N11673

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

OS (JR) NO. 245 OF 2023

ROUBA THOMAS of Tagolewa Clan of Ganaibeu
Plaintiff 

-V-

NELSON PETER ILA representing members of the Tagolewa Clan of Ganaibeu
First Defendant

YOKI KIWIWI, NINI KIWIWIW and BERNARD KUHEIA representing members of the Gomila Clan
Second Defendant

NY LIMITED 
Third Defendant

WAIGANI: KARIKO J
10, 17 NOVEMBER 2025 

PRACTICE & PROCEDURE – application for leave to apply for judicial review – decision of provincial land court in an appeal from local land court - relevant considerations 

Aggrieved by the decision of the Provincial Land Court in an appeal from the Local Land Court that varied a previous determination by the same court regarding ownership of customary land, the applicant sought leave of the National Court to apply for judicial review of the decision of the Provincial Land Court. 

Held

1.	To be granted leave for judicial review, the plaintiff must show:

(1)	that he has locus standi or a sufficient interest in the decision sought to be reviewed;
(2)	that there has been no undue delay in applying for leave;
(3)	that he has exhausted all available statutory and administrative avenues to him to seek redress; and
(4)	that he has an arguable case which justifies leave being granted.
1.	The evidence did not provide a reasonable explanation for the inordinate delay in filing the application after the decision sought to be reviewed.

2.	The applicant failed to show he had an arguable case as his supporting affidavit and the O16 r3(2) Statement did not refer to the fundamental legal basis for the decision sought to be reviewed.

3.	Leave to apply for judicial review refused. 

Cases cited

Gelu v Sheehan (2013) N5498 
Inland Revenue Commissioners v National Federation of Self-Employed and Small Business Ltd [1982] AC 617 
Innovest Ltd v Pruaitch (2014) N5949

Counsel

F Kuvi for the applicant

1.      KARIKO J: This is an application pursuant to O16 r3 of the National Court Rules for leave to apply for judicial review of a decision of the Provincial Land Court in Alotau (PLC) given on 4 December 2020.  

2.	The originating summons for the leave application was filed on 4 September 2023.

3.	Although the Secretary for Justice was served as required by O16 r3(3) through the Office of the Solicitor General, there was no appearance for the State at the hearing of the application.

BRIEF BACKGROUND

4.	These proceedings concern a dispute over ownership of customary land known as Ganaibeu, Alotau, Milne Bay Province. 

5.	On 11 February 1992, the Local Land Court in Alotau (LLC) heard the dispute pursuant to the Land Disputes Settlement Act (Act) and relevantly determined that: 

•	Ganaibeu is owned by the Gomila Clan, and 
•	the Tagolewa Clan had limited rights confined to the areas they were using and occupying.
(1992 LLC Decision)

6.	On 18 December 2018, an application was made to the LLC under s 44 of the Act by Rouba Thomas on behalf of Tagolewa Clan. The application sought to vary the 1992 LLC Decision to have the Tagolewa Clan recognized as the owners of Ganaibeu following the purported transfer of ownership of the land by custom from the Gomila Clan to the Tagolewa Clan. 

7.	The application was heard and granted, and the main order issued was that from thereon, ownership and control of the disputed land belonged to the Togalewa Clan (2018 LLC Decision).
 
8.	Aggrieved, the first defendant appealed that decision to the PLC on grounds that:

•	the LLC exceeded its jurisdiction; 
•	the LLC conducted its hearing contrary to natural justice; and 
•	no court doing justice between the parties would have made the decision appealed against.

9.	The PLC heard the appeal on 4 December 2020 and decided to uphold the appeal and quash the 2018 LLC Decision (PLC Decision). This effectively reinstated the 1992 LLC Decision. 

10.	Dissatisfied, the plaintiff then filed these proceedings on 4 September 2023 seeking judicial review of the PLC Decision.

LEGAL PRINCIPLES

11.	It is settled law through many case authorities including Gelu v Sheehan (2013) N5498 that the Court exercises a discretion in considering an application for leave for judicial review – a discretion to be exercised judicially. 

12.	To be granted leave for judicial review, the plaintiff must show:

(5)	that he has locus standi or a sufficient interest in the decision sought to be reviewed;
(6)	that there has been no undue delay in applying for leave;
(7)	that he has exhausted all available statutory and administrative avenues to him to seek redress; and
(8)	that he has an arguable case which justifies leave being granted.

CONSIDERATION

13.	After intimating to Mr Kuvi for the applicant that I do not consider there to be are any issues concerning locus standi and exhaustion of other statutory and administrative avenues, counsel focussed submissions on the remaining two considerations. 

14.	The applicant relies on the following documents for his application:

(1)	the originating summons,
(2)	the O16 r3(2) statement, and
(3)	his affidavit in support filed 4 September 2023.

15.	In relation to delay which spanned 2 years 9 months from the date of the PLC Decision to when he filed these proceedings, the applicant explains at [28] of his affidavit: 

Firstly, we could not find a lawyer in Alotau that could assist us in our application. The lawyers that we were able to identify in Alotau either have conflict of interest or are just too expensive for us, simple villagers. The Public Solicitor did not want to assist us. Secondly, the Covid-19 pandemic stopped us or restricted us from moving around to find an outside lawyer to help us. Thirdly, our resident Judge in Alotau passed away and the National Court here in Alotau was more or less non-functioning, even the Registry, until quite recently when our current judge arrived. So because of the above reasons, we were unable to bring our grievances before the Court within time.  
	(Emphasis added)

16.	The reasons are explained in very general terms, lacking relevant details such as:

•	Which lawyers in Alotau were approached and when? 
•	When was assistance sought from the Public Solicitor but was refused?
•	How exactly and for what period did Covid-19 limit the ability to engage an outside lawyer?
•	What was the period during which the Alotau Registry was not functioning? 

17.	In my view, the evidence does not provide a reasonable explanation for the lengthy delay of 2 years 9 months before this application was filed. 

18.	I find the excuses for the inordinate delay in filing to be unreasonable and not to my satisfaction.

19.	In deciding whether there is an arguable case the court has a quick perusal of the material before it, particularly the O16 r3(2) Statement and the affidavit in support, and whether the material discloses what might on further consideration turn out to be an arguable case for the applicant; that issues raised merit a full hearing; Innovest Ltd v Pruaitch (2014) N5949.  The relevant principle to apply in determining an arguable case at the leave stage, was stated by Lord Diplock in Inland Revenue Commissioners v National Federation of Self-Employed and Small Business Ltd [1982] AC 617 at 644 where his Lordship said: 

If on a quick perusal of the material then available, the court...thinks that it discloses what might on further consideration turn out to be an arguable case in favour of granting to the applicant the relief claimed, it ought, in the exercise of a judicial discretion, to give him leave to apply for judicial relief. The discretion that the court is exercising at this stage is not the same as that which it is called upon to exercise when all the evidence is in and the matter has been fully argued at the hearing of the application.    

20.	The applicant submits that the PLC committed errors of law particularly in the proper interpretation and application of s 44 (Variation of orders) and s 58 (Grounds for appeal) of the Act to the facts of the case.

21.	Section 44 provides for a Local Land Court to vary an order on application by a party. A copy of the application is treated a s notice for purposes of s 71 (Service of notices, etc). 

22.	The relevant grounds relied upon in the appeal to the PLC are found in s 58 and which are: 

(a) 	that the Local Land Court exceeded or refused to exercise its jurisdiction; or 
(b) 	that the Local Land Court conducted its hearing in a manner contrary to natural justice; or 
(c) 	that in the circumstances of the case no court doing justice between the parties would have made the decision appealed against; or 
(d)	.....

23.	The applicant’s argument that he has an arguable is largely based on the premise that the PLC failed to consider the pertinent fact disclosed by evidence and that is that the transfer of the disputed land from the Gomila Clan to the Tagolewa Clan was done in accordance with custom, and that both the LLC and the PLC are obliged to consider applicable custom in dealing with disputes under the Act.   

24.	While the PLC decision was in evidence, the depositions and exhibits in the proceedings in the PLC were not produced. 

25.	It is clear to me from the reasons for decision in the PLC Decision that the court upheld the grounds based on s 58(a) and (b) and in doing so, found that the requirements of service of notice of the hearing of the application under s 71 were not complied with. The third ground based on s 58(c) was dismissed but because the court considered it not necessary to decide the issue given it had already found that proper notice of the hearing was not given. 

26.	It is noteworthy that neither the applicant’s affidavit nor the O16 r3(2) Statement refers to the finding of non-compliance with s 71 which is the fundamental legal basis for the PLC Decision.

27.	In the circumstances, I am not satisfied the applicant has an arguable case and I deem it unnecessary to consider the other submissions of the applicant.

28.	As I noted, the PLC decided the LLC erred in procedural jurisdiction in that notice of the s 44 hearing was not served in accordance with s 71. To my mind, it is still open to the applicant to reapply to the LLC under s 44 of the Act and be properly heard after giving due notice in accordance with s 71. 

29.	For now, I decline to grant the leave sought. 

ORDERS

30.	I make the following Orders:

(1)	The Plaintiff’s application for leave for judicial review filed 4 September 2023 is refused.
(2)	Time is abridged.

________________________________________________________________
Lawyers for the applicant: Francis Kuvi & Associates Lawyers