Unreported National Court Decisions
N1923
PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]
OS NO. 419 OF 1998
IN THE MATTER OF AN EXTENSION OF TIME TO LODGE AN APPEAL PURSUANT TO SECTION 112 OF THE LAND ACT
AND: IN THE MATTER OF AN APPLICATION BY LAE RENTAL HOMES LIMITED
AND: THE INDEPENDENT STATE OF PAPUA NEW GUINEA
RESPONDENT
Mount Hagen
Hinchliffe J
3 December 1999
APPEAL pursuant to S112 of the Land Act — State did not follow correct procedure — Applicant out of time to file Appeal — “Special reason” pursuant to Sec.112(2) of the Land Act established — Leave granted to Appeal.
Counsel
P. Ousi for the plaintiff
3 December 1999
HINCHLIFFE J: The Applicant claims the following Orders:
“1.      That Leave be granted to the Applicant to file an Appeal against the Defendant’s forfeiture or revocation of the Applicant’s State Lease over Section 65 Allotment 1, Lae, Morobe Province, formally registered in Volume 6 Folio 144 in the Register of Titles as under Revocation Notice dated 10th April, 1996 by the Minister of Lands Albert Kipalan.
2.       That leave be granted to the Applicant to file an Appeal against the Defendant’s forfeiture of the Applicant’s State Lease over Section 65 Allotment 1, Lae, Morobe Province formally registered in Volume 6 Folio 144 and the Register of Titles and gazetted in National Gazette of December, 1997.
3.       Costs of these proceedings.”
Section 112(2) of the Land Act provides:
“112(2)         An appeal under sub-s.1 shall be made within 28 days after the matter complained of or within such further time as the National Court for any special reason allows.”
There is no doubt that the Applicant is outside the said 28 day period and hence this application.
The Applicant was the Leaseholder of Section 65 Allotment 1, Folio 144 Volume 6. It leased the land to Lae Bottling Industries Pty Ltd on the 20th December, 1995 for K3000 per month. Despite entering into the Lease Agreement, Lae Bottling Industries Pty Ltd claimed that it was given the title to the land after the lease was forfeited to the State by revocation notice of the Minister in April, 1996.
The Applicant’s Managing Director in his affidavit of the 7th September, 1998 swears, inter alia, as follows:
“7.      In June, 1998 I received Dr. Lakau’s Affidavit and that was the first time that I found that the land had been forfeited and had been given to Lae Bottling Industries Pty Ltd and as a result I went to the Lands Department and made enquires and my enquires showed that there was a forfeiture notice, although it was not served on me or Lae Rental Homes Pty Ltd.
8.       I immediately sought assistance of a University Lecturer who lodged an Appeal for me and annexed hereto and marked with the letter “H” is a true copy of my Appeal letter to the Minister of Lands with the annexure.
9.       I have taken all steps necessary to lodge an Appeal but the twenty eight [28] day period lapsed because during that time I was not aware of the Forfeiture Notice.”
Clearly the Applicant was not properly notified and that is why the Appeal was not lodged in the prescribed time. The Applicant acted promptly on discovering what had developed regarding the said Lease. I accept the evidence of the Applicant as it is quite reasonable and believable. I am also in a situation where the State has not filed any documents or filed any written submissions. That of course does not make my task any easier.
I am of the view that if the said Department has not followed correct procedures and thereby having caused the applicant to be out of time for filing an Appeal and also if there is some merit in the grounds of appeal, then “special reason” has been established.
I also note that the Managing Director of Lae Bottling Industries Pty Ltd in his affidavit of the 13th February, 1997 (Annexure “I” to Jim Ninjipa’s affidavit of the 7th September, 1998) expresses confusion and suspicions over the said Lease and seems to be of the view that a Court or other legal avenues should be considered to sought the confusion out. I tend to agree with him because there appears to be many questions to be answered and those answers could be provided at an Appeal hearing. The present situation is certainly not satisfactory.
As I have stated, “special reason” has been established pursuant to Section 112(2) of the said Act and I order in the terms as sought in the Notice of Motion filed on the 8th October 1998.
Orders accordingly.
Lawyer for the Applicant: Warner Shand.