SC2695

PAPUA NEW GUINEA
[SUPREME COURT OF JUSTICE]

SCM 20 OF 2024

BETWEEN:
FRANCIS KARAIE
FOR AND BEHALF OF HIMSELF AND THE KUMETANGIGI CLAN
Appellant

AND:
ALEX KALANDI
IN HIS CAPACITY AS MAGISTRATE SITTING IN THE MENDI PROVINCIAL LAND COURT
First Respondent

AND:
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Second Respondent

WAIGANI: YAGI J, LOGAN J, ELIAKIM J
31 OCTOBER 2024

PRACTICE & PROCEDURE – where the appellant purported to apply for judicial review of a decision of the Provincial Land Court in the National Court – where the appellant brought proceedings on his own behalf and on behalf of other members of the Kumetangigi clan – where the institution of proceedings did not comply with order 5 rule 13 of the National Court Rules – appeal dismissed

Facts

The appellant commenced judicial review proceedings in the National Court against a decision of the Provincial Land Court. The appellant purported to bring the proceedings on his own behalf and on behalf of a clan group, the Kumetangigi clan. 

The primary judge found that the appellant had not complied with the requirements of order 5 rule 13 of the National Court Rules to bring a representative proceeding.

Held:

1.	[The Court]: Judicial review proceedings brought under order 16 of the National Court Rules must comply with order 5 rule 13 if the proceedings are brought on a representative basis, despite any informality in the proceedings that produced the decision under challenge.

2.	The appellant failed to comply with order 5 rule 13 of the National Court Rules.

Cases cited

Simon Mali v Independent State of Papua New Guinea [2002] PGSC 4; SC690

Counsel

Mr. Chillion for the appellant
Mr. Bua for the respondents

Oral decision delivered on
31st October 2024

1.	BY THE COURT: The origins of this proceeding lie in a dispute over the ownership of land traditionally known as Kimipulu or sometimes referred to as Kumepugl.  That land was compulsorily acquired in 1979 by the State for the purpose of constructing the Paunda hydroelectricity plant in Imbongu district, in the Southern Highlands province.     

2.	The dispute was first referred to the Local Land Court as long ago as 2001 by the National Land Commission pursuant to section 43 of the National Land Registration Act 1977.  Since then, there have been numerous proceedings in a Local Land Court, a Provincial Land Court, the National Court, and in the Supreme Court concerning the dispute and with that, associated rights of compensation in respect of the consequences of compulsory acquisition.

3.	For present purposes, the culmination within the Provincial Land Court of the dispute between what one might describe as the Ipulumai Nombunombu clan and the Kumetangigi clan was a decision of the Provincial Land Court given in 2023.  It is apparent from that decision that the dispute was always, in character, between a particular person, but only on behalf of that person and the clan concerned either as appellant or, as the case may be, respondent in the Provincial Land Court.  In other words, the dispute concerned competing claims in respect of collective ownership of customary land.  

4.	Mr. Francis Karaie at least purportedly instituted, on behalf of himself and the members of the Kumetangigi clan, an application in the National Court for leave to review the decision of the Provincial Land Court.  

5.	Such a proceeding is not one against the land.  It follows from that that it is not in the character of an in rem proceeding, instead the object of the proceeding, if leave is granted, is to quash a lower court’s decision. 

6.	It is trite that the National Court does not have jurisdiction to determine customary land ownership controversies.  That jurisdiction is given to a Local Land Court and, on appeal, to a Provincial Land Court.

7.	The purpose of the application for leave was to institute an application for judicial review of the Provincial Land Court decision.  If, on that application for review, jurisdictional errors were found then that Provincial Land Court decision would be quashed, and the case sent back to the Provincial Land Court to hear and determine according to law.  From what has been said, it will be apparent that the grievance in respect of the Provincial Land Court’s decision was a collective grievance held not just by Mr Karaie, but by each member of the Kumetangigi clan.

8.	The relevant practice in relation to a judicial review proceeding is found, in the first instance, in order 16 of the National Court Rules.  Insofar as order 16 does not itself provide for sufficient guidance as to practice, one looks to the other orders within the National Court Rules. 

9.	The grievance was collective and, recognising that because the proceeding was entitled as one on behalf of a clan, it was a representational grievance. 
 
10.	Order 5 rule 13 of the National Court Rules required that, the proceeding being one of a representative character, the names of those who were the representative group be set out in the originating proceedings and that there be annexed a consent in due form by those members to the institution of the proceeding. 

11.	There is long standing authority that a failure to comply with those requirements renders the proceeding incompetent: see Simon Mali v Independent State of Papua New Guinea [2002] PGSC 4; SC690. In Simon Mali, this Court (Hinchcliffe J, Sakora J and Batari J) stated: 
 
“We accept the State’s submission that in all actions or proceedings of a representative nature, all the intended plaintiffs must be named and duly identified in the originating process, be it writ of summons, originating summons or statement of claim endorsed on a writ. In this respect, pursuant to the rules, each and every intending plaintiff must give specific instructions evidenced in writing to their lawyers to act for them.  There are good reasons for this, one being where costs of the litigation are concerned if awarded against the plaintiffs. Some of the problems or consequences in a representative action are anticipated in the various subrules under order 5 rule 13 of the National Court Rules.” 
12.	The long and the short of it is that the learned primary judge recognised that the originating summons was deficient in that the members of the representative class, the Kumetangigi clan, were not named and further that there was no annexation of a consent by the members of that group.  His Honour then concluded that in his own right, Mr Karaie did not have standing.  The grievance was always a collective one, that of a clan.  

13.	In the Provincial Land Court and in a Local Land Court there is greater informality.  But, that informality does not translate into the practice in the National Court applicable to a judicial review application where the grievance is collective. The learned primary judge recognised that he was bound to conclude, by Simon Mali, that there was no standing and that the Court’s jurisdiction had not been engaged by the persons aggrieved by the Provincial Land Court decision, which was a collective grievance and a collective standing requiring the institution of a representative proceeding in due form.  

14.	There was no error by the learned primary judge in reaching this conclusion.  It necessarily follows that the appeal must be dismissed.  

15.	It does not follow from that dismissal that the Provincial Land Court decision is immune from challenge, only that this particular endeavour to challenge it was fatally flawed. 

16.	It is peculiarly the responsibility of the legal profession in this country to master the applicable practice in relation to all court proceedings and, in this case, the practice applicable to the institution of a judicial review proceeding where the grievance and therefore, the standing is collective.  Ordinary citizens of Papua New Guinea are entitled to expect to be advised as to how to go about invoking their country’s courts’ jurisdictions.  It may well be that, on reflection and particularly with an adequate explanation of reasons for delay, there is a way in which a Provincial Land Court decision may be challenged. But we do not sit to give, in this type of case, advisory opinions much less to consider and determine any later challenge. 

17.	For these reasons then, the appeal must be dismissed. 

Orders

1.)	The appeal be dismissed.
2.)	Noting that the first respondent is a member of a Court whose stance has been to abide by the order of the Court, the appellant pay the second respondent’s costs of and incidental to the appeal, to be taxed if not agreed.
__________________________________________________________________
Lawyers for the appellant: Chillions Lawyers
Lawyer for the respondents: Office of the Solicitor General