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National Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
OS (JR) NO 570 OF 2013
JOHN BLACK
ON BEHALF OF GUYEBI NOGOI YOWO OMOWO CLAN
Plaintiffs
V
JOSEPH GABUT, BENEDICT BATATA & KUTT PAONGA, SITTING AS COMMISSIONERS
OF SPECIAL LAND TITLES COMMISSION
First Respondents
BENEDICT BATATA, LAND TITLES COMMISSIONER
Second Respondent
JOHN ARUA
Third Respondent
ABRAHAM TATAGU
Fourth Respondent
BAURA ANTON & JENNIFER BAURA
Fifth Respondents
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Sixth Respondent
Madang: Cannings J
2014: 15 May, 19 June, 18 July
JUDICIAL REVIEW – decision of Special Land Titles Commission declaring customary ownership of disputed land – whether decision was ultra vires: whether Commission failed to inspect disputed land, Land Titles Commission Act, Section 29A – whether decision contrary to principles of natural justice, Constitution, Section 59 – whether decision was so unreasonable no reasonable tribunal could have made it.
The applicant was one of six disputing parties to a Special Land Titles Commission hearing into the question of customary ownership of a block of land in respect of which a mining tenement had been granted. He claimed that his clan was the true customary owner. He participated in the hearing by presenting evidence, making submissions and cross-examining witnesses who gave evidence in support of other claimants. In its final decision the Commission rejected his claim, amongst others, and concluded that one of the disputing parties (the third respondent) had exclusive land ownership rights over the land and that three persons had limited land use rights. The plaintiff was aggrieved and, having obtained leave of the Court, applied for judicial review of the decision, seeking an order in the nature of certiorari to quash the decision, on three grounds: (1) the decision was ultra vires as the Commission failed to inspect the disputed land in accordance with Section 29A of the Land Titles Commission Act; (2) in making its decision the Commission breached the principles of natural justice by (a) failing to consider an affidavit of the applicant, which contained evidence of his clan's ownership of the land and (b) not according the applicant the opportunity to accompany the Commissioners on their inspection of the land; (3) the decision was so unreasonable no reasonable tribunal in its position could have made it, in that the Commission (a) failed to consider independent reports before it, which declared that the applicant's clan had ownership rights over the disputed land, (b) failed to consider an admission by the third respondent (in whose favour the final decision was made) that the applicant's clan had land and cemeteries in the mine area, (c) failed to consider a 1972 anthropological report, which confirmed the presence of the applicant's clan on the disputed land and made no mention of the third respondent's clan, (d) failed to consider the report of a patrol officer of 1973/74 which supported the conclusion that the applicant's clan owned the disputed land, and (e) failed to consider independent evidence recognising that the applicant's clan was the true customary owner.
Held:
(1) Section 29A obliged the Commission (or selected assessors) to inspect the disputed land but did not oblige it to allow disputing claimants to accompany the members of the Commission on the inspection. In fact the members of the Commission did inspect the land, so there was no breach of Section 29A and the first ground of review failed.
(2) A party alleging denial of natural justice due to a decision maker's failure to consider evidence or to accord equal treatment to all parties must prove the facts on which such allegations are based. Here, it was not proven (a) that the affidavit claimed by the applicant to have been ignored by the Commission was admitted into evidence or (b) that the applicant was not accorded the same opportunity as other disputing claimants to accompany members of the Commission on their inspection of the disputed land. There were no facts to support the allegation that the Commission failed to comply with the minimum requirement of natural justice, viz acting fairly and being seen to act fairly. The second ground of review failed.
(3) The argument that an administrative decision is unreasonable is based on the principles in Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1947] EWCA Civ 1; [1948] 1 KB 223. The test is whether the decision is so absurd, irrational or otherwise unreasonable, having regard to all the circumstances, that no reasonable decision-maker would have made the decision. Here the propositions advanced to support the unreasonableness argument could not be sustained as: the Commission did not (a) fail to properly consider independent reports, and further none of those reports expressly declared that the applicant's clan had ownership rights over the disputed land, (b) fail to consider an admission by the third respondent that the applicant's clan had land and cemeteries in the mine area, as it properly addressed the probative value of that evidence (c) fail to properly consider a 1972 anthropological report, as that report (which was not in fact an anthropological report) it did not expressly confirm the presence of the applicant's clan on the disputed land, (d) fail to properly consider the report of a patrol officer of 1973/74 which supported the conclusion that the applicant's clan owned the disputed land, or (e) fail to properly consider independent evidence recognising that the applicant's clan was the true customary owner. The applicant failed to prove that the Commission's decision could properly be regarded as absurd, irrational or unreasonable, let alone that the decision exhibited such qualities to such an extent that it made a decision that no reasonable commission could have made. The third ground of review failed.
(4) As all grounds of judicial review failed the application for judicial review and all relief sought by the applicant were refused.
Cases cited
The following cases are cited in the judgment:
Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1947] EWCA Civ 1; [1948] 1 KB 223
Christine Gawi v Public Services Commission (2014) N3720
Galem Falide v Registrar of Titles and The State (2012) N4775
Paul Dopsie v Jerry Tetaga (2009) N3720
Paul Saboko v Commissioner of Police (2006) N2975
Peter Makeng v Timbers (PNG) Ltd (2008) N3317
Shaw v Commonwealth of Australia [1963] PNGLR 119
Supreme Court Reference No 4 of 1980 [1982] PNGLR 65
Tau Kamuta v David Sode (2006) N3067
Counsel
N Amoiha, for the applicant
S Phannaphen, for the first, second & sixth respondents
18th July, 2014
1. CANNINGS J: John Black, on behalf of Guyebi Nogoi Yowo Omowo Clan, applies for judicial review of the final decision of the Special Land Titles Commission that declared customary ownership of a block of land at Kurumbukari in the upper Bundi area of Madang Province.
2. The applicant was one of six disputing parties to the Special Land Titles Commission hearing into the question of customary ownership of a block of land over which the Special Mining Lease, known as SML 8, has been granted for the purposes of the Ramu Nickel-Cobalt Project. The land is Block 1, known traditionally as "Imuruba", an area of 1,346.73 hectares, which is the mine site for the Project.
3. The applicant claimed that his clan was the true customary owner of the whole of the land. He participated in the Commission's hearings in May-June 2012 by presenting evidence, making submissions and cross-examining witnesses who gave evidence in support of other claimants. In its final decision handed down on 14 August 2013 the Commission rejected his claim, amongst others, and concluded that one of the disputing parties, the third respondent John Arua, representing the Imuruba Clan, had exclusive land ownership rights over SML 8, Block 1, and that three persons (the fourth and fifth respondents, Abraham Tatagu and Baura Anton and Jennifer Baura) had limited land use rights. The plaintiff is aggrieved and, having obtained leave of the Court, applies for judicial review of the Commission's final decision on three grounds:
1 the decision was ultra vires (beyond power) as the Commission failed to conduct a site inspection of the disputed land in accordance with Section 29A of the Land Titles Commission Act;
2 in making its decision the Commission breached the principles of natural justice;
3 the decision was so unreasonable no reasonable tribunal in its position could have made it.
4. The applicant seeks an order in the nature of certiorari quashing the decision of 14 August 2013 and a declaration that the decision is null and void. To be eligible for such relief the applicant must convince the Court that at least one of the grounds of review should be upheld.
5. Ground 1 is stated in the following terms:
The decision of the LTC made on 14 August 2013 is ultra vires and contrary to Section 29A of the Land Titles Commission Act in that it failed to conduct a site inspection of the land in dispute with the appellants [sic] to ascertain land markings to prove their claim of ownership rights.
6. Section 29A (duty to inspect the land) states:
(1) Subject to Subsection (2), the Commission shall inspect the relevant land during the hearing of a matter at first instance.
(2) The duty imposed by Subsection (1) may be discharged by assessors selected under Section 10C(2) inspecting the land and reporting to the Commission on the inspection.
7. It will be observed that Section 29A obliged the Commission (or selected assessors) to inspect the disputed land but did not oblige it to allow disputing claimants to accompany the members of the Commission on the inspection. In fact the evidence reveals that the members of the Commission did inspect the land, in early September 2012, so there was no breach of Section 29A and the first ground of review must fail.
8. Ground 2 is in the following terms:
The decision of the LTC made on 14 August 2013 was in breach of the principles of natural justice under Section 59 of the Constitution in that it did not consider:
(a) the applicant's affidavit dated 18 January 2013 which was missing, not considered nor did it make mention of its existence before the LTC [sic];
(b) the applicants were not accorded the opportunity to conduct a site inspection with the Commissioners when other disputing parties were accorded that opportunity.
9. The applicant argues that in making its decision the Commission breached the principles of natural justice by:
(a) failing to consider his affidavit of 18 January 2013, which contained evidence of his clan's ownership of the land, and
(b) not according him the opportunity to accompany the Commissioners on their site inspection.
10. I will consider these two arguments separately, applying these important principles:
(a) Failure to consider affidavit
11. There is a problem with this argument as the date of the affidavit that the applicant claims was ignored, is confusing. Ground of review 2(a) states that the affidavit was dated 18 January 2013, but the affidavit that has been admitted into evidence in these proceedings in support of ground 2(a) is dated 18 January 2008 (annexure F to the applicant's affidavit, filed 31 October 2013, exhibit P1). The error is probably in the wording of ground 2(a). It looks like that the correct date is 18 January 2008. If it is an error, it should have been corrected at the hearing of the judicial review, but it was not.
12. Be that as it may, has the applicant proven that the affidavit of 18 January 2008 was admitted into evidence before the Special Land Titles Commission? He relies on two pieces of evidence to support his assertion that it was. First his affidavit of 31 October 2013 (exhibit P1), in which he deposes at paragraph 19 "that my affidavit sworn and filed on the 18th of January 2008 is deemed to be missing from the LTC file as it was not mentioned as part of my evidence tendered to the LTC". Secondly an affidavit of Hemson Genon, a Reporter/Recorder employed by the Special Land Titles Commission, of 31 October 2013, who states "I am aware that there were several missing files and/or documents pertaining to this dispute". This evidence is vague and unconvincing. I find that it has not been proven that the affidavit of 18 January 2008 was admitted into evidence before the Special Land Titles Commission. As it was not admitted into evidence, the Commission was under no obligation to consider it, and cannot be said to have acted unfairly by not considering it. This is a sufficient reason to reject ground of review 2(a).
13. If, for the sake of the argument, I were to accept the applicant's claim that the affidavit of 18 January 2008 was admitted into evidence, and that it was not considered, I would still find it difficult to conclude that the Commission had breached the principles of natural justice.
14. A finding of denial of natural justice is a serious matter, which entails a finding that the minimum requirement of natural justice set out in Section 59 (principles of natural justice) of the Constitution has not been met. Section 59 states:
(1) Subject to this Constitution and to any statute, the principles of natural justice are the rules of the underlying law known by that name developed for control of judicial and administrative proceedings.
(2) The minimum requirement of natural justice is the duty to act fairly and, in principle, to be seen to act fairly.
15. I would be hard pressed to find that the Commission's failure to consider one affidavit, amongst many others and an abundance of oral testimony, meant that it had not acted fairly – unless perhaps the affidavit contained conclusive evidence to support the applicant's claim that his clan was the true customary landowner. But that is not the case here. The affidavit of 18 January 2008 annexes three documents: a police mediation report, minutes of a meeting of Nogoi Yowo Omowo Incorporated Land Group dated 27 December 2007 and that ILG's certificate of incorporation. These documents, at best, contain indirect and arguable evidence that the applicant's clan was a customary landowner of SML 8, block 1. The evidence, however, is far from conclusive or convincing. It is not of high probative value.
16. So, if the affidavit of 18 January 2008 was, in fact, admitted into evidence and the Commission did not consider it, that would still not be an indication that the Commission had acted unfairly or that it would have been seen to have acted unfairly.
Not giving applicant an opportunity to accompany Commissioners on land inspection
17. The applicant argues that he was not accorded the same opportunity as other disputing claimants to accompany members of the Commission on their inspection of the disputed land.
18. As in the case of ground 2(a) there is a lack of evidence to support this argument. There appears to have been a breakdown in communication between some of the disputing parties and the Commission as to the timing of the land inspection, which took place in early September 2012. As a result not all of the disputing parties accompanied the members of the Commission. It was a simple misunderstanding, that is all, that led to that situation. It is not evidence of unfairness.
Conclusion re ground 2
19. There are no facts to support the allegation that the Commission failed to comply with the minimum requirement of natural justice, viz acting fairly and being seen to act fairly. The second ground of review is refused.
20. Ground 3 is in the following terms:
The decision of the LTC made on 14 August 2013 was a decision which no reasonable tribunal could have made in that:-
(a) all independent documents such as an anthropological report, Kiap reports and mediation reports before it declaring that the applicant's clan had ownership rights over the land was not considered or given weight which was obvious from the LTC in its decision at page 21 held or found that the applicant's "... claim for ownership because his evidence is vague and does not have weight to support his claim";
(b) the applicant in his affidavit dated 18 January 2008 (sic), annexed a Police Mediation report dated 27 September 2009 which explicitly stated at page 7 that the third applicant admitted that the third respondent (who was ultimately given ownership rights by the LTC), admitted that the applicants clan had land and cemeteries in the Kurumbukari mine area asserting ownership rights on the land in dispute.
(c) the LTC held at page 25 of its decision that based on an anthropological report dated 1992 the third defendants clan existed long before the 1970s when the applicants also filed an anthropological report dated in the 1970s that list names of clans and sub-clans that were in the area at that time. The list contains the name of the applicant's clan, Guyebi and sub-clan Nogoi Yowo however does not name Imuruba which is the third defendant's clan name. Therefore the LTC unreasonably made its decision based on a recent 1992 anthropological report and safely assume or hold that the Imuruba clan existed long before the 1970s.
(d) the LTC failed to consider the Patrol Officer report of Robin T Booth, Patrol Report No 2 of 1973/74 which was before it that expressly stated under the economic heading of this report that "local people hold high hopes of the project and have moved en mass to the environs close to the company base at Kurumbukari. These people are mostly from Guyebi and Bigai villages and have set up a new village, Waranamunda, approximately three quarters of the mile from the company camp. To date the population has reached 60 or more. The village is built on Guyebi land". The LTC failed to consider this statement when it unreasonably went ahead to hold that the applicants had vague or not enough weight in their evidence to substantiate their claim of ownership on the land in dispute.
(e) the above documents independently recognise the fact that the applicant's clan do in fact exist and own land on the land in dispute however was overlooked by the LTC. The LTC unreasonably made the decision that it did when documents proving ownership of the applicants claim for ownership was properly before it. [sic]
21. The applicant argues that the Commission's decision was so unreasonable no reasonable tribunal in its position could have made it, in that the Commission:
(a) failed to consider independent reports before it, which declared that the applicant's clan had ownership rights over the disputed land,
(b) failed to consider an admission by the third respondent (in whose favour the final decision was made) that the applicant's clan had land and cemeteries in the mine area,
(c) failed to consider a 1972 anthropological report, which confirmed the presence of the applicant's clan on the disputed land and made no mention of the third respondent's clan, but relied on a 1992 anthropological report to conclude that the third respondent's clan existed long before the 1970s,
(d) failed to consider the report of a patrol officer of 1973/74 which supported the conclusion that the applicant's clan owned the disputed land, and
(e) failed to consider independent evidence recognising that the applicant's clan was the true customary owner.
22. I will consider each of these arguments separately and then determine whether any of them support the ground of unreasonableness.
(a) Failure to consider independent reports
23. It is apparent from the submissions of Mr Amoiha for the applicant that the independent reports that the Commission allegedly failed to consider are:
(i) a monograph entitled Growth and Development in New Guinea – A Study of the Bundi People of the Madang District, by L A Malcolm MD, MRCP, DTM & H, published in 1970 by the Institute of Human Biology, Papua New Guinea (annexure E to the applicant's affidavit, filed 31 October 2013, exhibit P1);
(ii) minutes of a meeting conducted to discuss land ownership within "PA 193" on 17 July 1973 at Moriniam, prepared by Patrol Officer M Dixon (annexure G to the applicant's affidavit, filed 31 October 2013, exhibit P1);
(iii) a patrol report covering two separate visits to the Bundi Census Division with the object of investigating resettlement of some of the upper Bundi people to the fertile grasslands of the Ramu valley, prepared by Patrol Officer Robin T Booth (annexure H to the applicant's affidavit, filed 31 October 2013, exhibit P1);
(iv) the report of a Police mediation "to settle conflict between Guyebi Nogoi Yowo Omowo Clan and Imiriva Clan of Kurumbukari Special Mining Lease (SML) area" conducted on 27 September 2007 (annexure A to the applicant's affidavit, dated 18 January 2008; that affidavit being annexure F to the applicant's affidavit filed 31 October 2013, exhibit P1).
24. It is argued that each of these reports declared that the applicant's clan had ownership rights over SML 8, Block 1. Indeed Mr Amoiha submitted that these reports "specifically declared that the applicant and his clan were in fact the original landowners of the whole of the SML 8 area inclusive of Block 1", and that the Commission unreasonably failed to consider or give weight to each of them. Mr Amoiha submitted that the Commission's failure to give the reports proper consideration and weight is evident from its finding at page 21 of its decision (review book, page 77) that:
The Commission cannot confirm John Black's claim for land ownership because his evidence is vague and does not have the weight to support his claim.
25. I reject the submission that the Commission unreasonably failed to consider those reports, for three reasons.
First, it is not clear that any of the reports were formally produced in evidence before the Commission.
26. As I indicated earlier in relation to the natural justice ground of review, if an applicant for judicial review wants to successfully argue that a decision-maker failed to properly consider a piece of evidence, he must prove that that evidence was in fact put before the decision-maker. That has not been done here, and that is a sufficient reason to reject ground 3(a).
Secondly, presuming that the four reports were adduced in evidence before the Commission, none of them in fact declares that the Guyebi Nogoi Yowo Omowo Clan is the owner of the land covered by SML 8-Block 1.
27. None of them has anywhere near the significance that Mr Amoiha's submission seeks to attach to them. They are all interesting documents but my examination of them has revealed that none is of significant probative value. The following analysis explains why I have drawn that conclusion.
(i) The Malcolm report. This 1970 report, Growth and Development in New Guinea – A Study of the Bundi People of the Madang District, is not an anthropology report, which is how the applicant has portrayed it. It is the report of a study of the human biology of the Bundi people, covering topics such as diet and nutrition, physical measurements, secondary sex character development, skeletal development, dental eruption and age, weight/height relationships and paying particular attention to Bundi school children and their diet and physical measurements and causes of growth delay. Mr Amoiha submitted that this report declares at page 10 that the applicant's clan was in existence as far back as the 1930s. I find that no such declaration is made. At page 10 there is in the course of a discussion of social organisation and marriage a table setting out the number of baptised persons of each sub-clan, taken from the baptismal records of the Bundi Catholic Mission. There is a reference to a clan, amongst 15 others, called "Guyebi", which comprises five sub-clans, one of which is "Nogoi Yomo". There is an interesting account of the history of modern Bundi at page 7:
Contact with Europeans was first made with the establishment of the Catholic Mission Station at Bundi in 1932 and of the Government Station at Kundiawa the same year. Regular patrolling by both mission and government personnel led to pacification and acceptance of the rule of law and of the Christian faith. The Government Station at Bundi was opened in 1956 and the hospital in 1958, with subsequent development of health and medical services throughout the area. A mission school was opened in 1956, with boarding facilities, and expanded each year to a total present enrolment of 360. With the recent election of a local government council, the Bundi people have assumed some responsibility for their own administration.
The most that can be gleaned from the report, which is indirectly relevant to the question of customary land ownership in 2013, is that a sub-clan known as "Guyebi-Nogoi Yomo" – which probably equates to what is these days known as the applicant's clan, Guyebi Nogoi Yowo Omowo Clan – existed in the late 1960s (as the report was published in March 1970), and had probably existed at least since the 1930s (when the Bundi Catholic Mission was established). But the report says nothing about customary ownership by clans or sub-clans of land. Dr Malcolm's report was of little relevance to the subject matter of the Special Land Titles Commission, so it is of no consequence that the Commission did not consider it.
(ii) Patrol Officer Dixon's minutes of 17/7/73. This document contains minutes of a meeting between Mr Dixon and some clan leaders that was apparently convened to discuss land ownership within "PA 193" on 17 July 1973 at Moriniam. It appears to be a written record of a meeting that was convened to talk about land boundaries. It is not a report, and nothing of great moment appears to have been decided at the meeting. Besides that, Mr Amoiha has not explained how this document, which is typed in Tok Pisin (and not officially translated for the purpose of the present proceedings) was relevant to the subject matter of the Special Land Titles Commission inquiry.
(iii) Patrol Officer Booth's patrol report of 1973/74. This report is of some relevance to the subject matter of the Special Land Titles Commission inquiry as it provides an account of mineral prospecting in the Kurumbukari area in the period just prior to Independence on an area of land that was arguably regarded as belonging to the applicant's clan. Mr Amoiha has highlighted the following passage at page 1 of the report:
There are two mining camps operating in the Bundi Census Division. Carpentaria Exploration Company is based at Kurumbukari and employs a small number of local people. Although not particularly active at this stage, the company is developing the area to a degree while engaged in the search for nickel in the area. Some of the local people hold high hopes for the future of the project and have moved en masse to environs close to the company base at Kurumbukari. These people are mainly from Guiebi and Bogai villages and have set up a new village, Yaranakunda, approximately three-quarters of a mile from the company camp. To date the population has reached 60 or more. The village is built on Guiebi land. [Emphasis added]
It must be observed that this was not a land ownership report. It was a report by a patrol officer on contemporary issues in 1973-74 in the Bundi Census Division, arising from the migration of upper Bundi people to the grasslands of the Ramu valley. It reported on issues such as political developments (including the desire of some upper Bundi people to leave Madang District and join Chimbu District), law and order (including the concern of lower Bundi people that people from upper Bundi were coming down and shooting game on their land, including Birds of Paradise), social conditions (it was noted that "the people of the lower section of the Bundi Census Division are of a less high-spirited nature than their counterparts in the upper Bundi area) and public health (including the risk of high rates of malarial infection if people from the mountains came down into the valley).
The patrol officer's statement that the new village of Yaranakunda was "built on Guiebi land" was simply a comment, giving his understanding of which clan owned that land, made during the course of a part of his report dealing with economic developments in the Bundi Census Division. It cannot to be elevated to the status of a finding of land ownership, which Mr Amoiha's submission is making it out to be. Even if the comment were accorded that status, what would it prove? Nothing of relevance to the Special Land Titles Commission because the description of the land is too general. Was the patrol officer referring to the land area now covered by SML 8-Block 1? It cannot be said with any certainty. This report falls a long way short of declaring that the Guyebi Nogoi Yowo Omowo Clan is the owner of the land covered by SML 8-Block 1. It is of no consequence that the Commission did not consider this report of significance.
(iv) Police mediation of 27/9/07. This document comprises notes of a mediation meeting chaired by Yomba Police Station Commander Inspector Steven Kaipa "to settle conflict between Guyebi Nogoi Yowo Omowo Clan and [Imuruba] Clan of Kurumbukari Special Mining Lease (SML) area". The Imuruba Clan leader John Arua (the third respondent) was present, together with a number of other clan representatives including Joe Koroma, who was regarded as the Guyebi Nogoi Yowo Omowo Clan (GNYO) leader. The following account of what transpired towards the end of the meeting appears near the end of the document:
Joe Koroma told John Arua that GNYO will not have [to] seek permission from him (Arua) to get to their land and cemeteries because GNYO are landowners.
John Arua replied that there is no need to sign any agreement for a safe passage of the GNYO to go to Kurumbukari. He said "Graun bilong GNYO na matmat bilong ol stap antap long mauten long Kurumbukari na mi stap long nambis. Graun na matmat bilong ol tu istap long Danagari wei mi istap long en" [GNYO's land and cemetery is on the mountain at Kurumbukari and I am near the beach. They also have land and a cemetery at Danagari where I live.] ...
Mr Koroma shook hands and thanked John Arua and Minikuwa Bun for admitting that Guyebi Nogoi Yowo Omowo Clan did have land and cemeteries in the Kurumbukari mine area.
The document is not counter-signed by Mr Arua so it is not a reliable account of what Mr Arua said. But if he did make the 'admission' that Guyebi Nogoi Yowo Omowo Clan did have land and cemeteries in the Kurumbukari mine area, was that admission binding for the purposes of the Special Land Titles Commission hearing? No. Was Mr Arua admitting that the Guyebi Nogoi Yowo Omowo Clan owned all or part of SML 8-Block 1? No. Does this account of the meeting amount to an independent report declaring that the Guyebi Nogoi Yowo Omowo Clan is the owner of the land covered by SML 8-Block 1? No. It is of no consequence that the Commission did not consider this record of a 2007 mediation meeting – presuming that it was admitted into evidence – to be of significance.
The third reason for concluding that the Commission did not unreasonably fail to consider the four 'reports' is that it based its decision principally on the oral evidence of witnesses and the credibility of that evidence and whether it was corroborated.
28. The reasons for its decision were set out clearly, coherently and logically in a 26-page written decision, summarised as follows:
Conclusion re ground 3(a)
29. The Commission did not unreasonably fail to consider the four reports referred to by the applicant. Ground 3(a) is rejected.
(b) Failure to consider third respondent's admission
30. This argument has been dealt with in ground 3(a), concerning John Arua's alleged admission, at the Police mediation on 27 September 2007, and rejected. There is no need to consider it again. Ground 3(b) is rejected.
(c) Failure to consider 1972 anthropological report
31. This argument has been dealt with in ground 3(a), concerning Dr Malcolm's 1992 human biology report of a study of the Bundi people, and rejected. There is no need to consider it again. Ground 3(c) is rejected.
(d) Failure to consider 1973/74 patrol officer's report
32. This argument has been dealt with in ground 3(a), concerning Patrol Officer Robin Booth's report on current issues in the Bundi Census Division in 1973/74, and rejected. There is no need to consider it again. Ground 3(d) is rejected.
(e) Failure to consider independent evidence
33. This is a general argument intended to capture what has been argued in grounds 3(a) to (d). It is argued that "the above documents independently recognise the fact that the applicant's clan [does] in fact exist and own land on the land in dispute however was overlooked by the LTC. The LTC unreasonably made the decision that it did when documents proving ownership of the applicant's claim for ownership was properly before it".
34. I have already rejected all those propositions in the determination of ground 3(a) but for the avoidance of doubt I restate:
Ground 3(e) is rejected.
Conclusion re ground 3
35. None of the sub-grounds relied on to support ground 3 have been upheld. The argument that an administrative decision is unreasonable is based on the principles laid down in the classic case of Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1947] EWCA Civ 1; [1948] 1 KB 223. The test to apply is:
36. If the answer is yes the decision involves an error of law, the decision-maker will have exceeded its jurisdiction and the decision is susceptible to judicial review. If the answer is no, there is no error of law, no excess of jurisdiction and this ground of review will fail. Applying the test here, the applicant has failed to prove that the Commission's decision could properly be regarded as absurd, irrational or unreasonable, let alone that the decision exhibited such qualities to such an extent that it made a decision that no reasonable commission could have made. The third ground of review fails.
OTHER MATTERS
37. As well as the matters set out in the three grounds of review, the applicant was aggrieved by several other aspects of the proceedings of the Special Land Titles Commission.
Order 16, Rule 3(2)(a) statement
38. Two matters of concern are set out in the applicant's statement under Order 16, Rule 3(2)(a) of the National Court Rules. This is the statement that is required to be filed when a person applies by originating summons for leave to seek judicial review. It is required to set out:
39. However, like so many Order 16, Rule 3(2)(a) statements that are drafted these days, the applicant's statement contained extraneous matters. Under the heading "Facts and Circumstances" the applicant elaborates on some grounds of review in a way that makes the statement read like a submission. This is wrong. The Order 16, Rule 3(2)(a) statement is meant to be a simple and straightforward document setting out the three matters highlighted. It should not contain submissions (Peter Makeng v Timbers (PNG) Ltd (2008) N3317).
40. Be that as it may, this part of the statement makes two criticisms of the Commission. First, in paragraph 8 it is stated that "there was a sudden change of commissioners which was not mentioned in the ruling nor was any explanation given to the parties regarding this change".
41. Secondly, in paragraph 15, it is stated that "the parties in dispute during the LTC hearing were all clan groups represented by their respective spokesperson or Integrated Land Group (ILG) chairpersons. However the LTC in awarding land ownership rights to the parties awarded the same to individuals".
42. Neither of these criticisms formed part of the three grounds of review, so they do not warrant being ruled on by the Court in view of Order 16, Rule 6(1) of the National Court Rules, which states:
Copies of the statement in support of an application for leave under Rule 3 must be served with the summons and, subject to Sub-rule (2), [the Court may allow the applicant to amend the statement] no grounds shall be relied on or relief sought at the hearing except the grounds and relief set out in the [Order 16, Rule 3(2)(a)] statement. [Emphasis added]
43. I therefore do not comment on those criticisms other than to remark that if the applicant wanted the Court to take them into account they should have been included in the grounds of review.
Applicant's supporting affidavit
44. I make a similar remark regarding three other criticisms the applicant makes of the Commission in an affidavit filed in these proceedings on 16 December 2013 (exhibit P2).
45. First, the applicant suggests (in paragraphs 3-6 and 13) that his clan had intended to claim customary ownership of the whole of the land within SML 8 but when he and his clan went into the Special Land Titles Commission they were told that "we had to register our claims based from one of the blocks that they had established within the SML 8 boundaries", and that this prejudiced their claim.
46. Secondly he suggests (in paragraphs 7-9) that the Commission's final decision did not make it clear whether the Commission was awarding customary land ownership rights or just usufructuary (user) rights and that this "has left us aggrieved".
47. Thirdly he suggests (in paragraphs 14-15) that the Commission acted unfairly by hearing Joe Koroma's faction of Guyebi Nogoi Yowo Omowo Clan, contrary to its decision of 27 November 2011 "that the two GNYO groups should come under [the applicant] John Black's leadership".
48. Mr Amoiha's written submission reinforced those criticisms but, as was the case with the matters improperly included as submissions in the Order 16, Rule 3(2)(a) statement, none of the criticisms was included in the grounds of review. Leave to amend the Order 16, Rule 3(2)(a) statement has neither been sought nor given, so these criticisms have not been ruled on.
CONCLUSION
49. As all three grounds of judicial review have been refused the application for judicial review must fail. Costs will follow the event.
ORDER
(1) The application for judicial review is refused.
(2) All substantive relief sought in the plaintiff's statement under Order 16, Rule 5 of the National Court Rules is refused.
(3) The applicant shall pay the costs of the first, second and sixth respondents on a party-party basis which shall, if not agreed, be taxed.
Judgment accordingly.
_____________________________________________________________
Javati Lawyers: Lawyers for the Applicant
Solicitor-General: Lawyer for the First, Second & Sixth Respondents
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URL: http://www.paclii.org/pg/cases/PGNC/2014/190.html