SC2191
PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCREV 71 OF 2018

REVIEW PURSUANT TO s. 155(2)(b) CONSTITUTION

BETWEEN:
NATHAN KOTI
for himself and on behalf of others
Applicant

AND:
SAWEN MOLI
and 5 others on behalf of themselves and others
First to Sixth Respondents

AND:
HIS WORSHIP MR. DAVID SUSAME
Seventh Respondent

AND:
INDEPENDENT STATE OF PAPUA NEW GUINEA
Eighth Respondent

Waigani: Gavara Nanu J, Hartshorn J, Dowa J
2021: 14th & 15th December
2022: 25th January

REVIEW PURSUANT TO S. 155(2)(B) CONSTITUTION

Cases Cited:
Mondo v. Moses (2018) N7563
RD Fishing (PNG) Ltd v. Masai (2021) SC2143
Simon Mali v. Independent State of Papua New Guinea [2002] PNGLR 15 
Tigam Malewo v. Keith Faulkner (2009) SC960 

Counsel:

Mr. G. Pipike, for the Applicant
Mr. C. Gagma, for the Second and Fourth Respondents
Mr. K. Kipongi, for the Seventh and Eighth Respondents

Parties in person:

Mr. Sawen Moli, First Respondent
Mr. Simon Mackerel, Second Respondent
Mr. Bruce Kaku, Fifth Respondent
Mr. David Itanu, Sixth Respondent

25th January, 2022

1.      BY THE COURT: This is a decision on a contested application to review three orders of the National Court, pursuant to s. 155(2)(b) Constitution, which were made in a judicial review proceeding in the National Court sitting at Madang. The three orders are concerned with amongst others, a court ordered referral to mediation and what transpired during and after the conduct of the mediation. This court proceeds on the basis that leave to apply for judicial review was granted on 10th May 2021. (The order which purportedly granted leave does not state that leave was granted. It is assumed that this is an error).

Background

2.    The applicant contends that the foundation of the dispute between the parties concerns the ownership of customary land being the outlying areas of the Ramu Sugar Plantation Land in Madang Province (Land).

3.    After two Local Land Court decisions and one Provincial Land Court decision, the dispute came before another Provincial Land Court. On 16th August 2013, that Provincial Land Court amongst others, affirmed the decision awarding the Land to the fourth respondents.

4.    This Provincial Land Court decision was judicially reviewed. The National Court granted the application for judicial review, quashed the Provincial Land Court decision, stayed a Local Land Court decision and referred the matter to alternative dispute resolution to determine the proceeding (ADR referral).

5.    The ADR referral, an order refusing to terminate the mediation and an order converting a mediation agreement of 11th September 2016 into an order of the Court, are the three orders sought to be reviewed.

The application to review

6.    The applicant seeks to review the ADR referral dated 13th February 2015 on the grounds that amongst others, as the subject matter of the dispute concerns customary land and the National Court does not have jurisdiction to determine customary land disputes, instead of referring the matter to ADR, the primary judge should have remitted the matter to the Provincial Land Court for rehearing. The Provincial Land Court and Local Land Court do have jurisdiction to determine customary land disputes. Alternatively, the primary judge should have affirmed the majority decision of the Local Land Court LLC 4/05 which awarded the Land to the persons represented by the applicant and clans from the Raicoast Area.

7.     The applicant seeks to review the order dated 23rd November 2016 refusing to terminate the mediation, as the primary judge fell into error in refusing to terminate the mediation when he was aware that the persons represented by the applicant did not agree to the purpose of the mediation, that they did not agree to the purported agreement made at the mediation and that the primary judge failed to provide reasons for his decision.

8.    The applicant seeks to review the order dated 10th January 2017 converting the mediation agreement into an order of the Court as the mediation agreement was not agreed to and signed by all parties, the mediation agreement concerned benefit sharing and not customary land ownership, the mediation agreement was signed by persons who were not parties to the National Court proceeding, the conversion order was procedurally flawed, the conversion order assumed jurisdiction over customary land disputes and the conversion order was unreasonable.

Preliminary

9.    The fourth respondent objects to the applicant bringing this review as he does not and has not established, that he has the requisite standing or locus standi to bring this review.

10.   The issue of the applicant’s standing to bring this review was raised at the application for leave to apply for review. Makail J, the judge presiding on the leave application, informed that the issue of the applicant’s ability to bring this review could be raised at the substantive hearing of the review. Makail J did not consider the issue of whether the applicant had the requisite standing to bring this review.

11.   The applicant was therefore, on notice that the issue was likely to be raised at the substantive hearing. The applicant acted upon this notice. This is witnessed by the applicant, after leave to apply for review had been granted, filing an affidavit deposing to him having authority to bring this review.

12.   We are satisfied that the issue may be raised at this juncture as Makail J informed the parties that the issue could be so raised and that the issue is concerned with whether the applicant has the requisite authority and standing to bring this review, as distinct from other proceedings, on behalf of the persons he purports to represent. Further, given the subject matter, the issue could not have been raised in the judicial review proceeding, the subject of this review.

13.   The applicant has commenced and prosecutes this review in a representative capacity and so must have complied with the necessary representative requirements which must be followed as has been held in Simon Mali v. Independent State of Papua New Guinea [2002] PNGLR 15 and Tigam Malewo v. Keith Faulkner (2009) SC960: generally and at [63].

14.    These requirements were recently reproduced in RD Fishing (PNG) Ltd v. Masai (2021) SC2143. Paragraphs 11 and 12 of RD Fishing (supra) are reproduced here:

“11. The three interlocutory judgments appealed are concerned with a representative action. In Simon Mali v. The State (supra) and Tigam Malewo v. Keith Faulkner (supra), it was held that where a plaintiff is acting in a representative capacity for other persons:

a)	all intended plaintiffs (those who he claims to represent) must be named in the originating process;

b)	each and every intended plaintiff must give specific instructions (evidenced in writing) to their lawyers to act for them;

c)	any person who commences proceedings and claims to represent other intended plaintiffs must produce an authority to the court to show that he was authorised by them to file proceedings as a class representative.

12. These requirements have recently been referred to with approval in Mark Philip v. Ken Tiliyago (2019) SC1783 at [24] (David, Hartshorn and Kariko JJ), Independent State of Papua New Guinea v. Kunai (2020) SC2029 at [10] (Makail J.) and Amaiu v. Yalbees (2020) SC2046 at [21] (Salika CJ, Makail J and Berrigan JJ).”

15.    In this instance the applicant purports to have commenced the review for himself and on behalf of the Dumuna Akiki Clan of Damaende Village, Nahu Rawa LLG, Raicoast, Madang Province.

16.   As referred to, the applicant has deposed in an affidavit sworn after leave to apply for review was granted, that he is the principal appellant, as distinct from applicant, in this proceeding and that he has been authorised by the majority of the Dumuna Akiki Clan members to, “challenge the decision of the National Court in the Supreme Court”. Annexed to the affidavit is a form entitled ‘Authority to Act Form’ (AAForm). The AA Form states that:

“We the undersigned signatories are Chairman or representative of our sub clans as registered members of Dumuna Akiki Clan hereby agree/consent and authorise Nathan Koti to act on our behalf and appeal to Supreme Court Waigani against the National Court Decision of 10.01.2017 on case OS No. 694 of 2013”

17.  There are then 126 names listed under the headings of Chairman, Sub-Clan, Signature and Date. Against 86 of those names there are signatures and dates. Against 40 of those names there are no signatures or dates. All of the dates that are written are either the 18th or 27th February 2017. 

18.    It is clear that the AA Form authorises an appeal. It does not authorise a review. It is not controversial that an appeal was filed in the Supreme Court on 3rd March 2017. It is SCA 28 of 2017 and was dated 28th February 2017. The appeal was commenced by the applicant herein but described as ‘appellants’ in purportedly the same representative capacity in which he purports to sue in this review, against the same respondents named in this review, apart from the sixth respondent named in this review. This appeal was withdrawn with the leave of the full Supreme Court on 26th June 2018 with the appellants (the applicant in this review) being ordered to pay costs to the sixth and seventh respondents.

19.    As the AA Form states that it authorises an appeal as distinct from a review and when regard is had to the purported dates of the signatures, it is clear that the AA Form was prepared for the appeal now withdrawn and not this review. The purpose of the AA Form has been completed. The various authorisations in the AA Form were given about 18 months before the application for leave to review was filed and over four years before this application to review was filed.

20.    We are not satisfied that the AA Form constitutes proper and sufficient authority to the applicant to file this application for review as it does not state that it authorises the filing of a review. Further, the AA Form only has a list of purported Chairman of Sub Clans. It is not a list of individual clan members of the Dumuna Akiki Clan. There is also no evidence of the total number of clan members of the Dumuna Akiki Clan and so even if individual members of the clan were listed the percentage of clan members who have purportedly given authority cannot be determined. We refer to the judgment of Mondo v. Moses (2018) N7563 in this regard.

21.   The AA Form does not give authority to the applicant to review the other two orders the subject of this review. Further, in Simon Mali (supra), the plaintiff sued on his own behalf as well as in a representative capacity and so the fact that the applicant here is purportedly suing on his own behalf as well as in a representative capacity does not permit him to bypass the representative requirements specified in Simon Mali (supra) and Malewo (supra).

22.   Moreover, there is no evidence that each and every intended person who the applicant purportedly represents has given specific instructions evidenced in writing to their lawyers to act for them and in the prosecution of this review.

23.    Consequently, we are not satisfied that the applicant has satisfied the necessary representative requirements referred to in Simon Mali (supra) and Malewo (supra).

24.   For the above reasons, as the applicant has not established that he has the requisite standing to bring this review, this proceeding is frivolous and vexatious and should be dismissed. Given this, it is not necessary to consider the other submissions of the parties and counsel.

Orders

25. It is ordered that:

a)	This Application for Review is dismissed.

b)	The Applicant shall pay the costs of the respondents of and incidental to this proceeding.
__________________________________________________________________
GP Lawyers: Lawyers for the Applicant
Gagma Legal Services: Lawyers for the Fourth Respondent
Solicitor General: Lawyers for the Seventh and Eighth Respondents
Mr. Sawen Moli: First Respondent
Mr. Simon Mackerel: Second Respondent
Mr. Bruce Kaku: Fifth Respondent
Mr. David Itanu: Sixth Respondent