Nakun Pipoi on his behalf and on behalf of The Nob 1 Tribe of Madang Province v Viviso Seravo National Minister for Lands and Nathaniel Marum National Lands Commissioner and The Independent State of Papua New Guinea

• Jurisdiction: Papua New Guinea
• Judge: Sevua, Kandakasi & Lenalia, JJ
• Judgment Date: 10 April 2008
• Court: Supreme Court
• Citation: (2008) SC909
• Docket Number: SCM 4 of 2001
• Year: 2008
• Judgement Number: SC909

Full Title: SCM 4 of 2001; Nakun Pipoi on his behalf and on behalf of The Nob 1 Tribe of Madang Province v Viviso Seravo National Minister for Lands and Nathaniel Marum National Lands Commissioner and The Independent State of Papua New Guinea

Supreme Court: Sevua, Kandakasi & Lenalia, JJ

Judgment Delivered: 10 April 2008

SC 909

PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE]

SCM 4 of 2001

BETWEEN

NAKUN PIPOI on his behalf and on behalf of

THE NOB 1 TRIBE of MADANG PROVINCE

Appellants

AND

VIVISO SERAVO

NATIONAL MINISTER FOR LANDS

First Respondent

AND

NATHANIEL MARUM

NATIONAL LANDS COMMISSIONER

Second Respondent

AND

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

Third Respondent

Waigani: Sevua, Kandakasi & Lenalia, JJ

2006: 28 February

2008: 10 April

ADMINISTRATIVE LAW – Application for leave for judicial review – Relevant principles -Sufficient interest and locus standi – Reliance on earlier Court decision to claim sufficient interest and locus standi – No evidence of plaintiff being one and the same party in the earlier proceedings – No locus standi – Order 16 r 3 (5) National Court Rules.

ADMINISTRATIVE LAW – Application for leave for judicial review – Relevant principles - Arguable case – A party without sufficient interest and or locus standi precluded from arguing arguable case - Declaration of National Land – Appropriate time to contest ownership and or judicial review – Prior to actual declaration – Post declaration ownership not an open issue – Compensation only available remedy through Land Titles Commission – Judicial review not an available remedy – Land Registration Act 1977 ss 8, 9, 10 (2) – National Land Commissions Act 1997.

ADMINISTRATIVE LAW - Application for leave for judicial review – Relevant principles - Exhaustion of available remedies – Declaration of National Land - Failure to exhaust available primary administrative remedy – Application made to inappropriate forum pursuing a non extinguished relief – Land Registration Act 1977 ss 8, 9, 10(2) – National Land Commission Act 1997.

ADMINISTRATIVE LAW - Application for leave for judicial review – Relevant principles - Delay of more than 12 years – Plaintiff engaging in repeated correspondence through members of Parliament and others without any positive response in sight – Failure to utilize available remedy – Taking proceedings before inappropriate forum – Delay inordinate, inexcusable and unreasonable – Too late to upset actions and developments based on decision subject of proceedings - Land Registration Act 1977 ss 8, 9, 10(2) – National Land Commission Act 1997- National Court Rules Order 16 r 4..

LAND LAW - Declaration of National Land - Appropriate time to contest ownership - Prior to actual declaration – Avenue open to raise issue of ownership with Minister for Lands - Post declaration ownership not an open issue – Compensation only available remedy through National Land Titles Commission – Judicial review not an available remedy – Land Registration Act 1977 ss 8, 9, 10 (2) – National Land Commissions Act 1997.

Cases cited:

Papua New Guinea Cases

Custodian of Expropriated Property v. Commissioner of Native Affairs (Re Jomba Plain) [1971-72] PNGLR 501

NTN Pty Ltd v. Board of Post & Telecommunication Corporation & Ors [1987] PNGLR 70

Ombudsman Commission of Papua New Guinea v. The Hon. Justice Sakora & Ors (1996) unreported, N.1720, 6th December 1996

Simon Manjin v. Post and Telecommunication Corporation and Ors [1990] PNGLR 288

Geno & Ors v. The Independent State of Papua New Guinea [1993] PNGLR 22;

The State v. Philip Kapal [1987] PNGLR 417

Kekedo v. Burns Philp (PNG) Ltd & Ors [1988-89] PNGLR 122

Application of Eric Gurupa (1990), unreported, N.856, 9th January 1990

Application of Evangelical Lutheran Church of Papua New Guinea [1995] PNGLR 276

Polaiap Tapas v. Pasiu Tekum & Ors (1999), unreported, N.1921, 5th November, 1999

The Independent State of Papua New Guinea & Boyamo Sali v. Lohia Sisia [1987] PNGLR 102

Overseas Cases:

Inland Revenue Commissioners v. National Federation of Self-Employed and Small Business Ltd [1982] AC 617

Counsel

Mr. P. Parkop, for Appellants

Mr. D. Lambu, for Respondents

10 April, 2008

1. BY THE COURT : This is an appeal by way of a Notice of Motion pursuant to Order 10 Rule 1, Supreme Court Rules, and Order 16 Rule 11, National Court Rules in respect of a National Court decision made on 1 June 2001 refusing leave for judicial review under Order 16 Rule 3 National Court Rules. The appellants claim that the National Court erroneously arrived at its decision because they:

1) have sufficient interest in parts of the now Madang Township land and therefore locus standi based on a decision of the Central Court of the then Territory of New Guinea;

2) given their interest in the land, they have an arguable case;

3) have offered a reasonable explanation for the delay of over 12 years; and

4) have exhausted all available remedy.

2. Further, the appellants claim that, in all of the circumstances, the learned trial judge erred in failing to exercise the discretion vested in him fairly, particularly when they satisfied all of the requirements for a grant of leave for judicial review and have provided evidence of extenuating circumstances for the delay of over 12 months.

3. On the other hand, the respondents argue that, the National Court correctly arrived at its decision. Accordingly, they argue for an affirmation of the decision of the National Court.

Relevant Issues

4. Based on the arguments presented before us the main issue is whether the learned trial judge fell into error in arriving at his decision, the subject of the appeal before us. A determination of that issue is dependant on whether the appellants had:

1) established by appropriate evidence, sufficient interest in the land the subject of the proceedings and therefore, locus standi before the National Court;

2) demonstrated an arguable case for grant of leave for judicial review;

3) provided reasonable explanation and extenuating circumstances for the delay of over 12 years and whether it is appropriate to grant the relief sought;

4) exhausted all available remedies before resorting to judicial review; and,

5) whether the learned trial judge erred in all of the circumstances to fairly exercise his discretion.

National Court Proceedings and Background

5. In order to properly appreciate, consider and determine the issues before us as well as the basis for the National Court’s decision, it is necessary to consider what was before the National Court; the relevant background, the relevant facts and the basis for the National Court’s decision. We start that process with a consideration of the proceedings before the National Court and the background to that.

6. On 25 January 1999, the appellants filed an Originating Summons at Waigani (OS 34 of 1999) claiming the following:-

“1. Leave to apply for Judicial Review of the decision of the Minister for Lands to declare the Madang Town land as National Land on 14 January, 1988 and the decision of the National Lands Commissioner to award compensation to various claimants for the Madang Town land made on 18 September, 1990 and on 4 October, 1991 and 2 February, 1996.

2. An order in the nature of certiorari to remove into this Honourable Court and to quash the decision of the Minister for Lands made on 14 January, 1988 and the various decisions of the National Lands Commissioner made on 18 September, 1990; 4 October, 1991 and 2 February, 1996.

3. An order or declaration that the Declaration by the Minister for Lands on 14 January, 1988 was illegal and therefore void as the said Land was not freehold nor acquired Land and therefore could not be declared National Land under the National Lands Registration Act.

4. An order or declaration that the decisions of the National Lands Commissioner made on 18 September, 1990; 4 October, 1991 and 2 February, 1996 was therefore illegal and null and void.

5. An order or declaration that all those pieces of land acquired by the officer of the German Neu Guinea Compagnie, Kubary, and now known as Modilon Jomba Plains, Meiro Plains, Wagol Plantation and Wagol Reserve are still customary land owned by clans and tribes in and near the Madang Township, including the plaintiff Nob Tribe.

6. An order that the respondents be restrained from paying out compensation for the proposed acquisition of the Land until the question of ownership has been resolved either by this Court or the Lands Title Commission.

7. An order for cost.

8. Any other orders the Court deems appropriate.

9. That the Orders be abridged to the date of settlement which shall take place forthwith.”

7. The originating summons was supported by a Statement pursuant to Order 16 Rule 3 (2) National Court Rules, and several affidavits. On 1 June 2001, the National Court refused the application for leave resulting in this appeal.

8. On 25 May 1932, Justice Phillips, constituting the Central Court of the Territory of New Guinea made certain determinations of “native rights” to customary land purportedly purchased by Neu Guinea Compagnie (New Guinea Company) in 1887 and 1888 in respect of “native” land in and around the present Madang Township then known as Friedrich Wilhelmshafen. Those determinations are contained in the Court’s judgment in Custodian of Expropriated Property v. Commissioner of Native Affairs (Re Jomba Plain) [1971-72] PNGLR 501.

9. The Commissioner of Native Affairs had referred the question of possible native rights...