N8032
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS (JR) NO. 460 OF 2019

BETWEEN
JOHN GAUDI GUBA for himself and in his capacity as CHAIRMAN OF KAEVAGA (REIVA GOMARA) INDUHU INCORPORATED LAND GROUP (ILG)
Plaintiff

AND
LAND TITLES COMMISSION
First Respondent

AND
BENJAMIN SAMSON in his Capacity as REGISTRAR OF TITLES
Second Respondent

AND
OSWALD TALOPA in his capacity as ACTING SECRETARY FOR DEPARTMENT OF LANDS & PHYSICAL PLANNING
Third Respondent

AND
JOHN ROSSO in his capacity as MINISTER FOR LANDS & PHYSICAL PLANNING
Fourth Respondent

AND
INDEPENDENT STATE OF PAPUA NEW GUINEA
Fifth Respondent

AND
KATATO JOTOS
Sixth Respondent

Waigani: Miviri J
2019: 26th September

PRACTISE & PROCEEDURE – Judicial Review & Appeals – Originating summons – Leave application – Evidence filed – applicant – constant amendment of material facts – truth in evidence – no Standing – inexcusable inordinate delay – 34 years 1 month  8 days  – No Arguable case – Alternative remedies no evidence – grounds not made on the balance of probabilities – leave refused – cost will follow the event.

Cases Cited:

David Kandakason v The State [1998] PGSC 20; SC558 
Dupnai v Weke [2016] PGSC 43; SC1525 
Giddings Magistrate of the District Land Court at Laiagam; Ex Parte Koan for the Ambai Clan of Laiagam, The State v [1981] PNGLR 423
Gumu v Papua New Guinea Banking Corporation [2001] PGNC 16; N2288 
Independent State of Papua New Guinea v Toka Enterprises Ltd [2018] PGSC 89; SC1746 
Kumbusiri v Oromarie [2012] PGNC 296; N5094 
Small Business Development Corporation v Totamu [2010] PGSC 44; SC1054 
Mali v State [2002] PNGLR 15 
Palili v The State [2006] PGSC 16; SC848
Pipoi v Seravo, National Minister for Lands [2008] PGSC 7; SC909 
Tombe v Masket [2009] PGNC 79; N3704 

Counsel

M. Saka, for Applicant
K. Kipongi, for the Defendant

					RULING 
 03rd October, 2019

1.	MIVIRI, J: This is the Ruling of the Court on the Originating Summons dated the 08th July 2019 by the Applicant seeking leave for judicial review of the Land Titles Commission decision made on the 14th May 1985 and subsequent certification of the Conversion order and plan on the 7th November 1985 effectively declared a logaloto Incorporated land Group as owner of the parcel of land purportedly known as Saivara in the National Capital District having an area of 28, 04 hectares and its decision to register the title of it based.

2.	The decision sought to be reviewed was made on the 14th May 1985. The originating documents are of 8th July 2019. That is a total of 34 years one month 8 days altogether that this matter has been outstanding without recourse to the law in any form even though it was in the heart of the metropolitan city of Port Moresby. Nothing was done given all office of government relevant were here including the courts for 34 years one month and 8 days. Even if they did go by OS 444 of 2016 and that did not get off the ground applicant did not take immediate action knowing time was running.  Given these facts the explanation is not substantial and exceptional because even awareness of it in 2016 did not prompt. Applicant slept over it for the three years from that date to 8th July 2019. The court will not make good his own demise.

3.	He has contended that the decision was made in secret he was not aware of it being made. That the land was discretely and secretly converted by Land Titles Commission. This is not a case of an undercover or covert military operation that has repercussion to the security of the nation so that it is hidden by all means. This is land described by the affidavit filed as 28.04 hectares and a decision of the second respondent Registrar of Titles since 29th January 1986. A very large piece of land which is secretly dealt with for 34 years is quite a remarkable feat and achievement for whoever was at the helm. Judicial review cannot take place on a decision that is made in secret especially of public use of land as is the case here. For one plaintiff would not know of that decision's existence because it is not in the public domain. He would not be reverting here without access to that decision. It is the basis of his cause of action without which there is no cause of action. Administrative actions of the Government through its offices as of the defendants do not take place in secret but in the Public domain because they are public offices. Their duties are to the public at large. Here where transfer is registered as a public record. And he has referred to laws that govern which depict public hearings and governance. 

4.	To the detriment of the applicant it is quite remarkable that he does not go out to pin down and identify in person by name and identity the person who was actually dealing with his land. He presumes and deduces from seeing Paul Torato but does not confirm in its entirety if indeed Katoto Jotos is one and the same in law also known as Paul Torato. Identification of a person is very important in any legal proceedings. Presumption must be backed by credible tangible evidence. I will detail out with the evidence that the applicant has filed in the course of this ruling. 

Applicant’s case

5.	Applicant has urged that time runs from July 2016 when he became aware of the matter. State through the National Capital District Commission issued notices under Section 74 and 98 of the Physical Planning Act 1989 wherein demolition notices were issued under section 99 (2) of that Act on settlers on the subject land to make way for the construction of the road bypass to Hanuabada into Port Moresby town giving effect to the public discharge of duties. He relies on Gumu v Papua New Guinea Banking Corporation [2001] PGNC 16; N2288 (7 December 2001) which was adopted in Kumbusiri v Oromarie [2012] PGNC 296; N5094 (2 November 2012). He further argues that the Supreme Court in Small Business Development Corporation v Totamu [2010] PGSC 44; SC1054 (8 June 2010) defines that delay whether ordinary or lengthy should be explained by affidavit that the reasons are substantial and exceptional. He says that is the case here the reasons are substantial and exceptional as to why it was not taken up earlier in time. He is not barred to bring this proceedings in the interest of justice given he should be accorded a hearing pursuant, time is not confined to four months, Giddings  Magistrate of the District Land Court at Laiagam; Ex Parte Koan for the Ambai Clan of Laiagam, The State v [1981] PNGLR 423 (26 June 1981). 

6.	That time limit does not operate where laws have been breached Tombe v Masket [2009] PGNC 79; N3704 (22 June 2009):

"...Those who ill gain value or interests in property through alleged illegality and breach of Statute should not hide behind Statutory time limitations and or the principles of equity. In other word, if they breached law, Statute or common law or the principles of equity we have adopted under the Constitution offers them no protection. The proceedings are not an abuse of the court process. I dismiss the application to set aside the interim orders and dismiss the proceedings."

7.	This is a double-edged sword cutting both sides of the dispute in its application. It does not only binds the defendants but also the applicant/plaintiff. He must also come with clean hands he must also abide by the law to seek out the hand of Justice not without. Apart from what is set out above, has he demonstrated by credible evidence that he has discharged on the balance of probabilities just cause for his application. He relies on his own affidavit filed initially 15th July 2019, then a supplementary filed the 7th August 2019 where he has sought to amend and to correct withdraw certain facts in the former initial. Then he has again filed another supplementary affidavit a week later of the 14th August 2019 again amending certain fundamental facts yet again. 

8.	In that affidavit of the 7th August 2019 he says he made an honest error or mistake to a very important piece of evidence the alleged certificate of title obtained by Lagaloto land Group Incorporated that they tendered in court in the District Court initially but withdraws that it was never tendered. It was merely asserted. This is a material fact which stands his cause of action. His rights in land is depended and constant amendments and alterations will see otherwise. It cannot be omitted in court where title to land is disputed as here. Further if he is able to firmly say the Native Land Commission award on 2nd September 1959 holds the answer to who really in custom owns that land, by the same token in the court proceedings asserted to in his affidavit it could not be a case of tender in proceedings and then altering that it was merely asserted to. Obviously, the credibility of what is deposed to is affected. Which now is the version to be relied on by the court here? It would be a different matter if the affidavits were in reply or rebuttal to affidavit deposed to by the other side. That is not the case here rather these are self serving altering and amending as seen fit by the deponent. Verily believing is different from actual factual confirmation that one is the same and one Paul Torato alias Katato Jotos. 

9.	Again, in the further supplementary affidavit of the 14th August 2019 just 7 days later after a second supplementary affidavit this is the third affidavit not in reply to an affidavit filed by the other side but amending and altering facts deposed to under oath in the first and second affidavits. For instance at paragraph 3:

 “In my first and second affidavits (affidavit of John Gaudi Guba sworn and filed on 15th July 2019 and supplementary affidavit of John Gaudi Willie Guba sworn on 7th August 2019 and filed on 08th August 2019), I have stated and maintained that we were not aware of the existence of the alleged certificate of title processed and issued to Lagaloto ILG which eventually got transferred to the Katato Jotos.” 

10.     This is a matter fundamental to the cause that he has now changed from the initial. It does not correlate that he was able to firmly say what happened in 2nd September 1959 yet cannot say the same for what is month apart July, August 2019 and a week apart 7th of August 2019 and then 14th August 2019. Then he retracts and says that the first time that he became aware of the title was on the 08th August 2016 when the National Newspaper published the State’s intention to compulsorily acquire. He uses the words, “...I verily say that I have made an apparent mistake or error in my first two affidavits ...” It does not end there he seeks an urgent interim restraining orders against the defendants in that case to protect the settlers from imminent eviction threat per paragraph 9 of that further supplementary affidavit of 14th August 2019. This begs why seek against a third party on the land when it is the land that you are after. As if this is not enough at paragraph 10 of that affidavit, he seeks retracting disregard and deletion of erroneous paragraphs 34 and 35 of the first affidavit John Gaidi Guba sworn and filed 15th July 2019 and also paragraphs 6, 7, and 8 of the second affidavit (Supplementary affidavit of John Gaudi Willie Guba sworn on the 7th August 2019 and filed the 8th August 2019. Now at paragraph 12 of that affidavit he says during the course of the proceeding’s OS No. 444 of 2016 the defendants produced the subject certificate of title registered under Katato Jotos. Once again towards the end of this affidavit he deduces that the person Katato Jotos did not actually exist as a person. By seeing Paul Torato going in and out of court he deduced that he was hiding behind that name.

10.	In my view when title to land is in dispute fundamental as here it would serve no purpose for a person at law holding the title to be concealed from the proceedings or hide from it let alone not appear in court to assist settle the issue when it is current and proceeding in court. Why else would such a person be going and coming out of court discretely or secretly without placing evidence in court of title which is in dispute. The assertion in the affidavit now three times altered under oath speaks against the deponent applicant as a witness of the truth. To continuously alter not just any other facts but material facts underlying a cause of action as here title to land seriously affects the credibility of the deponent as a witness of truth. No court of law will act on evidence that has been changed in its material fundamental basis in the action at hand. Particularly in the light of the fact that Logaloto Land Group Inc h as passed on good title entered the 29th January 1986 to Katoto Jotos encumbrances referred to in the certificate of title that he has annexed as “D” to his affidavit of 15th July 2019. 

11.	The law has been clearly stated in David Kandakason v The State [1998] PGSC 20; SC558 (7 July 1998) where the Supreme Court said that where the witness is shown to have made previous statements inconsistent with the evidence given by that witness at the trial, the court must regard and treat that evidence unreliable, and similarly disregard that previous statement, whether sworn or unsworn, as it does not constitute evidence upon which the judge can act. In other words, both the sworn testimony of the witness and his statement given out of court are discredited and both are no longer reliable evidence, Palili v The State [2006] PGSC 16; SC848 (31 August 2006). Where would that leave the contention of the Applicant that reasonable and genuine reason is made out? He is the principle to the cause if he has not made out on the balance required who else can make out the case for him. Any evidence in support will fall if his primary evidence does not establish. That would be the fate of the affidavits of Potuan Pakop and Reuben Saka both sworn 07th August 2019. 

Defendant’s case 

12.	Defendants have opposed the application for leave contending that Standing must be satisfied, or sufficient interest must be shown by the applicant. Including that he has an arguable case that there has been no delay in time and all administrative process has been exhausted. Plainly defendants say applicant has neither capacity nor the Standing to sue. He is not a representative of a class action because, "In representative actions, the legal representatives are required by law to have the names of the plaintiffs included in a schedule (to the Writs) or for their written consents to be filed and these consents to be by way of an Authority to Act Form. [Order 5 Rules 3 & 8 of the National Court Rules], Mali v State [2002] PNGLR 15 (3 April 2002). In this regard there is no consent or authority by all members of the plaintiff ILG. Or even a meeting resolution to that effect. This fact is important in the light of the fact that this delay is now 34 years one month and 8 days if the group Kaevaga Land Group were acting together in this purpose there is no evidence that the other members of the group were interested in pursuing this matter as is the applicant. He professes this to be that group but the entire composition has not come forward in support to illuminate that this is indeed a joint and common cause that has seriously affected all. Owning land on paper is different to everyday life in Papua New Guinea. That is not demonstrated here prima facie. If glossed in the light of Mali’s case (supra), there is no head way in the case of the applicant. Standing is not discharged to the required balance given this lack in evidence. He fails on this front.

13.	And time is of essence and grievously lacking here against the applicant, it is now 34 years one month 8 days since. Which in itself is an inexcusable inordinate and unreasonable delay Pipoi v Seravo, National Minister for Lands [2008] PGSC 7; SC909 (10 April 2008) which is in similar vein as Dupnai v Weke [2016] PGSC 43; SC1525 (19 August 2016.) The five requirements for leave for Judicial review must be satisfied on the required balance. Unfortunately for the applicant he has fallen here also in time and delay. The subject land is by section 33 of the Land Registration Act indefeasible to the sixth defendant.

14.	Applicant had recourse available to him under section 34 Application for Review and section 38 right of Appeal of the Land Titles Commission Act. He was aggrieved by the decision of the land titles commissioner but did not seek a review within the 90 days under that Act. There is no evidence that they have exhausted this avenue even then it is now way past the time limitation imposed: Independent State of Papua New Guinea v Toka Enterprises Ltd [2018] PGSC 89; SC1746 (20 September 2018) addressed the issue of delay and time proficiently. There it was a 13 year delay the decision of the National Court to grant leave was quashed. It is also worth citing Order 16 rule 4:

 “Delay in applying for relief. (UK. 53/4);-
	
(1) Subject to this Rule, where in any case the Court considers that there 	has been undue delay in making an application for judicial review or, in 	a case to which Sub-rule (2) applies, the application for leave under 	Rule 3 is made after the relevant period has expired, the Court may 	refuse to grant-
		(a) leave for the making of the application; or
		(b) any relief sought on the application,
if, in the opinion of the Court, the granting of the relief sought would be likely to cause substantial hardship to, or substantially prejudice the rights of, any person or would be detrimental to good administration.
	(2) In the case of an application for an order of certiorari to remove any 	judgement, order, conviction or other proceeding for the purpose of 	quashing it, the relevant period for the purpose of Sub-rule (1) is four 	months after the date of the proceeding.
	(3) Sub-rule (1) is without prejudice to any statutory provision which 	has the effect of limiting the time within which an application for 	judicial review may be made.”

15.	The facts set out above reflect undue delay which has caused substantial hardship including prejudicing the rights of the defendants, the State and the people of Papua New Guinea at the expense of the plaintiff. I do not say this lightly because time and again major developments benefitting the entire country and the State is grounded to a halt because of people like the applicant here. Who sleep over their rights years on end to wake up and cause misery for the majority on the eve of when the projects are to get up and to benefit all. These must stop. This view is not new alias Pipoi's case (supra). The affidavit of the applicant does not hold out for the reasons set out above and will be rejected by the operation of law set out above. The effect of which is he has not made out his application for leave for judicial review here, Mali (supra). Given the facts here there is no consent or authority by all the members of the plaintiff ILG or meeting resolution to that effect. His evidence is lacking here given the fate of his own affidavit set out above. He has not discharged this requirement and he fails. 

16.	Consequently, the Application is without merit in all frontiers demonstrated to the required balance. And the application fails and is dismissed forthwith.
 
17.	Leave is refused given the reasons set out above with costs following suit.

Orders Accordingly.
__________________________________________________________________
M Saka Lawyers: 				Lawyer for the Plaintiffs/Applicants
Office of the Solicitor General:		 Lawyer for the Defendants