SC1306 

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SC Rev. 11 of 2012
In the matter of an Application for review under s 155 (2) (b) of the Constitution

Between:

JOSEPH LYAKI TALEOKON
Applicant

And:

JEFFREY APAKALI
First Respondent

And:

FR PAUL PAKAU
Second Respondent

Waigani: Injia, CJ
2013: 19th December

JUDICIAL REVIEW – Leave to seek review – Exercise of discretion – Principles – Application of principles to facts – Application granted – Constitution, s 155 (2)(b); Supreme Court Rules 2012, O 5 rr 1, 2 & 3.

Counsel

P Mambei, for the Applicant 
Respondents in person 

19th December, 2013 

1. INJIA, CJ: This is an application for leave to apply for review of a decision of the National Court sitting in Lae made on 30 April 2009 to dismiss the applicant's action. The applicant failed to appeal, hence this application. Paries made oral and written submissions on the matter and I reserved my decision which I now deliver. My consideration and determination of the matters argued are embodied in my reasons for decision.

2. The dispute between the parties is over two portions of land situated in the Wabag township which occurred over a long period of time going back to 1976 which culminated in different proceedings before different dispute resolution forums. It is unnecessary to attempt to set out those proceedings in length for purposes of this application. In brief, parties in these proceedings avail from Keas village, Wabag in the Enga Province. The Keas people are amongst the traditional landowners of the land on which Wabag town is situated. The land in question is described as Portions 228 & 229 Milinch Wapenamanda of Sakales suburb of Wabag Town. The land was originally customary land and owned by the respondents. They gave the land away to the State for town development purposes in exchange for State leases issued to them over Portions 228 and 229. Due to difficulties with compliance with development conditions, the Minister for Lands, on application by the respondents, declared the land as customary land and declared the respondents to be the owners after they surrendered their State lease titles. Later they acquired freehold titles over the portions of land after obtaining approval from the Land Titles Commission (LTC). The applicant was aggrieved by this decision and he wanted the titles to be transferred to him. LTC refused the request and instead advised him of other options. Based on the advice of LTC, the applicant with the assistance of the Wabag District Court brought the dispute before the Village Court sitting at Keas village (Keas village Court). The Village Court made a determination and found that the applicant was the customary landowner of the land. The respondents refused to accept the finding of the Keas Village Court. Equipped with the findings of the Keas Village Court, the applicant went to a new Minister for Lands who revoked the earlier determination by the Minister for Lands, and declared the applicant to be the new customary landowner of the two portions of land. The respondents refused to recognize the ministerial decision. As a result, the applicant commenced proceedings in the National Court seeking orders, inter alia, that he be declared the customary land owner of the two portions of land pursuant to s 133 of the Land Act. The National Court dismissed the action after finding, inter alia, that the land was no longer "government land" to which s 133 of the Land Act applied. 

3. The application is made under O 5 rr 1 & 3 of the Supreme Court Rules 2012 (SCR). These rules are in the following terms: 

" Division 1. Form of review application

1.	An application to the court under Constitution Section 155(2)(b) lies with leave only, or without leave. Where the application lies with leave only the provisions of Order 7 Division 2 shall be followed, substituting the word "applicant" for the word appellant" and the word "application" for the word "appeal". 
 
2.	……………..

3.	An application for leave for review shall be made before a Judge".

4. The principles governing exercise of discretion to be applied in determining leave for review are those enunciated by the Supreme Court in Lae Bottling Industries Ltd v Lae Rental Homes Ltd (2011) SC1120. I quote the pertinent parts of the joint judgment of the majority in that case comprising Justice Gavara-Nanu and Justice Yagi, as follows:

"Leave

2.	For the applicant to be granted leave it must satisfy the following criteria:-
 
(i)	 Whether there was a delay by the applicant in making the application, if so whether there are exceptional circumstances showing manifestation of substantial injustice or whether the case is of such special gravity warranting the grant of leave; 
(ii) The grant of leave is in the interest of justice; and 
(iii) That there are clear arguable issues warranting leave to review the decision.

3.	(In) regard to the issue of delay it has to be considered subjectively to matters raised by the other criteria for leave. The Court has wide discretion when considering delay, thus, even if the Court finds that there is delay, if the applicant can satisfy all or any of the criteria for leave, the Court can in the exercise of its discretion still grant leave: Avia Aihi v. The State (No. 2) [1982] PNGLR 44" 

5. The majority found that the delay by 2 years in bringing the application was found to be unreasonable and unsatisfactory. Notwithstanding those findings, the majority found that grave injustice would occur if the decision was not reviewed in the circumstances of the case. The majority said:

"9.Except for the issue of delay, the applicant has in our opinion satisfied the other three criteria stated above for the grant of leave. In our opinion the interest of justice merits a review, given that if the application is dismissed at leave stage on the basis of delay alone, there will be substantial injustice to the applicant, the decision will have serious and grave consequences for the applicant. The manner in which the applicant obtained the title to the property is a serious legal issue which ought to be properly and fully determined on merit. All these matters in our respectful opinion merit review. As we alluded to earlier, the issue of delay has to be considered subjectively and in our opinion the Court would not be exercising its discretion properly and judicially if application is dismissed on the basis of delay alone." 

6. Similar pronouncements are to be found in earlier cases on applications for leave for review: New Zealand Insurance Co Ltd v Chief Collector of Taxes [1988-89] PNGLR 522. In that case, the Court emphasized that the paramount consideration was whether there were cogent and convincing reasons that demonstrate substantial miscarriage of justice such that in the interest of justice, leave ought to be granted.

7. The principles developed in the these cases find their source in judicial pronouncements in many cases commencing with Avia Aihi (No 2) [1982] PNGLR 44 and expounded in subsequent cases including Danny Sunu v The State [1984] PNGLR 305, The State v Colbert [1988] PNGLR 138, Joseph Kupo v Steven Raphael (2004) SC751 & Application of Herman Leahy (2006) SC 855.

8. More recently, in The State v Toka Enterprises Ltd (2013) SC1266, I added two further criteria. I said:

" First, the question of the applicant's standing or locus standi to make the application becomes relevant to be determined. In a situation where the applicant is a party in the proceedings in the Court below, the question of standing does not arise. The question will arise if the applicant is not a party in the proceedings in the court below. The test is whether the applicant is directly affected by the decision of the Court below such that he or she has sufficient interest in the subject matter of the application: see Kitogara Holdings v NCDIC [1988] PNGLR 346. 

Secondly, an applicant must offer a satisfactory explanation for failing to appeal the decision. That explanation coupled with the explanation for the delay in bringing the application for leave should be considered together when the Court is considering the question of delay." 

9. In summary, the criteria for grant or refusal of leave for review under s155 (2)(b) of the Constitution are as follows: 

(1)	Locus standi;
(2)	Satisfactory explanation for default in bringing appeal;
(3)	Satisfactory explanation for delay in bring application for leave for Review;
(4)	 Exceptional circumstances showing manifestation of substantial injustice; or serious legal or factual issues that raise an arguable case for a full review of the decision; and 
(5)	 Interest of justice

10. In considering matters under any of those criteria, the Court is not determining the merits of those points. The Court should determine whether those points raise an arguable case for review based on a quick perusal of the material placed before it. That does mean to say that the Court should avoid determining points that clearly lack merit. It defeats the purpose of a leave application if points which clearly lack legal merit are disposed of at the leave stage if leave were granted to advance points that clearly lack merit or without clear legal substance.

Locus standi

11. The applicant is a party in the proceedings in the Court below. The question of standing does not arise.

Satisfactory explanation for default in bringing appeal within time

12. The question is whether the applicant has offered a satisfactory explanation why he failed to appeal the decisions. The applicant has not provided affidavit explaining his failure to file the appeal within time. His counsel put it down as his ignorance of legal requirements as an ordinary village man and illiteracy.

13. On the face of the various documents filed by the applicant in the National Court and before this Court, they do not support his illiteracy status. He has prepared all his documents in the English language. No interpretation clause appears on those documents to show that he did not understand the contents of the documents he was signing up to. He appeared before me several times at the directions hearing and exhibited ignorance tendencies which could be misleading. He appears to know the Court procedure in both Courts. His explanation in my view is not satisfactory. 

 Satisfactory explanation for delay in bring application for leave for review

14. The decision was made on 19 September 2011. Leave application was filed on 5 April 2012, over 2 months after the 40 days time allowed for filing appeal had expired. Similar explanation is offered as with first criteria. For the same reasons given above, I do not find this explanation to be satisfactory. 

Exceptional circumstances showing manifestation of substantial injustice; or serious legal or factual issues that raise important and an arguable case for a full review of the decision

15. Upon considering the arguments of counsel supporting their respective cases and the material placed before me, I consider the main point in contention to be whether the trial judge was correct with his interpretation and application of s 133 of the Land Act. The applicant's case was based on the decision of the special sitting of Keas Village Court to determine the issue of customary ownership based upon which the second Minister quashed the decision of the first Minister. The Keas Village Court had to assume jurisdiction to deal with the matter because the land Courts in the Enga Province had remained suspended at that time. The sitting had the backing of the District Court at Wabag. Counsel for the applicant submits there is an arguable case demonstrated that the trial judge was wrong and leave should be granted to allow for a full review of the decision. 

16. The respondents contend that the Keas Village Court lacked jurisdiction to deal with the dispute. Therefore the Minister acted on a flawed decision. The trial judge came to the correct conclusion. The portions of land in question were clearly not government land by the time the new Minister made the decision. The land was no longer customary land after the respondents' State Lease titles were exchanged for freehold titles. Therefore the land not being State Leasehold land were not available for declaration to be made under s 133 of the Land Act. The trial judge therefore came to the same conclusion. The application has no merit and it should be dismissed. 

17. The material placed before me clearly show the applicant to be a persistent agitator of the dispute without any proper basis. The respondents' interest in the land has been clearly recognized by the State as early as 1976 when they gave away their customary land for town development purposes in exchange for registered State Leases over the two portions of land in question. Later they got in their favour a ministerial determination that vested freehold title over the land. Neither the District Court nor the Keas Village Court have any jurisdiction to determine disputes over customary land issues, not to mention jurisdiction over freehold land, registered or otherwise. Any finding by those Courts over customary ownership of the subject land is made without jurisdiction and should supply no basis for any decision made under the Land Act. This is a clear case in which the matters raised in the application completely lack substance. I am not satisfied an arguable case has been demonstrated. 

Interests of justice

18. For the reasons given above the interest of justice demands that a review of the decision of the court below is not warranted.

Conclusion

19. Notwithstanding the findings made in favour of the applicant under the first criteria, the remaining criteria do not favor the applicant. The application must therefore fail.

20. The Court orders that: 

(1)	The application is refused. 
(2)	The applicant shall pay each respondents' costs of the proceedings.

______________________________________
SOLWAI Lawyers: Lawyers for the Applicants
Respondents in person