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National Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
OS NO. 455 OF 2012
BETWEEN
LINDA PAURIA
Plaintiff
AND:
ELIAS ToVEE
First Defendant
AND:
ELIAB ToMIVANA
Second Defendant
AND:
AARON WARMARI
Third Defendant
AND:
SAILAS TAIDANG sitting as a
LOCAL LAND COURT MAGISTRATE
AT KOKOPO
Fourth Defendant
AND:
THE INDEPENDENT STATE OF PAPUANEW GUINEA
Fifth Defendant
Kokopo: Oli, AJ
2013: 18 September
2014: 18 March
CIVIL JURISDICTION - PRACTICE & PROCEDURE - Judicial Review –Plaintiff files an application for Judicial Review over Local Land Court decision – Local Land Court decision emanate from land mediation consent settlement agreement between first and second defendants over customary land that does not belong to first defendant who is uncle to Plaintiff – Plaintiff was not involved in the mediation consent settlement agreement – Plaintiff dispute the mediation consent settlement agreement over her customary land acquired from her biological father – The court grant the leave for judicial review and issue directives under Order 16 Rule 13 (5) & 6 of the National Court Rules as amended by Judicial Review (Amendment) 2005.
CIVIL JURISDICTION - PRACTICE & PROCEDURE - Judicial Review – Hearing of judicial review over Local Land Court decision –Plaintiff must show four requisites legal requirements – Firstly, that Plaintiff has a sufficient interest, Secondly, Plaintiff has an arguable case, Thirdly, Plaintiff must demonstrate no undue delay, and Fourthly, Plaintiff must show that it has exhausted all other statutory avenues for appeal or review – Consideration Plaintiff has sufficient interest but did not exhaust the appeal avenue available under s. 54 of the Land Dispute Settlement Act 1975 –Judicial Review of the Mediation Consent Agreement translate to Local Land Court Order found non-compliance with ss. 18 & 19 of the Land Dispute Settlement Act 1975 – Court exercise its inherent powers under s. 155 (4) of the Constitution and direct that the Plaintiff be joined as a party and matter is remitted to go before Land Court Magistrate for fresh hearing – The Local Land Court Order of 12th April 2010 is quashed - Matter go through fresh hearing before Local Land Court with differently constituted Local Land Court Magistrate and Land Mediators presiding as assessors – Considered Plaintiff application for damages is premature subject to determination of ownership of subject land in question is finalized – relief in Damages sought is hereby refused - Parties to bear their own cost.
Attorney General Gene v Hamidian-Rad [1999] PNGLR 444.
Council of Civil Service Unions v Minister for Civil Service [1983] UKHL 6; [1984] 3 All ER 935
Kekedo v Burns Philip [PNGLR] 122.
Ombudsman Commission v Donohue [1985] PNGLR 348
Peter v SP Brewery [1976] PNGLR 537
Counsel:
Mr. Sialis Tedor, for the Plaintiff
No representation, for Defendants
EX PARTE DECISION
18th March, 2014
1. OLI, AJ: The plaintiffs filed an Originating Summons on the 26th July 2012 against the defendants and seek to claim the following relief:
(i) That leave be granted to the Plaintiff to apply for Judicial Review of the decision of the fourth defendant sitting as a Local Land Court Magistrate at Kokopo on the 12th April 2010, in which he approved and convert into an order a mediation agreement dated 27th August 2009 between Elias ToVee and Eliab ToMivana without the knowledge or involvement of the Plaintiff or, any other member of her family as interested party to the said "Palabarip – Vunatolut" land ("the land"), the subject of the agreement and ultimately the order pursuant to Order 16, Rule 3 of the National Court Rules and or section 155 (3), (4) & (5) of the Constitution.
(ii) An Order by way of certiorari to quash the order of the fourth defendant made on the 12th April 2010, when he approved and converted into an order a mediation agreement dated 27th August 2009, between Elias ToVee and Eliab ToMivana without the knowledge or involvement of the Plaintiff or, any other member of her family as interested party pursuant to Order 16, Rule 1 of the National Court Rules and or section 155 (3), (4) & (5) of the Constitution.
(iii) An Order that the First Defendant Elias ToVee or his agents including Eliab ToMivana the second defendant and Land Mediator Aaron Warmari, third defendant be restrained from entering, occupying or dealing in any manner whatsoever with the land known as "Palabarip – Vunatolut" situated at Ravat Village in the Raluana Local Level Government, Kokopo, East New Britain Province pending completion of the substantive matter pursuant to Order 16 Rule 2 of the National Court Rules and or section 155 (3), (4) & (5) of the Constitution.
(iv) An Order that within sixty (60) days of the date of the substantive order the Plaintiff shall file and serve on the First and Third Defendants' a Statement of Claim for damages to be assessed, be it special, general or exemplary damages for any loss suffered by the Plaintiff as a result of the Order of the fourth defendant of the 12th April 2010, pursuant to Order 8, Rule 36 (1) of the National Court Rules and or section 155 (3), (4) & (5) of the Constitution.
(v) Such other Orders the Court sees fit to impose.
(vi) The third defendant pays for the cost of these proceedings.
MATTER PROCEED EX PARTE
2. The Counsel for Plaintiff seeks to move the motion on substantive hearing of the Judicial Review to proceed ex parte as Defendants made no appearance, though they were served with notice on return date and all other documents as required as per the Review Book. However, but due to the procrastinated history and Defendants attitude to the case to date, the Plaintiff was ready to proceed ex parte. The Court having a quick glance at the status of the history of the case and having to consider the justice of the case, in view of the delay so far is bad enough, and further delay would do more harm to the parties that the matter will remain unresolved as between the parties may not only result in an unacceptable sour relationship but parties may resort taking the law into their own hands at their community level where the matter originated from. The Court therefore takes the proactive approach and grants the application and conduct ex parte hearing.
FACTS
3. The brief facts surrounding the circumstances of this matter is that the first defendant engaged into negotiation with the second defendant in the presence of a Land Mediator, the third defendant on 27th August 2009 and reached a consent mediation agreement over a parcel of customary land known as "Palabarip – Vunatolut" situated at Ravat Village in the Raluana Local Level Government, Kokopo, East New Britain Province. The Consent agreement between first and second defendants was reduced into Record of Mediation form as evidence of mediated outcome that form the part of Consent Agreement on the said customary land in question between the two parties namely first and second defendants before formal application by both parties to have it registered in the Local Land Court Registry at Kokopo Local Land Court track for formal endorsement by the Local Land Court Magistrate, the fourth defendant. The Local Land Court at Kokopo on 12th April 2010 formally endorsed, after due enquiry consistent with s. 18 of the Land Dispute Settlement Act, before the consent agreement between first and second defendants that was facilitated by the third defendant as Local Land Mediator in the mediation area that consent agreement was made and formal application for approval pursuant to s. 19 of the Land Dispute Settlement Act, was made to Local land Court Registry where formal Local Land Court Order per se was issued.
ISSUE
4. The pertinent issue this Court is asked to determine is whether the Court should review the judicial function of the Local Land Court Magistrate in exercising his judicial powers under the Land Dispute Settlement Act to formalize the Consent Settlement Agreement duly mediated before an accredited Land Mediator, the third defendant between first and second defendant into formal Local Land Court Order.
LAW
5. Law on Judicial Review is set out under Order 16 Rule 3 of the National Court Rules where it reads:
"Order 16 Rule 3 Grant of leave to apply for judicial review. (UK. 53/3)
(1) An application for judicial review shall not be made unless the leave of the Court has been obtained in accordance with this Rule.
(2) An application for leave must be made by originating summons ex parte to the Court, except in vacation when it may be made to a Judge in chambers, and must be supported—
(a) by a statement, settit thet the name and description of the applicant, the relief sought and the grounds on which it is sought; and
(b) by affidavit, to be filed before the application is made, verifying the facts relied on.
(3) The applicant must give notice of the application to the Secretary for Justice not later than two days before the application is made and must at the same time lodge with the Secretary copies of the statement and every affidavit in support.
(4) &##160; Without prejudice tice to its powers under Order 8 Division 4, the Court hearing an application for leave may allow the applicants statement to be amended, whether by specifying different or additional grounds for relief or otherwise, on such terms (if any) as it thinks fit.
(5) The Court shall not grant leave unless it considers that the applicant has a sufficient interest in the matter to which the application relates.
(6) Where leave is sought to apply for an order of certiorari to remove for the purpose of its being quashed any judgement, order, conviction or other proceedings which is subject to appeal and a time is limited for the bringing of the appeal, the Court may adjourn the application for leave until the appeal is determined or the time for appealing has expired.
(7) If the Court grants leave, it may impose such terms as to costs and as to giving security as it thinks fit.
(8) Where leave to apply for judicial review is granted, then—
(a) if the relief sought is an order of prohibition or certiorari and the Court so directs, the grant shall operate as a stay of the proceedings to which the application relates until the determination of the application or until the Court otherwise orders; and
(b) if any other relief is sought, the Court may at any time grant in the proceedings such interim relief as could be granted in an action begun by writ."
6. The Plaintiff in this matter has already been granted the leave for Judicial Review by the Court on 26th October 2012 and Court issued the directives on the same date as required under Order 16 Rule 13 (5) of Judicial Review (Amendment) 2005 of the National Court Rules to the parties accordingly and it clearly stipulates the following procedural requirement:
"Order 16 Rule 13 (5) Directions to be issued at time of grant of leave.
Immediately after granting leave to apply for judicial review, the judge granting leave shall consider and issued directions as to, amongst other things, the following:-
(1) Filing of Notice of Motion and supporting affidavits under Order 16 rule 5 (1).
(2) Identification of all persons directly affected by the decision the subject of the review, who may be served with the Notice of Motion including the Clerk or Registrar of the Court or Tribunal which made the decision.
(3) Service of the order granting leave including the directions issued hereunder and Notice of Motion and supporting affidavits and any other documents filed for purposes of the leave application, on persons identified under (2) and filing proof of service.
(4) Availability of decision and reasons for decision together with any other relevant documents or depositions of the tribunal or public authority which made the decision the subject of review.
(5) Fix a date for Directions hearing to take place within fourteen (14) days there-from. This date shall be entered on the Notice of Directions Hearing issued by the Registrar under Rule 13 (6) (1) of Order 16 of the National Court Rules of Judicial Review (Amendments) 2005."
7. It is indeed much to my dismay that since granting of the leave for review on 26th October 2012 and issuance of Directives to parties by the Court on the same date, the matter has not been dealt with to this date. I note from the Court file that Plaintiff has served due process as per the Review Book on the parties named in the action. There appears to be no formal responses from first, third and fourth defendants and fifth Defendant is the State as the nominal defendant since the service of the due process except the second defendant, since the directives were issued after the granting of the leave in this action to date.
APPLICATION OF LAW TO THE FACTS
8. The Plaintiff in this case was not a party to the Consent Settlement Agreement that translates into Local Land Court Order between the first and second defendants over a customary land known as "Palabarip – Vunatolut" situated at Ravat Village in the Raluana Local Level Government, Kokopo, East New Britain Province. The Plaintiff claims that this customary land does not belong to the second defendant but did it without consulting the Plaintiff or her family members in Ravat Village with the assistance from the local land mediator, the third defendant Mr. Aaron Warmari. The Consent Settlement Agreement between first and second defendant was reduced down to the requirements of section 18 of the Land Dispute Settlement Act 1975 in order to progress consent agreement to the next level for approval of the consent agreement to Local Land Court Order. I restate the s.18 of the Land Dispute Settlement Act and it reads:
"18. AGREEMENTS.
(1) If an agreement is reached between the parties to a dispute as to the whole or part of the dispute, the Land Mediator shall–
(a) record that an agreement has been reached; and
(b) unless he thinks it inappropriate to do so–record the terms of the agreement; and
(c) ensure that the terms of the agreement are understood by the parties and are formally and publicly acknowledged by or on behalf of the parties; and
(d) where the terms of the agreement are recorded–forward a copy of the record to the nearest Local Land Court."(underline emphasis is mine).
9. It is apparent that when the first and second defendants concluded a consent settlement agreement with the land mediator under s.18 of the Land Dispute Settlement Act, both parties then proceeded to invoke the legal requirement under s. 19 of the Act to have the consent settlement agreement converted into Local Land Court Order. However, s. 18 (1) c, of the Land Dispute Settlement Act requires that the Land Mediator must ensure that the terms of the agreement are understood by the parties and are formally and publicly acknowledged by or on behalf of the parties.
10. There is no evidence on Review Book that indicates and confirms that the Land Mediator did comply with this provision. If, he did publish this Consent Land Mediation Agreement in the Village where Plaintiff is, the Plaintiff would have been made aware of such Mediation Consent Land Agreement between first and second defendant where second defendant is her biological uncle. I find that the Land Mediator failed to comply with this legal requirement under s. 18 (1) c, of the Land Dispute Settlement Act. The Land Mediator with the parties may have fast tracked the process in formalising the Land Mediation Consent Agreement under s. 19 of the Land Dispute Settlement Act and reads:
"19. APPROVAL OF AGREEMENTS.
(1) The parties to an agreement may apply to a Local Land Court to have the agreement approved.
(2) On receiving an application under Subsection (1), the Court shall make such inquiries as it thinks necessary to ensure that–
(a) the terms of the agreement are fully understood by the parties; and
(b) where a party to the agreement consists of more than one person, a substantial majority of the persons comprising the party concur with the terms of the agreement; and
(c) the agreement is not in breach of any law, or contrary to natural justice or public policy.
(3) Where the Court is not satisfied as to any matter specified in Subsection (2), it may–
(a) mediate between the parties in order to reach a satisfactory agreement; or
(b) by order direct the Land Mediator who mediated the dispute or another Land Mediator specified in the order to conduct further mediation, with, if it thinks fit, a direction as to how any defect in the original agreement might be overcome.
(4) Where further mediation has been carried out under Subsection (3) (b) and an agreement has been reached and recorded, the parties may re-apply to the Court to have the agreement approved in accordance with this section.
(5) Where the Court is satisfied as to the matters specified in Subsection (2), it may approve the agreement.
(6) An agreement approved under Subsection (5) has legal effect as an order of a Local Land Court made under this Act."(underline emphasis is mine)
11. The process under s. 19 of the Land Dispute Settlement Act is also another opportunity for Plaintiff to pick up vibes of such Mediation Consent Agreement when the matter reaches the Local Land Court Registry that further publication is required to be posted at District and Local Level Government Public Notice Board under s. 19 (2) & (5) of the Land Dispute Settlement Act. This is the final vetting process and golden opportunity for the Court to be satisfied upon making proper enquiries in respect to matters specified under subsection (2) of s. 19 of the Land Dispute Settlement Act are properly addressed.
12. The Court upon being satisfied may approve the consent agreement. Once the Court is satisfied with the Consent Land Mediation Settlement Agreement, and approved the agreement under s. 19 (5) and it may have the legal effect of a Local Land Court Order per se under s. 19 (6) of the Land Dispute Settlement Act 1975. The legal effect of such consent mediation settlement agreement upon approval becomes the formal Local Land Court Order per se. The said Local Land Court Order is evidence of traditional landowner's interest over the said traditional land in question under dispute, the subject of the Judicial Review. Whilst the conversion of the consent land mediation agreement is approved into formal Local Land Court Order, it has the same legal effect and status of a decision issued from a properly constituted Local Land Court before a Local land Court Magistrate.
13. However, a slight variation on the future legal binding effect on third parties under the agreement or any admission or concession made by a party in arriving at the agreement under s. 20 (a) of the Act, is indeed the evidence of settlement over a land under dispute through consent land mediation agreement process, but it does not have the legal binding effect on a party, his heirs, successors or assigns under s. 20 (b) of the Land Dispute Settlement Act 1975.The s. 20 of the Land Dispute Settlement Act 1975 is reproduced hereunder for purposes of completeness and it reads:
"20. EFFECT OF AGREEMENTS.
Until approved under Section 19:
(a) an agreement is, in any legal proceedings, evidence of the interests of the parties to the agreement in the land in dispute as at the date of the agreement;
(b) but the agreement or any admission or concession made by a party in arriving at the agreement, is not binding on a party, his heirs, successors or assigns."
14. The legal effect of an agreement under s. 20 of the Land Dispute Settlement Act make it conditional that unless the agreement is approved under s. 19 of the Land Dispute Settlement Act the agreement has no legal force of the law. However, once the agreement is approved by the Local Land Court and becomes the proper Court Order issued by the Local Land Court Magistrate; the party who is aggrieved by the decision of the Local Land Court has the right of appeal under s. 54 of the Land Dispute Settlement Act 1975 to the Provincial Land Court. The process on appeal is clearly provided and outlined under s. 54 of the said Act as reproduced hereunder and it reads:-
"54. APPEAL AGAINST DECISION OF LOCAL LAND COURT
(1) Subject to this section, a person aggrieved by a decision of a Local Land Court may appeal within three months after the date of the decision to the Provincial Land Court.
(2) Where the Provincial Land Court is of opinion that it is desirable in the interests of justice to do so, it may, whether or not the time fixed for appeal under Subsection (1) has expired, extend the time fixed for appeal, but leave shall not be granted after the end of the period of 12 months after the date of the decision appealed against"
15. The peculiar twist about this case is that the Plaintiff who is challenging the decision of the so called Local Land Court Order that emanate from the mediated consent settlement agreement between first and second defendants was entered into on 27th August 2009 and formally endorsed by the Local Land Court Magistrate on 12th April 2010 and it became formal Local Land Court Order per se. The appeal provision is very clear in that the aggrieved party has minimum period of three months to lodge a notice of appeal before the Provincial Land Court Registry. If, in the event that aggrieved party has not lodged its appeal within three months, the appellant must file application to seek leave to appeal out of three months but before twelve months period from the Provincial Land Court Magistrate. If, in the opinion of the Provincial land Court Magistrate that it is desirable in the interests of justice to do so, it may, whether or not the time fixed for appeal under s.54 (1) of the Land Dispute Settlement Act has expired, extend the time fixed for appeal, but leave shall not be granted after the end of the period of (12) months from the date of the decision appealed against was made.
16. The Plaintiff in this case has failed to comply with both limbs on time limitation to invoke the jurisdiction of the appeal court through Provincial Land Court under s. 54 (1) & (2) of the Land Dispute Settlement Act 1975. The Plaintiff for example, in an ideal situation, ought to have filed a notice of appeal to the Provincial Land Court Registry within three months from 12th April 2010 and failing to file appeal after three months, the appellant has last option but subject to appellant seeking leave of the court to file appeal but within twelve (12) months from the date of the decision appealed against was made.
17. The unfortunate glaring feature about this case is that the Plaintiff was never a party to the case from the beginning; hence render her status as a person with no locus standi or standing as a party to challenge the decision of the Local Land Court Order of 12th April 2010 before the Provincial Land Court on appeal. The Plaintiff in this case would have to seek leave of the court to be joined as an interested party and if leave is granted then the Plaintiff becomes a proper party as an appellant to appeal against the decision of the Local Land Court Magistrate to the Provincial Land Court.
18. The obvious undisputed feature about this case is that the consent agreement was translated into formal Local Land Court Order on 12th April 2010 between first and second defendant without the Plaintiff as a party, though second defendant is a biological Uncle to the Plaintiff. The second defendant, in this case was knowingly doing the transaction of transferring customary interest in land, which he admitted in his brief response that the land in question did not belong to him.
19. If, in the ideal situation that the Plaintiff had appealled and appeal court had found in favour of the appellant, the following remedies are available under s. 59 of the Land Dispute Settlement Act. It provides wide range of powers of the appeal court to quash or affirm or remit the matter back to Local Land Court and for rehearing or other ancillary orders under sub-section 2 of s. 59 of the Act, as the case may be. The s. 59 of Land dispute Settlement Act reads:-
59. POWERS ON APPEAL.
(1) In determining an appeal under this Division, a Provincial Land Court may–
(a) affirm the order; or
(b) quash the order and–
(i) make such other order as, in the opinion of the Court, will dispose of the appeal and the dispute; or
(ii) where, in the opinion of the Court, justice demands that the matter or part of the matter of the appeal be remitted to the Local Land Court, remit the matter, or that part of the matter to the Local Land Court.
(2) In remitting a matter to a Local Land Court under Subsection (1)(b)(ii), a Provincial Land Court may give such instructions, directions or guidelines to the Court as to the manner in which the matter remitted is to be dealt with as it thinks proper.
20. The Plaintiff, after going through the unfortunate ordeal of being charged for breaches of the Local Land Court Order and was found not guilty and discharged with other family members were put on notice to further progress the Local Land Court Magistrates His Worship Samuel Lavutul's direction to appeal against the decision of the Local Land Court Order of 12th April 2010, but decided to file an application for judicial review under Order 16 Rule 3 of the National Court Rules to seek leave of the Court for judicial review and on 26th October 2012, the Court granted leave for Judicial Review and Court issued directives thereafter to parties under Order 16 Rule 13 (5) & (6) of the Judicial Review (Amendments) 2005. The judicial review was to be moved after (14) days from the date of the grant of leave to have the matter proceed to hearing. However, the history of the case reveals that the matter since then failed to get that traction it deserves from the parties and the Court, as well, to this date.
21. The Plaintiff filed motion on 26th October 2013 and served on the parties in the action to have the matter go through the judicial review track to secure a hearing date, which I do so now through the ex parte hearing. When the Court granted the leave for judicial review by Plaintiff; the Court made two very important finding that Plaintiff did have a sufficient interest in the matter and secondly; though Plaintiff was not a party to the Consent Land Settlement Agreement that was duly endorsed by Local Land Court Magistrate upon formal application for approval by parties. It is this order that the Plaintiff seeks to review by this Court.
ISSUE
22. The pertinent issue this Court is asked to determine is whether the Court should review the judicial function of the Local Land Court Magistrate in exercising his judicial powers under the Land Dispute Settlement Act to formalize the Consent Land Settlement Agreement duly mediated before an accredited Land Mediator, the third defendant between first and second defendant into formal Local Land Court Order by Local Land Court Magistrate, the fourth defendant.
23. The application for leave for judicial review was granted by His Honor Maliku AJ (as he then was) ruled that Plaintiff has a sufficient interest in the matter (in that she claimed that her father bought the said land for K300.00). The Plaintiff did not appeal against the Local Land Court Order because she was not a party to the case from the beginning of the case at the mediation level. But she was the real landowner and genuine aggrieved party on the subject matter of the land in question, "Palabarip – Vunatolut" situated at Ravat Village in the Raluana Local Level Government, Kokopo, East New Britain Province.
24. In presiding over this Judicial Review, I am placed in a very unfortunate position to address and consider what I might refer to as the unfortunate legal jigsaw puzzle emanated from the leave granted for judicial review. The legal jigsaw puzzle created by leave of the Court for substantive judicial review hearing comes from the undisputed fact that Plaintiff was never a party from the beginning during the negotiation of a consent land settlement agreement between first and second defendants over a portion of land that did not belong to second defendant.
25. However, according to the due process and procedures pertaining to the law on appeal under Land Dispute Settlement Act, a party aggrieved by the decision of the Local Land Court has a right to appeal against the decision of the Local Land Court to the Provincial Land Court to review the Local land Court decision. In this case, the approval of mediation consent land settlement agreement as Local land Court Order was done by parties other than the Plaintiff. Though Plaintiff was aggrieved by the actions of first and second defendants together with third defendant, in this case, the plaintiff did not explore the legal option of Appeal Avenue available to her under s. 54 of the Land Dispute Settlement Act 1975. The history of the case reveals that Plaintiff would have to appeal against the Local Land Court Magistrate's Order within three months from the date it was made. If appeal was lodged after three months but before the twelve months from the date it was made; the Plaintiff must apply to the Provincial Land Court to seek leave to file appeal after three months but within twelve months from the date the decision appealed against was made.
26. The Plaintiff did not appeal to the Provincial Land Court, and foremost to apply to be joined as an interested party and seek appellate court jurisdiction for redress her formal complaint through the appeal proper. If, in the event that the Plaintiffs appeal was successful, the appeal court would have remitted the matter back to the Local Land Court for proper full hearing of the land dispute between all interested parties pertaining to the traditional ownership over land known as "Palabarip – Vunatolut". But the history of the case reveals that there was no appeal before the Provincial Land Court; hence there is no decision by the Provincial Land Court that may become the subject of Judicial Review before me now.
27. The unfortunate legal jigsaw puzzle challenge created by this application for judicial review before me is the issue I raised in this judicial review hearing; the issue is "whether the Court should review the judicial function of the Local Land Court Magistrate in exercising his judicial powers under the Land Dispute Settlement Act to formalize the Consent Settlement Agreement duly mediated before a accredited Land Mediator, the third defendant between first and second defendant, that was converted into formal Local Land Court Order by Local Land Court Magistrate, the fourth defendant".
28. The law on judicial review is very settled in this jurisdiction where there are cases in which the decisions of public statutory tribunals or authorities exercising statutory powers vested by statute are questioned or challenged. The proper procedure to follow is by application for judicial review under National Court Rules Order 16. In Re: Attorney General Gene v Hamidian-Rad [1999] PNGLR 444. Judicial Review is concerned with the decision making process.
29. The circumstance in which judicial review is available are where decision-making authority exceeds its powers, commits an error of law, commits a breach of natural justice, reaches a decision which no reasonable tribunal could have reached or abuses its powers: Kekedo v Burns Philip [PNGLR] 122. And see the English Case of Council of Civil Service Unions v Minister for Civil Service [1983] UKHL 6; [1984] 3 All ER 935. The National Court Rules Order 16, as amended by Judicial Review (Amendment) Rules 2005, set out the procedure for Judicial Review and Rule 3 set out the requirements for leave, to be made by Originating Summons and is made ex parte.
30. However, note the Claims By and Against the State Act Section 8, leave for judicial review in the matter in which the State is a defendant shall not be granted unless the State has been afforded an opportunity to be heard. And also under s. 7 of that Act, a Notice of Claim is required in any action to enforce a claim against the State. See cases on Ombudsman Commission v Donohue [1985] PNGLR 348 and Peter v SP Brewery [1976] PNGLR 537.
31. The State as a nominal defendant in this matter require formal notice to be served according to Claims By and Against the State Act within six months from the date the said event is alleged to have been committed. The brief history of the case reveals that the Plaintiff may have not served the State of such notice of claim within six months runs the risk of time barred against the State under the Claims By and Against the State Act.
32. I would like to mention here in passing that the Plaintiff also seeks remedy as damages to be ordered in this action against the first and third defendants to be assessed appears to be not in order as Plaintiff is still fighting the case to be declared and pronounces as the true traditional landowner of the land in question, the subject of the land dispute between herself and first and second defendants. According to my limited experience on Tolai traditional customary land ownership and tenure system is based under matrilineal VUNATARAI customary land ownership system, where woman plays a very important ownership role in customary land tenure and ownership system here in East New Britain Province. So the inheritance of customary land under Tolai Vunatarai system is passing through the matrimonial clan linage original tribe and clan descendants' family tree.
33. The Plaintiff claims that she acquired the subject land in question from her biological father and second defendant alienate it to first defendant through consent mediation agreement without her knowledge or permission or her relatives permission, as well. Since, Plaintiff was never a party to the mediation agreement from the beginning, for her to seek remedies for damages against the first and third defendants is a premature legal option to plead at this stage of the proceedings through Judicial Review hearing. I am of the view that this issue can be addressed later when the determination of the true landownership issue is finally determined and final pronouncement as to which party is the true traditional landowner of the land in dispute is made by the Local land Court under s. 23 of Land Dispute Settlement Act 1975.
34. If, in the event that Local Land Court find in favor of the Plaintiff then that will be the time to raise such claim for damages for loss of business and other damages for pain and suffering against the other party in the proceeding, as the case may be. To claim damages at this stage of the proceeding is premature as the landownership issue is still fluid and this task is yet to be determined by the formal Local Land Court hearing to be done in the not too distant future when the Local Land Court Registry take siege of this matter after referral from this court on Judicial Review to the Local Land Court jurisdiction.
CRIMINAL PROSECUTION UNDER s. 64 OF THE LAND DISPUTE SETTLEMENT ACT 1975
35. The judicial historical development of this case on the said portion of land under dispute reveals that there was Local Land Court decision made on 7th July 2011 for criminal breaches of the Local land Court Order under s. 64 of the Land Dispute Settlement Act committed by the Plaintiff and her relatives. The Local Land Court Magistrate conducted a trial because the defendants pleaded not guilty to the charges of committing criminal offences under s. 64 of Land Dispute Settlement Act. The Local Land Court Magistrate, however, found the defendants were not guilty including the Plaintiff and discharged them forthwith.
36. I have the benefit and opportunity to read his learned worship's written judgment on the matter and His worship did point out to the Plaintiff and her relatives who were charged together with her of the appeal avenue was still available to them. The Plaintiff and her relatives in the criminal trial matter were directed by the presiding Local Land Court Magistrate to file appeal documents before Provincial Land Court to review the Local Land Court decision that approved the consent land agreement as Local Land Court Order made on 12th April 2010 between first and second defendants. The Local Land Court Magistrate dealt with the criminal aspect of the case for non-compliance with the Local Land Court Order under s. 64 Land Dispute Settlement Act.
37. The Plaintiff and her (4) family members were charged for non- compliance in respect to Local Land Court Order of 12th April 2010.The Local Land Court Order of 12th April 2010, in fact, it is still a proper Local Land Court Order and it is still in force, until it is set aside and or discharged by an order of a Court of competent jurisdiction through the due process of law under the Land Dispute Settlement Act 1975 or the National Court under its inherent power under s.155 (4) of the Constitution. This Judicial Review will address that issue and will give orders accordingly as the justice of the case so requires, in this case.
CONCLUSION
38. The Plaintiff files an application for Judicial Review over Local Land Court decision of 12th April 2010. The Local Land Court Order emanate from land mediation consent land settlement agreement between first and second defendants over customary land that Plaintiff claims that, that portion of land does not belong to second defendant. During the mediation between first and second defendants the Plaintiff was not involved nor was she a party in the mediation process that reached a consent land settlement agreement. The Plaintiff upon learning about the consent mediation land settlement agreement between first and second defendant through her unfortunate ordeal under criminal prosecution for alleged breach of the Local land Court Order, disputed the mediation consent land settlement agreement over her and her clan's customary land. The Court having heard the Judicial Review leave application and grant the leave for judicial review sought and issued directives on the same date under Order 16 Rule 13 (5) & 6 of the National Court Rules as amended by Judicial Review (Amendment) 2005 for parties to prepare for the Review Book for Judicial Review hearing.
39. During the hearing of the judicial review of the Local Land Court decision, the Review Court reminds itself and must be satisfied that the Plaintiff must show four things as requisite legal requirements for application for Judicial Review. The Plaintiff must show firstly, that she has a sufficient interest, secondly, she must show that she has an arguable case, thirdly, she must show that there was no undue delay in filing the application, and fourthly, she must show that she has exhausted all other statutory avenues for appeal or review.
40. I am satisfied that Plaintiff has shown that she has sufficient interest in the matter. The Plaintiff has also shown and demonstrated that she has an arguable case. But Plaintiff try to explain her undue delay in seeking relief within reasonable time was due to her not knowing about the consent land settlement agreement between first and second defendants until they were charged with the criminal offences for breach of s. 64 of the Land Dispute Settlement Act. This explanation appears to suffice her undue delay in filing this application. The fourth reason for her not exhausting the appeal avenue available under s. 54 of the Land Dispute Settlement Act 1975 is because she was not a party to the initial mediation settlement and also for inaction to explore appeal avenue under Land Dispute Settlement Act for only reasons best known to herself, except for this action now before this court for judicial review hearing
41. The Judicial Review of the Consent Agreement that translate into formal Local Land Court Order reveals that there were obvious non-compliance with ss. 18 & 19 of the Land Dispute Settlement Act by Local Land Court Magistrate. Hence, the justice of the case so requires that and in the interest of parties that the justice is not only done but seen to be done, I am satisfied that the Consent Land Settlement Agreement that translate into formal Local Land Court Order dated 12th April 2010 per se must be terminated forthwith.
42. The Court in exercising its inherent powers under s. 155 (4) of the Constitution, in the absence of other enabling legislation to remedy the situation that is revealed in this case, the Court invokes its inherent power and direct that the Plaintiff be joined as a party in this case as the matter is remitted to go before a newly constituted different Local Land Court Magistrate and Land Mediators to preside over this case according to the due process of the law. Whilst I am mindful of the fact that the Local Land Court Magistrate did inform Plaintiff during criminal trial the the appeal avenue available through the Provincial Land Court was still available to her to invoke. However, the Plaintiff did not explore this legal option for reasons only best known to herself and I am duty bound to determine reviewing the Local Land Court Order based on the relevant materials before me in the case file, which I had the benefit to refer to in this Judicial Review hearing. The Court therefore directed that the Consent Land Settlement Agreement converted and translated into proper Local Land Court Order of 12th April 2010 is quashed forthwith and issue other ancillary remedies as sought by Plaintiff in this Judicial Review. The Court Orders accordingly.
ORDER
43. The Court accordingly made the following orders that:
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Sialis Tedor & Associates Lawyers: Lawyer for the Plaintiff
No Appearance: Lawyer for the Defendants
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