without undue delay, that they have an arguable case and that they have exhausted all administrative remedies.
5. The orders sought are in the nature of certiorari.
6. Order 16 Rule 4(2) provides that:
   • “4. Delay in applying for relief. (UK. 53/4)
     • (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.”
7. There is no dispute that the application for leave was filed close to three (3) years after the decision sought to be reviewed was taken. It is plain to me that the delay is inordinate and no credible justification for such a long period of delay has been given by the applicants.
8. The third, fourth and fifth respondents do not take issue with the applicants standing. They also do not contest that the applicants had exhausted all statutory and or administrative avenues open to them.
9. Having dealt with the question of delay, I turn now to consider the matter of whether the applicants have an arguable case.
10. In my view whether the applicants have an arguable case depends on the evaluation of the grounds of review pleaded in the statement filed under Order 16 Rule 3(2), and the material placed before the Court by the applicants and the State. (Paul Asakusa v Andrew Kumbakor;(2) Paul Asakusa v National Housing Corporation Board; (3) Paul Asakusa v Andrew Kumbakor N3303" title="View LawCiteRecord" class="autolink_findcases">(2008) PG NC; N3303).
11. It is a fundamental requirement that the grounds of review relied upon should be clear and susceptible to review. If the grounds are vaguely worded and not sufficiently particularized, the Court, may in its discretion, refuse to grant leave.
12. The grounds of judicial review as pleaded must rhyme or be consistent with the recognizable grounds of judicial review, such as illegality, breach of natural justice, unreasonableness and other recognizable grounds. The grounds of review must be such that they raise clear issues of law or the defective nature of the process of the decision making sought to be reviewed.
13. Having regard to the above, the question that sharply falls for determination is whether the grounds of review pleaded in the Statement contain a clear and concise description of the specific statutory provision or common law duty alleged to have been breached with reference to recognizable grounds of review. This has often been referred to as the “proper and sufficient pleading test.” (Asakusa, supra)
14. The onus is on the applicants to satisfy the test. In their Statement made pursuant to Order 16 Rule 3(2)(a) of the National Court Rules, the applicants plead breach or non- compliance with the following:
    1. Local Land Court Orders made on the 21^st July, 2020 proceeding title LLC No. 007 of 2005;
    2. Local Land Court Orders made on the 13^th January, 2011;
    100. Mediation processes under the Land Dispute Settlement Act, (Chapter 45) yet to be done and completed to determine a dispute between the applicants and the first and second respondents as to the customary ownership of Sasiva or Doagurina land.
15. I am clear in my mind that ground (a) and (b) above do not fall under recognizable grounds of review, if anything they seem quite close to contempt of Court complaints. Ground (c) is vaguely worded and not sufficiently particularized. It does not contain a clear and concise description of the specific statutory provision or common law duty alleged to be breached.
16. In all the circumstances, this leave application is liable to be dismissed on one or all of the two grounds mentioned above, namely, that the application was brought late and or that the applicants failed to demonstrate that they have an arguable case, on account of failure to meet “the proper and sufficient pleading test”.
17. In the result:
    • (a) The application is without merit and it is dismissed with costs.

_______________________________________________________________

Gelu Lawyers: Lawyers for the Appellant
Office of the Solicitor General: Lawyers for the Defendants