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Simbatka v Wirka [2020] PGNC 253; N8498 (10 September 2020)

N8498

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS (JR) NO. 957 OF 2018

MATHIAS SIMBATKA
Plaintiff

V
BRUNO WIRKA as Chairman of LAMUS LAND GROUP INC.
First Defendant

And
IRUNA ROGA KILA In his capacity as the Director of ILG
Second Defendant

And
BENJAMIN SAMSON In his capacity as the Registrar for Land Titles
Third Defendant

And
OSWALD TOLOPA In his capacity as the Acting Secretary for Department of Lands and Physical Planning.
Fourth Defendant

Waigani: Miviri J
2020: 01^st September

PRACTISE & PROCEEDURE – Judicial Review & appeals – Originating summons – Notice pursuant to Order 16 Rule 3 (3) NCR – Statement pursuant to Order 16 Rule 3 (2) (a) NCR – Undertaking as to Damages – Affidavit verifying Facts – Affidavit of Applicant – Delay – Arguable case – Exhaustion of Internal processes – Evidence to the contrary – leave for review not made out – application denied – cost follow event.

Cases Cited:

NTN Pty Ltd v The Board of the PTC, PTC and Media Niugini [1987] PNGLR 70
Mali v State [2002] PNGLR 15
Pipoi v Seravo, National Minister for Lands [2008] PGSC 7; SC909
Dupnai v Weke [2016] PGSC 43; SC1525

Counsel:

E. Goina, for Plaintiff
H. White, for the Defendants
RULING
10^th September, 2020

1. MIVIRI, J: This is the Ruling of the Court on the originating summons of the plaintiff applying for leave to judicially review the decision dated the 14^th October 2015 of the second and the third defendants who registered and issued a certificate of title over customary land known as, “Kusimgum” changed the name and registered it as, “Lamarainam”Portion 910C Milinch of Pomio, Fourmil Rabaul under the first defendants Incorporated Land Group.
   
2. By the originating process of the 18^th December 2018 the Plaintiff argues that he has locus standi as he is the leader of the land described as “Kusimgum” which has not being changed since the decision of the Land Titles Commission of 1968, from which title was given to Rangulit Village Group, his late father John Simbatka was custodian and customary leader to the land. And by patrilineal custom of the Baining he as the eldest son and inherits upon the passing of his father. Given he has sufficient interest to contest the matter.
   
3. Secondly, judicial review lies against a State entity, a public body the Department of Lands and Physical Planning including the second, third, and fourth defendants as employees of the State. And arguable that the landowner’s consent was never obtained for them to part with their land. Because no customary rights were given away to any of the people in the village including the first defendant Bruno Wirka as Chairman of Lamus ILG. By the registration with title now granted to the first defendant, he has instituted Summary Ejectment proceedings at the Kerevat District Court from which orders have been secured current to evict the plaintiff from his customary land.
   
4. The answer to this argument lies with annexure “D” and “E” of the affidavit of the plaintiff. The former is a letter under hand of the office of the Department of Lands & Physical Planning regional office Islands signed by one N. Kanini Senior Lease Officer for Andie Malo Director Customary Land Registration. The letter notes that during the objection period plaintiff should have raised what he raised in respect of the subject land. And that subject application was by Lamus Incorporated Land Group. And he acknowledged there was no land investigation report as yet. But under the new amended Act 2009 customary land title can only be issued to an Incorporated Land Group (ILG) not an individual, Business Group or Company. And he advises that the matter is referred to the Division of Lands through Provincial Land Court System for further deliberation.
   
5. Then the latter is a letter dated the 25^th November 2013 addressed to the Provincial Administrator East New Britain Provincial Administration written by advisor Geoffrey Leba of the East New Britain Provincial Administration Division of Land & Physical Planning headed Voluntary Customary Land Registration of Portion 910C Milinch Pondo, ENBP. Its advises that by virtue of section 34L of the Land Registration Amended Act 2009 Lamus Incorporated Land Group (ILG No. 12035) of Rangulit village have approached that office to use the voluntary Customary Land Registration Process to register their customary land. They have approached to seek assistance through the process of publication of invitation of objection before the next course of action. The letter concludes that a land investigation report with surveying of the subject land have been conducted to completion and submitted for your endorsement of certificate of Alienability.
   
6. This evidence filed by the plaintiff is against his application because under law particulars set out above not an individual but an incorporated land Group can register lawfully customary land. Lamus Incorporated Land Group (ILG No. 12035) is from Rangulit village and is not an individual so his insistence would not stand on par with the law.
   
7. And his third argument that under section 34L of the Land Registration (Amendment) Act 2019 a customary land group must be registered as owners prior to the issuing of a certificate of title over the land is without merit in this light. Which befalls his fourth argument of the subject of objection to the lands Department because clearly by what is set out above it was invited and the decision that was taken is part of the evidence he has set out above. There was consultation in accordance with the law from the evidence that he has provided to court. It also beats his fourth argument that there were no avenues to challenge the decision including the plea that he was in a remote part of the province and was inaccessible. This is clearly without merit because of the evidence which he himself has provided as excerpted above.
   
8. There is a history and to say he was only acquainted when served with the court orders for summary ejectment proceeding on the 26^th June 2018 cannot stand in this light. The present proceedings were commenced on 18^th December 2018 and that there had been delay in filing he accepts, but no real prejudice had been caused nor substantially prejudiced the rights of anyone including the defendants: NTN Pty Ltd v The Board of the PTC, PTC and Media Niugini [1987] PNGLR 70.
   
9. The application is opposed by the defendants on the basis that plaintiff does not have standing. He is a single person not representative of a group action. And land ownership customarily is not an individual subject but rather a communal subject. He cannot be the owner of 500 hectares of land which is the subject of this proceedings. There has been delay because time by Order 16 Rule 4 is 4 months because certiorari is pleaded here. From 14^th October 2015 when the decision was taken to the 18^th December 2018 the institution of this proceedings would now be almost 2 years 2 months. And that is exceeding the 4 months set out above. It is therefore an application that is out of time. And cannot be arguable when one of the grounds it contends is breach of the Land Act section 10 (3) and (4):
   

“ACQUISITION OF CUSTOMARY LAND BY AGREEMENT.

(1) Subject to Section 11, customary land shall be acquired in accordance with this Section and shall be authenticated by such instruments and in such manner as are approved by the Minister.

(2) The Minister, on behalf of the State, may acquire customary land on such terms and conditions as are agreed on between him and the customary landowners.

(3) Subject to Subsection (4), the Minister shall not acquire customary land unless he is satisfied, after reasonable inquiry, that the land is not required or likely to be required by the customary landowners or by persons on whom the land will or may devolve by custom.

(4) Where the Minister is satisfied, after reasonable inquiry, that any customary land is not required or likely to be required for a certain period but is of the opinion that the land may be required after that period, he may lease that land from the customary landowners for the whole or a part of that period.”

10. In my view after careful perusal of section 10 set out above not an iota of the words of section 10 (3) and (4) set out above fit the argument of the plaintiff at all. This is not a customary acquisition by the Minister but a registration of a customary land “Kusimgum” changed and registered as, “Lamarainam” Portion 910C Milinch of Pomio, Fourmil Rabaul under the first defendants Incorporated land Group. The law governing would be the Land Registration Act 1981 and certainly not the Land Act. Even reliance on the Land Registration Amendment Act 2009 in particular section 34L Issue of Certificate of Title does not fit out the argument of the plaintiff. Because the words of that section are as follows:

"(1) Where the customary group has been registered as the owner of land, the Registrar of Titles shall, upon payment of a prescribed fee, prepare and issue a Certificate of Title in the prescribed form in the name of the group.

"(2) In preparing a Certificate of Title under Subsection (1), the Registrar of Titles shall prepare a copy of the title for the purposes of registration in the Register.".

11. In my view what it simply means is that the first defendant has correctly in compliance of this section registered “Lamarainam” Portion 910C Milinch of Pomio, Fourmil Rabaul under its Incorporated Land Group and the certificate of title by this section would come in its name upon payment of the prescribed fee to the Registrar of titles. That has been accomplished hence the title upon which eviction is now tendered against the plaintiff. He cannot be a Chairman of an ILG without that group giving him that authority under provisions of the Land Groups Incorporation Act 1974 amended 2009. Further he has been named as that but the same cannot be said of the plaintiff. Who claims ownership over 500 hectares of land? That is unspeakable given the communal ownership practised here. Nor is he a representative of a class action 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. In this regard there is no consent or authority by all members of the subject land even to say that he is looked upon and has the authority as their leader. And is suing on that representative basis. That is not the evidence favouring the plaintiff.
    
12. It means two fundamentals of his application fall and do not meet the balance of probabilities these are locus standi and portraying an arguable case for the reasons that I have set out above.
    
13. In the case of undue delay or within time he fails on this fundamental also. The decision effecting is of the 14^th October 2015 and the application he has filed is of the 18^th December 2018 which is 2 years 2 months and therefore does not meet the 4 months stipulated under Order 16 Rule 4 of the Rules. And time is of essence and lacking here against the applicant, it is now 2 years 2 months since. Which in itself is an inexcusable insubordinate and unreasonable delay Pipoi v Seravo, National Minister for Lands [2008] PGSC 7; SC909 which is in similar vein as Dupnai v Weke [2016] PGSC 43; SC1525. He contends on the basis of NTN Pty Ltd (supra) that it does not cause prejudice or substantial hardship upon the defendants. For him he loses out on his customary land. This is a fact that is not in his favour by the certificate of title in the possession of the first defendant. It would be the reverse he has no title and therefore the eviction order against him current. What he has done is that his pleadings coupled with the evidence of Mathias Simbatka’s affidavit dated the 19^th November 2018 are self-serving. The land titles commission decision after review attached as annexure “A” stating canoe landing place and use as road is not the same as owning the land. The plaintiff’s father is not named as are the others in that document. It would be contrary to his assertion and fails against his cause. Even the family tree that he has drawn is not verified by other independent evidence. His own words are what he relies without independent evidence it does not advance the equilibrium in his favour. He is the principle to the cause if he has not made out on the balance required who else can make out the case for him.
    
14. The application for leave is not made out and is hereby refused with the following terms applying.

The cost will follow the event.

Orders Accordingly.
__________________________________________________________________

Namani & Associate: Lawyer for the Plaintiff/Applicant
Office of the Solicitor General: Lawyer for the Defendant