N8197
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS (JR) NO. 428 OF 2019

TONY GABUTU
Plaintiff

V
HON. JOHN RUSSO in his capacity as the Minister for the Department of Lands and Physical Planning
First Defendant

And
CHRIS MANDA, in his capacity as Acting Surveyor General.
Second Defendant

And
HENRY WASA in his capacity as the Registrar of Titles
Third Defendant

And
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Fourth Defendant

Waigani: Miviri J
2019: 25th October

PRACTISE & PROCEEDURE – Judicial Review & appeals – Substantive notice of Motion – State Lease – Certiorari Order 16 Rule 1 (1) NCR – Land Act 1996 – Ministerial declaration customary land –– Section 133 Land Act – No power revert back State Land – Abuse of process – no evidence compliance Sections 7, 8, 9, 10, 11, 12, and 13 Land Act – Minister abuse of process – Judicial review made out – notice of motion granted – cost follow event.

Cases Cited:

Asiki v  Zurenuoc, Provincial Administrator [2005] PGSC 27; SC797 
Counsel:

B. Kumo, for Plaintiff
No appearance for Defendants.

					RULING 
 19th February, 2020

1.	MIVIRI, J: This is the Ruling on the substantive Notice of Motion of the Plaintiff /Applicant seeking to review the decision of the first defendant published in the National Gazette No. G440 on the 4th July 2018.

2.	That decision revoked the declaration of the former Minister for Lands in the National Gazette No. 688 to declare land described as Portion 1538, Milinch of Granville, Fourmil of Moresby National Capital District as customary land and returned the land to its former status as State Land with description as Portion 1539, Milinch of Granville, Fourmil of Moresby, National Capital District. No evidence has been filed nor produced to say the contrary that the process and procedure under the Land Act has been followed culminating in the publication and declaration of the subject land as State Land by the Minister who is the first defendant.

3.	The Land Act 1996 section 133 (1) gives the Minister for Lands the discretionary power to declare a Government Land as Customary Land. And he shall publish such a declaration in the National Gazette. This is the power that was used by the former Minister for Lands to have the subject land declared as customary land. It became customary land for all intent and purposes. That power did not include for the reverting or changing back into State land. But the Minister can acquire land in accordance with the Land Act sections 7, 8, 9, 10, 11, 12, and 13. He can acquire Land by agreement or compulsory acquisition. In essence the combined effect is that there must be agreement between the State on the one hand and the customary owners on the other. And the acquisition is in accordance with the terms of that agreement. And it is incumbent upon the Minister to conduct an enquiry in the customary land to determine whether the land would be needed by the customary owners. If it is required, he will not acquire it. There is also option for the minister to lease the land.

4.	No evidence has been produced that this was the case with the Minister that the process set out above was followed to revoke and to publish Portion 1539, Milinch of Granville, Fourmil of Moresby, National Capital District as State Land. In particular there is nothing to the contrary by the first defendant to say there was this process invoked and followed to acquire the subject land and the publication resulting from it. The assertion of the Plaintiff has not been negatived by the defendants jointly or severely. 

5.	The affidavit of the applicant dated and sworn the 25th June 2019 is uncontradicted or unchallenged hence reliance on its veracity is not in issue. The court gives full consideration without any doubt to its application in the determination of this matter. What is deposed to there establish that the publication by the first defendant in the National Gazette No. 440 on the 4th July 2018 revoking the declaration of Portion 1539 as a customary land and return it to its former status as State Land is determined as breaching process and procedure under the Land Act set out above. This is evident because the declaration by the former Minister for Lands and Physical Planning by Honourable Benny Allan was made 1st September 2017. Between that date and the 4th July 2018 when the First defendant made the publication declaring the land State Land, Plaintiff had consented and was granted customary user and ownership rights over it by the customary owners Dubara Idabana Land Group Incorporation. He had also made an application under section 7 of the Land Tenure Conversion Act 1963 to convert it to freehold estate. And he facilitated a survey on it on the 16th February 2018 a survey plan Catalogue No. 49/3764 was endorsed and registered by the former surveyor General of Papua New Guinea, Mr. Jack Bakus, allocating new description of the subject land Ela Makana as Portion 4047/C, 4048C, and 4049C, Milinch of Granville, Fourmil of Moresby. And on the 15th May 2018 the Registrar of Titles issued a certificate of title to him certifying that he was owner in estate in fee simple over Portion 4048C, Milinch of Granville, Fourmil of Moresby having an area of 1.5 hectares. Not only did he do this but went onto get property developers to develop it under a commercial arrangement who uncovered in their due diligence the actions of the first defendant giving rise to this cause of action. It can be determined and deduced here that there was non compliance of the process of law by the Land Act and related provisions adhered to by the first defendant or the defendants jointly or severely here. And clearly the plaintiff had title in law and had acceded given heed to every way possible to ensure compliance to the law and process under the Land Act and related provisions. For all his troubles the subject Land has been by abuse and non compliance of the law and the land Act unceremoniously taken out of his grasp in law by the first defendant jointly or severely with the other defendants. There has been very serious abuse of the process not by law or the land Act by the first defendant here. Because Judicial review is concerned with the process rather than what is the substance: Asiki  v  Zurenuoc, Provincial Administrator [2005] PGSC 27; SC797 (28 October 2005).  

6.	The plaintiff has acted within the law and has effected a number of developments to the subject land because he holds it free from any known encumbrances, nor has he been challenged under section 33 of the Land Registration Act with breaches set out thereunder. On the contrary there is no process that has been followed by the Land Act to get to where the first defendant has acted. It is clear he has acted beyond the scope of his powers under the law. His actions are not based upon nor do they derive from the law or the Land Act. And in so doing has acted outside of the process of law and the Land Act by taking the land off the plaintiff without just compensation for it. It is an unlawful act contrary to section 53 of the Constitution. Including that he was not accorded hearing and denial of natural Justice under section 59 of the Constitution. The summary of the matter is that the judicial review is made out by the Plaintiff to the required balance in law. The orders that he seeks are granted in the terms of the substantive notice of motion filed.

7.	Certiorari is granted to remove into Court here and quash the decision of the first defendant dated the 4th July 2018 published in the National Gazette No. G440 to revoke the declaration made on 1st September 2017 in the National Gazette No. G688. That decision is quashed forthwith.

8.	Further it is determined and declared that the certificate of title of the Plaintiff over Portion 4047C and 4048C are valid and protected because they are indefeasible by virtue of section 33 of the Land Registration Act and section 53 of the Constitution. And the plaintiff’s proprietary rights over the subject land remain in law unextinguished and are restored in full prior to the actions of the Minister the first defendant.

9.	And in this regard the second defendant will reinstate forthwith the survey plan catalogue No. 49/3764. 

10.	For all the reasons set out above the defendant will pay the costs of the plaintiff.
Orders Accordingly.
__________________________________________________________________
Jema Lawyers:  Lawyer for the Plaintiff/Applicant