Application for Judicial Review Pursuant to s155(4) of The Constitution; Application for Judicial Review Pursuant to Order 16 (3) of The National Court Rules; In The Matter of National Land Registration Act (Ch357); The Independent State of Papua New Guinea v National Land Commission, Natanias Marum, Presiding as The National Land Commission, John Yamai as Landowner of UAL2 Part Mount Hagen Township, Western Highlands Province and Thaddeus Kambanei, Secretary for Department of Finance (2004) N2918

• Jurisdiction: Papua New Guinea
• Judge: Sawong J
• Judgment Date: 17 December 2004
• Court: National Court
• Citation: (2004) N2918
• Docket Number: OS 620, 646, 651, 652 and 714 of 2004
• Year: 2004
• Judgement Number: N2918

Full Title: OS 620, 646, 651, 652 and 714 of 2004; Application for Judicial Review Pursuant to s155(4) of The Constitution; Application for Judicial Review Pursuant to Order 16 (3) of The National Court Rules; In The Matter of National Land Registration Act (Ch357); The Independent State of Papua New Guinea v National Land Commission, Natanias Marum, Presiding as The National Land Commission, John Yamai as Landowner of UAL2 Part Mount Hagen Township, Western Highlands Province and Thaddeus Kambanei, Secretary for Department of Finance (2004) N2918

National Court: Sawong J

Judgment Delivered: 17 December 2004

N2918

PAPUA NEW GUINEA

[In the National Court of Justice at Waigani]

OS 620, 646, 651, 652 & 714 of 2004

BETWEEN:

APPLICATION FOR JUDICIAL REVIEW

PURSUANT TO SECTION 155 (4) OF THE

CONSTITUTION

And:

APPLICATION FOR JUDICIAL REVIEW

PURSUANT TO ORDER 16 (3) OF THE

NATIONAL COURT RULES

And:

IN THE MATTER OF

NATIONAL LAND REGISTRATION ACT

(CHAPTER 357)

And:

THE INDEPENDENT STATE OF

PAPUA NEW GUINEA

(Applicants)

AND:

NATIONAL LAND COMMISSION

(First Respondent)

And:

NATANIAS MARUM

Presiding as the

NATIONAL LAND COMMISSION

(Second Respondent)

And:

JOHN YAMAI AS LANDOWNER OF UAL2 PART

MOUNT HAGEN TOWNSHIP,

WESTERN HIGHLANDS PROVINCE

(Third Respondent)

And:

THADDEUS KAMBANEI,

SECRETARY FOR DEPARTMENT OF FINANCE

(Fourth Respondent)

WAIGANI : SAWONG, J.

2004 : 14TH, 17TH DECEMBER

ADMINISTRATIVE LAW – Practice & Procedure – Application for Leave for judicial review – Discretion – Grounds for exercise of – National Court Rules, O.16 rr. 2, 3, 4.

CASES CITED:

NTN Pty Limited v The Board & Telecommunication Corporation & Media Nuigini Pty Limited [1987] PNGLR p. 70;

Arowe Logging Pty Limited v Thomas Korikio & 30 Ors The Independent State of Papua New Guinea & The Minister for Forest [1988-89] PNGLR 216;

Internal Revenue Commissioner v Employers Federation of Self Employed & Small Business Limited (1982) AC 617 at 644;

Manjin v PTC [1990] PNGLR 288;

Diro v Ombudsman Commission [1991] PNGLR 153.

Nangi Clan [1995] PNGLR 13;

Isidore Kaseng & Ors v Fly River Provincial Government, The State & Ors (Unreported and Unnumbered National Court Judgment) dated 20th November, 2004;

Mauga Logging Co. Pty Limited v South Pacific Oil Palm Pty Limited (No.1)

[1977] PNGLR 80;

Employers Federation of Papua New Guinea v PNG Waterside Workers &

Seamens’ Union & Ors (1982) N393;

Public Employees Association of PNG v Napoleon Liosi & Public Services

Commission [1988-89] PNGLR 585;

Robinson v National Airlines Commission [1983] PNGLR 476;

COUNSEL:

J. NALAWAKU, for the applicant

RESPONDENT, in person

D E C I S I O N

17th December, 2004

SAWONG, J. : This ruling covers the applications for leave for judicial review in OS 620 of 2004, OS 646 of 2004, OS 652 of 2004, OS 651 of 2004 and OS 714 of 2004. These were applications for leave for judicial review pursuant to O.16, r.3 (3) of the National Court Rules and were made pursuant to the Notice of Motion filed on 9th November, 2004 and for interim interlocutory injunctive orders.

Background

1. OS 620 of 2004

Here the applicant applies for leave to this court to review the decision of the National Land Commission (the Commission) made on 3rd August 2001 where the said Commission awarded the sum of K7 million to the third respondent, (John Yamai), as land settlement payment for the land described as Unregistered Administration Land (UAL) 2 which forms part of Mt Hagen township in the Western Highlands Province. In conjunction with the leave application, the applicant also seeks interim restraining orders against the Secretary for Finance not to pay any money to the third respondent pursuant to the orders made by the Commissioner.

The facts of the case are not complicated. They come from the evidence contained in the affidavit of Mr Luke Kawago the acting Deputy Commissioner, National Lands Commission, sworn on 20th October 2004 and filed on 9th November 2004, the affidavit of the Attorney General, Mr Francis Damem dated 1st November 2004 and filed on the 9th November 2004, and the affidavit of Mr Jack Nalavaku dated 22nd October 2004 and filed on 9th November, 2004. From the evidence the following facts emerge.

· On 27th March 1980, the Minister for Lands in National Gazette No. G28 declared various lands comprising 434 hectares including UAL 2 as National Land. The third respondent then lodged his application for settlement payment pursuant to s.39 of the National Land Registration Act on 6th November, 1980.

· On 9th September 1983, the National Land Commission made an award for K3,175.00. He further recommended that it be increased by 50% to K4,762.50.

The third respondent was not satisfied with this award so requested the amount to be increased.

· On 3rd August 2001 the National Land Commission made another order increasing the award to K7 million.

2. OS 646 of 2004

The facts in relation to this matter in summary are as follows. The subject land for the application is Portion 35, Mt Hagen Township.

On 29th September 2000, the then National Land Commissioner purported to make and order for settlement of payment by awarding the sum of K950,000.00 as compensation to Robert Wayne. The order purports to state that Portion 35 had been purportedly declared a National Land in National Gazette No. G28 of 27th March, 1980. A review of National Gazette No. G28 of 27th March 1980, reveals that Portion 35 had never been declared a National Land. As it had never been declared a National Land, questions arise as to the validity of the order for payment that was made.

The evidence in respect of this particular matter is from the affidavit evidence of Luke Kawago, Francis Damem and Jack Nalavaku. It is from that evidence that I have stated the brief facts that I have referred earlier.

3. OS 652 of 2004

The application for leave in relation to this matter concerns land described as Portion 682 and 88 Milinch Minj Fourmil Ramu other know as “Kudjip” Township. The brief facts for the purpose of leave application are that the Minister for Lands by a notice in the National Gazette No. G39 of 22nd May 1997, declared certain portions of land which comprised 1,449.809 hectres as National Land. The Portions were 65, 73, 74, 77, 88, 148, 158, 161, 245, 257, 272, 295, 355, 356, 410, 411, 534, 535, 546, 554, 651, 653, 654, 655, 656, 657, 658, 659, 660, 661, 662 and 740, Milinch Minj Fourmil Ramu, in the Western Highlands Province. Thereafter, between 24th August 1994 and 7th April 2000, various different persons lodged claims for settlement payment claiming either all of the lands declared or, certain portions only. On 3rd March 1998, the Commission made award for settlement payment awarding K37,778.90 with a further recommendation that, that award be increased by 50% to various claimant. One of the Claimants was William Ekip Wi. On 7th March 2000, the then Commissioner issued another order in the following term “fresh order superceding previous order dated 23rd March 1998” and awarding K4,850,250.00 in favour of William Ekip Wi. This order was to be paid by 3 persons in different percentages namely, the State to pay 80%, WR Carpenters (PNG) Ltd to pay 10% and Waghi Mek Limited to pay 10%.

On 7th April 2000, a John Mong as spokesman and Land Owner of Kudjip Township land Portions 682 and 88, Milinch Minj lodged his claim for settlement payment over Portion 88. On 16th October 2000, the Commission made a settlement award order in favour of the John Mong for K500,000.00 for the land identified as Portions 88 and 682. WR Carpenters (PNG) Ltd not being happy with the decision filed a judicial review application in the National Court in Mt Hagen on 30th December, 2000. On 2nd October 2001, they successfully obtained orders forcing orders of the National Land Commission dated 7th March, 2000. The Court further ordered the claim be referred back to the Commission for rehearing which is the position today.

Only Portion 88 together with other portions of the land was declared “National Land” in Gazettal Notice No. G39 of 22nd May, 1997. Portion 682 was never declared National Land and is not one of the land listed in the Gazette of Notice.

John Mong lodged his claim for settlement payment on 7th April, 1000 which is about 2 years and 11 months after the date of declaration.

The evidence of those facts are deposed to and contained in the affidavits of Luke Kawago, Francis Damem and Jack Nalavaku.

4. OS 651 of 2004

The facts are similar to the facts in OS 652 of 2004. The only difference is that a different person has made a claim. In this case Michael Pa, the Third Respondent, had made a claim for Portions 410 and 411, Kudjip Township on 10th February, 2000. As a result of that claim, the then Commissioner ordered settlement payment of K950,000.00 to be paid to Michael Pa as spokesman Land Owner for Sikange and Kuma tribes.

The ground of which the Applicant seeks to review the decision of the National Land Commission was that his decision was improper, unlawful and illegal as it was in breach of several pertinent provisions of the National Land Registration Act. These include late lodgment of claims. In other words, failure to lodge settlement of payment claim within the time limit prescribed by s.69 of the said Act, conflicting claims by different...