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Pipoi v Seravo, National Minister for Lands [2008] PGSC 7; SC909 (10 April 2008)

SC909

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCM 4 of 2001

BETWEEN

NAKUN PIPOI on his behalf and on behalf of
THE NOB 1 TRIBE of MADANG PROVINCE
Appellants

AND

VIVISO SERAVO
NATIONAL MINISTER FOR LANDS
First Respondent

AND

NATHANIEL MARUM
NATIONAL LANDS COMMISSIONER
Second Respondent

AND

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Respondent

Waigani: Sevua, Kandakasi & Lenalia, JJ
2006: 28 February
2008: 10 April

ADMINISTRATIVE LAW – Application for leave for judicial review – Relevant principles -Sufficient interest and locus standi – Reliance on earlier Court decision to claim sufficient interest and locus standi – No evidence of plaintiff being one and the same party in the earlier proceedings – No locus standi – Order 16 r 3 (5) National Court Rules.

ADMINISTRATIVE LAW – Application for leave for judicial review – Relevant principles - Arguable case – A party without sufficient interest and or locus standi precluded from arguing arguable case - Declaration of National Land – Appropriate time to contest ownership and or judicial review – Prior to actual declaration – Post declaration ownership not an open issue – Compensation only available remedy through Land Titles Commission – Judicial review not an available remedy – Land Registration Act 1977 ss 8, 9, 10 (2) – National Land Commissions Act 1997.

ADMINISTRATIVE LAW - Application for leave for judicial review – Relevant principles - Exhaustion of available remedies – Declaration of National Land - Failure to exhaust available primary administrative remedy – Application made to inappropriate forum pursuing a non extinguished relief – Land Registration Act 1977 ss 8, 9, 10(2) – National Land Commission Act 1997.

ADMINISTRATIVE LAW - Application for leave for judicial review – Relevant principles - Delay of more than 12 years – Plaintiff engaging in repeated correspondence through members of Parliament and others without any positive response in sight – Failure to utilize available remedy – Taking proceedings before inappropriate forum – Delay inordinate, inexcusable and unreasonable – Too late to upset actions and developments based on decision subject of proceedings - Land Registration Act 1977 ss 8, 9, 10(2) – National Land Commission Act 1997- National Court Rules Order 16 r 4..

LAND LAW - Declaration of National Land - Appropriate time to contest ownership - Prior to actual declaration – Avenue open to raise issue of ownership with Minister for Lands - Post declaration ownership not an open issue – Compensation only available remedy through National Land Titles Commission – Judicial review not an available remedy – Land Registration Act 1977 ss 8, 9, 10 (2) – National Land Commissions Act 1997.

Cases cited:

Papua New Guinea Cases
Custodian of Expropriated Property v. Commissioner of Native Affairs (Re Jomba Plain) [1971-72] PNGLR 501
NTN Pty Ltd v. Board of Post & Telecommunication Corporation & Ors [1987] PNGLR 70
Ombudsman Commission of Papua New Guinea v. The Hon. Justice Sakora & Ors (1996) unreported, N1720, 6th December 1996
Simon Manjin v. Post and Telecommunication Corporation and Ors [1990] PNGLR 288
Geno & Ors v. The Independent State of Papua New Guinea [1993] PNGLR 22
The State v. Philip Kapal [1987] PNGLR 417
Kekedo v. Burns Philp (PNG) Ltd & Ors [1988-89] PNGLR 122
Application of Eric Gurupa (1990), unreported, N856, 9th January 1990
Application of Evangelical Lutheran Church of Papua New Guinea [1995] PNGLR 276
Polaiap Tapas v. Pasiu Tekum & Ors (1999), unreported, N1921, 5th November, 1999
The Independent State of Papua New Guinea & Boyamo Sali v. Lohia Sisia [1987] PNGLR 102

Overseas Cases:
Inland Revenue Commissioners v. National Federation of Self-Employed and Small Business Ltd [1982] AC 617

Counsel
Mr. P. Parkop, for Appellants
Mr. D. Lambu, for Respondents

10 April, 2008

1. BY THE COURT : This is an appeal by way of a Notice of Motion pursuant to Order 10 Rule 1, Supreme Court Rules, and Order 16 Rule 11, National Court Rules in respect of a National Court decision made on 1 June 2001 refusing leave for judicial review under Order 16 Rule 3 National Court Rules. The appellants claim that the National Court erroneously arrived at its decision because they:

1) have sufficient interest in parts of the now Madang Township land and therefore locus standi based on a decision of the Central Court of the then Territory of New Guinea;
2) given their interest in the land, they have an arguable case;
3) have offered a reasonable explanation for the delay of over 12 years; and
4) have exhausted all available remedy.

2. Further, the appellants claim that, in all of the circumstances, the learned trial judge erred in failing to exercise the discretion vested in him fairly, particularly when they satisfied all of the requirements for a grant of leave for judicial review and have provided evidence of extenuating circumstances for the delay of over 12 months.

3. On the other hand, the respondents argue that, the National Court correctly arrived at its decision. Accordingly, they argue for an affirmation of the decision of the National Court.

Relevant Issues

4. Based on the arguments presented before us the main issue is whether the learned trial judge fell into error in arriving at his decision, the subject of the appeal before us. A determination of that issue is dependant on whether the appellants had:

1) established by appropriate evidence, sufficient interest in the land the subject of the proceedings and therefore, locus standi before the National Court;
2) demonstrated an arguable case for grant of leave for judicial review;
3) provided reasonable explanation and extenuating circumstances for the delay of over 12 years and whether it is appropriate to grant the relief sought;
4) exhausted all available remedies before resorting to judicial review; and,
5) whether the learned trial judge erred in all of the circumstances to fairly exercise his discretion.

National Court Proceedings and Background

5. In order to properly appreciate, consider and determine the issues before us as well as the basis for the National Court’s decision, it is necessary to consider what was before the National Court; the relevant background, the relevant facts and the basis for the National Court’s decision. We start that process with a consideration of the proceedings before the National Court and the background to that.

6. On 25 January 1999, the appellants filed an Originating Summons at Waigani (OS 34 of 1999) claiming the following:-

"1. Leave to apply for Judicial Review of the decision of the Minister for Lands to declare the Madang Town land as National Land on 14 January, 1988 and the decision of the National Lands Commissioner to award compensation to various claimants for the Madang Town land made on 18 September, 1990 and on 4 October, 1991 and 2 February, 1996.

2. An order in the nature of certiorari to remove into this Honourable Court and to quash the decision of the Minister for Lands made on 14 January, 1988 and the various decisions of the National Lands Commissioner made on 18 September, 1990; 4 October, 1991 and 2 February, 1996.

3. An order or declaration that the Declaration by the Minister for Lands on 14 January, 1988 was illegal and therefore void as the said Land was not freehold nor acquired Land and therefore could not be declared National Land under the National Lands Registration Act.

4. An order or declaration that the decisions of the National Lands Commissioner made on 18 September, 1990; 4 October, 1991 and 2 February, 1996 was therefore illegal and null and void.

5. An order or declaration that all those pieces of land acquired by the officer of the German Neu Guinea Compagnie, Kubary, and now known as Modilon Jomba Plains, Meiro Plains, Wagol Plantation and Wagol Reserve are still customary land owned by clans and tribes in and near the Madang Township, including the plaintiff Nob Tribe.

6. An order that the respondents be restrained from paying out compensation for the proposed acquisition of the Land until the question of ownership has been resolved either by this Court or the Lands Title Commission.

7. An order for cost.

8. Any other orders the Court deems appropriate.

9. That the Orders be abridged to the date of settlement which shall take place forthwith."

7. The originating summons was supported by a Statement pursuant to Order 16 Rule 3 (2) National Court Rules, and several affidavits. On 1 June 2001, the National Court refused the application for leave resulting in this appeal.

8. On 25 May 1932, Justice Phillips, constituting the Central Court of the Territory of New Guinea made certain determinations of "native rights" to customary land purportedly purchased by Neu Guinea Compagnie (New Guinea Company) in 1887 and 1888 in respect of "native" land in and around the present Madang Township then known as Friedrich Wilhelmshafen. Those determinations are contained in the Court’s judgment in Custodian of Expropriated Property v. Commissioner of Native Affairs (Re Jomba Plain) [1971-72] PNGLR 501.

9. The Commissioner of Native Affairs had referred the question of possible native rights over land known as Jomba Plain – Portions 71, 71A and 72; Modilon Jomba – Portion 37; Wagol – Portion 50, and Wagol Reserve – Portion 51 to the Central Court of the Territory of New Guinea for determination. Those four parcels of land comprised of an area of approximately 5,500 hectares situated just south of the Town of Madang.

10. Justice Phillips’ determinations are enumerated 1 to 4 inclusive and are set out at pages 578 to 588 respectively. In his findings, His Honour found that none of the land we have referred to were sold to the early German settlers and that they remained customary land ("native owned"). We will revert to these details later when we consider the issue of locus standi.

11. It seems from the affidavit evidence filed by the appellants that the titles to the land in question subsequently passed from the German Neu Guinea Compagnie to the Australian Colonial Government then to the Independent State of Papua New Guinea.

12. The appellant, Nakun Pipoi filed the application for leave for judicial review on behalf of himself and the members of the Nob 1 Tribe of Madang. He comes from the Nob Yomba Clan, a member of the Nob 1 Tribe consisting of 18 clans from 16 villages in and around Madang Town.

13. The proceeding was in respect of a decision of the then Minister for Lands, the first respondent, who, on 14 January 1988, declared the Madang Township land, National Land in accordance with s.9 of the National Land Registration Act. Subsequent to that declaration, on 4 October 1991, the National Lands Commissioner awarded compensation to various claimants for various portions of the Madang Township land. Again on 2 February 1996, the National Lands Commission made further compensation awards to various claimants for various portions of the Madang Township land.

14. Then on 1 January 1997, the appellants filed an application at the Land Titles Commission challenging the State ownership over the land known as Yomba Plain – Portions 71, 71A and 72; Modilon Jomba – Portion 37; Wagol Plantation – Portion 50; Wagol Reserve – Portion 51 and Meiro Plains – Portion 77. These portions of land are generally known as the North and South Madang land. At the date of hearing this appeal, the application before the Land Titles Commission was still pending. This point is crucial in so far as the law on judicial review is concerned.

15. Contrary to the learned trial Judge’s judgment that compensation have been paid for various pieces of land we have adverted to, this Court was informed of the appellants’ claim that no compensation has been paid to the landowners because of the current proceedings.

16. However, payment or non-payment of compensation for these land is not an issue in this appeal. It is evident that these proceedings have protracted over more than ten years because of the jurisdictional issues of the Land Titles Commission and the National Court. Since the appellants’ application to the Land Titles Commission on 1 June 1997, no hearing took place until 1 June 1999. The Land Titles Commission Commissioner’s decision was not given until 2 December 1999. But it is to be emphasized that the declaration of the Minister for Lands was made on 14 January, 1998.

Decision of the National

17. On 1 June 2001, the National Court refused the application for leave. The learned trial Judge found that the appellants lacked sufficient interest in this matter therefore had no locus standi to file judicial review proceedings.

18. Secondly, the learned trial Judge found that the appellant did not show any serious legal issues to be tried and therefore had no arguable case. Thirdly, the learned trial Judge was of the view that the appellants should have pursued their interest before the Land Titles Commission, however since the effect of the Ministerial Declaration under s.9 of the National Land Registration Act is not an issue which the Land Titles Commission has jurisdiction over, the Commissioner could not deal with the appellants’ application to the Land Titles Commission until the Ministerial Declaration is revoked by the National Court. The learned trial Judge was therefore of the view that, that issue was not worthy of consideration.

19. Finally, on the issue of whether the application for review was brought within a reasonable time, that is, whether there was undue delay, the learned trial Judge held that a delay of almost 11 years from the date of Ministerial Declaration to the date of filing the review amounted to undue delay considering that Order 16 Rule 4 (a) National Court Rules stipulates a time limit of 4 months. The learned trial Judge was therefore satisfied that, there had been undue delay in bringing the application for judicial review.

The Appeal

20. The grounds of appeals are:-

"(a) His Honour erred in law and in fact in finding that the applicants’ lack standing or sufficient interest to seek review of the said decisions of the first and second respondents when there was sufficient evidence before the Court to show that the applicants had sufficient interest in the matter.

(b) His Honour erred in law and in fact in finding that the applicants did not have an arguable case when there was sufficient evidence before the Court to show that the applicants did have such a case.

(c) His Honour erred in law in not considering whether or not the appellants has exhausted all other administrative remedies and in presuming or implying in his decision that the National Court did not have powers or could not deal with the matter when there were sufficient evidence to show that the appellants have exhausted all legal remedies available and that the National Court still have powers of review despite the limitations provided under the National Land Registration Act.

(d) His Honour failed to exercise his discretion fairly or properly in the circumstances when finding that there had been undue delay on the part of the appellants in bringing their application before the Court when there was clear and sufficient evidence before the Court to enable His Honour to find or to show that the appellants had reasonable explanation for the delay and to support a contrary finding of facts and law.

(e) His Honour failed to exercise his discretion fairly or properly overall in refusing to grant the appellants leave to review when there was sufficient evidence before the Court to support the appellants’ application for leave to review. Had His Honour properly or fairly considered these evidences, he would have found that the appellants had met all the legal criteria to be granted leave or otherwise would have used his discretion to grant leave nevertheless or irrespective of the criteria.

(f) Other grounds would be raised and relied upon when they become apparent in the transcripts."

21. The appellants therefore seek orders that the appeal be upheld and the decision of the National Court quashed; they be granted leave to review the decision of the Minister for Lands, and the matter be remitted to the National Court for the hearing of the substantive review.

Consideration of the Appeal and Decision

22. The Court has considered the oral and written submissions of both counsels in this appeal.

Sufficient Interest and Locus Standi – Appeal Ground (a)

23. The first ground of appeal (ground (a)) concerns the issue of sufficient interest, or standing to apply for leave. Order 16 Rule 3 (5) of the National Court Rules is relevant, which codifies the relevant principle. The principle is that the Court shall not grant leave unless it is satisfied that the applicant has sufficient interest in the subject matter. The law is succinctly set out by Wilson, J in NTN Pty Ltd v. Board of Post & Telecommunication Corporation & Ors [1987] PNGLR 70. At 74 His Honour said:

"Applications for leave for judicial review involve the exercise of discretion. Such discretion must be exercised judicially. Once a court is satisfied that the applicant has sufficient interest (O 16, r 3 (5)) it then exercises its discretion as to whether leave should be granted. This discretion is embodied in O 16, r 3 (1)."

24. That case has been cited and adopted in many subsequent cases. The requirements to be satisfied before leave is granted are set out in Ombudsman Commission of Papua New Guinea v. The Hon. Justice Sakora & Ors (1996) unreported, N1720, 6th December 1996. The same requirements have been adopted in many subsequent cases as well. We note that those issues were adequately canvassed by the trial Judge in the present case. He cited NTN Pty Ltd (supra).

25. In the present case, we are of the view that the learned trial Judge had sufficiently addressed and canvassed the issue at pages 13 – 19 of his judgment. His Honour referred to the judgment of Justice Phillips and elaborated the findings of Justice Phillips made in 1932.

26. We have had the liberty of perusing both judgments and we agree with the conclusion of Sawong, J. It is correct that Nob Tribe is mentioned and referred to in the judgment of Justice Phillips. However, there is no evidence whatsoever, both, before Justice Phillips and Sawong, J that, the Nob Tribe referred to in Justice Phillips’ judgment was and is the same as Nob 1 Tribe referred to in the present proceedings. We have perused the judgment of Justice Phillips, particularly, pages 87-88 referred to by Sawong, J at pp.12-17 of his own judgment and we are in agreement with Sawong, J that there is no evidence of Nob Tribe being the same as Nob 1 Tribe.

27. We suspect that Nob Tribe, referred to by Justice Phillip could have been the same tribe as Nob 1 Tribe however, we find no evidence of that. We agree that the ownership of land in and around Madang Township, apart from Portion 37, did not vest in the Nob Tribe, and that is sufficiently explained by Justice Phillips at pp 580, 583 and 584 of the law report. We note that those findings by Phillips, J are canvassed by Sawong, J at pp 13-16 of his judgment.

28. We confirm that Sawong, J’s ruling that in the judgment of Phillips, J, Nob 1 Tribe did not own any of the land, is based on the findings made in 1932. Sawong, J. also found that Nob 1 Tribe is not referred to anywhere in the judgment of Phillips, J and the clans and sub-clans which the appellants referred to in their affidavit did not appear in the judgment of Phillips, J. We find no error in those findings.

29. It is to be noted that the clans and sub-clans, namely, Nob-Jomba Clan of Bilibil, Nob-Sisiak Gagali Sub-clan of Siowak village; Nob-Jomba Bakep of Krangket; Nob-Bakop Jam Sub-clan of Gamin village; Nob-Sibo principal clan of Unim village; Nob-Sibo Kakou Sub-clan of Yabob village; Nob-Azampain Palom principal clan of Krangket village and Nob-Hanalia principal clan of Yabob village are not referred to or mentioned by these names in the judgment of Phillips, J. We confirm this to be the case as the judgment from pp 501 to 589 does not mention any of those clans and sub-clans. There is no evidence to link those names to any of the names of the tribes, clans and sub-clans referred to in the 1932 judgment. We therefore find that Sawong, J was correct in that finding as well.

30. We further confirm Sawong, J’s findings to be correct with the findings by Phillips, J in his judgment of 25 May, 1932. In fact, from that judgment, it can be confirmed that Nob Tribe has no right of ownership on any of the parcels of land comprising Portions 71, 71A and 72 of the Jomba Plain land. This is clearly stated on pages 578-579 of the judgment.

31. At p 580 Phillips, J said:

"2 As to the reference relating to the land situated at Modilon -Jomba and comprising Portion 37..............I have found that different sections, which together comprised the whole, of this land were respectively owned, in 1888, by the natives of the Biliau, Uaribu, Nob, Matulon and Mahoban tribes........"

(Emphasis supplied)

32. Then at pp 583-584, His Honour said:

"c. I find that the natives of the Nob tribe have full and unrestricted rights of ownership over the portion of the land known as Jakundu.......

d. I find established the free and unrestricted rights of ownership of the natives of the Nob tribe over the portions of the land known as Gamagamasotan, Woiewoielon, Wageban, Bogilon, Sirelon, and the remaining portion of Jakundu...."

33. It must be emphasized here that, Justice Phillips made references to the Nob Tribe in his judgment. The question is, is the Nob Tribe the same as Nob 1 Tribe which is the applicant in these proceedings? The appellants strongly argued that it is the same clan and therefore the trial Judge was in error when he ruled that they had no interest or standing.

34. This Court is of the view that, what should be pointed out here is that the evidence of the applicants in the National Court relating to the names of tribes, clans, sub-clans, etc. was not in the evidence before Justice Phillips. The names of the various tribes, clans, sub-clans and or villages in 1888, and in the 1932 judgment, are not the same as the names deposed to by the applicants in their evidence before the National Court. So how could the National Court have considered that the Nob 1 Tribe is the one and the same as Nob Tribe referred to in the 1932 judgment?

35. The trial Judge found that there was no evidence of that fact and he went on to say that the names of the tribes, clans and sub-clans/villages referred to in the evidence before him were not the same as those referred to by Phillips, J in his judgment in 1932. In our view, the trial Judge was correct in that finding of fact and conclusion.

36. Order 16 Rule 3 (5) is clear. The Court shall not grant leave unless it concludes that the applicant has a sufficient interest in the matter to which the application relates. The trial Judge’s finding that no where in the judgment of Phillips, J, is there a finding that Nob 1 Tribe own any of the land, the subject of the proceedings before Phillips, J, is correct. We find no error in that finding of fact.

37. There is no evidence at all that "Nob Tribe" in the judgment of Phillips, J meant "Nob 1 tribe". The trial Judge’s findings at p17 of his judgment that none of the tribes, clans or sub-clans mentioned in the applicants’ affidavit appeared in Justice Phillips findings is also correct. That lends weight to the finding that there is no evidence of a Nob 1 Tribe in the judgment of Justice Phillips.

38. For these reasons, we rule that ground one of the appeal has no merit and we dismiss it.

Arguable Case – Appeal Ground (b)

39. The second ground of appeal relates to the issue of an arguable case. That concerns one of the important requirements or conditions for grant of leave for judicial review. In addition to meeting other requirements such as sufficient interest or locus standi, it is trite law that before there can be a grant of leave for judicial review, the Court must be satisfied that the application presents an arguable case or a serious question to be tried.

40. A classical statement of the law is found in Inland Revenue Commissioners v. National Federation of Self-Employed and Small Businesses Ltd [1982] AC 617, at 644 per Lord Diplock in the following terms:

"If, on a quick perusal of the material then available, the court (that is the Judge who first considers the application for leave) 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 the 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."

41. These principles have been adopted and applied in our jurisdiction by both the Supreme and National Courts: See for example the judgment of the Supreme Court in Pora v. Leadership Tribunal [1997] PNGLR 1.

42. In the present case, we agree with the findings of Justice Phillips in 1932, that the land, the subject of the proceedings before him then, were illegally acquired. Therefore the subject land remained customary land both in fact and in law. We agree that some of the land were returned to the customary owners whilst others were vested in the Custodian of Expropriated Properties.

43. As far as we could see, this ground of appeal is premised on the argument that, the First Respondent should not have declared these parcels of land National Land under the National Land Registration Act. It was submitted by the appellants’ counsel that, the Minister could only declare land that had been "acquired" by the State to be National Land. Therefore, as the land in question was not acquired, but "vested" in the Custodian of Expropriated Properties, the first respondent could not make that declaration. The appellant contended therefore before the National Court, and now before us that, that issue raises an arguable case, and that, the trial Judge erred in ignoring it.

44. We are of the view that, this is a misconceived ground. This issue which was raised before the trial Judge was an issue that should have gone before the National Lands Commission by virtue of the procedures established in the legislation setting up the National Lands Commission, namely the National Lands Commission Act 1997. Proceeding on the basis of s.10 (7) of that Act, the applicants should have proceeded under Part VI of that Act before the Lands Titles Commission and not the National Court which has no jurisdiction.

45. As we adverted to earlier, the appellants are raising the issue of customary ownership after the Ministerial Declaration of 14 January 1988. The effect of such a declaration was that the ownership of the land in question had vested in the State by operation of law. We maintain that the issue of ownership should have been raised prior to the Declaration, not after. Furthermore, that issue should have been raised after the gazettal of the Minister’s intention to declare the land, National Land. We have duly noted that the appellants did not raise that issue in a more tangible manner then.

46. So what is the serious legal issue to be tried here? It cannot be the ownership issue, in our view, because the ownership had vested in the State by operation of law as at 14 January 1988. Even though the trial Judge did not really address this issue, it is our opinion that, the appellants at the leave application stage, did not have a serious legal issue to be tried. The ownership issue did not present an arguable case because by operation of law, ownership had already been vested in the State.

47. We understand that the proceedings before the National Lands Commission has been pending prior to the application for leave for judicial review, and that the National Lands Commission has yet to complete its proceedings. If this is correct, then it is obvious that the appellants should not have gone to the National Court to seek judicial review.

48. It must be reiterated that the judicial review application before the National Court, was in respect of four different areas of land in the Madang Township, known as the North and South Madang Land. These are particularly described as Jomba Plain – Portion 37; Wagol or Wagol Plantation – Portion 50 and Wagol Reserve – Portion 51.

49. From the evidence before the trial Judge and the findings of the Central Court of the Territory of New Guinea, constituted by Justice Phillips, the applicants have no interest on Portions 71, 71A, 72, 50 and 51. They claimed to have an interest in Portion 37, however, the trial Judge found that they had no interest. We have discussed this under ground one of the appeal, and we have agreed with the trial Judge. Even if the applicant says that his members have an interest as members of the Nob Tribe, which claim the trial Judge had rejected, they are in the wrong forum.

50. We are of the view that the issue which the appellants are raising in ground 2 of their appeal, is clearly an issue which by law, should not have gone before the National Court in the first place. Since the appellants were found to lack sufficient interest or locus standi, they cannot raise the issue of an arguable case. They should raise that issue in another forum and not the National Court. We therefore find that, because the appellants have no locus standi, they cannot have an arguable case.

51. This brings us to ground three of the appeal which alleged error of law by the trial Judge in not finding that the appellants had exhausted all other administrative avenues.

Exhaustion of Available Remedies – Appeal Ground (c)

52. There appears to be no oral and written submissions supporting this ground of appeal at the hearing of this appeal. Nevertheless, the Court is of the view that the appellants have not fully exhausted the administrative procedures permitted under the National Land Registration Act 1977. It is noted that the Ministerial Declaration was made on 14 January 1988. The appellants did nothing for nine years until 1 January 1997 when they filed an application before the Land Titles Commission, which was the wrong forum.

53. Under the provisions of the National Land Registration Act 1977, the appellants should have made representation to the first respondent pursuant to s.8 of that Act after a notice of intention to declare National Land had been gazetted. As a matter of procedural law, after the Minister has heard the representation, he may or may not proceed to make a declaration. But if such a declaration has been made, the claimant should then make a claim for settlement payment pursuant to s.10 (2). It should be pointed out here that, after a declaration of National Land has been made, the issue is no longer one of land ownership, but payment of compensation under s.10 of the Act. There is no way that the appellant’s could have raised the issue of ownership with the Minister under the National Land Registration Act 1997.

54. However, it is our view that, if the appellants said the interest of the claimants as to ownership was not considered by the first respondent when he gazetted his intention, the appellants should have sought a review there and then because there is a three months period under s.9 of the National Land Registration Act before the declaration is made. There is no evidence that the claimants including the appellants did that. The opportunity to raise the issue of customary ownership would have appropriately been raised and determined at that time.

55. In any case, after the s.9 declaration was made, the appellants should have applied for leave for judicial review; but instead, they initiated proceedings in the Land Titles Commission some eight years after the declaration by the third respondent. So we ask, what were the appellants doing in those eight years? They had the right to pursue their interest in Court, however they failed to exercise that right. They failed to follow proper procedures and after more than eleven years, they came to the National Court to seek leave to review the First Respondent’s decision to declare the land in question, National Land. Did they follow proper procedures to utilise the administrative avenue available to them at the relevant time? We do not think so.

56. Exhausting other available remedies or avenues before resorting to application for judicial review is another criteria the Court usually considers in an application for leave. Basically, the law is that an applicant cannot come to Court to seek leave for judicial review when he has not exhausted other administrative remedies. In The State v. Philip Kapal [1987] PNGLR 417, where there was an available administrative remedy which was not exhausted, the Supreme Court held:-

"Proceedings for judicial review of a decision of the National Executive Council to provisionally suspend a provincial government should not be entertained where the procedures provided for in the Organic Law on Provincial Government have not been completed or exhausted."

57. Even though the facts of that case are different, the principles have been adopted and applied in subsequent cases, an example of which is Kekedo v. Burns Philp (PNG) Ltd & Ors [1988-89] PNGLR 122.

58. In the present case, we reiterate that, because the appellants are raising questions of ownership of land, they should have sought a review of the Minister’s decision in gazetting his intention to declare the land in question, State land prior to or after the actual declaration. That opportunity was available but they chose to ignore to exercise their rights there and then. It was only after the declaration by the first respondent that, they came to seek leave to review the first respondent’s declaration on 14 January, 1988.

59. However it appears that the appellants have questioned the actual decision of the first respondent, not the process by which he arrived at the decision. It is trite law that, judicial review is not concerned with the decision, but with the decision making process, see Kekedo v. Burns Philp & Ors (supra). This issue is also relevant to the question of whether or not there is an arguable case.

60. In the final analysis, we find that, even though the appellants effectively abandoned this ground of appeal by reason of their failure to make any oral or written submissions on it, this ground is without merit.

Delay and Availability of Relief Sought – Appeal Ground (d)

61. We now turn to ground four of the appeal. This ground alleges unfair and improper exercise of the discretion vested in the learned trial Judge in respect of the question of delay. His Honour found that there was inordinate, inexcusable and undue delay by the appellants. However, the appellants contended then and now before us that, they provided evidence before the Court which provided sufficient and reasonable explanation for their delay.

62. The issue of delay is a question that has been judicially considered and determined by the National Court in many cases. Cases that readily come to mind are cases like the decision in Manjin v. PTC (supra); Application of Evangelical Lutheran Church of Papua New Guinea [1995] PNGLR 276; Polaiap Tapas v. Pasiu Tekum & Ors (1999), unreported, N1921, 5 November, 1999, and many others. We agree with the principles enunciated in those cases.

63. In the present case, the learned trial Judge addressed that issue starting at page 23 of his judgment. The trial judge correctly, referred to Order 16 Rule 4 National Court Rules. There is a large body of cases on this provision which clearly point out that delay which is inordinate, inexcusable and unreasonable can be a bar to the grant of leave. The learned trial Judge cited NTN Pty Ltd v. Board of PTC (supra) and Application of Eric Gurupa (1990), unreported, N856, 9 January 1990. The learned trial Judge also cited The Independent State of Papua New Guinea & Boyamo Sali v. Lohia Sisia [1987] PNGLR 102, which is similar to the present case.

64. We note that the appellants had conceded that there had been a delay of about 10 years prior to filing their application for leave, which the learned trial Judge correctly noted and took into account. We need only reiterate the primary facts in this matter which form the basis for the learned trial Judge’s findings and conclusions.

65. The declaration of the Madang Township Land as National Land was made by the first respondent on 14 January 1988. The appellants did not file their application for leave in their originating summons until 25 January 1999; a period of a little over 11 years. The actual notice of motion applying for leave, was not filed until 3 March 2000; a further period of one year and two months. What is the explanation for delay?

66. The appellants had, in between January 1988 and January 1999, pursued their interest by utilizing incorrect procedures. They contended that they were pursuing their interest through their Member of Parliament by correspondence and two law firms and a law student. We are of the view that, these explanations are not reasonable. Considering that, land to all Papua New Guineans, is a valuable asset, it is quite strange, or naive, should we say, for the appellants to just sit back and allow their Member of Parliament to write letters here and there to various Ministers and Government Agencies without really considering positive actions like Court proceedings. And this went on from 1988 to 2 June 1995; a period of approximately 7 years. Unfortunately, the results were fruitless, yet the appellants failed to take reasonable steps to bring their interest to Court.

67. Apparently, the copies of correspondences from the appellants themselves, their political representatives, and the lawyers are quite pathetic to say the least. They left a lot to be desired. Here was a situation where the appellants through various representatives including lawyers were sending various correspondences to various government institutions however, the response, very few, to say the least, that were received were no indication at all that the State would positively address and resolve the appellants’ dispute. So why continue to write letters when the responses were not indicative of a settlement? Is that a reasonable explanation?

68. The appellants’ lawyer submitted that two years were spent on research at the Department of Lands and National Archives. There were further delays at the Land Titles Commission. Further delay was caused by the decision of Justice Sheehan in April 1999 in remitting the matter to the Lands Titles Commission; and then it took 8 months for the Land Titles Commission to hear and determine the application. The appellants therefore contended that these are reasonable explanation for their undue delay.

69. Unfortunately, like the learned trial Judge, we do not accept their submissions. We maintain that the delay was caused by the appellants misconception of the procedures they should have adopted to pursue their claim. As we alluded to, after the ministerial declaration, the appellant wasted plenty of time following procedures that were misconceived, and should not have been followed. We are of the opinion that, once a declaration has been made, ownership no longer becomes an issue under the National Land Registration Act. The issue of ownership comes under the Land Titles Commission Act, not the National Land Registration Act.

70. The National Land Registration Act provides for a right to review under s.10 which states that a declaration under s.9 is not subject to appeal or review. However, this declaration is subject to s.155, Constitution. Therefore the appellants’ right to review, was not exercised at all after the declaration. Instead, as we have reiterated, they proceeded on a misconceived idea that their interest was to be pursued under the Land Titles Commission Act, which was not correct in law at all.

71. In our view, the fact that the appellants and their lawyers were pursuing their claim or interest at the wrong forum is not a reasonable explanation, because the provisions of the National Land Registration Act are clear and unambiguous. The Appellants and their advisors were not following proper legal procedures which led to the delay of eleven years. We are of the view that, had the Appellant filed his application for leave within the time limit provided in the National Court Rules, and the Court had delayed hearing or making its decision which had taken 11 years, it would be reasonable to say that they had been pursuing their interest in Court. However, that is not the case in this appeal. They were pursuing their interest in the wrong forum.

72. The learned trial Judge canvassed the issue of delay in the following manner at pages 25-26 of his judgment:-

"In my view, there has been undue delay in bringing this action. One applicant has said in his affidavit sworn on 3rd May and filed on 5th May explaining the delay. That evidence shows that the plaintiff/applicant had access to a number of lawyers who could have made the necessary application for leave when the Declaration was made. It was not as though the applicant had no access to lawyers and did not have or did not know how to go about challenging the Declaration. In my view, there has been undue delay and therefore I am of the view that to grant leave is likely to cause substantial hardship to or substantial prejudice the rights of the State and its sub-leases and would also amount to a detriment to good administration."

73. We are of the opinion that the learned trial Judge did not fall into any error in making that statement. It is our view that he was entitled to come to that conclusion on the basis of the evidence before him. The learned trial Judge correctly summed up the circumstances in the manner he did, and we therefore see no error in his findings and conclusion.

74. We reiterate that the right to seek a review was available to the appellants within 4 months from 14 January 1988, when the first respondent declared Madang Town Land, National Land. The appellants should have applied for leave and judicial review then. However, as we have discussed, they misconceived the proceedings and embarked on a trail of misconception and spurious applications under the disguise of ownership claim when that issue was no longer available under the Land Titles Commission Act. So concocted and spurious were the perceived procedures in law that, as it were, the Land Titles Commission ruled that they should go to the National Court by which time, the time limit did not favour them any more.

75. It is true the appellants say they had explained the reasons for their delay, however we do not consider that the explanation and the reasons for delay are reasonable. There was nothing preventing them from filing their application for leave and judicial review soon after 14 January 1988, or in any event, within 4 months from that date. Why did they go to the Land Titles Commission to argue ownership issue when they could have gone straight to the National Court to file a review application? As the trial Judge observed, and his observation was based on evidence, the appellants had lawyers representing them and they should have filed an application for leave and judicial review shortly after 14 January 1988.

76. As noted, the National Court dismissed the appellants’ application on the ground that there was undue delay. In NTN Pty Ltd, the delay was 11 months. The delay in Gurupa’s case was almost 2 years. In Pasiu Tekum, the delay was 13½ years. In The Independent State of Papua New Guinea & Boyamo Sali v. Lohia Sisia (supra), which as we noted is a case similar to the present case had a delay of 5 years. The Supreme Court held that "the delay of five and a half year’s between the Minister’s decision and the application to the Court was unreasonable."

77. In the present case the delay is about eleven years. Upon perusal of the learned trial Judge’s reasons from pages 24 to 29, we are of the view that, contrary to the appellants’ claims, the learned trial judge did not fall into any identifiable error. We agree with the learned trial Judge that, the delay in this case was inordinate, inexcusable and unreasonable.

Failure to Exercise Discretion Fairly – Appeal Ground (e)

78. This now leads us to the appellant’s fifth ground of appeal. Here the appellants’ claimed that the learned trial Judge failed to exercise his discretion fairly and properly overall in refusing to grant leave. The basis for that allegation is, had the learned trial Judge properly considered this matter, he would have found that the appellants had satisfied all the legal criteria for leave to be granted.

79. However, what we have said in the foregoing will clearly show that the appellants failed to meet all the conditions for the grant of leave. Without repeating everything that we have already said, it will suffice to point out that, one of the essential element or criteria that must be met before there can be a grant of leave is that the application must be made within 4 months from the date of the decision to be reviewed. This is for a very good reason, which is to avoid reliance on the decision sought to be reviewed and make administrative and other changes dependant on the decision. The more delay there is the higher the chances of reliance on the decision and making changes or taking steps based on the decision which may be difficult to undo later.

80. We reiterate that, having carefully studied the judgment of Justice Phillips of 1932, and the learned trial Judge’s decision made on 1 June 2001, we have found that, the learned trial Judge’s decision in most of the questions raised in the application for leave before the learned trial Judge and now before us, were based on previous findings of facts by Justice Phillips. Given that, to rewind the clock almost ten years, would not be in the best interest of justice and certainly in the interest of the lessees of the various pieces of land in the Township of Madang covered in these proceedings. To do so will certainly cause substantial hardship to those who have been granted leases including the local Administration and the State. In our view, to grant the application for leave as the appellants are now seeking would be detrimental to good administration. We cannot imagine the mammoth task of surveying, documentation, changing title deeds, etc, etc. We are of the view that, the learned trial Judge was correct in his reasons in respect of this particular issue.

Extenuating Circumstances – Additional Argument

81. Finally, we turn to an additional argument raised by the appellants. The argument is, the learned trial Judge erred in law when His Honour said the appellants did not show extenuating circumstances to enable the Court to make an order under s.155(4) Constitution.

82. It is not difficult to point out that the appellants’ claim for loss of the land did not occur on 14 January 1988. It is a fact that the Township of Madang was not established in January 1988. The Township had been built many years before then, and various parcels of land in the Township had already been allocated to various individuals, businesses, and government institutions. Despite the fact that, the third respondent had described all land in Portion 37 to be government land in 1988, it is an undisputed fact that the government’s authority and proprietorship had existed well before 14 January 1988. Therefore, the issue of customary ownership should have been raised at the time the government commenced developing Madang Township many decades of years ago.

83. We consider that all the issues raised by the appellants in their submissions in respect of this claim were matters that should have been raised prior to the declaration by the first respondent. Writing letters and doing nothing, but waiting for responses to those letters can not amount to extenuating circumstances, in our view. There is no merit in this argument.

In Summary

84. In summary, we find that the learned trial judge did not fall into any identifiable error. We find that His Honour correctly considered and applied all of the principles governing the grant or refusal of leave for judicial review. Hence, we find that there is no merit for any of the appellants’ grounds of appeal and arguments. Accordingly, we order a dismissal of the whole of the appellants’ appeal. We order costs in favour of the respondents to be agreed, if not, to be taxed.

Powes Parkop Lawyers: Lawyer for Appellant
Solicitor-General: Lawyer for Respondents