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Barike v Repasogo [2013] PGNC 237; N5087 (4 February 2013)

N5087

PAPUA NEW GUINEA
IN THE NATIONAL COURT OF JUSTICE

OS. NO. 970 OF 2011

IN THE MATTER AN APPLICATION FOR LEAVE TO APPLY FOR JUDICIAL REVIEW PURSUANT TO ORDER 16 OF THE NATIONAL COURT RULES

AND:

BETWEEN:

JOHN BARIKE on behalf of Munalkana Clan of Bago village, Central Pomio LLG
Plaintiff

AND:

SUSAN REPASOGO on behalf of Kuaviniki Clan of Manu village, Central Pomio LLG
First Defendant

AND:

REGETT MARUM in his capacity as Kokopo Provincial Land Court Magistrate
Second Defendant

Kokopo: Lenalia, J.
2012: 24th December &
2013: 4th February

JUDICIAL REVIEW - Application for Leave for Judicial Review – Application for leave for judicial review from the decision of the Provincial Land Court – Order 16 Rule 1 & 3 of the National Court Rules.

PRACTICE & PROCEDURE – Leave had been granted Judicial Review – An application for leave for judicial review to review decision of the Provincial Land Court – Applicant has locus standi however considering the long delay factor application should be refused – Application refused.

Cases cited.

The State-v-District Land Court at Kimbe; ex parte Casper Nuli [1981] PNGLR 192
NTN Pty Ltd-v-The Board of the Post & Telecommunication Corporation & 2 Others [1987] PNGLR 70
Kekedo-v-Burns Philp (PNG) Ltd & Others [1988-89] PNGLR 122

Counsel:

Mr. W. Donald, for the Plaintiff
Ms. J. Waiwai, for the First Defendant

4th February, 2013

1. LENALIA, J. The plaintiff filed these OS proceedings in which he sought leave for judicial review for himself and on behalf of the Munalkana Clan of Bago village Central inland Pomio, E.N.B.P against the decision of the Second Defendant sitting as the Provincial Land Court Magistrate which dismissed the plaintiff's appeal on 10th August 2011.

2. On 20th May 2011, the Kokopo Local Land Court awarded ownership of a customary piece of land described as "Toka" and "Viniki" to the Kuaviniki Clan of Manu village, Central Pomio. The facts and evidence do not clearly shop if the portion of land referred to her which is disputed are two separate pieces of land or not. The plaintiff appealed to the Provincial Land Court presided over by Mr. Regett Marum and on 10th August the appealed was heard and the decision of the Local Land Court was affirmed.

3. The decision by the Provincial Land Court on appeal affirmed the decision by the Local Land Court. That Order reads:

1. The order of the Local Land Court of the 20.05.11 is affirmed.
2. Half of the Appeal deposit be refunded and the other half will be forfeited to the State.
   

4. Following the above order, Susan Repasigo representing the Kuaviniki clan filed proceedings on which she sought leave for judicial review. That application was filed on 21st December 2011. On 16th July 2011, the plaintiff was granted leave for judicial review by the National Court. The substantive judicial review has not been heard.

5. On 18th December 2012, the plaintiff through their lawyer filed an application pursuant to National Court Motion (Amendment) Rules 2005, Rule (5)(ii)(e)(iv) to have the injunctive orders dated 23rd November 2012 to be discharged.

Counsel's Submissions

6. On arguing the application to discharge, Ms. Waiwai's argument attacked the late filing of the application for leave for judicial review saying the plaintiff was unable to seek leave of the Court for judicial review within the time prescribed by Order 16 Rule 4(2). The time limit fixed by Sub-rule (2) of Rule 4 of the Rules is four (4) months.

7. The affidavit of Susan Repasigo shows when the decisions of the Local and Provincial Land Courts were made, when this Origination Summons was filed, the date on which the leave for judicial review was granted. The thrust of her argument is this the case where the plaintiffs have appealed against the decision of the Local Land Court and the decision of that Court was confirmed or affirmed by the Provincial Land Court.

8. Mr. Donald on the other hand replied by submitting that, the plaintiff has a constitutional right to apply for review of the decision of the Provincial Land Court. He referred to the delay factor saying the reasons for the delay was due to stolen files from his office when thieves broke into his office.

Application of Law

9. The National Court Motion (Amendment) Rules 2005, Rule 5 applies to urgent ex parte applications and sets out the procedure where a lawyer or a party intending to make an urgent ex parte application could follow. Rule 5 Sub-rule (1)(a)(b)(c) and (2)(a) – (f) set out the procedure of how an urgent application is made first to the Registrar then to the Motion Judge who hears the application.

10. In this case, the plaintiff filed his application seeking leave for judicial review. This Court is not sitting as a review Court. I say this because, the arguments raised by the lawyer for the First Defendant and the affidavit deposed to by Susan Repasigo seems to this Court to be too premature because such argument should be reserved for the judicial review proper. I am of the view that, the injunctive orders granted to the plaintiff on 23rd November 2012 were to maintain to the status quo until the judicial review is dealt with.

11. The delay factor will obviously be looked at by the Civil Judge at the time the judicial review is heard. The plaintiff has been granted leave. The First Defendant cannot say that because she and her clan members were granted ownership of the two portions of land by the Provincial Land Court that they are the rightful owners.

12. The case of The State-v-District Land Court Ex Parte Caspar Nuli [1981] PNGLR 192 establishes that although there is no right of appeal pursuant to s.60 of the Land Dispute Settlement Act, the writ of certiorari is available under s.155(3) or s.155(4) of the Constitution to quash an error of law on the face of the record.

13. Further cases such as NTN Pty Ltd-v-The Board of the Post & Telecommunication Corporation & 2 Others [1987] PNGLR 70 or the case of Kekedo-v-Burns Philp (PNG) Ltd & Others [1988-89] PNGLR 122 establish that if there is sufficient interest and though the jurisdiction of the National Court exists for judicial review, consideration may be relevant where there are public policy considerations, or where there are considerations of socio-political circumstances and other consideration discussed in the later case.

14. I am therefore of the view that, the orders given on 23rd November 2012 must be maintained until the judicial review is dealt with. I refuse the application by the First Defendant. The Court orders costs to be in the cause.

____________________________________________________________
Donald & Company Lawyers: Lawyer for the Plaintiffs
Waninara Lawyers: Lawyer for the First Defendant