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Kaupa v Paonga [2019] PGNC 405; N8085 (31 October 2019)

N8085

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS (JR) No. 489 of 2019

JOHN KAUPA
Plaintiff

V
KUT C. PAONGA as CHIEF COMMISSIONER LAND TITLES
First Defendant

And
LAND TITLES COMMISSION
Second Defendant

And
BENJAMIN SAMSON in his Capacity as REGISTRAR OF TITLES
Third Defendant

And
INDEPENDENT STATE OF PAPUA NEW GUINEA
Fourth Defendant

Waigani: Miviri J
2019: 15^th October

PRACTISE & PROCEEDURE – Judicial Review & Appeals – Originating summons – Leave application – no Standing – delay – No Arguable case – Alternative remedies no evidence – grounds not made on balance of probabilities – leave refused – cost will follow the event.

Cases cited:

Telikom PNG Ltd v Independent Consumer and Competition Commission [2008] PGSC 5; SC906
Polling v Motor Vehicles Insurance (PNG) Trust [1986] PGNC 47; [1986] PNGLR 228; N564
Aihi v The State (No 2) [1982] PNGLR 44
Mali v State [2002] PNGLR 15
Pipoi v Seravo, National Minister for Lands [2008] PGSC 7; SC909
Dupnai v Weke [2016] PGSC 43; SC1525
Independent State of Papua New Guinea v Toka Enterprises Ltd [2018] PGSC 89; SC1746

Counsel

T. Tinngnni, for Applicant

H. White, for the Defendant

RULING

31^st October, 2019

1. MIVIRI, J: This is the Ruling of the Court on the Originating Summons dated the 18^th July 2019 by the Applicant seeking Leave for Judicial Review of the Land Titles Commission decision made on the 08^th November 2017 in respect of Portion 2176C Granville, Fourmil Port Moresby National Capital District registering one Timon Awari as its owner.
   
2. Accompanying is the statement in support pursuant to Order 16 Rule 3 (2) (a) of the National Court Rules (“Rules”). Plaintiff contends that he is the owner of the subject land described as Portion 2176C Saraga, Milinch Granville, Fourmil Moresby six-mile Port Moresby National Capital District. He contends that he purchased it from customary owners Ivai Clan Incorporated Land Group, “ILG”. And has been living on it for over 10 years. It is customary land which is the subject of dispute pending in the District Court including mediation in the Local Land Court No. 015 of 2016 involving Homoka Saraga and himself. Ownership is not settled upon the plaintiff there are pending proceedings relating in the District Court that have not ended including Land Court referenced. These proceedings are external to Judicial review that are current and proceeding available to him that he is seeking and invoking for the same piece of land. By coming to Judicial review in this application it is the second procedure in law that he is invoking which is an abuse of process: Telikom PNG Ltd v Independent Consumer and Competition Commission [2008] PGSC 5; SC906 (28 March 2008). And as such will be struck out by the court.
   
3. Hence to seek leave amid these proceedings would be immature and an abuse of process. It would work against him because he has not exhausted these avenues before resorting to Leave for judicial review. Primarily it is same subject being brought out for determination on the issues raised there. The argument that it is the actions of the first second and third defendants that are challenged is inaccessible because the Notice of decision for conversion is of the 20^th October 2017 and the certificate is of the 8^th November 2017. This is two years from 18^th July 2019 Plaintiff is outside time of four months under Order 16 rule 4 (2). He accepts that fact therefore seeks in the originating summons dispensation with compliance with any of the requirements of the rules as and when it arises under Order 1 rule 7 to bring him away from the requirements of the rules.
   
4. In my view this is a very broad power and is not available without proper evidentiary basis exceptional and substantial proof shown by the applicant. Because the interest of Justice both for and against must be weighed to so dispense as the impact for non-compliance also has serious consequences attached, Polling v Motor Vehicles Insurance (PNG) Trust [1986] PGNC 47; [1986] PNGLR 228; N564 (20 October 1986). Given the gravity of what he seeks and that he has provided no material in support, there will be no dispensation of the requirements of the rules. And the entry of general relief under Order 12 rule1 will be inapplicable. It begs whether he is indeed genuinely the owner of the subject portion particularly in the light of the acceptance that it is customary land and one Homoka Saraga is the customary owner.
   
5. His own Affidavit in Support filed the 09^th July 2019 does not evidence any title documents nor a contract of sale of the subject customary land between himself as the purchaser and customary owners Ivai Clan Incorporated Land Group, “ILG”. Reliance on supposition unauthenticated evidence of payment will not substitute what is the title in law especially in cases of land as is here. Importantly setting out what was sold and for what and between whom. These are very important underpinning issues as to whether or not he has sufficient interest and standing in the matter to bring it in a leave application for Judicial Review. There is nothing credible to sway because there is a decision annexure “A “of his affidavit conversion order declaring that Timon Awari is the owner in fee simple in all that parcel of land being Portion 2176C Milinch of Granville, Fourmil of Moresby having an area of 1.00 hectares shown delineated and edged red in a conversion plan annexed encumbrance set out. And which also directs the registrar of titles to register Timon Awari as the owner in fee simple. Further a certificate pursuant to section 15 of the Land (Tenure Conversion) Act 1963 as amended certifying the conversion order and the Plan pursuant attached computed of the subject portion.
   
6. Then there is Notice under Section 14 of the Land (Tenure Conversion) Act where notice is issued pursuant dated the 08^th of August 2017 a decision conversion order was issued over the land Portion 2176C located at Saraga, 6-mile Port Moresby National Capital District order declaring that Timon Awari to be the owner in fee simple over all that parcel of land. Importantly this notice gives direction to a person who may be aggrieved by the conversion order to appeal against it and such must do so by lodging an appeal with the National Court within 90 days of the date shown in the order. Here if indeed the plaintiff was interested in the land as he claims he did not lodge any appeal to the National Court within 90 days from 30^th October 2017 date of the conversion Order. His 90 days expired on Wednesday the 31^st January 2018. He slept over his rights he did not revert to it immediately. Up to the present date that would be two years. It would amount to inordinate and inexcusable delay. The discretion of the court will not be invoked at the convenience of a party as here. It is by law and will be exercised if warranted by good bases not without. That is lacking against the plaintiff here. Plaintiff invokes section 155 (4) clear from Aihi v The State (No 2) [1982] PNGLR 44 (26 February 1982) where leave was sought to appeal outside the forty days period, she demonstrated substantial and exceptional reasons because she was sentenced to life imprisonment and would face injustice if she was not heard. She did not have the benefit of lawyers out in the prison hence the lateness in her appeal. Leave was granted.
   
7. The Plaintiff cannot be likened the subject decision was made on the 08^th August 2017 and it would appear there were competing interests to the subject land originally customarily land that the owner purportedly sold to the plaintiff and then to another person who is also the subject of another Judicial review proceedings. It would appear the matter is not simply a case that revolves around the defendants. It is not primarily their actions that have led to where the matter is. But external persons such as Timon Awari and Homoka Saraga therefore granting leave will not be proper in view of the proceedings against in the other court set out above. Plaintiff has recourse to other proceedings other than judicial review.
   
8. The sword of Justice is double-edged cutting both sides of the dispute in its application. It not only binds the defendants but also the Applicant Plaintiff. He must also come with clean hands he must also abide by the law to seek out the hand of Justice not without. Apart from what is set out above, has he demonstrated by credible evidence that he has discharged on the balance of probabilities just cause for his application. Given the discussion set out above Plaintiff has not discharged on the balance required.
   
9. Defendants have opposed the application for leave contending that Standing must be satisfied, or sufficient interest must be shown by the Applicant. Including that he has an arguable case that there has been no delay in time and all administrative process has been exhausted. Applicant has neither capacity nor the Standing to seek leave. Even it were argued that Homoka Saraga is a representative of his ILG to deal sell the land to the plaintiff, there is no material to this effect produced because, "In representative actions, the legal representatives are required by law to have the names of the plaintiffs included in a schedule (to the Writs) or for their written consents to be filed and these consents to be by way of an Authority to Act Form. [Order 5 Rules 3 & 8 of the National Court Rules], Mali v State [2002] PNGLR 15 (3 April 2002).
   
10. In this regard there is no consent or authority by all members of the Ivai Clan Incorporated Land Group, “ILG”to sell the subject land to him and that Homoka Saraga is their duly appointed representative who has their authority to sell the land to the Plaintiff. Or even a meeting resolution to that effect. This fact is important in the light of the fact that he contends that some money has been given to them. He professes this to be that group, but the entire composition has not come forward in support to illuminate that this is indeed a joint and common cause that has seriously affected all. Owning land on paper is different to everyday life in Papua New Guinea. That is not demonstrated here prima facie. If glossed in the light of Mali’s case (supra), there is no head way in the case of the applicant. Standing is not discharged to the required balance given this lack in evidence. He fails on this front.
    
11. And time is of essence and grievously lacking here against the applicant, it is up to the present date two years. Which is an inexcusable inordinate and unreasonable delay given the discussion above and would adopting Pipoi v Seravo, National Minister for Lands [2008] PGSC 7; SC909 (10 April 2008) and in similar vein Dupnai v Weke [2016] PGSC 43; SC1525 (19 August 2016.) against the grant of the application of the Plaintiff. He must satisfy the five requirements for leave for Judicial review on the required balance. Unfortunately for him he has fallen here also in time and delay.
    
12. Applicant had recourse available to him under section 34 Application for Review and section 38 right of Appeal of the Land Titles Commission Act. He was aggrieved by the decision of the land titles commissioner but did not seek a review within the 90 days under that Act. There is no evidence that they have exhausted this avenue even then it is now way past the time limitation imposed. Independent State of Papua New Guinea v Toka Enterprises Ltd [2018] PGSC 89; SC1746 (20 September 2018) addressed the issue of delay and time proficiently. There it was a 13 year delay the decision of the National Court to grant leave was quashed. It is also worth citing Order 16 rule 4, “Delay in applying for relief. (UK. 53/4); -

(1) Subject to this Rule, where in any case the Court considers that there has been undue delay in making an application for judicial review or, in a case to which Sub-rule (2) applies, the application for leave under Rule 3 is made after the relevant period has expired, the Court may refuse to grant-

(a) leave for the making of the application; or

(b) any relief sought on the application,

if, in the opinion of the Court, the granting of the relief sought would be likely to cause substantial hardship to, or substantially prejudice the rights of, any person or would be detrimental to good administration.

(2) In the case of an application for an order of certiorari to remove any judgement, order, conviction or other proceeding for the purpose of quashing it, the relevant period for the purpose of Sub-rule (1) is four months after the date of the proceeding.

(3) Sub-rule (1) is without prejudice to any statutory provision which has the effect of limiting the time within which an application for judicial review may be made.”

13. The facts set out above reflect undue delay which would cause and has caused substantial hardship including prejudicing the rights of the defendants the other person Timon Awari because he has slept over his rights for two years on end to wake up and cause misery for them. These must stop. This view is not new alias Pipoi's case (supra). The effect of which is he has not made out his application for leave for judicial review here, Mali (supra). His evidence is lacking as set out above. He has not discharged requirements for leave consequently, the application is without merit in all fronts. The required balance has not been discharged and his application fails and is dismissed forthwith.
    
14. Leave is refused given the reasons set out above with costs following suit.

Orders Accordingly.

__________________________________________________________________

Tinggnni Lawyers: Lawyer for the Plaintiff/Applicant

Office of the Solicitor General: Lawyer for the Defendant