N8752
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
OS (JR) NO. 09 OF 2020

BETWEEN:
MICHAEL AIKE KRO’EFA On his own behalf and on behalf of the Members of KAFE CLAN
Plaintiff

AND:
LAND TITLES COMMISSIONER
First Defendant

AND:
K92 MINING LIMITED
Second Defendant

AND:
MINERAL RESOURCE AUTHORITY
Third Defendant

AND:
INDEPENDENT STATE OF PAPUA NEW GUINEA
Fourth Defendant

Waigani: Miviri J
2020: 29th December
 
PRACTISE & PROCEEDURE – Judicial Review & appeals – Leave for Judicial Review – Order 16 Rule 3 NCR – Amended Originating Summons – Amended notice of motion – Amended Statement in support – Amended affidavit verifying facts – Amended undertaking to pay damages – Notice of Application for leave to apply for Judicial Review – Proceedings current in Land Titles Commission – Question of ownership of land – Process incomplete – Leave refused – cost follow event.

Cases Cited:

Pipoi v Seravo, National Minister for Lands [2008] PGSC 7; SC909
Innovest Ltd v Pruaitch [2014] PGNC 288; N5949
NTN Pty Ltd v The Board of the PTC, PTC and Media Niugini [1987] PNGLR 70 
Independent State of Papua New Guinea v Toka Enterprises Ltd [2018] PGSC 89; SC1746 
Mali v Independent State of Papua New Guinea [2002] PGSC 4; SC690 
Counsel:

O.O. Dekas, for plaintiff
I. Mugugia, for First & Fourth Defendants 

					RULING 
 04th February 2021
1.	MIVIRI, J: This is the ruling on the plaintiff’s application for leave for Judicial Review pursuant to Order 16 Rule 3 of the National Court Rules against the Land Titles Commissioner to compel him to hear and determine the pending Land Titles Commission review.

2.	He has filed an amended originating summons 12th October 2020 pleading that leave be granted for Judicial review seeking mandamus order pursuant to Order 16 Rule 1 (1) and 2 (a) of the National Court Rules to compel the first defendant to hear and determine the pending review within reasonable time. This jurisdiction is not open as it is. There must be proper basis demonstrated by material properly drawn to the requisite balance for the jurisdiction of this court to be invoked to grant leave that will compel an inferior court or tribunal, here the Land Titles Commission to deal with a matter that is before it. Because section 8 of the Land Titles Commission Act 1962 is clear that “A Commissioner has the same protection, privileges and immunities as a Judge.” And further under Division 1 the functions of the Chief Commissioner are set out by that Act. It is necessary to set these out because they are relevant to show the clear demarcation between the Land Titles Commission and the Court. It is not a matter of taking the matter up here at the discretion of a party as they see fit. The law is very clear and sets one apart from the other. There are very clear and fundamental reasons as to why this is important to be observed. Judicial review is a very restrictive domain and is not open at the discretion of busy bodies and the like because the grounds to invoke leave are very restrictive and stringent: Pipoi v Seravo, National Minister for Lands [2008] PGSC 7; SC909 (10 April 2008). And these are not mere assertions but is the law enforced time over and over again: Innovest Ltd v Pruaitch [2014] PGNC 288; N5949 (17 March 2014).

3.	Therefore, it is upon the plaintiff here to show that despite that demarcation bold, the facts warrant the intervention of the court to compel the Land Titles Commissioner to do his job. He has failed to discharge his duties without good reason in law and fact therefore he must be based, on those facts and law granted leave here for the plaintiff for judicial review. To examine whether that is necessary and open on the law, the Land Titles Commission Act 1962, “Section 13A. TRANSFER OF CASES is as follows;-
(1) The Chief Commissioner may, of his own motion or on the application of a party, and after consultation with the Commissioner dealing with the matter, transfer a matter, at any time before a decision has been given, from one Commissioner to another Commissioner or to three Commissioners appointed under Section 14A on the ground that–
(a) the value of the land in dispute;
(b) the complexity or importance of the issues involved;
(c) the convenience of the parties and the Commission; or
(d) any other sufficient cause,
Justifies the transfer.
(2) The Commissioner or Commissioners to whom a matter is transferred under Subsection (1) shall proceed to hear and determine the matter as though it had been commenced before him or them.
(3) Where a matter is transferred from a Commissioner under Subsection (1), the evidence already taken before that Commissioner together with the results of any investigations or inquiries he may have made shall be deemed to be evidence before the Commissioner or Commissioners to whom the matter is referred.
14. GENERAL JURISDICTION, ETC., OF COMMISSION.
(1) The jurisdiction, practice and procedure of the Commission are as provided by or under this or any other Act.
(2) Subject to this and to any other Act in force in Papua New Guinea, the powers, functions, and jurisdiction of the Commission may be exercised by a single Commissioner.
(3) Subject to Section 14A, the jurisdiction of the Commission under the New Guinea Land Titles Restoration Act 1951 shall be exercised by the Chief Commissioner or a Deputy Chief Commissioner.
(4) [Repealed.]
14A. THREE COMMISSIONERS MAY HEAR CASES.
(1) The Chief Commissioner may, of his own motion or on the application of a party, appoint three Commissioners (one of whom shall be himself or a Deputy Chief Commissioner) to deal with a matter before the Commission where he is satisfied that–
(a) the value of the land in dispute; 
(b) the complexity or importance of the issues involved; or
(c) any other sufficient cause,
Justifies such an appointment.
(2) A sitting of the Commission consisting of three Commissioners appointed under Subsection (1) shall be presided over–
(a) where the Chief Commissioner is one of the three Commissioners so appointed–by the Chief Commissioner; or
(b) in any other case–by a Deputy Chief Commissioner appointed by the Chief Commissioner for the purpose.
(3) If, in any matter in which the jurisdiction of the Commission is exercised by three Commissioners under Subsection (1), the opinion of the Commissioners are divided in such a way that there is no majority opinion, the opinion of the Commissioner presiding shall be deemed to be the opinion of the Commission.
15. DETERMINATION OF DISPUTES.
(1) The Commission has, subject to this Act, exclusive jurisdiction to hear and determine all disputes concerning and claims to the ownership by custom of, or the right by custom to use, any land, water or reef, including a dispute as to whether any land is or is not customary land and may make all such preliminary inquiries and investigations as it deems necessary for the purpose of hearing and determining the disputes and claims.
(2) After the period limited by Part V for review of or appeal against a decision of the Commission has expired, and any proceedings on review have been completed and any appeals have been decided–
(a) a determination of the Commission under this or any other Act is, subject to Section 16, for all purposes and as against all persons conclusive evidence of the ownership as at the date of the decision, of the land the subject of the decision and of rights, titles, estates and interests in the land as set out in the decision; and
(b) the Commission shall forward a copy of its decision to the Registrar of Titles, who shall make such entries in Registers kept by him and issue such documents as are necessary, or as are directed by the Commission, to give effect to the decision of the Commission.”

4.	Section 13A and 14 with 14A are procedure that is available to the plaintiff to pursue before the Commission. There is no evidence primae facie that this is the case here and has been discharged by the plaintiff. It is internal process open in the Commission that is available to the parties before it to consider and to pursue. It is there to be heeded not to be bypassed and plea made here without to compel the first defendant in the terms as he has pleaded. The plaintiff has slept over his rights emanating from that provision which is specific that, “(3) Where a matter is transferred from a Commissioner under Subsection (1), the evidence already taken before that Commissioner together with the results of any investigations or inquiries he may have made shall be deemed to be evidence before the Commissioner or Commissioners to whom the matter is referred.” This section is the basis that can be reverted to by the plaintiff to bring out the matter that he is now seeking upon this court by this proceeding. It has not been exhausted so that a decision internally has been made satisfying that requirement for leave. Consequently, the jurisdiction of the court has not been properly invoked and therefore is not available to the plaintiff. The same is the case for section 14 and 14A and therefore there is no cause made out in favour of the plaintiff here.

5.	 The intent of the Act is clear, “An Act to establish a Land Titles Commission and provide for its constitution and jurisdiction, and for other purposes.
WHEREAS it is universally recognized that the expeditious and final determination of disputes as to rights in land and the registration of guaranteed rights to land are of basic importance to the well-being and development of all countries and especially of developing countries such as the Territory of Papua and New Guinea:
AND WHEREAS it is also universally recognized that these matters can best be dealt with by judicial authorities independent of control by the Government of the day, doing justice to all parties in accordance with the law:
AND WHEREAS it is proposed to make special provision in the laws of the Territory for the establishment of such an independent judicial tribunal to be known as the Land Titles Commission for the determination and protection of rights to land, and in particular to native land:
BE it therefore ordained by the Legislative Council for the Territory of Papua and New Guinea, in pursuance of the powers conferred by the Papua and New Guinea Act 1949-1960, as follows:–“

6.	This purpose will not be defeated nor will heed be taken away from it without proper basis established for leave to so take away as here. Mandamus is compelling, because to compel the Land Titles Commissioner first defendant to hear and to determine the pending Land Titles Commission review, outstanding since 24th March 2009 is stepping into that domain without just cause and proper basis backed to descend and to order compelling. For Leave to be granted to so discharge here there ought to be proper material.

7.	What is set out in the amended affidavit verifying by the plaintiff of the 12th October 2020 does not show that this procedure was completed within the Commission by the Act setting it up. He says he is chairman of the principle landowner clan/Tribe identified by the 1991 Local Land Court and 1993 Provincial Land Court decisions, respectively. And the appeals that were filed by the aggrieved parties pursuant to section 4 of the Land Dispute Settlement Act between 2004 to 2008 and made decision on the 12th January 2009 identifying the new landowners. From which the aggrieved landowners filed a review on the 24th March 2009 challenging the 2009 LTC decision which is pending for 11 years and some months. Pending this the State and Company continue to deal with the landowners identified by the 2009 LTC decision and totally ignore the court sanctioned landowners. This is a matter that can be addressed by invoking the provisions set out above open to the plaintiff that he has not undertaken.

8.	The review filed must properly see out the process under that Act. It will not by pass that Act and having considered it by the pleading, it is clear that there is internal process by law set out for very good reasons at the discretion of the plaintiff without prompt by this court with leave to give effect to that process. There is no power in the Court to circumvent an internal process and procedure by law in this case the Land Title Commission Act 1962: NTN Pty Ltd v The Board of the PTC, PTC and Media Niugini [1987] PGNC 54; [1987] PNGLR 70 (6 May 1987). It means for the purposes of the determination of this application these two grounds of exhaustion of internal processes within that Act has not been discharged by the plaintiff and this ground fails. 

9.	Similarly, there are no arguable grounds demonstrated to bring the matter into the balance to grant leave. 

10.	This is a matter that goes back to 12th January 2009 which is as of the date of this judgment 12 years. To open it with the grant of leave in the way pleaded would cause prejudice and serious hardship to the defendants and the other parties to the matter. The delay is inexcusable and inordinate and will not be cured by granting leave to the plaintiff for judicial review. There is no material convincing to sway the balance in favour of the grant of leave. The law set out above is clear and open for the plaintiff. It is not the case that has happened and so leave based on this ground is not made out. Plea for certiorari by Order 16 Rule 4 (2) sets time limitation at four (4) months. Here is Mandamus which in my view is in similar terms, although no specific time is prescribed it is proper to bring it within reasonable time and prompt and this view is consistent with Chief Justice Sir Salamo Injia’s views in Independent State of Papua New Guinea v Toka Enterprises Ltd [2018] PGSC 89; SC1746 (20 September 2018). There it was a delay of 13 years before the action to institute for mandamus. Here it is almost 12 years and no reasonable explanation has been given on the delay. There the hearing at the first instance was ex parte orders that were set aside on appeal.

11.	It is also proper that Standing is properly set out as to on what basis the plaintiff takes this course of action before this court. It is not clear by what authority he comes before this court. Particularly in the light of Mali v Independent State of Papua New Guinea [2002] PGSC 4; SC690 (3 April 2002). The aggregate totality of all set out above is that he has not discharged to the required balance that Leave be granted to him for judicial review. Accordingly, his cause of action is dismissed forthwith with Costs.

12.	The formal orders of the court are:

(1)	The application for Leave is refused.

(2)	Costs will follow the event forthwith.

Orders Accordingly.
__________________________________________________________________
Raymond Obora Lawyers          : Lawyer for the Plaintiff/Applicant		
Office of the Solicitor General	: Lawyer for Defendants