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Bizei v Yonguru [2012] PGNC 107; N4812 (5 October 2012)

N4812

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS (JR) NO 229 OF 2009

GABRIEL MIAI BIZEI FOR AND ON BEHALF OF
MAURE MIRIGUA LAND GROUP INCORPORATED
Plaintiff

V

JOSEPH DUNGURU YONGURU SPOKESMAN AND REPRESENTATIVE OF MAURE MIRIGUA CLAN (REMOVED)
First Defendant

PATRICK NASA, SPECIAL COMMISSIONER,
LAND TITLES COMMISSION
Second Defendant

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Defendant

Madang: Cannings J
2012: 16 March, 7 September, 5 October

JUDICIAL REVIEW – decision of Special Land Titles Commissioner to refuse to register plaintiff's claim of interest in customary land – whether decision unreasonable – natural justice.

A Land Titles Commissioner refused an application by the plaintiff to register a claim for ownership of customary land. The plaintiff sought judicial review of the decision on two grounds: unreasonableness and denial of natural justice.

Held:

(1) The Commissioner's decision was not unreasonable as it was a considered and rational decision for which written reasons were given and the Commissioner had a wide discretion to determine the procedures of the Commission.

(2) There was no denial of natural justice as the plaintiff had a reasonable opportunity to register a claim with the Commission but failed to avail himself of the opportunity. The Commissioner acted fairly and would have been seen by any reasonable observer to have acted fairly in refusing the application.

(3) As both grounds of judicial review failed the application for judicial review and all relief sought by the plaintiff was refused.

Cases cited

The following cases are cited in the judgment:

Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1947] EWCA Civ 1; [1948] 1 KB 223
Chan v Ombudsman Commission [1998] PNGLR 171
Ombudsman Commission v Yama (2004) SC747
Paul Saboko v Commissioner of Police (2006) N2975

Counsel
K Maino, for the plaintiff

5 October, 2012

1. CANNINGS J: Gabriel Miai Bizei is applying for judicial review of a decision made on 11 March 2009 by Land Titles Commissioner, Patrick Nasa, who at that time was determining disputes as to customary ownership of land for the Ramu Nickel Project. The decision was to refuse an application by Mr Bizei, made on behalf of Maure Mirigua Land Group Inc, to register a claim for ownership of customary land over Portions 001 and 002 in the Kurumbukari area of Madang Province.

2. Commissioner Nasa has since died and new Land Titles Commissioners have been appointed and they are continuing to conduct hearings for the purpose of determining customary land ownership. This judicial review does not directly relate to the proceedings of the current Commission. Mr Bizei feels, however, that if he succeeds in the judicial review the new Commissioners will be obliged to give him the hearing that he says was unlawfully denied him by Commissioner Nasa. He seeks a declaration that Commissioner Nasa's decision of 11 March 2009 was wrong in law and null and void and an order that the new Commissioners must hear the claim by Maure Mirigua Land Group Inc.

3. Mr Bizei argues two grounds of judicial review: unreasonableness and denial of natural justice.

(1) UNREASONABLENESS

4. Mr Bizei argues that the decision to reject his application was unreasonable and unfair as its effect has been to prevent him, as the proper representative of the Maure Mirigua Clan, from putting forward his case for customary ownership. All that he was seeking was a reasonable opportunity to state his clan's case. It is a grave injustice to deny him that right. Mr Yonguru, who is not a clan member, had no authority to represent the clan or the land group on 10 March 2009 and the application of that day was made without the knowledge of Mr Bizei or other clan members. Mr Bizei claims to have a good case on the merits as his clansmen lived on the disputed land for a considerable period before moving (because of a high death rate) to higher ground in the Bundi area in the 1940s as they feared that the clan would become extinct if they stayed at Kurumbukari. It was never their intention to leave permanently. Mr Bizei says that he approached Commissioner Nasa as early as 2006 to have the land group's claim registered and Commissioner Nasa told him that the interest would be registered at the next hearing, but nothing happened until March 2009.

5. I have considered the lengthy and detailed supporting affidavit of Mr Bizei. A lot of it deals with the merits of his clan's claim for ownership of the disputed land, which while very interesting is not relevant to the application for judicial review. The purpose of a judicial review is to review the decision-making process, not the merits of the decision itself (Chan v Ombudsman Commission [1998] PNGLR 171, Ombudsman Commission v Yama (2004) SC747). The merits of the decision only become relevant, and then only to a limited extent, if the court undertaking the judicial review is called upon to determine a ground of review based on unreasonableness.

6. The argument that an administrative decision is unreasonable is based on the principles laid down in the classic case of Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1947] EWCA Civ 1; [1948] 1 KB 223. The test to apply is whether the decision being reviewed is so unreasonable or absurd, having regard to all the circumstances, no reasonable decision-maker would have made it (Paul Saboko v Commissioner of Police (2006) N2975). If the answer is yes, the decision involves an error of law, the decision-maker will have exceeded his jurisdiction and the decision is susceptible to judicial review. If the answer is no, there is no error of law, no excess of jurisdiction and this ground of review will fail.

7. The decision in question here is Commissioner Nasa's decision of 11 March 2009 to refuse Mr Bizei's application for Maure Mirigua Incorporated Land Group to be registered as a claimant. Was that decision so unreasonable or absurd no reasonable Land Titles Commissioner could have made it?

8. Commissioner Nasa refused Mr Bizei's application as he had the previous day, 10 March 2009, refused a similar application by Joseph Dunguru Yonguru, which for all intents and purposes had been made on behalf of the same clan. Commissioner Nasa did not know of the allegation that Mr Dunguru was not authorised to make the application. Even if he had been aware of the allegation, it would, in my view, have made no difference to his decision which was primarily based on the fact that it was a very late application to join the proceedings. The Commissioner gave written reasons for refusing both applications. He treated them as late applications as the applicants (Mr Yonguru on 10 March and Mr Bizei on 11 March) had had the opportunity since 2002 to lodge their interest in the disputed land. By the end of 2004 50 claimants had registered their claims with the Commission. There had been a lot of sittings and affidavits had been filed and served. The Commissioner considered that the real reason the Maure Mirigua Clan was so late with their application was that their relationship with another clan, Maure Duakai Narawa, whose claim was registered, had soured. He took the view that Maure Mirigua were saying, belatedly, that they are the genuine landowners but they had never filed a claim, despite having almost seven years to do so. He emphasised that hearings into the two portions of land being claimed, Imuruba and Maure, were almost complete. The hearings must progress and the Commission cannot be seen to be causing undue delays, the Commissioner stated.

9. I consider that these were all good reasons for refusing the application. There is no evidence to support Mr Bizei's assertion that Commissioner Nasa had given him an undertaking in 2006 that Maure Mirigua Clan's interest would be registered. Commissioner Nasa did not act unreasonably by failing to appreciate or take into account any distinction between the clan and the incorporated land group. The Commissioner's main concern was the lateness of the application, given that interested parties had had since 2002 to register their claims. This was a legitimate concern and it was properly taken into account.

10. I am fortified in the view that Commissioner Nasa's decision was not unreasonable by considering the wide discretion that he had as a Land Titles Commissioner under the Land Titles Commission Act 1962 to determine the procedures of the Commission.

11. Section 15(1) (determination of disputes) states:

The Commission has, subject to this Act, exclusive jurisdiction to hear and determine all disputes concerning and claims to the ownership by custom of, or the right by custom to use, any land, water or reef, including a dispute as to whether any land is or is not customary land and may make all such preliminary inquiries and investigations as it deems necessary for the purpose of hearing and determining the disputes and claims. [emphasis added]

12. Section 31 (commission to make inquiries and hold hearing) states:

The Commission shall ... make or cause to be made such inquiries and hold such hearings as it considers necessary or convenient for the purposes of the Commission. [emphasis added]

13. It was open to Commissioner Nasa to set time limits for registering claims and to enforce the time limits, which he did in this case, as this was part of the process of making preliminary inquiries and investigations for the purpose of Section 15(1). It was also part of the exercise of the power to hold such hearings as are considered necessary or convenient for the purpose of Section 31.

14. The answer to the question posed – was the decision so unreasonable no reasonable Land Titles Commission could have made it? – is no. It was a considered and rational decision for which written reasons were given and the Commissioner had a wide discretion to determine the procedures of the Commission. Ground 1 is refused.

(2) DENIAL OF NATURAL JUSTICE

15. Mr Bizei argues that the effect of Commissioner Nasa's decision of 11 March 2009 was to deny him his right to be heard on the question of whether he, his clan or the land group had a legitimate interest in customary land.

16. I consider that this argument is misconceived. Although the right to natural justice is often called the right to be heard, a better way of appreciating this underlying law right is to call it the right to a reasonable opportunity to be heard. Mr Bizei had such an opportunity but he did not avail himself of it. He and his clan and his land group had a number of years to register their claim but they failed to do so. They were late and as I have already pointed out Commissioner Nasa did not act unreasonably in refusing the application.

17. Mr Maino, for Mr Bizei, correctly emphasised the words of Section 59(2) (principles of natural justice) of the Constitution:

The minimum requirement of natural justice is the duty to act fairly and, in principle, to be seen to act fairly.

18. In this case I consider that Commissioner Nasa acted fairly and that to any reasonable observer he was seen to act fairly, given the rational and considered way in which he made the decision of 11 March 2009. Ground 2 is refused.

CONCLUSION

19. As both grounds of judicial review have been refused the application for judicial review must fail. As the State offered no assistance to the court in resolving this matter the parties will bear their own costs.

ORDER

(1) The application for judicial review is refused.

(2) All relief sought in the plaintiff's statement under Order 16, Rule 3(2)(a) of the National Court Rules is refused.

(3) The parties shall bear their own costs.

(4) Time for entry of the order is abridged to the date of settlement by the Registrar which shall take place forthwith.

Judgment accordingly.
____________________________

Kunai & Co Lawyers: Lawyers for the plaintiff