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Gele v Selefkariu [2020] PGNC 345; N8553 (25 September 2020)

N8553

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS (JR) NO. 575 OF 2019

LUKA GELE of Garuboi Baio Baio Clan of Goilanai, Milne Bay Province. For himself and on behalf of members of BEBESIGA FAMILY of Goilanai, listed on the schedule A to this Originating summons
Plaintiff

V
MARK SELEFKARIU Principal Magistrate Milne Bay Provincial Land Court
First Defendant

AND
INDEPENDENT STATE OF PAPUA NEW GUINEA
Second Defendant

Waigani: Miviri J
2020: 15^th & 25^th September

PRACTISE & PROCEEDURE – Judicial Review & appeals – Originating Summons Order 16 Rule 3 (1) NCR – Leave application – Locus Standi – Arguable Case – Breach of Natural Justice – Exhaustion of internal process – Delay – Reasonable explanation for – evidence sufficient – balance discharged – leave granted – cost follow the event.

Cases Cited:

Dickson v Orere and Modigai [1976] PNGLR 120

Dupnai v Weke [2016] PGSC 43; SC1525

Innovest Ltd v Pruaitch [2014] PGNC 288; N5949

Counsel:

A. Token, for the Applicant
E. Bua, for the Defendants

RULING

25^th September, 2020

1. MIVIRI, J: This is the ruling of the court on the Plaintiffs originating summons dated the 5^th August 2019 for leave for Judicial review pursuant to Order 16 rule 3 (1) of the National Court Rules, (“the rules”) against the decision of the Provincial Land Court of the 1^st March 2017.
   
2. This decision PLC No. 1 of 2016 by the first defendant made a finding that portions 584C and Portion 585C were not within the boundaries of Goilanai Customary land the subject of the Land Titles Commission decision of 1969 and the Supreme Court Ruling of 1976. It quashed the 20^th June 2016 Local Land Court No. 08 of 2015 decision presided by Local Land Court Magistrate Kaumi (as he then was) who held that the ownership issue of Goilanai was res judicata because of the Land Titles Commission decision of 1969 and the Supreme Court ruling of 1976. This disputing parties appealed this decision to the Provincial Land Court presided by the first defendant.
   
3. Clearly the background shows that the subject proceedings has seen out process in court right to the highest court of the Land the Supreme Court whose reasons are reported and published in Dickson v Orere and Modigai [1976] PNGLR 120 (9 April 1976). It was for that reason that the Local Land Court presided by Magistrate Kaumi (as he then was) held the matter to be res judicata. It was finally at an end of its road. But it would appear that a new boundary was created and so the decision of the Provincial Land Court presided by the defendant overruled the decision of the local land Court.
   
4. Immediately what comes to mind is Order 16 Rule 4 that time is unduly delayed because 4 months has since lapsed, and this application is made 3 years 7 months since that decision was handed down in Alotau the capital of Milne Bay Province. That is where the seat of this court is including officers of the law Public Solicitor Office who are engaged here by the applicant and private counsel. So, if there was discontentment over the decision the law offices were there accessible to bring this matter as has been done now. Yet since that day 1^st March 2017 up to the present no discontentment has been aired nor placed before this court either by way of an appeal or leave for judicial review That has been basis upon which Leave has been refused: Dupnai v Weke [2016] PGSC 43; SC1525 (19 August 2016).
   
5. But is there reasonable explanation made out by the plaintiff for the delay in the prosecution of the matter. A canvass of the affidavit of the plaintiff/applicant shows reinvestigation of the matter in particular as to reaffirming the initial boundaries of the land which led to the decision in his favour. And the quest to collect evidence particularly that of a cartographer to see out with that scientific evidence of a case which it is hoped will be the evidence to be relied on against the decision of the Provincial Land Court presided by the first defendant. This is a very important point because the position taken by the local land court that it was res judicata by the Supreme court decision has now being reignited by a re demarcation of the boundary by the decision of the Provincial Land Court composed by the first defendant.
   
6. He deposes and attachs annexure “K” the court record a survey of Alotau extension shown with a map showing Portion 583C, 584C, 585C, & 268C Alotau Extension. What is even more fundamental is that the initial demarcation emanating 1968 on the map captures Portion 583C, 584C and 268C within and 585C outside it is water easement. This is the demarcation and the parameter that the land titles commissioner dwelt upon to give the decision that he gave. And which decision was confirmed in the Supreme Court referenced Dickson v Orere (supra). There is recent extension made extending the parameter outwards which still does not enclose 585C the water easement. And this is very clear by the demarcation of plots of land shown on the map, the land is populated now and as the caption of the map reads, “Alotau Extension” is indeed now extended even set out by the Map annexure “K”.
   
7. The plaintiff applicant is clearly out of time for Judicial review by the rules but the reasons which are set out in his affidavit which I set out above a very good reasons enough to waive that he has breached time and to grant him leave to judicially review the Provincial Land court’s decision re setting the boundaries on the land since the Supreme Court decision. On that basis to it settles that there is an arguable case demonstrated by this fact. That is whether or not the Provincial Land Court can re write the boundary to the land Goilanai Portion 583C, 584C and 268C within and 585C outside as water easement on the map. It also arguable that the Supreme Court determined on the basis of the material initially determined by the land Titles Commission in 1969. It is the final court of appeal can the Provincial land Court on the same subject land re introduce new boundary to the land and therefore in the course change the ownership from the initial?
   
8. These are strong arguable case that must be properly the subject of judicial review proceedings. And the plaintiff is affected by the decision being direct descendent by genealogy pertaining from that Supreme Court decision. It is therefore his land and he is affected by the decision. There is no further internal process to address the matter except to court where it is now. This is satisfied the application of the plaintiff. Accordingly leave is granted to the plaintiff for Judicial review of the decision of the Provincial Land Court of the 1^st March 2017.
   
9. Judicial review is concerned with the process rather than what is the substance, that is the law which has been followed and applied by this court in Innovest Ltd v Pruaitch [2014] PGNC 288; N5949 (17 March 2014). Given what is set out above the applicant cause for leave is within.
   
10. I am satisfied on the material that he has presented that leave to apply for Judicial Review be granted. Cost will be in the cause.
    
11. The orders of the court are:
    
    • (i) Leave for Judicial Review is granted to the Plaintiff.
    • (ii) Plaintiff is directed to file the Substantive Notice of Motion and serve it by or before Monday the 12^th October 2020 on the respondents.
    • (iii) Plaintiff will file proof of the service.
    • (iv) Plaintiff will file affidavits that he intends to rely on by or before Monday 19^th October 2020 and will cause service of the same including proof thereof.
    • (v) The Respondents will file and serve affidavits in reply by or before Monday 26^th of October 2020.
    • (vi) Parties are granted liberty to file further affidavits by or before Monday 2^nd November 2020 when the matter returns for further direction then.
    • (vii) Costs will be in the cause.

Orders Accordingly.

__________________________________________________________________

Office of the public Solicitor: Lawyer for the Plaintiff/Applicant

Office of the Solicitor General: Lawyer for the Defendants