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Ain v Bilinga [2024] PGNC 401; N11072 (17 October 2024)

N11072

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS (JR) NO. 284 OF 2023

RAPHAEL AIN, MILFRED LAVIDA, JOHM KIVORONG, BRIDGIT BAUN, THOMAS SABO JNR & LUCY SABO-KELIS for and on behalf of Pue Clan of Sentral Local Level Government, New Ireland Province
Plaintiff

-V-

RAPHAEL BILINGA of Lavatbura Village of Sentral Local Level Government, New Ireland Province
First Defendant

ISSAC LAWAXUT of Lavatbura Village of Sentral Local Level Government, New Ireland Province
Second Defendant

ORIM KARAPO sitting as a Local Land Court Magistrate at Kavieng
Third Defendant

Kavieng: Kariko, J
2024: 16^th & 17^th October

JUDICIAL REVIEW – application for leave – principles – review sought of Local Land Court decision - 12 years since decision – no appeal under Land Disputes Settlement Act - considerations

The applicant sought leave for judicial review of a 2012 Local Land Court decision which determined the customary owners of land known as Texorot located at Lavatbura Village Sentral Niu Ailan LLG, arguing that that decision did not include its customary land that borders Texorot.

Held:

1. The requirements for leave to be granted were satisfied.
2. The application for leave to file for judicial review is hereby granted
   

Cases Cited:
Application of Evangelical Lutheran Church [1995] PNGLR 276
Kekedo v Burns Philip Ltd [1988-89] PNGLR 122
Leto Darius v Commissioner of Police (2001) N2046
Peter Makeng v Timbers (PNG) Limited (2008) N3317
Pipoi v Seravo (2001) N2120
Tapas v Tekum (1999) N1921

Counsel:
Ms S Tongamp, for the Plaintiff

17^th October 2024

1. KARIKO, J: The plaintiff applies for leave for judicial review of the decision by the Kavieng Local Land Court made on 13 September 2012, which found customary ownership of land known as Texorot located at Lavatbura Village Sentral Niu Ailan LLG in favour of Raphael Bilinga and his family of Lavatbura Village (the 2012 Decision).
   

THE LAW

2. Judicial review concerns the inherent power of the courts to review the process in the making of administrative decisions by a public body, or a private body whose decision affects public interest: Kekedo v Burns Philip Ltd [1988-89] PNGLR 122.
   
3. Order 16 of the National Court Rules governs the procedure for judicial review.
   
4. Under O16 r 3, proceedings are commenced by an originating summons which must only seek leave and no other relief. The originating summons must also refer to the decision to be reviewed: Peter Makeng v Timbers (PNG) Ltd (2008) N3317. Particulars required include name of the decision maker, the decision, and the date of the decision.
   
5. There are five requirements to be satisfied for the National Court to grant leave for judicial review. An applicant must show:
   
   • (1) He has the standing or locus standi;
   • (2) The decision he seeks to have be reviewed is that of a public body or authority;
   • (3) He has an arguable case on the merits;
   • (4) He has exhausted all other available remedies; and
   • (5) He has filed his application without undue delay.

(Leto Darius v Commissioner of Police (2001) N2046)

CONSIDERATION

6. I am satisfied the application is properly before this court – that the originating summons and the requisite documents under O16 r 3(3) are in order.
   
7. Although properly served and notified, the State has not exercised its right to be heard.
   
8. In deciding the leave application, I have no trouble in deciding the first two considerations for the plaintiff.
   
9. A Local Land Court exercises its jurisdiction pursuant to the Land Disputes Settlement Act. Under this legislation, a person aggrieved by the decision of the Local Land Court may appeal to the Provincial Land Court. While the Act states that the decision of the Provincial Land Court is final, the decision may still be reviewed by the National Court exercising its inherent jurisdiction.
   
10. While the plaintiff did not utilize the appeal process under the Act, they explained that they only became aware of the 2012 Decision in June 2023 and by then the time-limitation for any appeal had long lapsed.
    
11. The plaintiff further stated that upon learning of the 2012 Decision they took immediate steps to file for judicial review which they did 4 months later.
    
12. Cases where applications for leave to review have been refused where the delay in bringing the applications was less than the 12 years in the present case include Application of Evangelical Lutheran Church [1995] PNGLR 276 - 11 ½ months; Pipoi v Seravo (2001) N2120 – 10 years.
    
13. In Tapas v Tekum (1999) N1921 there was a delay of 13 ½ years before a landowner group sought leave for judicial review of a Land Court decision arguing they were not aware of the court proceedings at the material time. In rejecting the explanation and thereby refusing leave, Sevua J reasoned:
    

... the sensitive nature of a land dispute is such that, many people would have knowledge of the dispute going to Court. A land dispute is something that is common and it is not secretly referred to Court as it is usually public knowledge.

14. While I agree generally with the statement by Sevua J, the evidence before me suggests some truth in the plaintiff’s assertion that they never knew of the 2012 Decision until last year. The evidence is that after the logging operations crossed onto Pue land from Texorot at the beginning of 2023, the plaintiff protested to the logging company for some 6 months before they were shown a copy of the relevant Local Land Court Order which they say is the first time they became aware of it.
    
15. In the circumstances, I do not hold against the plaintiff their failure to appeal under the Land Disputes Settlement Act and the filing of this application 12 years after the 2012 decision was made.
    
16. The area of land the subject of the 2012 Decision (Texorot) is depicted in a sketch map relied upon by the Local Land Court (Map 1). The plaintiffs, who are of the Pue Clan, produced a sketch map they prepared which shows their clan land borders Texorot (Map 2). The plaintiff’s concern which has led to these proceedings is that a timber developer, with the agreement of Raphael Bilinga, and relying on the 2012 Decision, has crossed from Texorot onto Pue land to log timber.
    
17. The details on Map 1 are minimal and it is difficult to ascertain if Map 1 includes land claimed to be Pue land in Map 2. It is also not easy to verify where the few geographical features and vegetation shown on Map 1 are located on Map 2. These may be better explained by further evidence in the substantive hearings but for now, there is an arguable case on the merits for the plaintiff.
    
18. In the result, I find for the plaintiff in their application for leave.
    

ORDER

19. The Court orders that:
    
    • (1) The application for leave to file for judicial review is hereby granted
    • (2) The plaintiffs shall take steps pursuant to O16 r5 of the National Court Rules regarding the application for judicial review.
    • (3) The requisite originating summons for the application shall be listed for hearing by 7 November 2024.
    • (4) The time for entry of these orders is abridged to the time of settlement before the Registrar which shall take place forthwith.
      

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Sabo’s Lawyers: Lawyers for the Plaintiff