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Heni v Maima [1994] PGNC 6; N1201 (11 March 1994)

Unreported National Court Decisions

N1201

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

OS 113 OF 1992
BETWEEN
TONY VAGI HENI ON BEHALF OF THE MEMBERS OF OGONIA CLAN OF HANUABADA VILLAGE,
NATICAPITAL DISTRICT
PLAr>PLAINTIFF
AND
GUBA IDAU MAIMA ON BEHALF OF THE MEMBERS OF THOSE MEMBERS OF THE VARIMANA CLAN OF HADA VILLAGE, NATIONAL CAPITAL DISTRICT EXCLUDING THE SECOND DEFENDANT'S SUB-CLAN
FIRST DRST DEFENDANT
AND
LOHIA TOLANA ON BEHALF OF THE MEMBERS OF THE VARIMANA IDIBANA SUB-CLAN OF HANUABADA VILLAGE, NATIONAL CAPITAL DISTRICT
SECOND DEFENDANT

Waigani

Sheehan J
31 August 1993
1 September 1993
11 March 1994

JUDICIAL REVIEW - challenge to Provincial Land Court decision - claim of award in favour of one, not party to orl proceedings -ngs - counter challenge to dismiss the application on grounds of delay.

Counsel

Mr R Vaea fo Applicant

Mr SK Mulina for the First Defendant

Mr J Shepherd for Second Defe Defendant

11 March 1994

SHEEHAN J: The Plaintiff seeks judicial review of the decision of the late Mr Francis Rau Iramu of the District Land Court Magistrate given on 24 April 1982 at Port Moresby, sitting on an appeal from the Local Land Court.

Thesion of the District Land Cand Court was to divide disputed land known as Saivara and Kohegaino in the National Capital District in two. One part was granted t live living members of the lineage of the Ogoni Gubini clan who are descended from Nioki Goto. The other portion was awarded to those, the living members of the Varimana Clan descended from Haga Rei. Heni Heni of the Ogonini cini clan was nominated as agent of the owners of the first portion of the land and Lohia Tolana of the Varimana Idibana clae agent for, the owners of the second portion.
The grounds on which review is sought aret are set out in the Statement filed in this application and are as follows:

“(i) ;&#16e learned mned magistrgistrate erred in law in awarding part of the disputed land to the second defendant who was never a party to the dispute or the original proceedings as it had no pow make orders;

(

(ii)&#ii) & the leae learned magistrate erred in law in substantially varying the orders of the local land court in drawing new boundary lines on the disputed land when it did not have the powers to make those orders;

In the event, only the first ground was pursued by the Plaintiff.

The First Defendant, that is Kore Auie supported the application for review. Tcond Defendant Lohia Tola Tolana maintained that the decision of the Provincial Land Court was fairly and validly made after due consideration of the claims andissions of all parties. Ah he said the dece decisiecision was not open to review. But in any the second defe defendant submitted that no review should be accorded to the Plaintiff in this case because of the inexcusable delay in bringing this applicatio60; Nearly eleven (11) years have now elapsed since the dece decision was made. It is now far tte to seek seek to overturn it.

In judicial review, unreasonable delay is not only a ground for refusing leave to apply but also a reason for refusal of f even if leave maybe initially granted.

In this pars particular case it would appear that in the exparte application for leave to apply for judicial review, the question of delay was not raised. But the grant of lea applyapply in no way disposes of the issue. It remains very muive thro throughout these proceedings. Indeed given the recent iocisions of this Cour the Supreme Court this application could be decided on than that issue alone. But since the application is now before the Court, itbe left in abeyance until the merits of the application aren are determined.

For the Plaintiff Mr Vaea said that the Second Dent Lohia Tolana was never a party to the proceedings in then the Local Land Court or in the Provincial Land Court. The parties red to in eith either Court don’t include any mention of Lohia Tolana at all. He said thathe Provincial cial Land Coecision there is also no mention of the evidence actually advanced by Mr Tolana. Thou Though he is it namednamed there, in the nce it is not in a “ substantial way”. Ov0; Overall he sthe PlainPlaintiff claims the decision of the Provincial Laurt should be overturned as it is not based on just the evie evidence of either of the actual parties before it.

On the questi delay, Mr Vaea acknowledgeledged that a lengthy period had elapsed since the Provincial Land Court decision and acknowledged too, the decisions of this and the Supreme Court on the issue of delay. But he went on to say thas this case is exceptional in that the decision was made in favour of one, not a party to the original proceedings, or “only a party more or less”.

He submitted that by virtue of the Plaintiff having approapproached the Public Solicitor and the Ombudsman Commission, (two constitutional office holders which have the obligation to be concerned with the rights of citizens under the Constitution) that in the circumstances the Plaintiff had done all that he could to have his grievances addressed.

Mr Mulina for the First Defendant agreed with Mr Vaea's submissions contending that the objection of the Plaintiff had statutory backing in s. 39 (6) (b) of the Land Disputes (Settlement) Act which states that the Provincial Land Court can make no provision in favour of a person not party to the dispute. He alsorted that the appeaappeal from the Local Land Court to the Provincial Land Court did not comply with s. 58 of the Land Settlement Dispute Act in that none of the grounds provided by that section were put forward as grounds of an appeal to the Provincial Land Court. Because of this the Pcial cial Land Court had no jurisdiction to deal with the matter. He went on to say that even had there been jurisdiction, the Provincial Land Court acted ultra vires, in that it neitherrmed the order of the LocalLocal Land Court, or quashed it and substituted its own decision, as s. 59 of the Act requires. Like the tiff, he submittemitted that the Court should exercise its discretion and refer the whole matter back for rehearing.

Mr Srd for the Second Defendant submitted that the complaints of the Plaintiff cannot be sustaiustained nor can those arguments advanced by the first Dependant in support. As the party contending erat error had been made, the Plaintiff applicant had introduced no compelling evidence to show that the Local Land Court hearing was anything other than a dispute between contending groups cng ownership of the disputesputed land.

The obligation to produce the record of the proceedings lay on the Plaintiff, an obligation not carried out. Theility to produce that rhat record might not be wholly the fault of the Plaintiff, the lapse of time plainly contributed, but he was stuck with an incomplete record and could not now assert as fact detail not able to be confirmed.

The only portion of the record produced by the Plaintiff did indicate parties as being Kore Auie and Heni Heni, but it is plain from manner in which there are displayed viz “1. Parties before the Court: Yes. (Kore Ahuie/Heni Heni)” that those names were abbreviations, used simply as representative of contending groups. Counsr the Plaintiff said said that without a complete record the Plaintiffs action is bound to fail. At best all the Court can do is conclude that the partiesent at the hearings, and in whose favour awards, were made made were parties to the dispute. He poinut too that the sece secondndant had sworn to being present, given evidence at the Loce Local Land Court hearing at that time, and there had been no challenge mo that assertion by the Plaintiff or the first Defendant.

Counsel for the 2nd Defendant also pointed to the Notice of Hearing in the District Land Court for the appeal. It is date4/81 and reads:

“In the matter of an Appeal by Heni Heni (Vagi) & Ors -V- Kori Aheye of Elevala.”

It was counsel’s submission that the description indi that the parties are groupgroups rather than just the two persons named. He went on to point oat that the notice is addressed to:

“Heni Heni (Vagi) & Ors of Elevala, Kori Aheye, Kourihu Clans and Ors of Elevala.”

That advicearties, it was submitted, indicates at least three if not mnot more groups are party to the proceedings.

DECISION

In the learned Magistrate’s “Reason for Decision” is the following passage:

“Two groups namely Kuriu Koitabu headed by Kori Ahuie, and Ogoni Gubini headed by Heni Heni disputed over the ownership of these pieces of land Saivara and Kohegaino.”

That is a plain statement that there were two major parties to the dispute and it is true that the name of the 2nd Defendant does not there appear. But equally plain from suom such parts of the Local Land Court record that is before the Court and the Provincial Land Court record that those named were representative of the major parties conte for the land in dispute.&#te. s not simply a matter of o of one clan versus another. The Locad Court and the Prhe Provincial Land Court hearings were designed to establish the actual ownership of the land. There can be nbt that othe others apart feni Heni and Kore Auie were heard. Taintiff hims himself summ summarises the evidence offered by various claimants and there isomplaint on those parts of the record before the Court that that the 2nd Defendant was a party not entitled to be present. Persons arties representedented in one way or another were all heard on their claims and submissions. Evthout the complete recnorecnow available all evidence points to this.

The decisions given by the Provincial Lanl Land Court also show that this is so, be title to the respective pieces of land was awarded to livi living members of the actual members of the particular clans that were contending for land. In the of the Plaintiff thff the land was awarded to the “living members of the lineage of the Ogoni Gubuni Clan descended from Noiki Goto”. While the othrtion was awas awarded to “the living members of that part of the Varamana clan as are descended from Haga Rei”.

In other words part of the land was awarded to the Ogoni Gublan headed by the Heni Heni Heni. But the decision went further than that and spelt out just which members of the Ogoni Gubini clan were entitled to that portion of land.

Similarly the other portion of land was awarded to the Kurui Koitabu headed bi Auie but particularly to y to those members of the Varamana clan, namely to those of the Varamana Idibana sub clan, the living descendants of Haga Rei.

Such a decision is in accordance with the directives of the Land Disputes Settlement Act to both the Local Land Court and the Provincial Land Court in sections 35 (1) (d) and 50 (e) respectively. Both sections require those Courts to endeavour to do substantial justice between all persons interested. By s. 2 of the a party to y to a dispute ies, a customary kinship group or a customary descent group. Thus a ghaving any &any &#ny ‘interest’ recognised by c (s. 2) may be a party entitled to make claim before the Cohe Court.

The Plaintiff himself confirms that this was not just a 2y case. In his letteretter to tbudOmbudsman Commission the second paragraph states that “the disputed parties were Heni Heni Noki (2) Vagi Heni and Ors of Agoni clan and Kori Auie and Ors of Varamana clan. (Idau Maim proper and true true leader of Varamana clan and Kori Ahi was as spokeman for the Koui Koitabu people”. Later in that lehe states ates that “ubmissions were submitted by; Kori Auie, Kuriu clan; Vagi Hagi Heni, Ogoni Clan; Lohia Tolana Vahi Clan, Vagi Heni Tatana Village, Dieago, Maha Clan; Idau Maima, Varamana Clan”.

P

Plainly the Provincial Land Court considered the claims of all parties contesting the ownership of the property and made its findings according to the evidence before it and the custom that applied. I am satisfied that thereois no merit in the Plaintiffs claim that the second Defendant was not a party to the proceedings.

By the Plaintiffs own evidence it is plain that he was. Certainly no objection was taken to the affidavit of the 2nd Defendant as to his being a party to those proceedings at that time. This finding also disposes of the first Defendants suion on parties as well.

As for the first Defendants ants contention that no proper finding was made pursuant to s. 58, I find bstance in this either. The iss the appeal was twas twas that the decision of the Local Land Court was wrong (s. 58 (c)) and was dealt with by the Provincial Land Court under s. 59 (1) (b) (i) by disposing of the appeal and dispute.

Turning to the question of delay, Counsel for the second Defendant is correct when he said that the principal bar to any relief in judicial review, is delay.

The provision regarding delay are contained in O 16 r 4 where it says the Court may refuse to grant either leave for an application or the relief sought on an application:

“if, in the opinion of the Court, the granting of the relief sought would likely to cause substantial hardship to, or substantially prejudice the rights of, any person or would be detrimental to good administration”.

It is now eleven (11) years since the decision of the District Land Court in April 1992 the Plaintiff says he has tried to challenge the decision but there are large gaps of many years where nothing was done. He has pleaded trying to rave redress to Constitutional office holders and only learned of judicial review last year. Bun with that knowledge hege he has taken an excessive time in which to come to Court.

Since the decision the second Defendas prefected the title and even if there were some error, not shown before me, then it is f is far too late now to re open the matter.

The decisions of this Court and the Supreme Court in NTN Pty Limited v Post & Telecomminication Corporation 1987 PNGLR 70. The Independent Stf Papua apua New Guinea v Lohia Sisia 1987 PNGLR 102 and David Pitzz and Independent State of Papua New Guinea 1988 PNGLR 89 are 143 all reflects the Courts view that parties seeking to invoke the juridication of the Court y of judicial review must must act promptly. Unreasonable delayatal.

In the result, I am quite satisfied that is neither any fault in the decision making process that would warrant interference by thiy this Court, that all who contended for tsputed property were given iven opportunity and ample opportunity, be heard. Those decisions ar well pall past. Even had thereg some discrdiscrepancy in the conduct of those proceedings (not shown before me) then the delay in coming to Court must noregars fatal to any relief.

Lawyer for the Appl Applicant: Vawyers

Lawy>Lawyerawyer for the First Defendant: Mulina &Co Lawyers

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Lawyer for the Second Defendant: Shepherd Lawyers