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Bakodong v Simbangan [2021] PGNC 437; N9124 (27 August 2021)

N9124

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS (JR) NO. 797 OF 2019

KISI BAKODONG FOR HIMSELF AND ON BEHALF OF BILLI CLAN
Plaintiff

AND:
TIM SIMBANGAN
First Defendant

AND:
PIOUS TAPIL PROVINCIAL LAND MAGISTRATE
Second Defendant

AND:
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Defendant

Waigani: Miviri J
2021: 17^th & 27^th August

PRACTICE & PROCEDURE – Judicial Review & appeals – Originating Summons – Leave for Judicial Review – 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 – Land Court Decision – Delay – Locus Standi – No Arguable – No Proper decision at First Instance – Leave refused – cost follow the event.

Cases Cited:

Dupnai v Weke [2016] PGSC 43; SC1525

Mondiai v Wawoi Guavi Timber Co. Ltd [2007] PGSC 6; SC886

Somare, Re [1981] PNGLR 265

Pipoi v Seravo, National Minister for Lands [2008] PGSC 7; SC909

Asakusa v Kumbakor, Minster for Housing [2008] PGNC 39; N3303
Counsel:

N. Hukula, for Plaintiff
R. Mobiha, for State Defendants

RULING

27^th August, 2021

1. MIVIRI, J: This is the ruling on the Plaintiff’s originating summons of the 05^th November 2019 pursuant to Order 16 Rule 3 (1) of the National Court Rules seeking leave for judicial review, against the decision of the second Defendant made on the 25^th June 2019 upholding the First Defendant’s Land Court Appeal.
   
2. He also seeks costs of the proceedings.
   
3. His originating process satisfies the requirements of the rules with the originating summons, the Statement pursuant to Order 16 Rule 3 (2) (a) of the Rules; Notice of application for Leave to apply for Judicial Review to the Secretary Department of Justice and Attorney General dated the 31^st October 2019; Undertaking as to Damages also of the same date; Affidavit verifying facts sworn of the 25^th October 2019 filed the 05^th November 2019; his own Affidavit also of the same date.
   
4. By his affidavit and the statement in support, he is from Billi clan of Hendeneng village, Mindik, Burum Kuat Local Level Government, Finchafen, Morobe Province. In that affidavit annexure “K” Court order issued by the Lae Provincial Land Court held in Lae in PLC No. 16/2018 between Tim Sambangan & others v Kisi Bakodong. The order emanating of the 11^th July 2019 by the Provincial Land Court Lae orders:
   

(i) The appeal is upheld.

(ii) The order dated 10^th May 2018 by Mr Tera Dawai was unregularly entered contrary to principles of Natural Justice and is declared void.

(iii) Parties to pay their own costs.

(iv) All subsequent orders set aside.

5. From 11^th July 2019 to today’s date 30^th August 2021 is two years and a month since that decision. He argues that he is within the four months period because the action was filed on the 31^st October 2019. The subject decision was made 25^th June 2019. Four months from that day would have been October 2019. But the application for leave was not moved until lapse of two years and a month after that decision even though he filed within time. There is no delay contrary to Order 16 Rule 4. But it is not clear as to why the application has been moved after two years and a month.
   
6. Judicial review is not centred around the plaintiff/applicant only. There are the defendants who are also drawn in whose situation must also be considered when the plaintiff draws as here. Why should they be at the discretion and mercy of the plaintiff as he pleases to argue? And here to wait until he elects to argue two years later in Court. Especially in the light of a contract not between him, but the first defendant with another party, Digicel Limited. Here is a case involving land customarily owned. Therefore, it ought to be canvased in that regard as to the basis of the plaintiff’s contention that he is the owner customarily. He serves no credible reason as to why he is late arguing. The cause of action needs immediate hands of the law, but it is not immediately led but delayed in presenting what he has filed in court. It means the defendants have carried on life reaping the benefits of that land.
   
7. There is no material independently apart from explaining the delay in arguing, though filed in time. Here a genuine cause does not get filled and await until two years and a month later to argue. It ought to be immediate which isn’t the case here. That aggravates against acceptance in total that he has been within time. Unless there are other good reasons this must be weighed with the other grounds as against as to whether this ground is made out in his favour, or not. The totality of these considerations are that the ground on delay is not to the standard that he has been within time. Because there is filing, which is in order, and coming with it is the duty to expedite unless explained by affidavit that there are cogent convincing reasons credible that sway otherwise. There is no material to that effect. In my view it will be taken against his assertion that he has been within time.
   
8. Plaintiff was working for 2014 for Fletcher Morobe. He was informed by one Bob Dinganu that a portion of his land “Umseseu” was used by Digicel Limited to erect Digicel Tower PG 3145. Which tower provided telecommunication network coverage for the whole of Morobe and the Momase region. From 2014 to 2015 he enquired at the Digicel Office Port Moresby and Lae on the Landowner payment benefits for the use of the land. And he was informed that payments were made to the first Defendant who signed a Contract with Digicel Limited claiming that he was the landowner. No other person received the benefits deriving. In the mediation following there was no participation by the first defendant.
   
9. On the 25^th September 2016 a land mediation was held at Hendeneng village before all the village elders. However, the first defendant did not show up at the mediation. But Senior Local Land Court Mediator Bongon Giangip (Gian) was present in the mediation and put the mediation minutes annexure “B” to the affidavit of Kisi Bakodong of the 25^th October 2019 filed 5^th November 2019. It says that the plaintiff is the owner of the subject land. Which was conveyed by a letter dated 26^th September 2016 annexure “C” to the Customer Services Manager of that fact. This is not a mediation because the other disputing party now the First Defendant is not there participating in the mediation. It cannot comprise a mediation in law capable of being brought as it is now.
   
10. A second mediation was arranged with no attendance by the first defendant and then application to endorse the mediation was made in the District Court which came out in favour of the plaintiff on the 10^th May 2018. It was served on Digicel but no payment was forthcoming because an appeal was lodged by the latter challenging in the Lae Provincial Land Court. It was not served the plaintiff. But was mentioned on the 26^th July 2019 at 9.30am. Plaintiff attended but the matter was not listed. He was informed by one Nick Sawong the Clerk there at the Local Court that there was already a decision, but he did not show the court order resulting. On the 07^th August 2019 he was informed that the Second Defendant upheld the First Defendant’s appeal and quashed the Court Order of the 10^th May 2019.
    
11. The contractual arrangement between the first defendant and Digicel PNG Limited upon the subject land where the communication tower is located is a private matter between them in contract. The plaintiff is not a party to that Contract. Presumably that contract recognizes to an extent that the first defendant is the person who should be paid for the subject land, hence the payments made. The plaintiff cannot sever that relationship unless by process of law he is illuminated as the owner of the subject land. Which has not happened here. This fact is against his application especially as to his locus standi.
    
12. He has not shown by reference to a decision of the land Court, as to how he is affected by the decision. He contends that he is the owner of the subject land. And he relies on a mediation that has him as the owner of the subject land. That mediation is not attended by the first defendant. It is not clear as to how that mediation was conducted. There is a supposed decision of the mediation, but as to how it was arrived at is not clear. And because it is in that form it is unclear what the plaintiffs’ interest is in the subject land. It is customary land so it must be properly settled as to the basis upon which the plaintiff says he is the owner. There is no proper basis as to how he comes in as having a standing on the subject land.
    
13. Because without standing, or locus standi, he does not satisfy to be accorded leave. “To determine whether a person has sufficient interest for the purposes of National Court Rules Order 16 r3(5) the Court should ask

(a) Is the party complained about a public body

(b) Does that party have duties to perform at law; i.e., statutory duties?

(c) What is the nature of the alleged breach of duty; are they duties in law or do they fall within management or administrative guidelines for decisions to be taken within a lawful discretion?

(d) What is the Plaintiff’s relationship to the duties alleged to have been breached;

(i) are they merely busy bodies or
(ii) are they genuinely concerned
(iii) do they objectively point to some duty in law which (arguably at the leave stage) has not been observed? Mondiai v Wawoi Guavi Timber Co. Ltd [2007] PGSC 6; SC886 (17 October 2007).

14. There is no doubt the complaint by the Plaintiff is against the Provincial Land Court. But there is no decision of that court as part of the material before this Court in the application for leave. Only the orders are annexure to the evidence set out above. It would not be clear as to what duties that the Provincial Land Court had against the plaintiff. It would pin down whether the plaintiff is a mere busy body or is genuinely concerned and has been affected by that decision. The assertion that he is the owner of the land is by his own mouth, not by a process of law that has come to a stage where it has been overturned in the face of that evidence. Because the assertion is customary ownership of land and not a registered title per se. It is not in similar as with a title registered by section 33 of the Land Registration Act, where the title documents will evidence prima facie the claim by the plaintiff. That is not the case here. It is therefore important to gloss on the basis of the decision not the order per se.
    
15. There is no clear demarcation of this evidence as to the plaintiff’s relationship to the duties in the hands of the Provincial Land Court. He is not likened to Somare, Re [1981] PNGLR 265 (3 August 1981). It is a different thing to complain, and it is yet a different thing to draw a nexus as to how it has affected the plaintiff. The orders at first instance by the local Court were set aside because the procedure was irregularly entered. And that is within law because “The Agreement is endorsed and becomes the Order of the Court made in the District Court of Justice In its Local Land Court Jurisdiction.” It is not clear as to the basis as to how the agreement is endorsed and becomes an order of the Court. Is it by an application following a hearing? There is in this respect doubt as to the standing of the applicant/plaintiff. He does not satisfy so as to be considered favourable in this application for leave: Pipoi v Seravo, National Minister for Lands [2008] PGSC 7; SC909 (10 April 2008).
    
16. He must demonstrate an arguable case and he has no standing because he failed to show his interest in the land in custom. The mediation that he relies on is not a mediation because the other side to it, the first defendant is not present in it. To participate in it so that what comes out is indeed a mediation between the disputing parties to the subject land. He now has interest and has an arguable basis to pursue against the plaintiff. That is not his situation, because what reasons will be given for the decision. He is not entitled to the subject land and has not shown where he is connected to that land, so that he has an arguable basis, which has been denied hence the application for leave to remedy.
    
17. His pleading does not demonstrate that he has a cause of action open in law, Asakusa v Kambako, Minster for Housing [2008] PGNC 39; N3303 (10 April 2008). Because judicial review is not for busy bodies and the like it is a very restrictive domain and the grounds to invoke by leave are very restrictive and stringent, Pipoi (supra).
    
18. And here it has not been adequately demonstrated to the required balance to favour the pray of the Plaintiff. The totality is that leave has not been secured on the balance of preponderance by the plaintiff on the material he has filed, and the law relating set out above. Accordingly, his application for leave is refused with Costs.
    

The formal orders of the Court are:

(i) Leave is refused.
(ii) The proceedings are dismissed forthwith.
(iii) Costs will follow the event.

Orders Accordingly.

__________________________________________________________________

Office of the Public Solicitor: Lawyer for the Plaintiff/Applicant

Office of the Solicitor General: Lawyer for the Defendant