In the Matter of Yabo Sabo for Nagi Clan of Amele in Madang Province and the Madang Provincial Land Court (Re Nagi Clan) [1995] PNGLR 13

• Jurisdiction: Papua New Guinea
• Judge: Doherty J
• Judgment Date: 19 August 1991
• Citation: [1995] PNGLR 13
• Court: National Court
• Year: 1995
• Judgement Number: N1036

Full Title: In the Matter of Yabo Sabo for Nagi Clan of Amele in Madang Province and the Madang Provincial Land Court (Re Nagi Clan) [1995] PNGLR 13

National Court: Doherty J

Judgment Delivered: 19 August 1991

N1036

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

IN THE MATTER OF YABO SABO FOR NAGI CLAN OF AMELE IN MADANG PROVINCE AND THE MADANG PROVINCIAL LAND COURT

Madang

Doherty J

19 August 1991

EQUITY — Clean hands maxim.

PRACTICE AND PROCEDURES — Certiorari to quash a decision of a land court — Order for giving time for implementation of an original order may not amount to variation — Failure to comply with original order may be a bar to giving leave for certiorari — Whether a party other than the original plaintiff can apply for certiorari.

ADMINISTRATIVE LAW — Certiorari — Locus standi — Whether a party other than the original plaintiff can apply for certiorari.

Facts

The plaintiff sought leave for judicial review of a decision of the Madang Provincial Land Court made four years earlier.

Held

1. The four-months limit stated in O 16 r 4 (2) of National Court Rules is not a mandatory provision, but consideration must be given to the cause of the delay and reasons.

2. Equitable remedies are discretionary, and failure to obey the original order may be a bar to relief.

3. Obiter: an order confirming the original court order in the Local Land Court and giving time to implement it may not amount to a variation of the original order.

4. The applicant for certiorari must show that he or she had locus standi in the original hearing.

Cases Cited

Papua New Guinea cases cited:

PNG v District Land Court; ex parte Nuli [1981] PNGLR 192

State v Giddings; ex parte Koan [1981] PNGLR 423

Yap v Tan [1987] PNGLR 227

Other case cited:

Hadkinson v Hadkinson [1952] 2 All ER 567; [1952] P 285; [1952] 2 TLR 416

Counsel

G Langtry for the applicant.

19 August 1991

DOHERTY J: The applicant applies for leave in accordance with the National Court Rules for an order of certiorari against the decision of the Provincial Land Court at Madang quashing an appeal against a decision of the Local Land Court. The Local Land Court made its decision in 1983, but the National Court (Bredmeyer J) granted a judicial review of that decision on the basis that the terms of the order were unclear and not communicated to the parties. The order made was then appealed. This is an application against the decision of the appeal court, viz the Provincial Land Court. Two grounds are mentioned in the originating summons. First is that the learned magistrate had no power to confirm the lower court's decision and then make his own new orders; and secondly, in the circumstances of the case, no court doing justice would have made the decision complained of.

Counsel for the applicant refers to the case of PNG v District Land Court; ex parte Nuli [1981] PNGLR 192. The applicant says that the decision made by the appeal court differs from the decision made by the lower court. The Provincial Land Court in Nuli's case made quite different orders by making changes to boundaries of the land and other matters. These are set out in pages 194 and 195 of that judgment.

In the case before me, the Local Land Court first awarded the land to one clan and its representatives. In the Provincial Land Court, this was confirmed and a second order upheld that decision and added a decision which allowed for the implementation. It appears to me that this may not necessarily be a complete variation, but only an upholding of the original decision and an order facilitating its implementation by giving the unsuccessful appellants (current applicants) time to vacate the land.

The matter...