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Dawidi v Jacob [2001] PGNC 130; N2083 (4 April 2001)

N2083

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

O.S. NO. 108 of 2001

BETWEEN:

TIMWAPA DAWIDI for and on behalf of Gagidu Clan

-Plaintiff-

AND:

AWADAUNG JACOB for and on behalf of Laugi Clan

-Defendant-

LAE: INJIA, J.
2001: April 4

JUDICIAL REVIEW – District Land Court decision – Judicial review – Leave Statutory prohibition against appeal – Locus Standi – Principal applicant not participant in Local and District Land Court proceedings – Land owned by clan – Principal applicant member of landowning clan – Land Court proceedings entitled in the name of clans – Whether applicant has sufficient interest or Locus Standi to seek judicial review – Test – Whether applicant directly aggrieved or affected by the judicial decision or act – National Court Rules, O3 r3(5); Land Dispute Settlement Act (Ch. 45), S.60.

Cases cited:

Application by Jeffrey Balakau SC529 (1996)

Counsel:
Mr. Unido for Applicant
Mr. Powaseu for the respondent

4 April 2001

INJIA, J.: This is an application for leave to apply for judicial review of the decision of the District Land Court made on 19/10/00. The application is made pursuant to O16 r3 of the National Court Rules ("NCR").

The grant of leave is in the discretion of the Court. There are several requirements which an applicant for leave must satisfy to obtain the grant of leave. (1) The application must be served on the Secretary for Justice: NCR O16 r3(3). This requirement has been complied with. (2) The application must be made within 4 months after the decision is made: NCR O16 r4(1). This requirement has been complied with. (3) The applicant must have exhausted other appeal avenues: NCR O16 r3(6). An appeal has not been possible because S.60 of the Land Dispute Settlement Act Ch. No. 45) prohibits an appeal from a decision of the District Land Court. As application for judicial review is the only available option, this application is rightly so made, in accordance with established principles. (4) The applicant must have "a sufficient interest in the matter to which the application relates": NCR O16 r3(5). This requirement is a point of argument. I will come to this point later. (6) The applicant must have an arguable case. The principles on this requirement are well established. I have already intimated to counsels at the hearing that the second ground of review raises issue of perceived "bias" on the part of the Magistrate who heard the appeal and there is evidence before me to conclude that this ground is arguable. As such it is not necessary to address the other grounds of the review.

Arguments were focused on the requirement as to "sufficient interest". The phrase "sufficient interest" is self-explanatory. Application of the phrase may vary from case to case. But in the context of a judicial decision of a Court, in this case the District Land Court, where there is express statutory prohibition against appeal, one test that strikes me is the test of whether the applicant is, to use the words of the Supreme Court in the Application of Jeffery Balakau SC529 (1996), "directly aggrieved or affected" by the judicial act or decision": In other words the applicant must demonstrate to the Court that he has a civil or propriety right which has been directly affected adversely by the Court’s decision as such that he seeks to invoke the inherent discretionary jurisdiction of the National Court to review that decision: As the Supreme Court in that case said:-

"As the inherent power to review is in respect of judicial acts of the National Court we consider that any person who is directly aggrieved or affected by a judicial act or decision of the National Court has sufficient interest to make an application to the Supreme Court to invoke its inherent power to review such judicial acts or decision".

When the above principle is modified appropriately to the present case, the principle is aptly applicable to this case.

I understand the essence of the main arguments by counsels to be as follows.

It is submitted by Mr. Powaseu for the respondent, who spoke first, that the principal applicant was not a party in person and directly involved either as a witness or group leader in the land mediations, in the Local Land Court or the District Land Court proceedings. He is also not identified in the family tree he drew up, as having originated from the Gagidu Clan which owns the land the subject of dispute and the subject of this review. It is submitted there is no clear evidence that he originates from the Gagidu Clan and that he is authorized to represent the Gagidu Clan under the entitlement "Timwapa Dawidi for an on behalf of Gagidu Clan" which appear in these proceedings. For these reasons, it is submitted, he does not have sufficient interest to bring this application on behalf of himself and the other clan members of the Gagidu clan.

Mr. Unido for the applicant concedes that the principal applicant was not directly involved either as a witness or clan leader in the proceedings in the Land Courts. The dispute was over land allegedly owned by the Gagidu Clan. The applicant is a member of the Gagidu Clan as shown in the family Tree "No. C" annexed to the applicants’ affidavit sworn on 2/3/01, in which his name is inserted by hand using pink colour pen. Mr. Unido filled this in by hand, before the applicant signed his affidavit. Apparently, the copy served on Mr. Powaseu does not contain this alteration. The dispute involved two named clans, namely the Gagidu Clan and the Laugi Clan and not any one individual member of the Gagidu clan or the Laugi Clan. As the applicant is a member of the Gagidu clan, he is affected by the decision and he is entitled to bring these proceedings in his own right and on behalf of his clan members.

In my view, the entitling of the proceedings in the Court below provides part of the answer to this issue. The proceedings are entitled "Between Gagidu Clan (Appellant) and Laugi Clan (Defendant). No one particular member of entire clan was named as a principal actor or representative of the clan. The dispute over the land was between these two named clans. Obviously, someone had to take the lead, either as an organizer or a witness, but essentially, the dispute was between two clans over a piece of land owned collectively by and in the name of the clan. As a member of the Gagidu Clan, any person of that clan has a vested propriety interest in the outcome of the Land Court proceedings because he owns an undivided share of the communal clan land. As such he is entitled to be heard directly or through his clan representatives because whatever decision the Courts make will directly affect him. It will affect his livelihood because land is dear to everyone in the clan. I do not think it is just and proper for this Court or the Land Courts to prevent an able member of a clan to institute proceedings and appear in Court, on behalf of his clan, in respect to a dispute over land allegedly owned by his clan, simply because he did not play a direct and active role in the previous Land Court proceedings. I am satisfied on the face of the affidavit evidence before me that the principal applicant is a member of the Gagidu Clan, and even though he was not an active participant in the land mediation and Court proceedings below, he is entitled to appear before this Court to represent his clan in this review. I do not believe this present applicant fits into the category of a lawyer or non-lawyer "busybodies" who carry on "too much lawyering, too much litigation", and engage in "a tactic of litigation by attrition" in the Courts, as described in other National Court cases referred to me by Mr. Powaseu.

Looking at it from a practical perspective, even if the principal plaintiff is removed, the application may still be prosecuted by other clan members who played a leading role in the Court proceedings below such as Tukiki Yakamtung and Iga Laum, who have both filed affidavits in this Court. The exclusion of Timowapa Dawidi from these proceedings therefore would not spell the end to these proceedings.

For these reasons, I grant the applicant leave to seek judicial review of the decision of the District Land Court made dated on 19/10/00. Costs shall be in the cause.
________________________________________________________________________
Lawyer for the Applicant : Warner Shand
Lawyer for the respondent