Home | Databases | WorldLII | Search | Feedback National Court of Papua New Guinea

Hibulu v Kupo [2023] PGNC 405; N10557 (27 October 2023)

N10557

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS (JR) NO. 03 OF 2022

DON HIBULU FOR HIMSELF & MEMBERS OF TOPANI CLAN
Plaintiff

V

EDWARD KUPO PROVINCIAL LAND COURT MAGISTRATE
First Defendant

And
KERIA HEWAPE FOR HIMSELF AND MEMBERS OF WITA CLAN
Second Defendant

And
INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Defendant

Waigani: Miviri J
2023: 9^th & 27^th October

PRACTICE & PROCEDURE – Judicial Review – Section 155 (4) Constitution review – Leave for Judicial Review – Gagidu Township Land Local Land Court Hearing – Locus Standi – Arguable Case – Cogent & Convincing Reasons – Delay – Materials Relied Insufficient – Balance Not Discharged – Leave Refused – Costs Follow Event.

Cases Cited:
Mali v Independent State of Papua New Guinea [2002] PNGLR 15
Malewo v Faulkner [2009] PGSC 3; SC960
Tovon v Malpo [2016] PGNC 57; N6240
Tuwi v Goodman Fielder International Ltd [2016] PGSC 17; SC1500

Counsel:
S. Wambe, for Plaintiff
J. W. Palek, for Second Defendant
R. Mobiha, for First & Third Defendants

DECISION

27^th October 2023

1. MIVIRI, J: This is the ruling on the Plaintiff’s application for Judicial Review by his substantive Notice of Motion of the 18^th May 2022. It is in these terms pursuant to Order 16 Rule 5 of the National Court Rules:
   
   • (i) An order in the nature of certiorari to bring into this Court the decision of the First Defendant, dated the 26^th November 2021 where he upheld the Second Defendant’s appeal filed outside of the three (3) months’ time limit and leave to file appeal outside of three (3) months was not granted within 12 months but was granted 27 months after the date of the decision appealed against which was contrary to section 54 (2) of the Land Dispute Settlement Act and quash that decision on the basis that it was amounted to an error of law.
     
   • (ii) An Order in the Nature of Certiorari to bring into this Court the decision of the First Defendant, dated the 26^th November 2021 where he upheld the Second Defendant’s appeal grounds against the Decision of the Local Land Court dated 16^th November 2016 and quash that decision on the basis that it was unreasonable according to Wednesbury principles in that he failed to provide any reasons for his findings.
     
   • (iii) An Order in the Nature of Mandamus requiring Exxon Mobil PNG Limited to release the outstanding rental payments for Well -G- to the Plaintiffs.
     
   • (iv) Costs of the proceedings to the Defendants.
     
   • (v) Time of the entry these orders be abridged to the time of settlement by the Registrar which shall take place forthwith.
     
2. On the 26^th November 2021 the First Defendant upheld the second defendants appeal filed in the Provincial Land Court held in Tari. That appeal dated the 13^th March 2017 was from the decision of the local Land Court of the 16^th November 2016 where it granted restraining orders sought by the Plaintiffs. The restraint that the plaintiffs sought was orders against the Second defendants from receiving any rental payments and restraint Exxon Mobil from paying the second defendants.
   
3. Prior to that on the 30^th February 2017 the Second Defendants application to set aside was dismissed and the orders of the Tari Local Land Court of 16^th November 2016 were confirmed.
   
4. The Substantive notice of motion of the plaintiff is supported by his own affidavit sworn of the 18^th May 2022 filed that same day. He is one of the principle land owners representing the Topani Clan members in this proceeding and as such has authority to depose the affidavit and its contents. Topani Clan and Wita Clan were the same parties in the dispute over the same land consisting Amale, Kikiwa & Pehe in the previous proceedings LLC No.5 of 2015-Topani Clan v Wita Clan.
   
5. On the 02^nd February 2016 the Local Land Court in Tari approved the mediation agreement recognizing the Topani Clan members as the genuine landowners, confirmed by the letter from the lands Office in Tari. That approved agreement became effective as Local Land Court Order and Topani Clan Members were recognized as Landowners of Well -Pad G. Annexure “B” is a true copy of the application documents in that previous proceeding including the agreement and annexure “B1” is true copy of each of the respective letters from Tari Lands Office and Tari Local Land Court.
   
6. No appeal was made to the Provincial Land Court against that Court Order and three months period to do that expired on the 02^nd February 2016 on 02^nd May 2016.
   
7. This appeal was lodged by Keria Hewabe and the members of the Wita Clan (13) thirteen months after the date of the Local Land Court Order. The appeal therefore is incompetent pursuant to section 54 (2) however because the appeal was filed after (13) thirteen Months Section 54 makes it mandatory for the appeal to be dismissed.
   
8. That is the evidence by the plaintiff applicant. Who’s standing to bring this action is challenged by the State in that he does not attach to the original process or evidence to sustain that he is pursing this action by that fact. He has been given authority in a schedule deposing to that fact in the commencement of the proceedings, implementing, Mali v Independent State of Papua New Guinea [2002] PNGLR 15. This is a very important point in law because in representative action especially here where land is involved and money is being paid as a result emanating, it is proper that there is evidence placed before the court that is clear authority for the plaintiff to institute the proceedings. Without that authority this proceeding cannot proceed as it is: Tovon v Malpo [2016] PGNC 57; N6240 (4 April 2016). There is no evidence to satisfy filed by the Plaintiff. He challenges the initial decision in a representative action yet there is no authority filed as part of the institutional process, or deposed to in the material that he relies on to proceed with this matter. Because, “In representative actions, the Legal representatives are required by law to have the names of the plaintiffs included in a schedule (to the writ) or for their written consents to be filed and these consents to be by way of an authority to act form [Order 5 Rules 4 & 8 of the National Court Rules]: Mali Supra
   
9. There is no evidence in the institution process and accompanying material to say that all the intended plaintiffs here named have given specific instructions and authority to the applicant here to act on their behalf. There is no authority that has been produced to satisfy that the plaintiff comes by virtue of that authority to this Court. It is particularly important where money that is paid as a result of development to the landowners is involved as here by Exxon Mobil: Tuwi v Goodman Fileder International Ltd [2016] PGSC 17; SC1500 (18 March 2016) and Malewo v Faulkner [2009] PGSC 3; SC960 (13 March 2009). Land is beneficial to all on that land and there must be proper authority for a person to take a class action as is the present.
   
10. Certiorari on the basis of which to bring a decision that was made against in the first instance must come with authority to deliberate on the action instituted, without which the law does not allow as set out above. And the magistrate was within his means as time was not in error, nor was it lacking having been filed on the 13^th March 2021. It was within the time allowed by section 54 and that appeal emanated a decision that will not be the subject of certiorari here. There is no error in the process to accord: District Land Court, Kimbe; Ex Parte Nuli, The State v [1981] PNGLR 192.
    
11. There is no breach of the requirements under section 54 set out above against the second respondent there. The challenge to bring that decision here cannot stand given. It was within time and stands by that fact accorded as it does at first instance. Judicial Review does not lie pleaded in the terms set out above. Because section 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.”

12. The reasons of the Magistrate are clear as to this aspect and self-explained that there was no error to go the way he did appreciating the impact of section 54 set out above. He had a minimum of 3 months in which to file the appeal but not exceeding 12 months after which he must seek leave. Here it was 8 months so within time set out by section 54 (2) of the Act. Certiorari does not lie where the procedure by statute has been complied with as is the case here. There is therefore no merit in the motion that has been filed in the terms set out above. No orders will be issued as pleaded there being no merit to disturb. Judicial review will be refused with costs.
    
13. The formal orders of the Court are:
    
    • (i) The Notice of motion is without merit.
    • (ii) Judicial review is refused.
    • (iii) Costs will follow the event forthwith.
      

Orders Accordingly.
__________________________________________________________________
Fortis Legal Services: Lawyer for the Plaintiff/Applicant
Office of the Solicitor General: Lawyer for First & Third Defendants
John W. Palek Lawyers: Lawyer for the Second Defendant