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Moio v Kaeka [2020] PGNC 26; N8204 (21 January 2020)

N8204

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS (JR) NO. 594 OF 2018

BETWEEN
KEVEA MOIO as Chairman of BEHORI INCORPORATED
LAND GROUP
First Plaintiff

AND
BEHORI INCORPORATED LAND GROUP REG No. 9546
Second Plaintiff

AND
FOXIE KAEKA & ORS
First Defendant

AND
BEHORI INCORPORATED LAND GROUP REG NO. 552
Second Defendant

AND
MAX VAGI AS REGISTRAR OF INCORPORATED LAND GROUPS
Third Defendant

AND
DEPARTMENT OF LANDS & PHYSICAL PLANNING
Fourth Defendant

AND
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Fifth Defendant

Waigani: Thompson J
2019: 11^th December
2020: 21^st January

JUDICIAL REVIEW - Judicial Review of decision by Registrar of Incorporated Land Groups to recognize an application for an ILG - Sections 5 A and B of Lands Groups Incorporation (Amendment) Act 2018 – powers of Registrar - whether there was internal dispute - effect of 2012 Amendment adding S36 - effect of 2018 Amendment repealing and replacing S36

Counsel:

Mr P. Harry, for the First & Second Plaintiff
Mr C. Nidue, for the First & Second Defendant
Mr E. Bua, for the Third to Fifth Defendant

21^st January, 2020

1. THOMPSON J: FACTS AND EVIDENCE: Behori ILG, the 2^nd Plaintiff, was registered as an Incorporated Land Group in September 2003, while the Behori Gaha-ia ILG was incorporated in 2004, and the Behori Nabagowabaka ILG was incorporated in 2005.

2. By a Gazettal Notice No. G64 dated 20 February 2012, a Notice of Commencement by the Head of State was published, which fixed the date of 1 March 2012 as the date upon which the Land Groups Incorporation (Amendment) Act 2009 (“LGIAA 2012”) came into operation.

3. One of the amendments was the addition of a new S36, which provided:

“On and from the coming into effect of this Act, all current and existing incorporated land groups incorporated prior to the coming into force of this Act, shall on the coming into force of this Act be allowed to continue for a transitional period of five years only, and that such incorporated land groups shall automatically cease to exist at the 5^th anniversary from the date of effect of this Act.”

4. The effect of this amendment was that the 2^nd Plaintiff, which was a current and existing ILG incorporated prior to 1 March 2012, could only continue for a further five years, and if not reincorporated, would then automatically cease to exist on 1 March 2017.

5. On or about 26 July 2016 a person calling himself Pexcy Rodney but with a signature which did not appear to be of those two words, lodged an Application for Recognition as an Incorporated Land Group with the 3^rd and 4^th Defendants. The Application form was completed and signed by Rhoda Geita. The covering letter attached to the Application stated that the Behori Clan members had agreed to dissolve their three existing ILGs at a meeting on 25 June 2016, and to then form one ILG in the name of the Behori Clan. The letter said that more than one thousand members of the Behori Clan attended the meeting and agreed to the dissolution of the three ILGs, and for a new ILG to be registered. The contents of this letter were not reflected in the documents attached to it.

6. The letter attached a document which purported to be Minutes of a Meeting held on 25 June 2016, at which about one hundred people were said to have voted. There was no list of people either attending or voting. The only issues which were voted on, were for what were said to be elections for executives of the Behori Incorporated Land Group, without identifying it with the Registration Number of the 2^nd Plaintiff. There was no item on the Agenda, no discussion, and no vote, on the purported decision to agree to dissolve the three ILGs and to register a new ILG. The Minutes were not signed by any member of the Management Committee or any other representative of the 2^nd Plaintiff. The Minutes were only signed by Pexcy Rodney, who described himself as a consultant.

7. There was another document called Record of Meeting Decision which said that on 25 June 2016 more than one thousand members of the group (without identifying the group) had attended and agreed to dissolve the three ILGs and to form one new ILG, which would include all the members of the Behori Clan. This document was signed by the 1^st Defendant.

8. There was a further document called Certification, which stated that at a meeting of 25 June 2016 a decision was taken to incorporate the Behori Clan Land Group, and stated that it attached a list of members and their respective birth certificates. There was a List of Members showing the names of about 200 people, but without any copies of their birth certificates. This document was signed by the 1^st Defendant.

9. The Application was not made by the three existing ILGs, and did not make any reference to the three ILGs. It simply applied to recognize members of the Behori Clan as an incorporated land group. There was no mention by the applicant or by the 3^rd Defendant that there was already in existence a registered Incorporated Land Group for the Behori Clan, which was the 2^nd Plaintiff.

10. In August 2016 the 3^rd Defendant advertised Notice of Lodgment of the Application in the National Gazette and in a newspaper. On or about 11 August 2016, the 1^st Plaintiff and 2 others as “Clan leaders and members of the traditional Behori Clan ...”, and as the 2^nd Plaintiff, lodged an Objection to the Application.

11. The basis of the objection was stated to be that the 2^nd Plaintiff was an existing and valid ILG, and that the 1^st Plaintiff and other 2 office holders were also clan leaders and members of the Behori Clan. They said that the Applicant was not a lawful representative of the Behori Clan, was not authorized to represent the clan, that the clan members have not agreed to incorporate another ILG, the Clan land description was not correct, and they provided a copy of their current registration certificate for the 2^nd Plaintiff.

12. Pursuant to S5 A of the LGIAA 2012, if it appears to the Registrar that there are internal disputes relating to the identity of the group’s representatives, officers or members, he must either reject the Application for recognition, or withhold its processing until he is satisfied, based on evidence, that the dispute has been settled.

13. The Plaintiffs’ objection put the 3^rd Defendant on clear notice that there was a dispute between the clan members. The various deficiencies in the Application documents therefore required close scrutiny by him.

14. On 19 September 2016 the 3^rd Defendant notified the District Administrator of the 1^st Defendant’s Application, which required him to disseminate the documents and provide confirmation of compliance. The District Administrator returned the notice on 22 September 2016, stating that the Notice of Application had been widely published and he had not received any objections. As the Notice had only been received less than three days earlier, it is difficult to see how widely the notice could have been disseminated, and it was not surprising that he had not received any objections.

15. Pursuant to S5 B and S33 of the LGIAA, the 3^rd Defendant shall also cause notice of the Application to be given to any Village Court within whose jurisdiction the Land Group will come and members of the group reside, for dissemination and confirmation of compliance.

16. The Notice of Application was not given to any Village Court.

17. Pursuant to S5 B (2), the Registrar shall not issue a certificate of recognition unless he receives from the Village Court a confirmation notice of receipt of the documentation and of compliance with the requirement for dissemination.

18. As the Village Court did not receive notice of the Application, there was no compliance with the requirements under S5B for dissemination and confirmation of the notice.

19. In September 2016, the 3^rd Defendant issued a Notice of Determination of Objection, which was not in fact a Determination. Instead, it directed the parties to meet by way of a mediation to resolve the dispute within 14 days.

20. The Notice ended with a statement that: “Failure to comply with the above may result in the issuance of the Certification of Incorporation of ILG to the applicant.” The Conditions attached to the Notice stated that if the Plaintiffs did not serve the Notice in time, and return the “Instrument”, their objection would be “deemed void in its entirety”, and that a refusal by the 1^st Defendant to receive the Notice would “result in your application being on hold for an indefinite period.”

21. The Plaintiffs duly gave the Notice to the 1^st Defendant and a meeting was held on 12 October 2016. Some of the 1^st Defendants attended, and about one hundred and twenty clan members were said to have attended the meeting. However, no agreement was reached. The Plaintiffs reported back and returned the documents including the Proof of Service to the 3^rd Defendant.

22. On 15 November 2016 the 3^rd Defendant wrote to the 1^st Defendant, requiring them to attend a meeting at the 4^th Defendant’s premises. The letter purported to be copied to the Plaintiffs, but did not show any address for them. It appears that no meeting eventuated.

23. On or about 1 March 2017 the 2^nd Plaintiff automatically ceased to exist because it had not applied for or obtained re-incorporation within the 5 year transitional period.

24. On or about 4 April 2017 the 3^rd Defendant issued a letter to the 1^st Plaintiff, saying that as they had failed to comply with the Notice, he was now giving them an extension of 14 days to resolve the dispute, and that failure to comply with S5A of the Act would result in him issuing the ILG certificate to the 1^st Defendant without further notice.

25. Section 5 A of the Act imposed no obligation or conditions on the Plaintiffs, and so there was nothing with which they could comply. Section 5A only imposes obligations on the 3^rd Defendant, to reject or withhold an Application if there is a dispute.

26. In May 2017 a Mediation Certificate was issued by two Land Mediators, which recommended that the 2^nd Plaintiff reregister its incorporation as an ILG.

27. In August 2017, the 3^rd Defendant gave notice of his intention to grant registration, and then issued a Certificate of Recognition of Incorporated Land Group to the 1^st Defendant, recognizing the 2^nd Defendant.

28. These decisions by the 3^rd Defendant made in August 2017 to grant the Application and issue the Certificate, were not decisions which deregistered the 2^nd Plaintiff.

The Legislation

29. On 30 January 2019 the National Gazette No. G57 published notice that the Land Groups Incorporation (Amendment) Act 2018 was certified on 16 January 2019. This 2018 amendment repealed S36 of the LGIAA 2012 and replaced it with the following:

“All current and existing Incorporated Land Groups that were incorporated prior to 27 February 2012, shall continue for a transitional period of ten years only, and that such incorporated land groups shall automatically cease to exist at the 10^th anniversary of this date.”

30. The sole purpose of passing this 2018 Amendment was said by the Plaintiffs to be because the majority of the ILGs existing prior to 1 March 2012, failed to reincorporate within the 5 year transitional period, and so had ceased to exist. Parliament intended to rectify this by passing a further Amendment whereby all ILGs incorporated prior to the 2012 amendment, were given a further transitional period of ten years in which to reincorporate.

31. The wording of the 2018 amendment was not entirely straightforward. The amended Section is headed “Savings and Transitional Arrangements”. Prima facie, it says that an ILG has to be both current and existing, and incorporated prior to 27 February 2012, to be able to be saved and continue to exist.

32. If an ILG was incorporated in say 2003, and then after the 2012 amendment, applied for and obtained reincorporation in 2016, it would not be affected by the 2018 amendment because it would no longer be an ILG which was incorporated prior to 27 February 2012.

33. No ILG that was incorporated prior to 27 February 2012 which had not reincorporated and so had ceased to exist in 2017, could be said to be current or existing at the date of the 2018 amendment.

34. All ILGs which had reincorporated after 27 February 2012, were current and existing, but did not need to be saved, and as they were not incorporated prior to 27 February 2012, the amendment could not apply to them.

35. The effect of this is therefore that the 2018 amendment could only apply to ILGs incorporated prior to 27 February 2012 which had not subsequently been reincorporated. Any ILG incorporated in 2003 which had reincorporated after 1 March 2012, would not be affected.

36. As the only ILGs which could be affected and saved by the 2018 amendment were those which had not reincorporated after 27 February 2012, then the only meaning which can be given to the words “All current and existing incorporated land groups that were incorporated prior to 27 February 2012...” is “All incorporated land groups that were current and existing and incorporated prior to 27 February 2012 ...”.

37. If the words were not interpreted in this way, the 2018 amendment would be meaningless and have no effect, because it would not apply to any ILGs at all. The purpose of the 2018 “Savings Arrangement” could not be effected, and could not save any ILGs at all.

38. The only way to give meaning and effect to the 2018 amendment is to interpret it as applying to ILGs that were current and existing prior to 27 February 2012, and which were not reincorporated by March 2017.

39. However, the amendment says that it will come into operation in accordance with a notice in the National Gazette by the Head of State. The only evidence of a notice which has been published in the National Gazette has been the notice of Certification by the Speaker in January 2019. There was no evidence of a notice in the National Gazette by the Head of State. I must therefore proceed on the basis that the 2018 Amendment is not yet in effect.

Issues

40. If the 2018 amendment had been in effect, then I am of the opinion that the 2^nd Plaintiff would have been saved by the amendment, and would be a current and existing ILG which was incorporated prior to 27 February 2012. However, as the amendment is not in effect, then S36 of the LGIAA 2012 has not been repealed, and as the 2^nd Plaintiff did not reincorporate within the 5 year transitional period, it automatically ceased to exist in March 2017.

41. The Defendants submitted that because the 2^nd Plaintiff ceased to exist in March 2017, it did not have locus standi to bring the proceedings in 2018. That submission is correct.

42. As discussed in Kalinoe v Kereme, PSC and Ors (2017) SC1604, when applying for leave to proceed by way of judicial review, it is necessary under Order 16 Rule 3 (5) for the Plaintiff to show that he has a sufficient interest. The 1^st Plaintiff was a former office holder in the 2^nd Plaintiff as well as a Clan member of the Behori Clan. He therefore had sufficient interest in the 3^rd Defendant’s decision. At the substantive hearing, it is still open to the Defendants to challenge the Plaintiff’s locus standi and other issues. (Pruaitch v Chronox Manek and ors (2010) SC1093). However, regardless of the 2^nd Plaintiff’s lack of locus standi, the 1^st Plaintiff had standing to bring these proceedings as a clan member. Pursuant to S5 A of LGIAA, any member of a group is able to give notice of a dispute. The 1^st Plaintiff did give such notice, and so has locus standi to challenge the decision.

43. It was not necessary for the 1^st Plaintiff to bring a representative action. His own membership of the clan and group was sufficient to give him standing.

44. The Defendants submitted that the 3^rd Defendant had a discretion whether or not to grant the 1^st Defendant’s Application, under S 5 and 6 of the Act. These Sections impose obligations on the 3^rd Defendant. They do not contain any discretion to waive compliance with the mandatory requirements of S5 A and S5 B (1) (b) (ii) and (2). That submission is rejected.

45. The Defendants submitted that the Plaintiffs delayed in bringing the proceedings, and did not exhaust the alternative remedy of applying to the Minister under S26 of the Act, which says that an aggrieved person may appeal.

46. These were issues which were considered by the court when granting Leave. More than a year has passed since then, and the matter has proceeded to the final substantive hearing. If the Plaintiffs were required to start again by an appeal to the Minister, the time and expense of these proceedings would be wasted, thereby prejudicing the parties and causing further delay in resolving the dispute. I consider that it would not be in the interests of justice to refuse the Plaintiff’s substantive Motion, on these grounds.

47. In his evidence, the 3^rd Defendant referred to his letter of 4 April 2017, said that he was not aware that the Plaintiffs had complied by attempting to mediate, but acknowledged receipt of the mediators report and recommendation, admitted that he had not complied with all the statutory requirements of the LGIAA 2012 but said that compliance was not strictly necessary, said that there was no dispute as to the boundary of the Clan land, and said that he concluded that there was no valid dispute by the Plaintiffs. He went on to say that the Plaintiffs failed to resolve the issues arising out of the Objection within time, and so he was entitled to issue the Certificate of Incorporation to the 1^st Defendant.

48. The 3^rd Defendant either disregarded or was unaware that under S5 A of the Act, if the dispute failed to be resolved, either within time or at all, he was not entitled to issue a Certificate, and his only power was to either reject the application or withhold its processing.

49. The 3^rd Defendant also either disregarded or was unaware that under S5 B (2) of the Act, he did not have the power to issue a Certificate unless he had received the appropriate confirmation of compliance from the Village Court.

Conclusion

50. In their 2016 Objection, the 1^st Plaintiff and 2 others had disputed the identity of the Behori Land Group’s representatives, officers, and membership. As well as being the lawful representatives of the Behori Incorporated Land Group before it subsequently ceased to exist in March 2017, the 1^st Plaintiff and 2 others were also members of the Behori Clan. The documents in the 1^st Defendant’s Application for Recognition stated that all members of the Behori Clan would be members of the proposed new ILG. This was confirmed in the 1^st and 2^nd Defendant’s submission that the 1^st Plaintiff and the 2 others were automatically members of the 2^nd Defendant, by virtue of their clan membership.

51. The Plaintiffs’ Objection therefore clearly made it appear to the 3^rd Defendant that there was an internal dispute between clan members relating to the identity of the group’s representation, within the meaning of S5 A of the LGIAA 2012. This dispute remained between the 1^st Plaintiff and the other clan members, even after the 2^nd Plaintiff ceased to exist.

52. On that basis, the 3^rd Defendant did not have an option to say that unless the dispute was resolved in 14 days, he would grant the Application for Recognition.

53. The Plaintiffs had given notice of an internal dispute which had not been settled, and so pursuant to S5 A of the LGIAA 2012, the 3^rd Defendant’s only options were to reject the 1^st Defendant’s Application or withhold its processing until he could be satisfied that the dispute had been settled. He had not been notified by the Plaintiffs that the dispute had been settled, and there was no evidence on which he could have been so satisfied. Their Objection remained unresolved, and consequently he had no power to grant the Application for Recognition.

54. By proceeding to accept the Application and grant recognition, when the internal dispute between the group members had not been settled, and when he had not received a confirmation notice of receipt from the Village Court, the 3^rd Defendant acted ultra vires his powers under Sections 5 A and B of the LGIAA 2012.

55. In view of the number of years which have passed since the Objection was lodged, it would be desirable for the dispute to be settled without further delay. If the dispute is able to be settled between the parties, the 3^rd Defendant will then be entitled to proceed with the processing of the 1^st Defendant’s application for recognition. If the dispute is unable to be settled, the 3^rd Defendant must continue to withhold processing of the 1^st Defendant’s application, or must reject it.

56. For these reasons, I make the following orders:

(a) The Plaintiff’s application for Declarations that the 3^rd Defendant’s decision to deregister the 2^nd Plaintiff was ultra vires, is refused.

(b) The decisions of the 3^rd Defendant made in August 2017 to grant and issue a Certificate of Recognition to the 1^st and 2^nd Defendants, are removed into this Court by way of Certiorari, and are hereby quashed.

(c) The notice of Grant of Certificate of Recognition and the Certificate of Recognition of Incorporated Land Group in the name of Behori Land Group Incorporated Reg ILG No. 552, are set aside.

(d) The Plaintiffs and 1^st and 2^nd Defendants are to attempt to settle the dispute over the representation, officers, and members of the Behori Clan, within 30 days.

(e) If settlement is reached, the Plaintiffs and 1^st and 2^nd Defendants are to notify the 3^rd Defendant of the settlement within 7 days of the settlement, and the 3^rd Defendant may then proceed to process the 1^st Defendant’s Application for Recognition.

(f) If settlement is not reached within 30 days, the 3^rd Defendant must make a decision to either reject the 1^st Defendant’s Application, or continue to withhold its processing until he is satisfied, based on subsequent evidence, that the dispute has been settled, and must promptly inform the parties of his decision.

(g) Each party is to pay its own costs.

___________________________________________________________
Harry Lawyers: Lawyers for the Plaintiff
Nidue & Associates Lawyers: Lawyers for the First & Second Defendant
Solicitor General: Lawyers for the Third to Fifth Defendant