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Megaraka v Dogoma [2008] PGNC 204; N3562 (1 December 2008)

N3562

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS 711 OF 2008 (JR)

BETWEEN:

SOLOMON MEGARAKA & JOE IRUA KAMUNA
for and on behalf of Yadudi Clan of Tutubu, Merani and Domara Villages
Plaintiff

AND:

DOGOMA Clan of Domara Village
First Defendant

AND:

SAMSON KOVE on behalf of HAOUNA TRIBE of Domara Village

Second Defendant

AND:

BILL NOKI, Sitting as the Provincial Land Court Magistrate
Third Defendant

AND:

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Fourth Defendant

Waigani: Davani .J
2008: 27th November
1st December

JUDICIAL REVIEW – practice and procedure – plaintiff not party to decision sought to be reviewed – must apply for leave to review

Facts

The applicant applies for leave to review decision of the Waigani Provincial Land Court. However, the applicant was not a party to the proceedings in the Waigani Provincial Land Court.

Issues

Should the applicant be granted leave to review?

Held

1. Because the applicant was not a party to the proceedings in the Court below, which Court made the decision sought to be reviewed, that he must first obtain leave.
   
2. The applicant must show that he is aggrieved by the Court Order sought to be reviewed and that his interests will be affected if the Order is allowed to remain.
   
3. The applicant is granted leave to apply for leave to review the decision of the Waigani Provincial Land Court.
   

Counsel:

A. Ona, for the plaintiff/applicant
C. Kup-Ogut, for the first defendant
D. Igolena, for the second defendant

DECISION

1 December, 2008

1. DAVANI .J: The applicant has put before the Court, application seeking Leave for Judicial Review to review decisions of the Waigani Provincial Land Court of 31st October, 2008 involving land known as Paeono in the Cloudy Bay area of Abau in the Central Province. In that matter, the Provincial Land Court in proceeding PLC 008 of 2008 ordered that;
   

"i. Appeal 008 of 2008 be dismissed as there was inordinate delay in the prosecution of the appeal;

2. The decision of the Moreguina Local Land Court of 2nd October, 1985 in respect of customary land known as Owaiono/Paeono is affirmed or confirmed;
   
3. The Department of Works pays Dogoma Landowners through Manu & Associates Lawyers the sum of K711,202.80 with interest within 21 days from the date of the order."
   

2. Upon hearing counsel, Mr Ona, I noted that the plaintiff described in this proceeding was not a party to the Provincial Land Court proceedings of 31st October, 2008. The only parties in those proceedings were the second defendant as the appellant and the first defendant as the respondent.
   
3. I then asked Mr. Ona if he had filed an application seeking leave to be heard as an aggrieved party. He informed the Court that he did not file such an application. I directed that he inform all counsel that the application for leave will be moved the next day on 27th November, 2008 and that I would deal with it as a preliminary matter and that he need not file a Notice of Motion to that effect.
   
4. All counsel appeared before me on 27th November, 2008 and argued that preliminary issue.
   

Background

5. As in all land matters, this case has a long history. The land in question is known as the Paeono Land. A copy of the map is attached as Annexure "H" to Solomon Megaraka’s affidavit filed on 20th November, 2008. According to that affidavit, the Paeono Land was owned by the Yadudi Clan, the named plaintiff.
   
6. Disputes over ownership of the land arose which resulted in the first defendant, Dogoma Clan, filing an application in the Local Land Court on 2nd December, 1985, naming itself as the plaintiff and Uau Taviri as defendant, both of Domara Village. The Local Land Court awarded in favour of the Dogoma Clan. The decision reads;
   

"i. The land is owned by Dogoma Clan;

2. And that Dogoma Clan can be right clan to receive any payments that may be made for any resources obtained or taken out of its land and rightly distributed to other Dogomas living around Domara Dogoma under prevailing custom manners."
   

7. The plaintiff clan did not attend that hearing as it was not aware of it having been filed. Subsequently, on 7th January, 1986, one Samson Kove of Haouna Tribe of Domara Village filed an Appeal against the decision to the Provincial Land Court at Waigani proceedings which were later described as PLC 008 of 2008.
   
8. On 29th December, 1994 in Gazette No. G106, Portions 262, 265, 392 and 393 were declared national lands under the provisions of the National Land Registration Act. Clans and groups then made claims for compensation. A total of 8 clans lodged claims for compensation including the plaintiff and the defendants. These clans were from the Domara, Merani and Tutubu Villages. Because of the disputes, in or about early 1996, the National Lands Commission then referred the matter to Mediation to determine and establish the rightful transfer of or owners of that customary land that constituted the State Leases under Portions 262, 265, 392 and 393.
   
9. Because the issue was not resolved by Mediation, it was then referred to the Local Land Court at Moreguina. The Local Land Court heard the matter on 10th October, 1996.
   
10. Magistrate Vina Joel heard the dispute and determined who had customary rights over those portions of land, customary rights prior to their acquisition by the State. Submissions were heard from all 8 claimants on evidence of ancestral history, genealogy, places of settlement and evidence of transfer documentation in the form of Deeds of Attestation to prove lineage.
    
11. On 7th January, 1998, the Local Land Court decided in favour of the plaintiff. Its decision reads;
    

"i. Did both Mediators voted Yadudi of Tutubu and Iadu-Udi of Domara Clans are the traditional owners of the land in question? These two clans are original one clan of Merani Village but separate in evidential areas. That is to say mother’s side live at Domara Village and father’s side reside at Tutubu Village. Therefore, Yadudi of Tutubu had the group in tradition fashion.

2. It is hereby ordered that any dues, royalties or beneficials be paid through Yadudi of Tutubu and at liberty to share it with Iadu-Udi of Domara Village.
   
3. Other sixth parties or clans have no rights of their own of the beneficial, any rights on the matter must be through Yadudi of Tutubu and Iadu-Udi of Domara Village.
   
4. Reasons, see attached."
   

12. In relation to proceedings PLC 008 of 2008, an application was made by the first defendant to dismiss that appeal for want of prosecution. On 31st October, 2008, this was done. The Provincial Land Court at Waigani made such orders. However, the formal orders taken out by the first defendant’s lawyers defer markedly from the magistrate’s notes in the transcript of proceedings. The Magistrate’s notes in the transcripts or District Court depositions read;
    

"1. Applicants/respondents have established prima facie that there have been substantial delay of 23 years in the prosecution of the appeal;

2. Explanation filed in the affidavit is unsatisfactory;
   
3. Appeal was filed in the Provincial Land Court at Kwikila in 1995 but was not prosecuted for unknown reasons."
   

Court Orders

"1. Appeal is dismissed as there was inordinate and inexcusable delay in prosecution of appeal.

2. Decision of Moreguina Local Land Court dated 2nd December, 1985 is upheld.
   
3. The Department of Works pays Dogoma Landowners through Manu & Associates Lawyers the sum of K711,202.80 with interest within 21 days from the date of this order.
   
4. Appellant/respondent to pay party/party costs of this proceeding, and other tax or agreed.
   

BY THE COURT

(Signed)"

13. The formal signed orders taken out by Manu & Associates Lawyers, reads;
    

"1. The Appellant’s Notice of Appeal filed on 7th January, 1986 is dismissed for want of prosecution.

2. The decision of Moreguina Local Land Court dated 2nd December, 1985 is affirmed or confirmed.
   
3. The Department of Works pay to the Respondent, Dogoma Clan of Domara Village, all backdated monies and entitlements withheld from the gravels excavated from OWAIONO or PAEONO land through Manu & Associates Lawyers trust account within 21 days from the date of this order.
   
4. The costs of this appeal shall be paid by the Appellants on Party-Party basis to be taxed if not agreed.
   
5. Time be abridged to the time of settlement by the Registrar which shall take place forthwith.
   

BY THE COURT

(Signed)

His Worship

A Magistrate of District Courts

Mr Bill Noki"

14. The plaintiff is aggrieved by that decision to which he is not a party and is now asking to be heard as an aggrieved party in this Judicial Review.
    
15. The plaintiff submits that he can apply for leave relying on O.16 r.3 (5) of the National Court Rules which is that "The Court shall not grant leave unless it considers that the applicant has sufficient interest in the matter to which the application relates."
    
16. I directed that I would not hear the leave application because of the fact that the applicant was not a party to the proceedings in the Court below which proceedings he now seeks to be reviewed and so must first obtain leave to be heard on this Judicial Review.
    
17. From the facts demonstrated above, it is clear that the applicants are aggrieved persons, having been made the owners of the Paeono Land on 7th January, 1998 by an order of the Local Land Court at Moreguina. I note also the existence of an earlier decision of 2nd December, 1985 also by the Local Land Court which ruled in favour of the Dogoma Clan vesting it customary ownership over the land on which the Paeono gravel pit is located.
    
18. A further procedural error that stands to be corrected are the orders of the Local Land Court of 31st October, 2008 involving the defendants as respondents and Samson Kove as the appellant (proceedings PLC 008 of 2008 of the Provincial Land Court, Waigani). As I pointed out above, the orders taken out by the lawyers are not in the same terms as the Magistrate’s hand written notes.
    
19. I find that the plaintiffs are persons aggrieved and grant them leave to review the decision of Waigani Provincial Land Court of 31st October, 2008.
    

Formal orders

These are the Court’s orders;

1. The plaintiff has leave to apply for Leave to review the Waigani Provincial Land Court’s decision of 31st October, 2008;
   
2. The plaintiff’s application for Leave for Judicial Review is set down for hearing on Wednesday, 3rd December, 2008 at 9:30 am before the Judge on the Judicial Review track;
   
3. After the grant of leave, the plaintiff can then move its Motion filed on 20th November, 2008 by Baniyamai Lawyers.
   

Baniyamai Lawyers: Lawyer for the plaintiff
Manu & Associates Lawyers: Lawyer for the first defendant
Peri Lawyers: Lawyer for the second defendant
No Appearance for third and fourth defendants