Ben Kwayok v Jeremy Singomat

• Jurisdiction: Papua New Guinea
• Judge: Nablu, J
• Judgment Date: 11 December 2017
• Citation: (2017) N7097
• Court: National Court
• Year: 2017
• Judgement Number: N7097

Full : OS (JR) No 466 of 2013; Ben Kwayok Spokesman for the Kubren Clan of Sisimakam Village Nigerum North Fly District Western Province and Kubren Clan of Primin Tribe v Jeremy Singomat sitting as the Provincial Land Court Magistrate in Kiunga and the Independent State of Papua New Guinea and Nokim Faiwolok Spokesman for Wopkeinim Clan of Min Tribe Bultem Village Tabubil Western Province & Wokeinim Clan of The Min Tribe (2017) N7097

National Court: Nablu, J

Judgment Delivered: 11 December 2017

N7097

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

OS (JR) NO. 466 OF 2013

BETWEEN:

BEN KWAYOK SPOKESMAN FOR THE KUBREN CLAN OF SISIMAKAM VILLAGE NIGERUM NORTH FLY DISTRICT WESTERN PROVINCE

First Plaintiff

AND:

KUBREN CLAN OF PRIMIN TRIBE

Second Plaintiff

AND:

JEREMY SINGOMAT sitting as the PROVINCIAL LAND COURT MAGISTRATE IN KIUNGA

First Defendant

AND:

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

Second Defendant

AND:

NOKIM FAIWOLOK SPOKESMAN FOR WOPKEINIM CLAN OF MIN TRIBE BULTEM VILLAGE TABUBIL WESTERN PROVINCE & WOKEINIM CLAN OF THE MIN TRIBE

Third Defendant

Waigani: Nablu, J

2017: 7th June &11th December

JUDICIAL REVIEW – Decision of theProvincial Land Court of Kiunga – Dismissal of appeal – representative action – mandatory requirement – evidence of authority or consent to act - s.50, Land Dispute & Settlement Act – Provincial Land Court’s original or appellate jurisdiction – wide discretion – application for judicial review dismissed.

PRACTICE AND PROCEDURE – Judicial Review application – grounds of review – in sufficiently pleaded – lack of legally recognised grounds of review – proper grounds of judicial review must be pleaded.

Cases cited:

Dale Christopher Smith v. Minister for Lands (2009) SC 973

Kekedo v. Burns Philip [1988-89] PNGLR 122

Malewo v. Faulkner [2007] N3357

MisionAsiki v. ManasupeZurenuoc (2005) SC 797

21 ILGs of Gobe Project Area Incorporated Land Group v. ImaweBogasi ILG (2006) N3096

Simon Mali v. The State (2002) SC 690

Counsel:

Mr L. Kari, for the First and Second Plaintiff

Mr N. Yano, for the First & Second Defendant

No appearance for the Third Defendant

JUDGEMENT

11th December, 2017

1. NABLU, J: The first and second plaintiff seeks to review the decision of the first defendant which was made on 9th November 2012. The learned Magistrate sitting as the Kiunga Provincial Land Court affirmed the decision of the Local Land Court which was made on 23rdAugust 2011 which effectively vested the ownership of the customary land under dispute to the third defendant. The customary land which was in dispute is Mt Fubilan, in Western Province which is the subject of a Special Mining Lease and where the Ok Tedi Mine is located.

2. Leave was granted to the plaintiff on 12th December 2013. In the substantive notice of motion the plaintiff soughtvarious declaratory orders and an order in the nature of certiorari to quash the decision of the Provincial Land Court dated the 9th November 2012 and other orders that are deemed appropriate. During the hearing, the plaintiff provided a supplementary submission, seeking additional or alternative orders. The plaintiff argued that this Court had the jurisdiction under Section 155(4) of the Constitution to make orders that are appropriate in the interest of justice. Mr Kari of counsel for the plaintiff submitted that if this Court granted the plaintiff’s application for judicial review then instead of remitting the matter back to the Provincial Land Court, this Court should consider that the plaintiff’s had been unjustly deprived of their customary land and therefore consider the matter and determine the ownership of the customary land in dispute.

3. At the outset, it is trite law that judicial review applications proceed in two steps. First, an applicant must establish one or more grounds of review. If the applicant is successful, the next step is for the applicant to establish a case for the relief sought: See Mision Asiki v. ManasupeZurenuoc (2005) SC 797 and Dale Christopher Smith v. Minister for Lands (2009) SC 973.

4. It is also trite law that the grant of relief is discretionary. Despite the grant of judicial review, a Court may refuse relief if it is of opinion that the grant of relief may substantially prejudice the rights or interests of other persons and that the grant of relief may be detrimental to good administration. The Court may also refuse relief where there is evidence that there is inordinate delay (see Order 16 Rule 4(1) of the National Court Rules).

5. The third defendant has showed no interest in this judicial review application. They did not enter an appearance in this matter and were not represented at the substantive hearing. The Statement of Agreed and Disputed facts was endorsed by counsel for the plaintiff. I note it was not signed by the other defendants. It was also not filed (see pages 285 to 287 of the Review Book). Due to the lack of interest by the defendants the requirement to have the review book certified was also dispensed with by the Court on 9th August 2016 (see pages 288 to 289 of the Review Book). The application is supported by the affidavit of Ben Kwayok which was filed on 7th July 2014.

6. Therefore, the facts of the matter are provided in the affidavit of Ben Kwayok. The first plaintiff stated that he is the chairman of the Primin Incorporated Land Group and the leader of the Primin tribe. He is a member of the Kubren Clan. He claims that his clan is the customary landowner of the land from his village Sisimakam to the top of Mt Fubilan. Which was the subject of this land dispute. The Local Land Court had determined the customary land dispute and found that the third defendants were the customary land owners. The plaintiff was aggrieved and appealed to the Provincial Land Court. The Provincial Land Court after considering the appeal then dismissed the appeal.

7. According to the plaintiff’s written submissions they argued the grounds in paragraph 4.13, 4.14 and 4.15 of the Statement in Support should be considered by the Court first. It is necessary to set out the grounds of review:

“4.13 All these were not challenged and having examined the unchallenged evidence that the plaintiffs’ filed in the Local Land Court on the 23rd of August 2011 made a decision that was totally against the weight of the evidence and decided that the land was originally owned by the third defendant and his clan.

4.14 The Provincial Land Court on the 31st October 2012 sat and wrongly asked the appellants to file affidavit material establishing original ownership despite the fact that there was evidence already from material on the file and it was meant to elaborate on the grounds of Appeal that direction was not forth coming.

4.15 The Provincial Land Court Magistrate wrongly advised parties to file affidavits of evidence without further explaining anything else and the parties were led to believe that it was about ownership and filed such further affidavits which was wrong in law and in practice under the Land Dispute Settlement Act.”

8. The State through counsel argued that the grounds of review were numerous and not properly pleaded. Mr Yano of counsel for the State was of the view that there were two (2) main grounds of review. They are:

a. The Tabubil Local Land Court erred in law in that it conducted its’ hearing in a manner contrary to the principles of Natural Justice.

b. The Tabubil Local Land Court Magistrate erred in law in that in the circumstances of the case no Court in doing justice between the parties would have made the decision appealed against.

9. There are numerous grounds of review stated in the Statement of Support pursuant to Order 16 Rule 3(2)(a) of the National Court Rules (see pages 12 to 14 of the Review Book). The grounds are vaguely drafted, repetitious and convoluted.

10. But before considering the grounds of review, there is a preliminary issue which must be considered at the outset. This issue goes to the jurisdiction of the Court to consider the judicial review application and in particular the standing of the plaintiff to bring these judicial review proceedings. The Court has to be satisfied that the matter is properly before this Court. The preliminary issue is in regard to the plaintiff’s standing to bring this class action on behalf of the Kubren Clan of Primin Tribe.

11. It is trite law, that the plaintiff or parties in legal proceedings must be properly identified and named. For cases where the principle plaintiff is holding themselves out as representatives of other plaintiffs, it is mandatory that there is evidence of such authority. The plaintiffs are required to attest to the fact that they authorize the lead plaintiff to represent them. See the cases ofMalewo v. Faulkner [2007] N3357, 21 ILGs of Gobe Project Area Incorporated Land Group v. ImaweBogasi ILG (2006) N3096 and the Supreme Court case of Simon Mali v. The State (2002) SC 690.

12. In the case of Simon Mali, the Supreme Court was of the view, that in such representative actions or class actions the lead plaintiff must get the consent or authority of all clan members or people...