N7292

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS 560 OF 2015

BETWEEN
JACKSON KONGA
Plaintiff

AND
HON. BENNY ALLAN, MINISTER FOR LANDS AND PHYSICAL PLANNING & 5 OTHERS
Respondents

Wagani:  Gavara-Nanu, J
2016: 8th July
2018: 11th April

PRACTICE & PROCEDURE – Lease – Application – Exemption – Land Act, 1996; s.69 (2) (d) – Meaning thereof – Agreement by the State for granting of an exemption a pre-requisite

Cases cited:

John Kameku v. Patilius Gamato (2004) N2512
Marriane Mosoro and Michael Mosoro v. Kingswell Limited and Ors (2011) N4450 
Martin Maso v. Romily Kila Pat (2016) N6550 
West New Britain Provincial Governor v. Pepi Kimas, Secretary for Lands and Physical Planning and Ors (2009) N3834

Counsel:

B. Takin, for the Plaintiff
E. Bua, for first, Second, Third, Fourth and Fifth Defendants
P Harry, for the Sixth Defendant

11th April, 2018 

1.	GAVARA-NANU J:	This is an application by the plaintiff seeking review of the decision of the PNG Land Board made on 12 March, 2014, recommending that Clement Koim Mapa be granted lease over a parcel of land described as Portion 2796, 8 Mile, National Capital District (“the land”).  

2.	In 2009, the plaintiff purchased the land for K15,000.00 from a person from Hanuabada village, claiming to be the customary owner of the land.  The plaintiff levelled the ground and built a semi-permanent house.  He was later advised by the officers from the Department of Lands and Physical Planning that the land was a State land.  Sometime later, he applied for a residential lease over the land.  The successful applicant, Clement Koim Mapa also applied for the land. Before the Land Board met to discuss and consider the applications both applicants were informed of the Land Board meeting.  There is no dispute that the Land Board meeting which made the decision was proper and legal.

3.	The plaintiff was advised by the Land Board that his application was unsuccessful.  The plaintiff appealed the Land Board decision but the appeal was unsuccessful.  When the successful applicant was gazetted, the sixth defendant was named as the successful applicant, instead of Clement Koim Mapa.  This is the main ground of this review application.  The plaintiff argued that the sixth defendant never applied for the land therefore his name should not have been gazetted as the successful applicant. 

4.	This issue was brought to the attention of the Secretary for Department of Lands and Physical Planning, who confirmed from the records held at the Department that a typographical error had resulted in the sixth defendant being gazetted as the successful applicant.  The successful applicant was still Clement Koim Mapa.

5.	The sixth defendant also wrote to the Secretary for Department of Lands and Physical Planning asking him to correct the error.  This subsequently resulted in the Secretary for Lands and Physical Planning issuing a corrigendum to correct the error.  The corrigendum was eventually gazetted in the national Gazette No. G108.  I see no error in this because that was consistent with the Land Board decision.  The corrigendum stated that Clement Koim Mapa was the successful applicant for the land.   

6.	The plaintiff argued that he should have been the successful applicant for the land because he applied for the land to be exempted from being advertised under s. 69 (2) (d) of the Land Act 1995, and an exemption was granted.  He said the reason the exemption was sought was because he had made improvements to the land.  The exemption was signed and endorsed by the then Secretary for Lands and Physical Planning, John Ofoi, as the delegate of the Minister.  

7.	The defendants argued that the purported exemption is null and void because under the terms of s. 69 (2) (d) of the Land Act, for such exemption to be valid, the State must agree for the land to be exempted.  Section 69 (2) (d) is in these terms: 

The Minister may exempt land from advertisement for application or tender – 
(d) where the State has agreed to provide land for establishment or expansion of business, project or other undertaking. 

8.	The defendants relied on Marriane Mosoro and Michael Mosoro v. Kingswell Limited and Ors (2011) N4450 and West New Britain Provincial Governor v. Pepi Kimas, Secretary for Lands and Physical Planning and Ors (2009) N3834.  They argued that the plaintiff failed to prove that the State had agreed for the land to be exempted.   There is merit in this argument.  The State as the owner of the land should expressly agree for any State land to be exempted under s. 62 (2) (d) of the Land Act.  In my view this is a condition precedent for an exemption to be valid.  

9.	Section 69 (2) (d) should be given wider construction, as it in my view entails much more than a mere oral agreement or endorsement by the Minister. An exemption should not just have the Minister’s signature and a brief mention of the exemption and its purpose. The agreement should be expressed clearly in writing and given personally by the Minister. The agreement by the State for the exemption to be granted should also be clearly stated.   

10.	In my view a person seeking an exemption under s. 69 (2) (d) to acquire State land to develop for purposes of doing business or to start a project should also make a proper application to the Minister in writing.  The application should state clearly the purpose for which exemption is sought.  The application should outline in detail how the land would be developed. For example, if it is required for an expansion of a business, or to start a project with particulars of the proposed business or project. The applicant should state his existing business interests and dealings, if any, and his financial ability to develop the land and establish business or to start the project.  The applicant should indicate when he intended to start developing the land, and should also demonstrate appropriate level of expertise and experience in the area of business or the project he wanted to start.  He should also demonstrate his readiness to start the business or the project. Satisfying these requirements should also be pre-requisites for a valid grant of an exemption.  It is also significant for the applicant to demonstrate that he is genuine in his application for an exemption.

11.	 The word “undertaking” in the section is not without significance.  The word in my view connotes more than a ‘paper undertaking’. An undertaking in the context of the provision would require supporting evidence to prove that undertaking is genuine and will be honoured.

12.	Section 69 (2) (d) does not authorize a person or an entity to enter a State land and do improvements on it then apply for an exemption and title for the land.  Such practice is illegal.  It is becoming very common in towns and cities throughout Papua New Guinea, to engage in such practice.  The people must appreciate that the practice is illegal and so are the improvements made on the land. The practice should not be tolerated by the relevant authorities because it results in illegal land grabbing which amounts to illegal acquisition of State land.  

13.	In this instance, it is clear that the plaintiff did not deserve to be granted the exemption because he was not intending to do business, nor did he have the capacity to do so. He moved into the land without obtaining title and illegally erected a small semi-permanent house.  He is a trespasser squatting illegally on the State land.

14.	The plaintiff or anyone moving into a State or a customary land for that matter should know that it is illegal to occupy land without first acquiring title, or without getting permission from the true land owners.

15.	In many instances especially in big cities like Port Moresby people go to the Physical Planning Board and obtain physical planning approvals over portions of State land. They then use those approvals to move into the land and make permanent improvements although they did not have title to land. They then try to obtain exemption and title on the basis of the purported improvements made on the land. These are classic examples of illegal land grabbing.  Any purported improvements on such land should be dismantled by the relevant authorities, especially the City Council, irrespective of their value in order to send a clear message to such people that breaking the law will invite strong punitive actions by the authorities.  In my view dismantling illegal improvements is the most effective way of deterring people from illegal land grabbing.   In this way, hopefully the authorities can make some meaningful headway in combating this practice which is undermining the rule of law.  Unfortunately it has become a norm throughout the country.  This can be attributed to lack of decisive action by the relevant authorities to put an end to the practice. 

16.	Laws relating to land whether State or customary must be strictly complied with and respected.  Those who act in breach of the laws should do so at their own peril.  The plaintiff is one such person. 

17.	In regard to State land, illegal acquisition of land is almost a daily occurrence in towns and cities and it must be weeded out by the relevant authorities because it creates serious law and order problems and it can lead to break down in the rule of law.  This practice is chronic and widespread throughout the country. This is evident in the growth of illegal squatter settlements in towns and cities at an alarming rate.  There is strong compelling evidence from the statistical data on crimes throughout the country that squatter settlements are fertile breeding grounds for criminals. 

18.	The illegal land grabbing has also resulted in the loss of scares State land to such unscrupulous individuals, groups of individuals and even corporate entities. This illegal practice is increasingly becoming uncontrollable by the authorities. Thus there is a pressing need for effective protection and control of the State land so that its use and ownership especially in towns and cities is proper and legal. This is vital for the effective maintenance of the rule of law: Martin Maso v. Romily Kila Pat & Ors (2016) N6550 and John Kameku v. Patilius Gamato (2004) N2512.  

19.	In this case, I find the decision of the Land Board to recommend Clement Koim Mapa as successful applicant for the land was proper and legal.

20.	The plaintiff has only himself to blame, he should have checked the status of the land with the Department of Lands and Physical Planning before moving into the land and doing improvements.  If he has suffered damages then that is his own doing.  It was a costly mistake for him for which he cannot blame anyone else but himself.  

21.	The plaintiff’s application is dismissed.  

22.	The plaintiff will pay the defendants’ costs of and incidental to the proceeding.

Orders accordingly.

____________________________________________________________
Gobu & Associates Lawyers: Lawyers for the Plaintiff
Solicitor General: Lawyers for the First, Second, Third, Fourth, & Fifth Defendants
Steven Lawyers: Lawyers for the Sixth Defendant