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YBU Koya Pty Ltd v Aoae [1995] PGNC 52; N1387 (14 December 1995)

Unreported National Court Decisions

N1387

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

OS 217 OF 1995
BETWEEN
YBU KOYA PTY LTD - PLAINTIFF
AND
JOSEPH AOAE - FIRST DEFENDANT
AND
THE LAND BOARD - SECOND DEFENDANT
AND
THE STATE - THIRD DEFENDANT

Waigani

Injia J
24 November 1995
14 December 1995

JUDICIAL REVIEW - Administrative action - Mandamus against Secretary for Lands to perform statutory duty under Section 34 of Land Act Chapter No 185 - Meaning of “successful applicant” in Section 34 - Application misconceived - Mandamus refused - Land Act Chapter No 185, Ss. 9, 11, 12, 33, 34, 35, 36.

JUDICIAL REVIEW - Ministerial action - Minister not a party to proceedings - Mandamus against Minister for Lands issued compelling him to entertain Land Board’s recommendation and exercise his statutory discretion even though not a party to the proceedings - Land Act Chapter No. 185, Ss. 9, 11, 12, 33.

Held

(1) & The Mine Minister for Lands having failed to entertain the Land Board’s recommendation made on 26 June 1992 made in favour of the appliin re of tnd kns Allotment 6, Section 35, ci5, city of Port Moresby, National Capital ital DistrDistrict, ict, an order in the nature of mandamus should be issued against him even though he is not a party to these proceedings.

(2) & A ̵‘successful applicant’ in section 34 of the Land Act does not refer to an applicant who is successful before the Land Boary; itrs topplicho is successful in obtainingining a recommendation of the Land Board aard and whnd which rich recommendation is approved by the Minister for Lands.

(3) Section 34 of the Land Act requires the Secretary for Lands to notify in the National Gazette the name of a “successful applicant” within the meaning as per paragraph (2) above. Thester ands aving entertainedained the the Land Land Board’s recommendation, the application for mandamus against the Secretary for Lands, the firstondent, is misconceived and should be dismissed.

Counsel

J Baker for tfor the Applicant

F Wally for the Respondents

DECISION

13 December 1995

INJIA J: This is an aation by w by way of judicial review under Order 16 of the National Court Rules 1983 seeking an order in the nature of mandamus ting the first respondent requiring him to give effect to a recommendation of the second rend respondent that the applicant be granted a lease of the land at Allotment 6, Section 35, city of Port Moresby (the “land”). The applicant also seeks l declaration that in accordance with the recommendation of the second respondent, the applicant (in these proceedings) is the &;successful applicant” for a State Lease of the land. Lear judicial revieweview view was granted on 21 June 1995.

The application is based on two main grounds. It is based on thst responespondent’s (Secretary for Lands) failure toish in the National Gazettezette the applicant as the “successful applicant” for a State lease of the land pursuant to s.f the Land Act following thng the said recommendation of the Land Board: see para. 3D of the Statement in Support of Application for Leave for Review. The appl’s claim is m is also based on the first respondent’s failure to “grant it (applicant) a State lease of the said land”: see para 3E of the statement in support.

The evidence in support of the applicant’s case comes from the applicant’s director Mr Frank Igo sworn on 19 May 1995 and the applicant’s counsel Mr James Baker sworn on 13 June 1995. On 18 March 1992, theicanticant applied for a land to be used as a business lease. A time of the application,tion, it appears that the land was vacant State land. The respondents,ugh their heir counselWallyms from the bar tbar table that the land was held by the Department of Civil Aviation underunder a “Certificate of Occupancy&#8but there is no evidence to support this assertion. I60; It is ontended that that the land was unused at the time of the application.

On 31 March 1992, the then Minister for Lands Sir Hugo Berghuser granted the applicant a temporary licence over thd under Section 74 of the Lthe Land Act which authorised the applicant to occupy the land and clear the land for the proposed business development as set out in the application form.

On 19 May 1992, the Chairman of the Land Board, Mr Ralph Guise, notified the applicant that its application for the land would be heard by the Land Board at its meeting number 1879 to be held on 29 May 1992 and a notice to this effect was to be published in the National Gazette on 21 May 1992. There is no evidence to show if such notice was published. In his affidavit, the applicant does not say if the Land Board met on 29 May 1992 and whether he attended that meeting.

On 24 June 1992, the Land Board notified the applicant that its application was dealt with in Laard meeting number 1879 and9 and the Land Board recommended a business lease over the land for 99 years. The Land Board noted the athe applicant had been given a temporary licence to clear the land. The minutes of the Landd mard makes no mention of xistence of the said “Certificate of Occupancy”.

Since 24 June 1992, the, the applicant says, the gazettal of the Board’s decision has not occurred. The applicanlicant had come complaints to the first respondent directly or through his staff but he has refused to sign the gazettal notice of the applicant as the “successful applicant”. The appl has complained toed to theo the Minister for Lands but to no avail.

The respondents have not produced any evidence to counterapplicant’s evidence.

On the evidence, I am satisfied that the Land Board reco recommended a Business Lease over the land in favour of the applicant at its meeting held on 21 May 1992. In the absence of any evi ence to the contrary, I find that the Land Board’s decision is valid as being reached in accordance with the relevant provisions of the Land Act. Tfect e recommendation wasn was that the recommendation was was before the Minister for Lands for a decision. A person aggrievethe LoardBoard’s decision had 28 days to lodge an appeal: Section 11. There is e is no evidencshto show if this was done.; If within these 28 days, no appeal was lodged or if an appeal was lodged and it was deterdetermined, the Land Board was required toard the recommendation to the Minister: s. 12 (1). Th0; The Min had the ultimultimate discretionary power to agree with or disagree with the Board’s recommendation. If the Minister disd with with the recommendation, he could have referred the r back to the Board for a rr a re-hearing or refer the matter to the National Executive Council: s. 12 (2). If the Minister agreed wi approved the recommendatiodation, the next step was the publication of the names of the “successful applicants” by the Departmental Head under s. 34, followed by notification to the “successful applicants” under s. 35 and ultimately the acceptance of the terms of the proposed lease by the “successful applicants” under s. 35. But there is no evi to shoo show whether the Minister entertained the Board’s recommendation and how he exercised his discretion.

The cant’s case is based on the first respondent’s failure to perform his duty unde under s. 34 of the Land Act. As mucends on the meaning ning of a “successful applicant” or “successful applicants”.

I set out in fultion 34, 35 and 36 which use that term:

“34. ; Pubion of n of n of namesnames of successful applicants.

The names of successful applicants for State leases, together with particulars of the lands to be leased to them, shall be not by tpartmental Head iead in then the National Gazette.

35. &##160; Notice to suco successfuliapplicants.

As soon as practicable after the notification under Section 34 is published in the National Gazette, the Departmental Head shall, by wr notidvise each succesuccessful applicant of:

(a) < &ـ th0; the date of t of the notification; and

(b) ;ټ the tere terms, cos, conditions, provisions, restrictions and covenants of the proposed lease; and

(c);ټ&##160; detailetails of all fees due or outstanding tender moneys and any other amounts unts payabpayable in respect of the proposed lease or the application for the lease.

36. &#1cceptofce rmsterms, etc. etc., of proposed leases.

(1) ;&#16e Departmenrtmental Heal Head may, by notice in the National Gazette, extinguish the right of a successful aant fleasehe applicant does not, within 28 days after the publication of a notice in the Nationational Gazl Gazette ette under Section 34 in respect of him or such further time (if anyis notified toed to him by the Departmental Head:

(a) ҈ forwardrward a notice of tcceptance of the terms, conditions, provisions, restrictions and covenants of the proposed lease as set out in the noto hier Se 35 so as to reach the Departmental Heal Head not later than 4.00pm on the twentywenty eigh eight day after the publication of the notice or on such later date as is notified to him by the Departmental Head; and

(b) & pay ally all amounts specified in the notice.

(2) ҈ A persoperson who forwardo a notice of acceptance to the Deental undesecti) shall be deemed to have exee executed the lease on the date on which hich the Mthe Ministinister executes the lease under Section 116.&#

In my view, the application for mandamus against the first respondent is misconceived. The Departmental Head’s functions under Ss. 34, 35 and 36 cannot be performed in a vacuum when the Minister has not exercised his power. The application for mandamus therefore fails. The applicatioinst all thel the respondents for a declaration that the applicant is entitled to a State Lease in accordance with the Land Board’s recommendation is also misconceived and should be dismissed because they do not have any power to make the decision to grant a State lease whereas that decision rests solely with the Minister which decision the Minister has not yet made.

Having said all this however, I am required to do justice. It isr to me that the appl applicant by letter dated 12 December 1994 wrote to the Minister for Lands, Sir Albert Kipalan requesting him to assist him. To date Minihas failed to d to respond to the applicant’s re;s request. I would interpret the applicant’s letter of 12 Dec 1994 as a request to the Minister to perform his statutory duty to entertain the recommendmmendation and to exercise his discretion prove or disapprove the Land Board’s recommendation.&ion. I would also treat his failure to respond to the request as a failure to perform his statutory duty and to exercise his discretion. A mandamus lies against the Minister in these circumss. Inclined to issue an orderorder in the nature of m of mandamus against the incumbedent Minister for Lands, Sir Albert Kipala perfis statutory duty and exercise his discretion.&#1n. As to how owhich way he exhe exer exercises his discretion is up to him. Ims that the applicant want wants the Minister to exercise the discretion in its favour. But thet is not supposedirsedirectMinister as to hoto how he should exercise his discretion. I will isn order in t in t in the nature of mandamus against tnister even though he is not a party to the proceedings becs because proceedings against the third respondent, the State, includes hi60; Ae has had sufficifficient knowledge of the applicant’s request and has done nothing aing about it.

For these reasons, I order that the Minister for Lands, Sir Albert Kipalan, entertain the Land Board’s recommendation made on 29 May 1992 in respect of the land known as Allotment 6, Section 35, Granville, city of Port Moresby, National Capital District, within thirty (30) days from today.

Costs follow the event.

Lawyer for the Applicant: Henaos lawyers

Lawyer for the Respondent: Solicitor General