N8692
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
OS (JR) NO. 871 OF 2010

BETWEEN:
LAUWEILA LIMPORO AND MILLER BONOU as Members of Wawangu Clan in Ganai village as Leaders of Saea No. 1 and No.2 Clans
Plaintiff/Applicants

AND:
JOHN HOLLAND MEABUNE as Clan leader on Behalf of his family and Representing Members of Saea Clan
First Defendant/Respondents

AND: 
BILL NOKI as Magistrate of Central Province Court
Second Defendant/Respondents

Waigani: Miviri J
2020: 15th October, 11th December 

PRACTICE & PROCEDURE – Judicial Review & appeals – Appeal – Central Provincial Land Court Decision – Certiorari – Declaration – Prerogative writs confined decision pleaded not any other – Pleadings convoluted – Material led not in accord with pleadings –No link with decision maker and how erred in decision – Process by what law not shown – balance not discharged – Judicial review not made out – balance not discharged – Review dismissed – cost follow event solicitor Client basis.

Cases Cited:
Mount Hagen Local Level Government v Kimas [2012] PGNC 356; N6044 
District Land Court, Kimbe; Ex Parte Nuli, The State v [1981] PNGLR 192 
Carter Holdings Ltd v Sipison [2019] PGNC 25; N7725 
Guba v Land Titles Commission [2019] PGNC 257; N8032
Dupnai v Weke [2016] PGSC 43; SC1525
NTN Pty Ltd v Board of the Post & Telecommunication Corporation [1987] PNGLR 70
Kelo v Ipu [2020] PGSC 92; SC2003 
Telikom PNG Limited v Independent Consumer and competition commission & Digicel (PNG) Limited [2008] PGSC 5; SC 906 
Asiki v Zurenuoc, Provincial Administrator [2005] PGSC 27; SC797
Opi v Telikom PNG Limited [2020] PGNC 168; N8290
Counsel:

G. Kubak, for Plaintiff
C. Nidue, for First Defendants
I. Mugugia, for Second Defendant

					RULING 
 11th December, 2020
1.	MIVIRI, J: This is the ruling on the substantive notice of motion of the plaintiff/applicant who seeks orders in the nature of certiorari to remove into this court the whole of the decision of the second defendant made on the 27th October 2010 awarding customary ownership of the Saea Clan Customary land and leadership to the second defendant/respondent. 

2.	Leave was granted on the 05th July 2011 and the substantive notice of motion the subject of this proceeding was filed in accordance with Order 16 Rule 5.

3.	Judicial Review is about the process that a decision maker takes in arriving at a decision. Here is ownership of customary land that was the subject of a determination made by the Second defendant as Magistrate of the Central Province Court. In itself it is a process by the District Court Act if it is sitting in that capacity. Therefore, it is the process that is set out under the relevant Act of Parliament setting it up. And the way it is supposed to run its process to arrive at the decision: Mount Hagen Local Level Government v Kimas [2012] PGNC 356; N6044 (14 August 2012). Section 122 of the Land Act was considered and the process within eventually to forfeiture was considered and judicial review was granted because the Minister breached that process. Not who owned the subject land.

4.	So when the assertion of the Plaintiff are that it applies for Orders in the nature of certiorari to remove that decision into this court and quash the whole of the decision made by the second defendant on the 27th October 2010, and orders in the nature of a declaration that the ownership of the land described as Saea Land has been determined by the land Titles Commission on the 2nd August 1974, and was further affirmed by the Provincial Land Court on the 28th July 1994. And when the plaintiff/applicant further seeks an order that the First Defendant be permanently restrained from issuing further proceedings relating to the ownership of the Saea Land against the plaintiff/applicants. It would be turning into something other than a pleading in a judicial review case. Therefore, judicial review would not be appropriate to see through. 

5.	Because Certiorari is confined to bringing up to this court the decision of the second defendant and quashing it. It is not just a mere allegation to bring it up and quash it. It must be shown that there are errors in the process that it took to arrive at the decision it made. This is procedural ultra vires. And further there is substantive ultra vires. In both cases the compass is the empowering Act or the Legislation that sets it up: District Land Court, Kimbe; Ex Parte Nuli, The State v [1981] PNGLR 192.

6.	Further when the plea is the prerogative writ of declaration that also pertains to a process in law for example by the Land Act section 122 and the powers of the minister for lands under that law whether it was according to that law and the process it set out or not: Carter Holdings Ltd v Sipison [2019] PGNC 25; N7725 (22 February 2019). That is not the pleadings here by that notice of motion and in the way that the plaintiff is pursing, is not the way judicial review entails the prerogative writ of Declaration. Furthermore, the process under the Land Titles Commission proceedings leading to decision emanating is a process of its own. It cannot be lumped into a judicial review proceeding, which is targeted at the decision of the second defendant. It would be different if he were sitting as a land titles commission hearing: Guba v Land Titles Commission [2019] PGNC 257; N8032 (3 October 2019). It is sitting as Provincial Land Court the relevant Legislation there governing will be at the heart here not in the way the Plaintiff has tried to entangle between the Provincial Land Court and the Land Titles Commission hearing of 2nd August 1974.

7.	In the way that the plaintiff has pleaded its case, it is writing history not a process in law to arrive at judicial review proceedings, so that writs of equity derived in equity will flow to the plea of the plaintiff. That unfortunately is not the case. Because what would be the relevance of History of this proceedings starting on the 15th July 1974 in a Land Titles Commission hearing, followed by another similar proceedings in year with various other sittings in different courts ranging from the National Court back to the District Court around 19th May 1993, then to a Land Court hearing on 28th July 1994, then to a deed of release in conveyancing, then to land Mediation 20th December 2001, and again a land Mediation hearing in 28th September 2006, a Local Land Court decision 07th December 2009, a Provincial Land Court decision 27th October 2010, application for leave for Judicial review 05th May 2011 and various other court or near court matters leading up to this proceedings.

8.	Obviously, this is not JUDICIAL REVIEW as it is known to the law. Judicial review is about the procedure starting with whether or not the plaintiff has standing or locus standie of course against a decision that affects him: Dupnai v Weke [2016] PGSC 43; SC1525 (19 August 2016). Is there an arguable case demonstrated on the merits to allow obviously that is not possible in the way it is pleaded here, especially what is the process and procedure that was supposed to have been not followed to end in the decision, that has effected the plaintiff: NTN Pty Ltd v Board of the Post & Telecommunication Corporation [1987] PNGLR 70. Here it is not worked out where lies the decision that is being interjected against in this judicial review. 

9.	And it is not clear as to by what dates is it referenced to, because Judicial review is by Order 16 Rule 4 time conscious, so much so that it is four (4) months. Here even by 27th October 2010 that is 10 years ago, but if it is to be timed with 15th July 1974 Land Title Commission decision, that will be way past the inordinate, it would be extraordinary to even look back there. Time has moved on life has moved on, there is no real substantial reason open to open the archive as it were. Or even for that matter dig up relics from the past era in history. Those would be better in a Museum, rather than a busy judicial review proceeding. Here it is as if this matter has always surfaced from a life from the past it has never rested in peace, because there is finality to all proceedings including Judicial review, multiplicity of proceedings in one form or another has often drawn with abuse of process, dismissal of, of being construed as frivolous, vexatious, and this court including the Supreme Court has seen serious of dismissal of proceedings resulting: Kelo v Ipu [2020] PGSC 92; SC2003 and Telikom PNG Limited v Independent Consumer and competition commission & Digicel (PNG) Limited [2008] PGSC 5; SC 906.

10.	Here the pleadings do not show this out at all. Even if recourse is had to the Legal issues the determination of true customary ownership of the Saea Land is not a process or procedure it relates to the substantive issue in the matter before that court. That is not the concern of a judicial review proceedings: Asiki v Zurenuoc, Provincial Administrator [2005] PGSC 27; SC797 (28 October 2005). It will not be proper following to draw distinction between the local land Court and section 27 (4) of the Land Dispute Settlement Act, because there is no relevance drawn to how it is to be intertwined into a Provincial Land Court the subject here if indeed it is.

11.	And this extends to the next legal issue posed of whether or not there was abuse of excess of power in the circumstances by the local land court hearing as to ownership of the Saea Land, which was determined by the Land Titles Commission in 1974, and affirmed by the Provincial Land Court decision of the 28th July 1994, which determination had not been overturned on appeal, or otherwise. This is a pleading that is very bad and has no place in a judicial review proceeding. It is convoluted and is without any source decision and identification of what it is about, because the original by the Notice of motion is second defendant. He is sitting as a Provincial Land Court not a local land Court, nor a land titles Commission. And he was sitting 27th October 2010. This legal issue is academic not the source in a judicial review proceeding. And here it is not even an iota near the heart of the matter pleaded here.

12.	And even if this is not enough the issue posed, whether there was a breach of the principles of natural justice by the local land Court, according to the SDA Mission and the settlers of Manawa, and Sisina a fair opportunity to be heard prior to making a decision on the Saea land on the 07th December 2009, really is not within the scope of the pleadings here.  The same is so of the next issue posed whether a reasonable and properly constituted tribunal would have arrived at the decision made by the Local Land Court on the 07th December 2009 and the Provincial Land Court on the 27th October 2010. The latter is being reviewed but the particulars of error in procedure and substance have not being discharged by the applicant. There is no water to hold this ground. The decision is not tooth picked so as to see where the second defendant erred in both the process and substantive law so as to bring it for the review jurisdiction of this court. And here it is reference to the law setting up the process and procedure for the District Court it is that Act.

13.	The totality is that this judicial review has been defeated by its pleadings not falling in with the material it sought to rely on. The plaintiff has not met the required balance. The proceeding is dismissed in its entirety. I observe that lawyers are schooled in the law and ought to professionally provide advice to the client who maybe not schooled in law. Preparation of cases must be firstly for the client, secondly against the client, and thirdly again taking account of what is against the client. The revolution is full 360 degrees preparation. Here the demise is preparation on the word of the Client but not analysed with the law to form a proper basis to constitute the pleadings which should tie in with the material relied and law. And in this regard taking account of the defence. It has resulted in court time logistics including the defence: Opi v Telikom PNG Limited [2020] PGNC 168; N8290 (29 April 2020).

14.	 Accordingly, plaintiff will pay the costs of the defendants on a solicitor client basis if not agreed to be taxed.

15.	The formal orders of the court are:

(a)	The appeal has not been discharged to the balance of probabilities.
(b)	The appeal is dismissed in its entirety forthwith
(c)	Cost will follow the event on a Solicitor Client basis.
Orders Accordingly.
__________________________________________________________________
Kubak & Kubak Lawyers         : Lawyer for the Plaintiff/Applicant
Nidue & Associate Lawyers	: Lawyer for First Defendant		
Office of the Solicitor General  : Lawyer for Second Defendant