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Ragigananzub Clan v Rosso [2021] PGNC 113; N8863 (29 April 2021)

N8863

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS NO. 299 OF 2020

BETWEEN:
RAGIGANANZUB CLAN
First Applicant

AND:
BUAP KAZZAI
Second Applicant

AND:
BENNY KAZZAI, ANNA BUAP, WARARAIS KIU and SIMON JOHN
Third Applicant

AND:
HON. JOHN ROSSO, as the Minister for Department of Lands & Physical Planning
First Respondent

AND:
OSWALD TALOPA, as the Secretary for Department of Lands & Physical Planning
Second Respondent

AND:
BENJAMIN SAMSON, as the Registrar of Titles of Department of Lands & Physical Planning
Third Respondent

AND:
ARIDAGIN CLAN
Fourth Respondent

AND:
ARIDAGIN LAND GROUP (INC)
Fifth Respondent

AND:
TITUS KILAMU
Sixth Respondent

AND:
JACK AFING
Seventh Respondent

Lae: Dowa J
2021: 11^th November & 29^th April

JUDICIAL REVIEW – application for leave for judicial review – review subject of decision by Department of Lands & Physical Planning to grant special agricultural & Business Lease (SABL) to the fifth respondents – applicants allege SABL was granted secretly to the fifth respondent - whether Applications are entitled to be granted leave to apply for judicial review – applicants have satisfied the court the prerequisites of granting leave for judicial review – leave for judicial review granted

Cases Cited:

Application of Eric Gurupa (1990) N856
Application of Evangelical Lutheran Church of PNG (1995) PNGLR 276
Golu v NEC (2011) N4425
Independent State of Papua New Guinea vs Toka Enterprises Ltd (2018) SC 1746
Kekedo v Burns Philip (PNG) Ltd [1988-1989] PNGLR 122
Michael Gura v Lieutenant Colonel Rickavaperry & Others
NTN v PTC (1987) PNGLR 70
Pipoi v Seravo
State & Sali v Sisia (1987) PNGLR102
SHPG v Kalu (2016) SC1568
Tepas v Tekum (1999) N1921

Counsel:

J. Langah, for the Plaintiff
S. Maliaki, for First, Second & Third Defendants
J. Holingu, for Fourth, Fifth & Sixth Defendants

RULING

29^th April, 2021

1. DOWA J: This is a ruling on an application for leave to apply for judicial review. The Plaintiffs seek leave to apply for judicial review of the First Respondent decision made on 12^th January 2008, which granted a Special Agricultural and Business Lease (SABL) to the Fifth Defendant, Aridagin Land Group.

FACTS

2. The Applicants are members of Ragigananzub clan of Watarais village, Markham District in the Morobe Province. The Fourth, Fifth, Sixth and Seventh Respondents are members of Aridagin Clan of Watarais, Markham District in the Morobe Province.

3. The Applicants allege, they are the owners or part owners of a customary land known as Ngaru No.1 situated at Watarais village, Markham District. They allege there is an ongoing dispute over the usage of the said land between the Applicants and the Respondents.

4. It is alleged, without the knowledge of the Applicants, the Fourth, Fifth Sixth and Seventh Respondents applied for the registration of the Aridagin Land Group Inc. Again, without the knowledge and approval of the Applicants, and without following due process under the Land Act, the Fifth Respondent was granted a Special Agricultural and Business Lease (SABL) over the said Ngaru No.1 Land, by the First, Second and Third Respondents.

5. The Applicants therefore seek leave to apply for judicial review of the decision of the Lands Minister and the Lands Secretary of the grant of the Special Agricultural and Business Lease (SABL) over the said land.

THE APPLICATION

6. The applicants rely on the following documents:

1. Originating Summons filed 18/09/2020
2. Statement of Claim filed 18/09/2021.

100. ) Affidavit of Buap Kazzai sworn 05/10/2020.

4. Affidavit of Buap Kazzai sworn and filed 9 /10/2020.
   

ISSUES

7. The issue for consideration is whether the Applications are entitled to be granted leave to apply for judicial review.

LAW

8. The relevant rule under the National Court Rules is Order 16 Rule 1(1) and (3), which reads:

“1. Cases appropriate for application for judicial review. (UK. 53/1)
(1) An application for an order in the nature of mandamus, prohibition, certiorari or quo warranto shall be made by way of an application for judicial review in accordance with this Order”....
“3. Grant of leave to apply for judicial review. (UK. 53/3)

(1) An application for judicial review shall not be made unless the leave of the Court has been obtained in accordance with this Rule.

(2) An application for leave must be made by originating summons ex parte to the Court, except in vacation when it may be made to a Judge in chamber, and must be supported.

(a) by a statement, setting out the name and description of the applicant, the relief sought and the grounds on which it is sought; and

(b) by affidavit, to be filed before the application is made, verifying the facts relied on.

(3) The applicant must give notice of the application to the Secretary for Justice not later than two days before the application is made and must at the same time lodge with the Secretary copies of the statement and every affidavit in support.

(4) Without prejudice to its powers under Order 8 Division 4, the Court hearing an application for leave may allow the applicants statement to be amended, whether by specifying different or additional grounds for relief or otherwise, on such terms (if any) as it thinks fit.

(5) The Court shall not grant leave unless it considers that the applicant has a sufficient interest in the matter to which the application relates.

(6) Where leave is sought to apply for an order of certiorari to remove for the purpose of its being quashed any judgement, order, conviction or other proceedings which is subject to appeal and a time is limited for the bringing of the appeal, the Court may adjourn the application for leave until the appeal is determined or the time for appealing has expired.

(7) If the Court grants leave, it may impose such terms as to costs and as to giving security as it thinks fit.

(8) Where leave to apply for judicial review is granted, then;

(a) if the relief sought is an order of prohibition or certiorari and the Court so directs, the grant shall operate as a stay of the proceedings to which the application relates until the determination of the application or until the Court otherwise orders; and

(b) if any other relief is sought, the Court may at any time grant in the proceedings such interim relief as could be granted in an action begun by writ.”

9. The law on application for leave to apply for judicial review is settled in this jurisdiction. In NTN v PTC (1987) PNGLR 70, the National Court said this at page 7 of the judgment:

“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).

In exercising its discretion, the court must consider whether the applicant has an arguable case. In Inland Revenue Commissioners v National Federation of Self-Employed and Small Businesses Ltd [1981] UKHL 2; [1982] AC 617, Lord Diplock set out the principles upon which the Court should act and I respectfully adopt them. Lord Diplock said (at 644):

"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."

10. In order to succeed, an applicant must show or meet four requirements as set out in Golu v NEC (2011) N4425. They are:

1. Must have sufficient interest,
2. an arguable case,

100. no undue delay; and

4. have exhausted all other statutory or administrative avenues for appeal or review.

11. In some cases, an applicant can be granted leave where the applicant demonstrates that to deny leave would result in grave injustice.

SUBMISSION OF COUNSEL
12. Mr Langah, Counsel for the Applicants, submits that the applicants have met the minimum requirements for leave, in that:

1. the Applicants are members of Ragiganazub clan, and are customary landowners of Ngari No.1, and they have substantial interest in the land the subject of the Special Agricultural and Business Leave (SABL).
2. although the SABL was granted in 2008, they were not aware of it, until July 2020 when eviction proceedings were instituted against them. The Applicants took steps to institute proceedings within three months after they became aware of the issuance of the lease.

100. There is no other administrative avenue to challenge the grant of Special Agricultural and Business Lease (SABL) except through judicial review.

4. The Applicants have an arguable case. The Applicants are the owners of the SABL land. They were not aware of the grant of both the LLG and the SABL: There was no investigations and interview being conducted before the State Lease was granted. The Applicants argue that Sections 10, 11 and 102 of the Land Act were followed.
   

13. Mr Holingu, counsel for the Fourth, Fifth and Sixth Respondents, opposed the application for the following reasons:

1. As a preliminary issue, the Originating Summons is incompetent in that it seeks additional reliefs apart from leave, which he submits is contrary to order 16 Rule 3(2) of the National Court Rules.
   
2. In respect of the substantive issue, Mr Holingu submits the application is ambiguous and is not clear as to what decision the applicants seek leave for Review and is therefore, is an abuse of the process.

100. The applicants have no standing. There is not finding of fact that the Applicant, Buap Kazzai, is the customary landowner of land described as Ngaru No.1.
     

4. If the leave is sought for the review of the local land court given on 29^th March 2007, then it should not be granted, as the applicants have not exhausted the Appeal process under the Land Dispute Settlement Act 1975.
   
5. Mr Holingu submits, there is undue delay, period of more than 12 years. The decision of Local Land Court granting approval of land mediation was made on 29^th March 2007, more than 13 years. The Special Agricultural and business Lease was issued on 12^th January 2008, more than 12 years.

e) Mr Holingu submits further that the cause of action is even statute barred under section 16 of the Frauds and Limitation Act 1988.

14. Ms Maliaki, counsel for the First, Second and Third Defendants, does not oppose the application and concedes that in the interest of justice, leave be granted to the Applicants.

REASONS FOR DECISION

15. I have read the Originating Summons and supporting documents, the affidavits of parties and submissions of counsel. Here are my reasons for decision.

16. I will deal with the preliminary issue first. Under order 16 Rule 3(1) of the National Court Rules the only relief required is an application for leave. After leave is granted, it is then open to the Court to grant interim and other orders as may become necessary. In the present case, the Applicants sought an additional relief for the stay of the SABL lease. It is not permissible under the rules.

17. Does this render the current proceedings incompetent or become an abuse of the process. In my view, it does not. The substantive application is for leave. If there exist grounds for leave, a court should not hesitate to grant leave. To do so, otherwise, is to drive an applicant from judgment seat only because of technical issue.

18. On the other hand, the rule exists to protect the Court from ambitious litigants who seek quick orders disturbing the administrative/quasi-judicial decisions.

19. In the exercise of my discretion. I will not dismiss the proceedings. However, on the same token, the relief no.2 sought in the originating summons will be struck out for being incompetent.

SUFFICIENT INTEREST

20. I now turn to the substantive issues. Firstly, I am satisfied from evidence provided that the Applicants have standing to institute the current proceedings. There is no dispute that Ragiganazub is a clan, from Watarais, Kaiapit, Markham District. The Applicants, Buap Kazzai, Benny Kazzai, Anna Buap, Watarais Kiu and Simon John are members of the Ragiganazub clan. The evidence also shows, the Fourth Respondent, Aridagin Clan, is also part of the Ragiganazub clan. The members of Ragiganazub clan and Aridagin clans have a dispute over land known as Ngaru No.1 Land, which is now granted SABL, particularly described as Portion 245 C, Kaiapit, Markham, Morobe Province. The grant of the lease to Aridagin Incorporated Land Group has affected the interests of the applicants. Therefore, I find the Applicants have sufficient interest and standing to institute the proceedings.

UNDUE DELAY

21. This application is brought about 12 years after the grant of the State Lease. The Applicants allege, they became aware of the existence of the SABL only in July 2020. This may appear to be surprising, especially when all the parties of the current proceedings were parties to a mediation proceeding in December 2006 and subsequent dispute settlement agreement in March 2007. However, it is possible that the applicants may not have understood or agreed to the terms of the settlement agreement. This appears to be the case when one closely examines the terms of the orders of 8^th December 2006 and 29^th March 2007 which are set out below:

1. On 8^th December 2006, after a land mediation, the parties reached agreement in the following terms:
   

“a) Chief Martin Pari, Buap Kazzai and Jack Afing are from the same clan.

2. b) Martin Pari is the Chief, or clan leader of Aridangin clan. Any land affair regarding Ngaru land (1) must be subjected to the clan leader, Martin Pari.”
   
2. On 27^th March 2007, the Local Land Court, presided by His Worship Martin Ipang, approved the mediation Agreement in the following terms:
   

“(i) That the ownership and usage rights of Ngaru one (1) Land is vest upon Aridagin clan.

(ii) That any development whatsoever, in regard to the matter should be dealt within the Incorporated land Group (ILG) Certificate.”

22. In respect of the State Lease, Mr Buap Kazzai, deposes that the Aridagin Clan kept the grant of the State Lease (SABL) a secret and it was not made known to him and the other members of Ragiganazub clan. Mr Kazzai deposes that there was no investigation or interviews being carried out before the SABL was issued. He was caught by surprise when eviction proceedings were issued in the District Court last year 2020.

23. It is generally accepted that the period of four months is not mandatory. The court has the discretion to enlarge that period provided the application is brought within a reasonable time, and a reasonable explanation for the delay is given. What amounts to undue delay depends on the circumstances of each case. The following cases illustrate this point.

24. In NTN v PTC (1987) PNGLR 70, the leave application was refused for undue delay after it was brought 11 months late. The Court was of the view that the grant of leave that late would be detrimental to good administration.

25. In State & Sali v Sisia (1987) PNGLR102, the Supreme Court held, in upholding an appeal, that a delay of five years was undue delay.

26. In Application of Eric Gurupa (1990), N856, the application for leave was refused for undue delay. The application was brought after two years with no reasonable explanation for the delay.

27. In Application of Evangelical Lutheran Church of PNG (1995) PNGLR 276, the Court refused the application for leave for undue delay. The period of delay was 11 months where the applicant offered no good reasons for the delay.

28. In Tepas v Tekum (1999) N1921, the Court refused leave for undue delay. The application was made 13 years after the administrative decision, the subject of the leave application.

29. In Pipoi v Seravo (2008) SC209, the Supreme Court, in dismissing an appeal, held that a delay of 11 years was undue delay and affirmed the decision of the National Court which refused the leave application.

30. In SHPG v Kalu (2016) SC1568, the Supreme Court refused leave for undue delay. The delay was for more than 3 years with no reasonable explanation.”

31. In the present case, although the SABL was issued more than 12 years, the Applicant became aware only in July 2020. They filed these proceedings in September 2020, about 2 months later. That would mean, the delay is only by two months.

32. However, if time is to be computed from date of issue of lease, it would be more than 12 years. In the case, Independent State of Papua New Guinea v Toka Enterprises Ltd (2018) SC 1746, the Supreme court said where a special gravity of the case so warrants, leave must be granted. At paragraph 11 of his ruling the Court said:

“11. The second part of Sub-rule 1 was given little or no consideration at all. No consideration was given to whether to grant leave would cause “substantial hardship to, or substantial prejudice to the rights of any person” or “would be detrimental to good administration”. The subject land formed part of the land occupied by the National Broadcasting Corporation, a public institution. The land was given to the respondent by way of a town sub-division lease for commercial development. The term of the original sub-division lease was a fixed 5 year term. Had the position of the parties substantially shifted in those 13 years? Were the improvement conditions complied with? Were there any subsequent renewal of the sub-division leases? Was the land rezoned? Did any third party acquire any interest in the land? Had there been any improvements erected on the land, by whom and of what value? No such inquiry on the part of the Court occurred. These were important considerations that if considered would have produced a just outcome of the case”.

33. The present case is grave enough. It involves land containing more than 2,850 ha of customary land. It covers areas where the Applicants are currently occupying. Even the mediators, and the Local Land Court have recognised that the Applicants Buap Kazai and Simon John were part of the customary landowners.

34. For these reasons, I hold, firstly, there is no undue delay. Even if there was a delay, this should not go against this application for the grant in the interest of justice.

ARGUABLE CASE

35. I am of the view that the Applicants have an arguable case. The Applicants come from the Ragiganazub clan. The Fourth Respondent, Aridagin is part of the Ragiganazub clan. In 1965, the National Land Title Commission deliberated on a land dispute over the land and awarded the land to the Ragiganazub clan.

36. The evidence shows, in the early 2000’s there was a dispute amongst the Ragiganazub clan amongst themselves. In a land mediation in December 2006, the land was allocated to the Aridagin clan but all the parties in the proceedings were recorded as being from the same clan that owned the said land. The terms of the mediation and subsequent approval orders from the Local Land Court are not clear. What is clear from both the mediation and the approval order is that the current applicants were recognised as being from the same clan that owned the subject land.

37. That being the case, it is quite surprising and unusual for just one group or part of the clan proceeding to obtain a Special Agriculture and Business Lease (SABL) from the Lands Department without the Applicants being made aware. There is no evidence that the villagers represented by the Applicants were interviewed before the Special Agriculture and Business Lease (SABL) was issued. These would appear to be contrary to sections 10, 11 and 102 of the Land Act. Sections 10, 11 and 102 of the Land Act reads as follows:

10. “REGISTRATION OF CERTIFICATES OF TITLE.

(1) A certificate of title is registered under and for the purposes of this Act as soon as it has been–

(a) marked with the volume and folio in which it is entered in the Register Book; and

(a) marked with the volume and folio in which it is entered in the Register; and

(b) signed, sealed and dated,

by the Registrar.

(2) One duplicate of a certificate of title shall, on registration, be delivered by the Registrar to the person entitled to it.

11. CERTIFICATE OF TITLE TO BE EVIDENCE.
    

(1) The Registrar’s duplicate of a certificate of title, when registered–
(a) is evidence of the particulars it specifies; and

(b) is conclusive evidence, in relation to the land it describes, that the person named in the certificate of title–
(i) as seized of an estate in land; or

(ii) as taking or otherwise entitled to an estate or interest in the land, is seized of, possessed or entitled to that estate or interest, as the case may be; and

(c) is conclusive evidence that the property comprised in the certificate of title is under this Act.

(2) The other duplicate of a certificate of title, when registered, is evidence of the particulars it specifies and of those particulars being entered in the Register.”

102. GRANT OF SPECIAL AGRICULTURAL AND BUSINESS LEASES.

(1) The Minister may grant a lease for special agricultural and business purposes of land acquired under Section 11.

(2) A special agricultural and business lease shall be granted–

(a) to a person or persons; or

(b) to a land group, business group or other incorporated body,

to whom the customary landowners have agreed that such a lease should be granted.

(3) A statement in the instrument of lease in the approved form referred to in Section 11(2) concerning the person, land group, business group or other incorporated body to whom a special agricultural and business lease over the land shall be granted, is conclusive evidence of the identity of the person (whether natural or corporate) to whom the customary landowners agreed that the special agricultural and business lease should be granted.

(4) A special agricultural and business lease may be granted for such period, not exceeding 99 years, as to the Minister seems proper.

(5) Rent is not payable for a special agricultural and business lease.

(6) Sections 49, 68 to 76 inclusive, 82, 83, 84 and 122 do not apply to or in relation to a grant of a special agricultural and business lease.

(7) Notwithstanding anything in this Act, a special agricultural and business lease shall be effective from the date on which it is executed by the Minister and shall be deemed to commence on the date on which the land subject to the lease was leased by the customary landowners to the State under Section 11.

38. In my view, the Applicants have an arguable case and if they present the necessary evidence they may succeed in the substantive application.

EXHAUSTION OF ADMINISTRATIVE AVENUES

39. The applicants apply for leave to review the three decisions:

1. Record of Mediation (Form 7) dated 12^th February 2007.
2. Eight Respondents Application for Approval of Agreement form 10 (Local Land Court dated 29^th March 2007).

100. Decision of 12 January 2008 by the First, Second and Third Respondents in granting a Special Agriculture and Business Lease.

40. It would appear the Applicants had sufficient opportunity to lodge an appeal to the Provincial Land Court under Section 54 of the Land dispute Settlement Act in respect of the mediation orders and the Approval Agreement as endorsed by the Local Land Court. However, it is not that clear. The evidence shows, the appeals lodged by some of the parties were dismissed on technical grounds. The Applicant, Buap Kazzai was made a party as a respondent alongside with the fifth Respondent in the proceedings OS(JR) No. 880/2018 filed by Jack Afing, the current seventh Respondent. The various and series of similar proceedings between various but same personalities clearly indicate or demonstrate that the orders of the mediation agreements and settlement orders issued by the Local Land Court lack clarity, and the issue of ownership remains yet to be resolved.

41. As for the grant of Special Agriculture Business Lease (SABL), it appears, the matter has not been a subject of any previous Court decisions. The Applicants have not been made aware. They did not have any chance to appeal or seek review under any Legislation, especially the Land Act. The only way to dispute the grant of the Special Agricultural Lease is by way of judicial review. Any review will obviously involve the consideration of the earlier decisions made in the mediation orders as endorsed by the Local Land Court.

42. The Applicants have demonstrated they have an arguable case and they be given the opportunity to further their interest by way of an application for judicial review. The Respondents will also have their day in court as well.
43. In the circumstances, leave be granted to the Applicants to apply for judicial review.

ORDERS

44. The Court orders that:

1. Leave is granted to the Applicants to apply for judicial review of the decision of the First Respondent on 12^th January 2008 in granting a 99 year Special Agricultural and Business Lease over Land known as Ngaru No.1, Portio 245C, Kaiapit, Markham Morobe Province.
2. the application for interim orders sought under order 16 Rule 3(8) is struck out for being an abuse of the process.

100. The Applicants shall file an application for Judicial Review by Notice of Motion within 21 days from date of order.

4. Cost be in the cause.
5. The matter returns to Court on 17^th May 2021 at 9:30 am for mention.

__________________________________________________________________
Albright Lawyers: Lawyers for the Plaintiff
Solicitor General Lawyers: Lawyers for the First, Second, & Third Defendants
Holingu Lawyers: Lawyers for the Fourth, Fifth & Sixth Defendants