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PDA Investment Ltd v Rosso [2020] PGNC 425; N8695 (16 December 2020)

N8695

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS (JR) NO. 18 OF 2020 (IECMS)

BETWEEN:
PDA INVESTMENT LIMITED
Plaintiff

AND:
JOHN ROSSO, MINISTER FOR LANDS AND PHYSICAL PLANNING
First Defendant

AND:
INDEPENDENT STATE OF PAPUA NEW GUINEA
Second Defendant

AND:
PAIYO BALE
Third Defendant

Waigani: Miviri J
2020: 20^th October, 16^th December

PRACTICE & PROCEDURE – Judicial Review & appeals – Originating Summons – Leave application for Judicial Review – Notice of Motion – Notice pursuant to Order 16 Rule 3 (3) NCR – Statement pursuant to Order 16 Rule 3 (2) (a) NCR – Undertaking as to Damages – Affidavit verifying Facts – Affidavit of Applicant – Delay – Arguable case – Exhaustion of Internal processes – Material relied sufficient – Balance discharged – Leave granted – cost in the cause.

Cases Cited:

Innovest Ltd v Pruaitch [2014] PGNC 288; N5949
NTN Pty Ltd v The Board of the PTC, PTC and Media Niugini [1987] PNGLR 70
Markham Farming Co Ltd v Wanga [2019] PGNC 366; N8103
North Fly Development Corporation Ltd v Kimas [2015] PGNC 249; N6122
Marat v Hanjung Power Ltd [2014] PGSC 33; SC1357

Counsel:

J. Poya, for Plaintiff
M. Tukuliya, for Defendant
RULING

16^th December, 2020

1. MIVIRI, J: This is the Ruling on the plaintiff’s originating summons of the 15^th June 2020 under order 16 Rule 3 (2) of the National Court Rules, for leave to review the decision of the first defendant of the 1^st March 2020, to forfeit the plaintiff’s State Lease Section 449 Allotment 77 Hohola, Volume 31 Folio 131, National Capital District and transfer it to the third defendant.
   
2. The Statement under Order 16 Rule 3 (2) (a) together with an affidavit verifying, the affidavit of the applicant and a notice of intent to move of even date all in satisfaction of the requirements of the Rules. The seeking of leave signifies that Judicial review is premised on restrictive and stringent basis are set out to go into that domain not without: Innovest td v Pruaitch [2014] PGNC 288; N5949 (17 March 2014).
   
3. The balance is beyond preponderance, that firstly the applicant has standing in the matter. The decision of the defendant has affected him. Obviously prima facie: NTN Pty Ltd v The Board of the PTC, PTC and Media Niugini [1987] PNGLR 70 (6 May 1987). The plaintiff has indefeasible title to the property annexure“B” affidavit in reliance of Daisy Charlie filed 25^th June 2020 sworn of the 15^th June 2020. It shows that State Lease was issued 04^th June 2007 to one Damar Dorothy, subsequently it was transferred 03^rd February 2009 to Sam Wapesa businessman, and then to PDA Investments Limited on the 05^th December 2012 and registered on 06^th December 2012. This is coupled with the evidences in annexure “C” to “I” where the plaintiff was actively involved in trying to sell the property to the third defendant who had offered K 250, 000 for purchase but fell through when financing arrangements did not stand.
   
4. Then there is work undertaken by the plaintiff on the subject property evidenced by the statement from the Bank of South Pacific of the accounts of loan by PDA maintained there credit balance of K 2, 323, 692. 50 of 7^th December 2017. And drawings of the proposed development to detail, planning permission application approved as applied by the NCD Physical Planning Board dated the 08^th March 2011 meeting number 02/2011 in accordance with the Physical Planning Act 1989. And a progressive itemised Invoice dated the 11^th April 2017 of K 350, 300.00 from PDA Investment Limited to the lending manager Corporate Lending Section of the Bank of South Pacific P. O. Box 78, Port Moresby NCD. Further early works invoice dated the 22^nd May 2017 in the sum of K 256. 100.00 to the Bank of South Pacific Lending Manager Corporate addressed as above for payment for that invoice. Including one dated the 22^nd May 2017 for K 97, 000.00 similar for payment from PDA to the bank as previous two.
   
5. Annexure “I” are photographs of the developments taking place by PDA as invoiced above. And “J” is the forfeiture of the subject State Lease issued 1^st March 2018 by Honourable Justin Tkatchenko the Minister for Lands. And “K” is the issue of that State Lease to the third defendant 15^th March 2019. And “L” are official receipts of payments issued to PDA dated 18^th September 2019 at Eda Tano haus for the sum of K490.00 paid to Land lease rental for section 449 allotment 77. Annexure “M” is letter dated the 30^th August 2016 under hand of the third defendant to one Simon Bendo Acting director of the Alienated Division of the Department Lands and Physical Planning P. O. Box 5665 BOROKO, NCD expressing interest over allotment 77/78 section 449 Ensisi Valley NCD.
   
6. Annexure “N” is letter dated the 09^th September 2019 by PDA Investments to The Principal of Jefferson Lawyers attention J. Joe Lome subject is DC No. 203 of 2019 Paiyo Bale v PDA Investments & Ors service of the Court Order in that proceeding and of the intention of the Plaintiff to defend the matter. Annexure “P” is the undertaking as to damages filed by the plaintiff arising from this action dated the 25^th June 2020.
   
7. What is set out by this evidence discharging the requisite balance in favour of the plaintiff is that he is indeed effected by the decision of the first defendant in a very big way both in the money that has been expended time in the works taken in the matter and he stands to lose a lot if the matter is not substantially heard on the merits. He has therefore demonstrated by the particulars of the evidence set out above that he has locus standi and succeeds on this ground.
   
8. The first defendant’s subject decision was made on the 1^st March 2020, to forfeit the plaintiff’s State Lease Section 449 Allotment 77 Hohola, Volume 31 Folio 131, National Capital District and transfer it to the third defendant 15^th March 2019. The plaintiff has filed this cause of action for leave 25^th June 2020. That is just 3 months 1 week and so is within time allowed by Order 16 Rule 4 (2) of the Rules where certiorari is pleaded for relief in the cause. There is no delay this ground is made out in favour of the plaintiff.
   
9. From the evidence set out above he has an arguable case at law demonstrated prima facie. There are processes and procedures under the Land Act for forfeiture notably section 122 (4) of the Land Act is specific, and here by the evidence that is set out above, the defendants have not complied prima facie, and it is an arguable basis at the prerogative of the plaintiff to raise, that his indefeasible right to the subject property has been breached, in the way it has been taken out of his hands without recourse to that procedure. It is proper basis to be reviewed: Markham Farming Co Ltd v Wanga [2019] PGNC 366; N8103 (2 July 2019) approving following North Fly Development Corporation Ltd v Kimas [2015] PGNC 249; N6122 (30 November 2015). It is fundamental and reinforced that the right to be heard is observed where a right is seriously affected it has been affirmed where observance has not eventuated here: Marat v Hanjung Power Ltd [2014] PGSC 33; SC1357 (4 July 2014).
   
10. I have considered the material advanced by the State and find no cause to deviate as the balance has been tilted in favour of the application for leave to be granted. Both arguable as well as delay have been appropriately addressed by the evidence before me. The evidence of Raymond Lavaki as to service if indeed it is as he says effected is not borne out by the conduct of the plaintiff. Had he been duly served as contended it would not make sense for him to let his title slip from his hands just like that. Prima facie it is arguable as to whether or not service was effected in compliance of the law therefore is proper to grant leave for substantive hearing in judicial review. Each case is determined on its own facts and here quite clearly leave must be granted in view of all the facts set out above.
    
11. It remains to be argued as to whether or not the plaintiff was in breach of the terms and conditions of the lease. And prima facie it is clear payment of rental due was made on 18^th September 2019 as set out above. And improvements have been undergoing as set out above. It would be an error of law to ignore and not to grant leave for substantive judicial review in this light. What has been advanced against by the State does not tilt the balance now in favour of grant of leave as pleaded. And seriously raised is the allegation of fraud that ought to be properly tried and set out. I therefore grant leave for judicial review as pleaded by the originating documents as set out above.
    
12. The formal orders of the Court are:
    
    • (i) Leave is granted for judicial review.
    • (ii) The plaintiff will file the Substantive Notice of Motion by Monday the 1^st February 2021 and serve on the defendants and proof service on file.
    • (iii) The matter will be mentioned Monday the 08^th February 2021 at 9,30 am for further directions.
    • (iv) Costs will be in the cause.

Orders Accordingly.

__________________________________________________________________

Poya Legal Service Lawyers: Lawyer for the Plaintiff

Office of the Solicitor General: Lawyer for the Defendants