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PNG Sustainable Development Program Ltd v Rosso [2020] PGNC 410; N8672 (1 December 2020)

N8672

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]
OS (APP) NO. 809 OF 2019

BETWEEN:
PNG SUSTAINABLE DEVELOPMENT PROGRAM LIMITED
Plaintiff

AND:
THE HONOURABLE JOHN ROSSO MINISTER FOR LANDS & PHYSICAL PLANNING
First Defendant

AND:
ALA ANE, ACTING REGISTRAR OF TITLES
Second Defendant

AND:
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Defendant

Waigani: Miviri J
2020: 18^th November, 1^st December

PRACTICE & PROCEDURE – Judicial Review & appeals – Appeal – Section 142 (2) Land Act – Section 122 (1)(2)(a) (b) (4) Land Act – No appearance Respondents – Service in law satisfied – Leave granted for trial ex parte – No material filed adjournment – Service of notice of forfeiture –Whether contrary to sections 122 (1) (2) & 147 of the Land Act – Whether forfeiture of State Lease was lawful or not – Declaration – Discretionary – Error of Law – breach of natural Justice – unreasonable – material relied insufficient – balance not discharged – Appeal Dismissed – cost follow event.

Cases Cited:

Igiseng Investments Ltd v Starwest Constructions Ltd [2003] PGNC 20; N2498

Pinpar Developer Pty Ltd v TL Timber Development Pty Ltd [2006] PGNC 66; N3075

Commercial Pacific Lumber Exports Pty Ltd, Re [1971-72] PNGLR 178

Mai and Avi, The State v [1988-89] PNGLR 56

Nambawan Super Limited v Kimas [2013] PGNC 23; N5062

Mount Hagen Local Level Government v Kimas [2012] PGNC 356; N6044
Counsel:

I. Shepperd, for Plaintiff
No appearance for defendants

RULING

01^st December, 2020

1. MIVIRI, J: This is the ruling after hearing arguments of the plaintiff/appellant. He moves it without appearance by the defendants who have not made any appearance despite notice. It is proved by the affidavit sworn of the 11^th November 2020 by Allan Dian who served Tau Embora legal Secretary of the office of the Solicitor General 7^th Floor Sir Buri Kidu Haus on the 10^th November 2020 who acknowledged receipt confirming the service. He served the appeal book with the endorsement and documents.
   
2. It is not as if the defendants have been taken by surprise, Rocky Madi clerk with Ashursts Lawyers by his affidavit of the 24^th September 2020, deposes that on the 23^rd September 2020 at 1.44pm, with a letter dated same he served the Office of the Solicitor General on Level 7 of Sir Buri Kidu Haus, copy of the notice of hearing filed 22^nd September 2020. And that the person he served was Betty Makis Senior Executive Assistant there who acknowledged the service with the receipt confirming.
   
3. On the 18^th November 2020 there was appearance by the plaintiff/appellant the same was not so of the defendant/respondents hence leave was granted in the light of the evidence set out above to proceed without the defendant/respondents. In my view ample opportunity has been accorded to the defendants to answer and to defend the allegations raised by the appellant. Trial is not by ambush or by surprise and relevant provisions of the Claims by and Against the State Act have been duly taken account of here.
   
4. And the history of the matter also shows this out because on the 05^th December 2019 Leave was granted by Justice Gavara-Nanu in this Court for the substantive appeal by section 142 (2) of the Land Act. It is against the forfeiture made 22^nd January 2018 of Allotment 17 Section 65 Daru; Western Province contained in State Lease Volume 30 Folio 240.
   
5. What is sought by the appellant by the notice of appeal dated the 10^th December 2019 is:
   
   • (a) Non-compliance of section 122 (2) (a) of the Land Act in that before forfeiting a State Lease under subsection (1), the Minister- shall serve notice on the Leasee calling on him to show cause, within a period specified in the notice, why the Lease should not be forfeited on the ground or grounds specified in the notice.
     
   • (b) By the 31^st May 2017 when the plaintiff was served with a Notice to Show Cause (Notice) dated the 26^th March 2017 with respect to the Property, the one month period allowed for the appellant to show cause why its State Lease for the Property should not be forfeited had expired, and therefore the Appellant had no opportunity to show cause, contrary to the intention of the provision.
     
   • (c) Pursuant to section 122 (4) of the Act, “copies of a notice under subsection (2) (a) or (b) shall be served on all persons who, to the knowledge of the Departmental Head, have or claim to have a right, title, estate, or interest in, to or in relation to the land, or such of them as can with reasonable diligence be ascertained and found.”
     
   • (d) The intention of this provision is to give notice to all persons who have an interest in the land the title to which has been forfeited and to give them sufficient time to appeal to the National Court within 28 days under section 142 of the Act. Contrary to the intention of the Act, the Notice of forfeiture was not served on the Appellant until 26^th September 2019 which was 20 months after the forfeiture dated the 22^nd January 2018 by which time the 28 days for the Appellant to appeal against that decision had expired by 19 months.
     
   • (e) Failure to exercise statutory powers reasonably. The decision to forfeit the State Lease was in the Wednesbury sense irrational and unreasonable for the following reasons:-
     
     • (i) The one month period for the Appellant to show cause expired on the 26^th April 2017 which was more than one month prior to service of the Notice on the Appellant which meant that the First Respondent’s decision to forfeit the State Lease without giving the Appellant an opportunity to show cause was arbitrary, as the Appellant was not given the opportunity to show cause. It is therefore open for a court to find that the first respondent did not consider matters he should have considered prior to forfeiting title to the State Lease for the Property including but not limited to the matters referred to in the Appellant’s Lawyer’s letters dated 1^st June 2017 and 3^rd July 2017.
       
     • (ii) If the Respondent or DLPP had responded to the Letters and issued fresh amended Notice as requested, the appellant would have been able to explain both the delay in payment of the land rent and non-compliance with the improvements which evidence is now before the Court.
       
     • (iii) There was no evidence that the First Respondent had proper and good reasons to exercise the power of forfeiture. The forfeiture appeal form was based on erroneous information as to the land rent payable and the arrears due. The information available to the First Respondent as to the matters out in section 122 (1) of the Act fell well short of what could reasonably be required to forfeit a State Lease.
       
     • (iv) In the circumstances and in view of the letters it would have been reasonable for the First Respondent to issue a further notice pursuant to section 122 (2) (a) of the Act requiring compliance within a specified period of time or to impose a fine instead of forfeiture under section 124 of the Act.
       
   • (f) The decision of the First Respondent is ultra vires his powers contained in section 122 of the Act as the Notice was defective. It contained incorrect information concerning the annual land rent payable and the amount outstanding and could not be relied on
     
6. This action is not defended by the State despite notice set out above. And the decision is founded on the material that the appellant has placed before the court in the determination of the matters raised set out above. Therefore, reliance is placed on the affidavit of one John Malcolm Wylie sworn 08^th November 2019. He is a director of the Plaintiff Company registered in Singapore as an overseas company registered as such on the 21^st December 2001. And on the 1^st January 2002 commenced carrying on business in Papua New Guinea. Particulars of which are annexure “A” of a company extract dated the 30^th October 2019.
   
7. The plaintiff now appellant acquired the property from its previous owner Norman May and registered itself as proprietor on the 20^th March 2012. And evidencing is the State Lease volume 30 Folio 240 which covenants and conditions were amongst others that, the lease was for residential purposes, land rent was K3, 312 to be payable annually for the first 10 years which would be reassessed after that period. And Improvements to the minimum value of K 66, 300 were to be erected on it within 3 years from the date of registration of transfer of lease to the purchaser including provision of necessary easements.
   
8. It is a prime property close to the Daru Airport by the Survey plan Cat No. 47/98 annexure “C” of the affidavit of the deponent. It is not far from the sea and the Daru Barramundi Hatchery including other investments by the Plaintiff within Daru. It was designated to provide accommodation and other facilities for the plaintiff’s staff in Daru. And the plaintiff being set up after BHP’s exit from the Ok Tedi Mining Limited Western Province, Papua New Guinea and took 63% of the Shares in Ok Tedi Mining Limited leaving 37 % remaining with the State. By 2012 the Plaintiff had US$1.4 Billion in its long-term investment fund with its domestic expenditure on programs expanding significantly.
   
9. Section 122 (1) (2) (a) of the Land Act at the outset is discretionary because of the use of the term, “May”. It is therefore dependent on a number of factors which in my view the Minister must take into account, before exercising the discretion to forfeit the State Lease. By that section these are the following; (1) if rent on the lease remains due and unpaid for a period of six months; (2) if fees are not paid in accordance with this Act, or (3) if the amount payable in respect of improvements is not paid in accordance with this Act; or if a covenant or condition of the lease, or a provision of this lease , or a requirement under section 91 relating to the lease is not complied with, or if the granting of the lease has been obtained in the opinion of the Minister wholly or partly as a result of statements that were to the knowledge of the lessee, false or misleading.
   
10. Annexure “G” of the affidavit of John Malcolm Wylie is allegedly an official receipt supposedly in the sum of K 16, 575.00 from allegedly Eda Tano Haus dated the 28^th November 2017. It says Land Lease Rental Section 65 allotment 17 Daru Western Province rentals for 2013 to 2017 at K3, 315 Per annum settled. This evidence is self-serving because it is a copy and is not certified by a person from whose custody it is retrieved. There is no continuity from the depository where it is kept, and from which has occurred the subject transaction that it purports to show. If it is a copy where is the original and who is its custodian. There is not even an account from the cashier if indeed it was paid as such at the cashier. He should confirm the payment and issuance of a certified receipt. Here is a photocopy and from where it is unclear and by whom is also not clear. There is no independent verification and so by itself it cannot constitute evidence as contended by the appellant. To act on it given these facts would be error of law: Igiseng Investments Ltd v Starwest Constructions Ltd [2003] PGNC 20; N2498 (17 December 2003). A party wishing to use an affidavit at a trial must comply with the requirements of the Evidence Act (Chap. 48). A failure to do so should result in non-admission of the affidavit in question into evidence.
    
11. True the case comprises evidence produced by the appellant but that does not necessarily mean that the court cannot give them proper weight by law and evidence. Here giving it its proper weight given the considerations set out above it will not advance the cause of the appellant to prove the amount due and owing and evidence of payment. Because there is no proof as to whom the person “Denton” is. Because there is not even an affidavit from that person. And it is not clear as to how John Malcolm Wylie came into possession of the subject annexure. It is second hand evidence that is not properly verified to ensure continuity from where it was retrieved into the courtroom. There is nothing to this extent and therefore it will not constitute evidence in this proceeding and will not be relied on.
    
12. Even annexure “H” Notice to show cause of the 26^th March 2017 by one Tiri Wanga of the sum of K 42, 380.00 land lease rental due and owing for a period as at 1^st January 2017 is not the subject of a search by the deponent who picks it in that course. This is evidence of failure on the part of the appellant to honour his side of the transaction. He has not abided in the payment of those moneys. And therefore, the acts of the Minister become legitimate. Because there is breach of the Act in that rental has been outstanding and not paid. On the other it poses similar as with annexure “G” it is not clear from where it has been from to come into the courtroom. There must be nexus to this document like all other documents before the court. It will not be every man for himself but rather proper scrutiny to identify its source so as to be relied on. Here at its highest it is clear proof of the non-payment or rental due to the State upon which the Minister was justified to act as he did.
    
13. If indeed there was payment as professed by the appellant it is not clear how the deponent got into possession of this evidence. There ought and must be continuity to show out the authentication of the document and the evidence. Here that is not the case. John Malcolm Wylie is not the author of the document nor is he custodian from whom this record has come out. The court will not act on that evidence in the determination against the weight to be given to this evidence. It does not advance the course of the appellants.
    
14. And on the 26^th September 2019 the Plaintiff received from the Department of Lands and Physical Planning copies of the Notice to Show Cause dated the 26^th March 2017, a forfeiture Approval form dated the 24^th November 2017, a forfeiture of State Lease signed form of the 22^nd January 2018 by the First Defendant’s predecessor and a copy of the National Gazette G530 dated 27^th June 2019. When the witness says these documents were received by the Plaintiff it is not clear who in the plaintiff’s office received it. Because the receipt of the date is important towards establishing when receipt was made for the purposes of establishing time by the law. To generalize that the plaintiff received these documents does not help to determine the exact time so that calculation is made of it as being what is set out by the law of when the Notice of Show cause was receipted by the plaintiff. Because G530 is dated the 27^th June 2019 and the subject notice is dated the 22^nd January 2018. By what evidence is open to the court as to the date of receipt of this evidence. This is important for the purposes of determining if and when was notice given and the duration of time when notice was given under section 122 (2) by the Minister before he forfeited the State Lease.
    
15. Because this is the heart of the appeal that there was no notice or alternatively if there was notice given, the time was insufficient and could not amount to notice within the meaning of that section so that there was a breach and the forfeiture was inappropriate considering and there was breach which warrants the forfeiture illegal and unlawful and void ab initio. And should therefore revert back to the appellant. Particularly so in the light of the fact that the appellant is a company with the plight of the people at heart. It fought to maintain in the Singaporean high Courts for that purpose despite being legislated on by the Government and withdrawn of its income pursuant to maintain what it was doing for the people of Western Province and the country.
    
16. Specifically there is no evidence from the authorized officer within the plaintiff to say, he did receive this and it was the subject of determination by the Company management, because the Company was up to date with the payment of the requirements by law and attaches records of the company evidencing, so that there is both a date of receipt compared against what the company has been doing on the issue, and that there should not have been a forfeiture as here. The evidence does not warrant forfeiture. Company officials are properly set out and authorized and not anyone else can divulge information material to the existence of it, proper persons so authorized have authority to so disseminate: Pinpar Developer Pty Ltd v TL Timber Development Pty Ltd [2006] PGNC 66; N3075 (9 August 2006). It follows that here where a material matter as to the forfeiture of land designated held out by the company appellant, proper materials held by designated officer pertaining to the records of the company, will advance its course as here where it is raised in the manner as here.
    
17. This would be the same position of annexure “I” John Malcolm Wylie maybe a director, but this attachment is authored by Philip Bainbridge chairman. He would have been the proper person to have that before the court relied to the veracity of that letter. It is not properly before the court, the evidence it covers is as to the performance of the Company the plaintiff. And this is governed by the way the Plaintiff company is set above information of the Company, how it engages with the outside world and its role: Commercial Pacific Lumber Exports Pty Ltd, Re [1971-72] PNGLR 178 even in liquidation a proper officer so discharged by virtue of the composition of the company, is the proper person demonstrated, as here director not acting in the interests of the company. Similarly, it would be the same here. Evidence first hand will go a long way, not second hand as an attachment here, because he does not state as to how he came into possession of that evidence. The weight to be attached is not there and does not advance the appeal for the appellant.
    
18. The quotation annexure “K” is not evidence because it is not of the company following the reasons set out above. It is not the dealings of the company with the outside world proclaimed into the world by a proper officer of the Company appellant. For all its worth together with the photographs could be an educational pamphlet. It is not from the records of the company by a proper officer so designated by the composition of the Company in compliance with the Company’s Act. It is intended to show the performance of the Company of having obligations that it has entered into law and remain but have been affected because of the decision to forfeit the subject land. It must have a proper officer if it is a company with in 2012 US$1.4 Billion in its long-term investment fund with its domestic expenditure on programs expanding significantly. These are very important elementary functions fundamental to the plight of the appellant to show properly, by an officer within it designated so that weight to be attached in view of the forfeiture is discharged beyond the balance of probabilities. It is not a probability but a reality. Here that is not so in the way the evidence is presented.
    
19. Each of the grounds pleaded out as grounds of appeal must tie into this very important evidence so as to discharge that forfeiture was improper not according to law and therefore should be set aside by section 122. The Notice is challenged as improper it is by the Company not a single director not even by the chairman of the board of directors of that company. There is no evidence from him official on account in the course pleaded. What is reasonable time when the notice was supposed to have been made remains unclear by the evidence that has been led here. The action has affected the company not the director here named as a witness. He would not be the proper person deposing with the records of the company who is itself a legal person in law. And it is by its proper officers so assigned to give this evidence so that the plaintiff/appellant cause has proper weight discharging the balance.
    
20. Annexure “L” of the affidavit of this witness does not advance the course of the appellant for this primary and basic reason. It is a relationship of the company, it is record of what the company is doing, and has done. It has money expended and projected over the phase of the project, when it was entered into with whom and which is now jeopardized because of the forfeiture. This is very important evidence that is not a mere annexure as here. A proper officer within the company incorporated as an overseas Company in Singapore PNG Sustainable Development Program Limited must come with this annexure and properly according to the law of evidence Section 61 Business Records. It has come to light in the due course of the business of the company and is disclosed by an officer of the company designated. That unfortunately is not the case here. Evidence is by law: Mai and Avi, The State v [1988-89] PNGLR 56 (3 June 1988) before it is even open to be considered by the court in the determination of the matter at hand. This is not by law and will not be considered in the plea of the appellant.
    
21. It means in essence reliance on the law submitted by the appellant will be only as good as the evidence which is not the case of the evidence relied by the appellant here so as to entail: Nambawan Super Limited v Kimas [2013] PGNC 23; N5062 (27 February 2013), or for that matter Mount Hagen Local Level Government v Kimas [2012] PGNC 356; N6044 (14 August 2012).
    
22. This is particularly more so with the notice of appeal drafted as, if the Respondent or DLPP had responded to the Letters and issued fresh amended Notice as requested, the appellant would have been able to explain both the delay in payment of the land rent and non-compliance with the improvements which evidence is now before the Court. This is acceptance by the appellant that he was late in the payment of the land rental and has not complied with improvements agreed to initially when the lease was granted. He is bound to observe and here is clear acknowledgement by the plea in the grounds of appeal of that fact. He acknowledges he was in the wrong and there is no room for argument for what the respondent did in forfeiting but only on second thoughts a second opportunity could be given in response to the letters he has submitted pleading to make well.
    
23. The totality of all is that this appeal has not discharged the balance by the appellant as he has pleaded as set out above. The evidence does not support and accordingly this appeal is dismissed forthwith with costs.
    
24. The formal orders of the court are:
    
    • (a) The appeal has not been discharged on the balance of probabilities.
    • (b) It is dismissed in its entirety forthwith
    • (c) Cost will follow the event.

Orders Accordingly.

__________________________________________________________________

Ashurst Lawyers: Lawyer for the Plaintiff/Applicant

Office of the Solicitor General: Lawyer for Defendants