N6550

	PAPUA NEW GUINEA	
[IN the National Court of Justice]
	
OS No. 426 of 2015 

Between
MARTIN MASO for himself and on behalf of JAMES WAIKALI
Plaintiffs

And
ROMILY KILA PAT, SECRETARY, DEPARTMENT OF LANDS & PHYSICAL PLANNING 
First Defendant

And
HON. BENNY ALLAN, MP, MINISTER FOR LANDS & PHYSICAL PLANNING 
Second Defendant

And
DEPARTMENT OF LANDS & PHYSICAL PLANNING 
Third Defendant

And
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Fourth Defendant

Waigani: Gavara-Nanu J.
        2016: 16th & 19th August

JUDICIAL REVIEW - Application for leave - Land Law - Appeal  against Land Board decision - Land Act, 1996; ss. 58 (1) and (3) - Minister advising Head of State - Constitution; s. 145 (4) – Head of State dismissing appeal – Actions of the Minister and Head of State valid.
	
JUDICIAL REVIEW - Application for leave – Illegal occupants occupying large State land – Survey and valuation reports do not confer rights on occupants – Improvements made on the land illegal - Application for leave refused.

Cases cited
Arua Loa v Pepi Kimas (2014) N5849
John Kameku v Patilius Gamato (2004) N2512
Nambawan Super Ltd v Benny Allan (2014) N5707
NCDC v Crusoe Pty Ltd [1993] PNGLR 139

Counsel:
L. Yandaken, for the Plaintiffs
B. Kulumbu, for the first to fourth Defendants 
     
19th August 2016  
                               	
1.	GAVARA-NANU J:  	This is an application by the plaintiffs for leave to review the decision of the fourth defendant made through the Head of State acting on advice of the National Executive Council (NEC) to dismiss the appeal by the plaintiffs against a recommendation of the PNG Land Board not to approve their closed bid for an Urban Development Lease (UDL) over a parcel of land described as Portion 3112, Granville, Port Moresby, NCD. 

2.	The lead plaintiff, Martin Maso deposes in his affidavit that he and his brother are joint tenants of the subject land which is situated at Gerehu Stage 3 B, covering 2.751 hectares. He says they have been living on the land since 2004 and have improved it by erecting a perimeter fence and built makeshift houses for their guards. He says they paid K26.00 for a surveyor from the Department of Lands and Physical Planning to survey the land, following which a Survey Plan No.49/3073 was produced for them.

3.	It should be stated at the outset that the survey plan is only a drawing or a map showing the location of the land, its size and description. It does not confer any rights for the plaintiffs in the land. Martin Maso also deposes in his affidavit that the land has been valued by a valuer from the Department of Lands and Physical Planning and is valued at K1, 650,000.00. Again the valuation report merely indicates the value of the land at the time of the valuation it does not confer any rights for the plaintiffs in the land.

4.	From Martin Maso’s affidavit, following background facts emerge. On 20th June, 2013, the Department of Lands and Physical Planning advertised the land for interested parties to apply for a UDL. The advertisement was put out in a tender Notice in the National Gazette on the said date.  In response to the Notice the plaintiffs applied for a UDL. On 15 July, 2013, the plaintiffs wrote to the Minister for Lands and Physical Planning requesting that they be granted special exemption and treat their application as a closed tender. In their application, the plaintiffs said they would build duplexes or 3 storey flats on the land.  They indicated that for them to develop the land, it would cost them between 5 to 7 million Kina.  The plaintiffs also told the Minister in that letter that they spent K60, 000 to engage a surveyor to survey the land. However there is no evidence before the Court to substantiate this claim. In their letter to the Minister they said they would build family residences and had applied for a bank loan and the bank had told them that they should mortgage the land for the loan. According to Martin Maso, the bank offered them a guaranteed loan of K1.5m.

5.	 From 20 to 24 January, 2014, the PNG Land Board sat to hear various lease applications. On 24 January, 2014, the plaintiffs’ application was heard. In support of their application, the plaintiffs submitted the following documents. (1). A copy of the preliminary proposal for an UDL. (2). A copy of the preliminary sketch plan for the proposed UDL.( 3). A copy of the provisional proposal for the sub-division and installation of roads and drainage. (4). A copy of the bank’s letter of a K1.5m guaranteed loan to the plaintiffs dated 15 January, 2014.(5). A copy of the Department of Lands Valuation Report dated 14 January, 2014 and 6. A confirmation letter by Eda Ranu of water and sewerage services to be provided to the property and a confirmation by PNG Power Ltd regarding supply of power. 

6.	 For the purposes of this application, the only item from the above list of materials worthy of consideration by the Court is the guaranteed bank loan of K1.5m.  However, the loan offer has now expired because the bank gave the plaintiffs until 22 April, 2015, to receive any demands regarding the loan, e.g. among other things, its draw-down. This is indicated clearly by the terms of the bank’s letter to the plaintiffs. 

7.	The Land Board’s decision on the plaintiffs’ application for an UDL recommended that the application be not approved on the ground that the plaintiffs did not have the financial capacity to develop the land. The Land Board decision which is before the Court was conveyed to the plaintiffs on 24 March, 2014. Based on the Land Board recommendation, the Secretary for Lands and Physical Planning prepared a Business Statutory Paper on the matter for the NEC to deliberate. The Business Statutory Paper is also before the Court.  It is important to note that the Secretary in that Paper simply informed the NEC of the decision of the Land Board. 

8.	Based on the Business Statutory Paper, on 11 March, 2015, the Minister for Lands and Physical Planning advised the Head of State of the recommendation of the Land Board. Acting on the advice of the Minister, the Head of State dismissed the plaintiffs’ appeal. That decision by the Head of State was advertised in the National Gazette Notice No. G330 on 19 May, 2015. 

9.	Section 62 (1) of the Land Act, 1996, provides that a person aggrieved by a decision of the Land Board may no later than 28 days after a notice of the Land Board’s recommendations is forwarded to him under s.58 (10) forward a notice of appeal accompanied by a K500.00 deposit to the Minister. This requirement was made known to the plaintiffs by the Land Board in its decision. However, the plaintiffs have notably not produced evidence of their appeal, including the K500.00 deposit they paid for the appeal.  And as I understand the other aspect of plaintiffs’ argument, they are also complaining that the Head of State should have been advised by the NEC of the decision of the Land Board, not the Minister. 

10.	The advice of the Minister for Lands and Physical Planning to the Head of State is also before the Court and is not disputed. 

11.	One of plaintiffs’ main arguments is that the action taken by the Secretary for Lands and Physical Planning in preparing and submitting a Business Statutory Paper to the NEC amounted to determining their appeal. 

12.	The above argument by the plaintiffs is clearly misconceived. First, the Secretary’s action was limited to preparing a Business Statutory Paper for the NEC as he was required to do.  It is therefore a clear misconception by the plaintiffs to argue that the Secretary had determined their appeal. The Secretary simply conveyed the Land Board decision to the NEC through the Business Statutory Paper. 

13.	As to the action taken by the Minister to advise the Head of State of the Land Board recommendation, again the plaintiffs have misconceived the Minister’s powers and functions in giving such advice. Section 62 (3) of the Land Act, provides that the Head of State may, acting on advice reject an appeal. Notably, the Sub-section does not say such advice has to be given by the NEC, the Minister’s actions in advising the Head of State therefore did not breach s. 62 (3) of the Land Act. 

14.	In any event, the Minister’s actions were authorized by s.149 (4) of the Constitution, which provides that a Minister may exercise powers, functions, duties or responsibilities of the NEC.  It follows that, there was nothing wrong with the Minister advising the Head of State to reject or dismiss the appeal.  

15.	The Land Board recommendation was referred to the Minister under s.63 (1) (a). Under s.63 (2), the Minister was required to refer the matter to the NEC, only if he disagreed with the report or recommendation of the Land Board. That is not the case here; he accepted the decision of the Land Board. Therefore, there is nothing irregular or unlawful about the Minister advising the Head of State directly, he acted within the powers conferred on him by s. 49 (4) of the Constitution.

16.	The end result is that there is no serious issue to be tried. I would for this reason alone dismiss the application for leave for judicial review. 

17.	However, there is another reason why I would dismiss the application for leave.  There is no error in the decision of the Land Board because the plaintiffs failed to demonstrate that they had the financial capacity to develop the land. I accept the Land Board’s decision because the only evidence of a possible financial ability of the plaintiffs to develop the land was the bank’s guarantee of the K1.5 million. However, that was a mere speculation because the loan never materialized, but even if it had materialized, it would still not have been enough because the plaintiffs’ anticipated total development costs was around 5 to 7 million kina. 

18.	The plaintiffs have also argued that they have acquired equitable interest in the land by reason of them being the existing tenants since 2004, and that they have done some improvements on the land.

19.	 I reject this argument outright. The plaintiffs have failed to demonstrate to the Court that they are legal occupants of the land. And in the absence of any evidence to the contrary, the plaintiffs are squatting illegally on the State land. Their continued occupation of the land and any purported developments on the land are also illegal for that same reason. The plaintiffs therefore have not come to this Court with clean hands. In this regard, I fully endorse what this Court said in John Kameku v Patilius Gamato (2004) N2512.

“The law relating to whether or not a person who squats on State land for a long period of time without objection from the State can acquire an equitable interest in the land is as set out in John Jivetuo & 2 Ors -v- The State & 2 Ors [1984] PNGLR 174 and Amos Bai -v- Morobe Provincial Government & the State [1992] PNGLR 150 so there is no need for me to repeat it here.  The law in essence is that a person who occupies land unlawfully cannot acquire an equitable interest in land.  That is consistent with the equitable principle that he who comes to equity must come with clean hands. In my opinion, it is not sufficient to merely say that in view of some of them having lived on the said land for almost 50 years between 1952 and 2001 without objection from the State as owner, conferred upon them equitable interest in the said land.  In my view, it is not uncommon to find not only in relation to government or state land but also in relation to customary land particularly land located within the environs of a city or town that the owners do not raise any objections to the use or continued occupation by someone else of their land until the need for use of such land arises or the occupiers conduct themselves in such a way as showing disregard or disrespect towards the owner or owners.

So in the present case, it is not disputed that the State, 	through the Defendants, asserted its rights over the said 	land and sought to evict the Plaintiffs as a result of continuous criminal activities which appeared to have been linked to the people living in the settlements in and around 	Lae City including the land the subject of these proceedings.

Thus, in the present case, merely because the Defendants failed to take steps to evict the Plaintiffs or to give them notice to quit over many years in the past did not confer 	upon them equitable interest in the land. A person who illegally occupies or squats on another person’s land cannot confer upon himself equitable right to the land and for this court to recognise such a right would be tantamount to sanctioning an illegal or an unlawful act.  It could also create a means by which the mighty and the powerful can take advantage over the weak who does not raise any objections out of fear”.

20.	 In this case the plaintiffs claim that they are joint tenants. But the evidence shows clearly that they are illegal occupants of the land. I make these observations because they argued that they have equitable interest in the land, thus giving them sufficient interest to make this application. As I said earlier, the survey plan and the valuation report do not confer any rights on the plaintiffs over the land. Therefore to find that they have sufficient interest and grant them leave for judicial review would be both against the law and public policy.

21.	The plaintiffs were given full opportunity to be heard and the decision of the PNG Land Board was made after a full hearing of their application for a UDL. In regard to their claim that they have equitable interest in the land, the claim cannot relate to any improvements or developments made on the land because such developments were done illegally.  The State which owns the land had the right to decide who to grant the UDL to based on the established legal principles and criteria, one of which was whether, the plaintiffs had the financial capacity to develop the land in accordance with their own development proposals. According to the supporting materials the plaintiffs produced to the PNG Land Board, the plaintiffs very clearly lacked financial capacity to develop the land.  

22.	In these circumstances, had the PNG Land Board gone ahead and granted the UDL to the plaintiffs, it would have set a bad precedent and opened flood gates for people to illegally occupy State land, make some forms of improvements on the land and claim equitable interests on the land and obtain title over the land. That would be against public policy as it would encourage land grabbing and would result in serious depletion of scarce State land in towns and cities.  State land is a scarce commodity in all towns and cities and must be properly controlled and acquired in accordance with the law.  See, NCDC v Crusoe Pty Ltd [1993] PNGLR 139, Arua Loa v Pepi Kimas (2014) N5849 and Nambawan Super Ltd v Benny Allan (2014) N5707. 

23.	 In my view equitable interest, if any, that the plaintiffs can claim on the land can only relate to them being given sufficient time to vacate the land. Giving them “sufficient time” will entail time required for them to properly dismantle and remove any permanent fixtures such as fences, buildings, including gardens they have made or erected on the land.
 
24.	For the foregoing reasons, I find that there is no arguable case or a serious issue to be tried.

25.	The application for leave for judicial review is therefore refused with costs.

______________________________________________________
Yandaken Lawyers	: Lawyers for the Plaintiffs		
Solicitor General		: Lawyers for the Defendants