N8225

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS 35 OF 2015

BETWEEN:
ASSEMBLIES OF GOD OFPAPUA NEW GUINEA
Plaintiff

AND:
MARTIN BANOVO (LANDS MANAGER KAVIENG)
First Defendant

AND:
LAND BOARD OF PAPUA NEW GUINEA
Second Defendant

AND:
SIMON BENDO- LANDS OFFICER DEPARTMENT OF LANDS & PHYSICAL PLANNING
Third Defendant

AND:
ROMILLY KILAPAT, SECRETARY, DEPARTMENT OF LANDS & PHYSICAL PLANNING
Fourth Defendant

AND:
HON BENNY ALLEN MP, MINISTER FOR LANDS & PHYSICAL PLANNING
Fifth Defendant

AND:
THE REGISTRAR OF TITLES
Sixth Defendant

AND:
BEN KAIAH
Seventh Defendant

AND:
SPLENDID STAR
Eighth Defendant

Kavieng: Kangwia J
2019: 19th November
2020: 19th February

PRACTICE and PROCEDURE – Application for Judicial Review.
Judicial Review – Orders sought in the nature of Certiorari and mandamus
– Grounds relied on – Procedural ultra vires – Denial of Natural Justice – unreasonableness in the Wednesbury sence

Held –

1.	The  Order sought in the nature of certiorari to remove into this Court and quash the various decisions made by the Defendants is refused.

2.	The order sought in the nature of mandamus directing the 4th, 5th & 6th Defendants to complete the process of registering the land as a mission lease in the name of the Plaintiff is refused.

3.	The order sought in the nature of mandamus directing that the Plaintiffs Appeal in respect of the land to be determined by the 5th Defendant (Minister for Lands) in accordance with s 62 (4) & (5) of the Land Act 1996 is granted.   

Cases cited: 

Dr. Rose Kekedo v Burns Philp (PNG) Petroleum [1988 – 89] PNGLR 122

Counsel:

M. Titus, for the Plaintiff
No Appearance for the Defendants

19th February, 2020 

1.      KANGWIA J: The Plaintiff sought Judicial Review of a series of decisions made by the Defendants in relation to a piece of land described as Section 46 Allotment 11 in Kavieng (the land). Leave was granted on 12 February 2015. The Plaintiff has complied with the requirements for Judicial Review. Notice of trial was served on 30 October 2019.

2.     The Defendants have made no appearance. Apart from the 7th Defendant who made a number of appearances the other Defendants have made no appearance since the proceedings commenced and dithered in their dealing with the matter. 
 
3.      In the originating summons the Plaintiff as relief sought various orders. They can be classified and summarised under three categories as follows:

1.	An order in the nature of certiorari to remove into this Court and quash the various decisions made by the Defendants.
2.	An order in the nature of mandamus directing the 4th, 5th & 6th Defendants to complete the process of registering the land as a mission lease in the name of the Plaintiff or,
3.	In the alternative an order in the nature of mandamus directing that the Plaintiffs Appeal in respect of the land be determined by the 5th Defendant (Minister for Lands) in accordance with s 62 (4) & (5) of the Land Act 1996.

4.      The grounds for the relief sought are reproduced verbatim as follows:

1.	Procedural Ultra Vires

(a)	The Plaintiff surrendered allotment 4 of section 46 to the Third Defendant pursuant to section 110 of the Land Act;

(1)	On the completion to the satisfaction of the Chief Physical Planner or his delegate of development of all or any part of the land the subject of an urban development lease, the lessee may surrender all or part of the land and a new lease or new leases shall be granted over the developed portions of the land-
(a)	in the name of the lessee; or
(b)	at the direction of the lessee
(2)	The new lease or leases shall contain the covenants and conditions specified under s 107 (c) and s 109(3).

(b)	The Third Defendant was bound by s 110 (1) and that is to either create a lease in the name of the lessee or at the discretion of the lessee.
(c)	The Third Defendant has created a new lease in another person’s name as the new lessee hence the decision amounts to procedural ultra vires.

2.	Denial of Natural Justice: Unfair and Unjust

(a)	The Third Defendant is fully aware of the existence of the Plaintiff since 1984 and the improvements on the same property within the meaning of s 110 (1) of the Land Act of 1996.
(b)	The Third Defendant did not carry out an inspection of the lease s 46 allotment 11 within the meaning of s 110 (a) & (b) and is therefore unfair and unjust to the Plaintiff.
(c)	Even after the lease has been granted to the new lessee the Plaintiff ‘s appeal application against the decision of the First Defendant to the Second Defendant has not been responded to which is contrary to s 59 of the Constitution.
(d)	The entire allocation process is unfair and unreasonable and is a clear breach of the provisions of Land Act 1996 section 110 (1) (a) & (b).

3.	Wednesbury Unreasonableness 

(a)	The actions of the First, Second and Third Defendants are unreasonable and arbitrary in denying the rights of the Plaintiff within the meaning of s 110 (1) (a) and (b) of the Land Act and awarding the same lease to a new lessee.

5.     The Plaintiff relied on the affidavits of Pastor Bruce Kombly sworn on 30 January 2015 and filed on 2 February 2015 and a second affidavit sworn on 25 February 2015 and filed on 26 February 2015 including the statement filed by the Plaintiff on 02 February 2015 in support of their application.

A.	Background

6.     The undisputed facts and according to the statement and affidavits relied on by the Plaintiff are these:

On 23 May 1991 the Plaintiff was purportedly awarded land on allotment 4 section 46 in Kavieng town. They erected a permanent church and pastor’s residence. It was later discovered that the buildings were mistakenly built on allotment 5. The Lands office permitted the building to remain as it was. The Plaintiff then purportedly proposed to the Lands Office for the consolidation of allotments 2, 3 & 4 as mission lease. 

For the consolidation of those allotments the Plaintiff surrendered the purported title over allotment 4. Sometime later the allotments were consolidated as special purpose lease and they became Section 46 lot 11. 

Public tenders were called for the new section 46 lot 11 and the Plaintiff applied for it but the Second Defendant awarded the land to the 7th Defendant. 

Being aggrieved by the decision of the Second Defendant the Plaintiff appealed to the Minister for Lands (5th Defendant). The appeal was received and gazetted in Government Gazette G 191 of 22 October 2008 as item L.F. QA/046 /011. There is no evidence of what transpired after that. The Plaintiff alleged that the appeal had been pending since then. 

Because of the delay on the appeal by the 5th Defendant (Lands Minister) the Plaintiff engaged the Public Solicitor to seek leave to apply for Judicial Review of the decisions. On 17 April 2014 the application for leave to apply for Judicial Review was dismissed for want of prosecution. The 7th Defendant then as the new landlord issued notices to the Plaintiff to deliver up vacant possession of the land. 
 
While the appeal was pending the 7th Defendant sold the land to the 8th Defendant, which was a foreign company. 

The 8th Defendant moved in and erected perimeter fencing around the land effectively blocking off the Plaintiff’s access to the church building. Interim restraining orders were obtained to allow the Plaintiffs’ members passage into and out of the church building pending the determination of the substantive matter. 

On the basis of those facts the Plaintiff claimed that the decisions that led to the awarding of the land to another person were unfair and unreasonable and breached s 110 of the Land Act. 

7.      It was submitted that the Defendants overlooked the fact that the Plaintiff had been occupying the land for a long time prior to the consolidation of the allotments; that they had erected permanent buildings consisting of a church and pastor’s house; that they proposed the consolidation of the various allotments for a mission lease to establish a school; that in order for the consolidation to be made the Plaintiff surrendered its title on allotment 4. 

8.     It was submitted on the Plaintiffs behalf that the Court should review the series of decisions made by the Defendants which were unfair and in breach of natural justice with a view to declaring them null and void.
 
B.	The Law 

9.     The law on Judicial review is settled that the purpose of judicial review is not to examine the reasoning of the subordinate body or authority with a view to substituting its own opinion but is concerned with the decision-making process.

10.     In the case of Dr. Rose Kekedo v Burns Philp (PNG) Petroleum (1988-89) PNGLR 122 it stated that judicial review was available where the decision-making authority;

1.	Exceeded its powers
2.	Committed an error in law
3.	Committed a breach of natural justice
4.	Reached a decision no reasonable tribunal could have reached or abused its powers.

11.     It is also established law that the Plaintiff must establish the grounds relied on to obtain the relief sought. 

12.     In the present case the grounds need to be considered as to whether the Plaintiff has satisfactorily established them.

13.      Before the grounds are considered it must be mentioned here that on the face of the record the process involved and its requirements in awarding State Leases to an applicant has been effectively completed. The only process remaining to be acted upon is the consideration or otherwise of the Plaintiffs appeal by the Minister for Lands (5th Defendant).  

14.     The law guiding grant of State leases is the Land Act (the Act). Under s65 of the Act the Minister may grant State Leases of Government land as provided under the Act and even without referring to the Land Board. Grant or refusal to grant State Leases is in the entire discretion of the Minister.

15.     Under s 67 of the Act, it provides in mandatory terms that State Leases are not to be inconsistent with zoning and physical planning requirements. It is in the following terms;

67. State Leases not to be inconsistent with zoning physical planning, etc.

(1)	A State Lease shall not be granted for a purpose that would be in contravention of zoning requirements under the physical planning requirements under the Physical Planning Act 1989, any other law relating to physical planning, or any other law relating to the use, construction or occupation of buildings or land. 

16.     The Land Act also makes provisions for various categories of State Leases. 

17.     In the present case a number of allotments were consolidated into a Special Purpose lease and advertised for public tender. The Plaintiff applied but the 7th Defendant was awarded the lease. Aggrieved by that decision the Plaintiff brought this proceeding.
 
C.	Grounds for review

18.     Before the grounds are considered it must be mentioned here that on the face of the record the process involved and its requirements in awarding State Leases to an applicant has been effectively completed. The only process remaining to be acted upon is the consideration or otherwise of the Plaintiff’s appeal by the Minister for Lands (5th Defendant). 

19.    The grounds for review relied on by the Plaintiff are considered as follows; 

C (i) Procedural ultra vires

20.     The first ground for review raises the issue of whether there was procedural ultra vires present in the award of the land. The Plaintiff submitted that the Defendants committed a breach of s 110 of the Land Act when they awarded the land to an individual who was not a lessee. It was submitted that pursuant to s 110 of the Land Act they were entitled to be awarded the newly consolidated portion of land since they had surrendered allotment 04 for the consolidation.

21.      Section 110 of the Land Act provides as follows:

110. Surender of land in the subdivision and grant of new Leases

(1)	On the completion, to the satisfaction of the Chief Physical Planner, or his delegate of development of all or any part of the land the subject of an urban development lease, the lessee may surrender all or part of the land and a new lease shall be granted over the developed land portion of the land-
(a)	In the name of the lessee
(b)	At the direction of the lessee
(2)	… 

22.     This provision is clear. It relates to land the subject of an urban development lease. The provision raises two considerations. First is that an applicant for a consolidation of leases must have a lease over the whole of the land the subject of the urban development lease. Second is that an applicant must be a lessee on a portion of the land the subject of the urban development lease. 

23.    In both situations the lessee in the land the subject of an urban development lease may surrender all or part of the land for consolidation purposes. By doing so the lessee was entitled to the benefits under s 110 of the Act.

24.     In the present case there is no evidence of the type of lease the Plaintiff had over allotment 04 apart from the assertion that it surrendered the lease to the Lands Department for consolidation of the allotments. Leases are supposed to be documented. The plaintiff has failed to establish that it had a State Lease.

25.     In the absence of such evidence it is safe to conclude that the Plaintiff did not have an urban development lease over the entire piece of land or a different lease over an allotment within the entire piece of land. It has also failed to establish the error alleged of the Defendants. Under those circumstances the Plaintiff is not entitled to the benefit of s 110 of the Act.  

26.     The evidence shows that the allotments were consolidated and became available as a Special Purpose Lease. It is safe to assume that the conversion of the allotments into a Special Purpose lease was pursuant to s 67 of the Act.
    
27.     There is no evidence that the consolidation of the allotments into a Special Purpose Lease was in breach of s 67 of the Act or any other provision of the Act. The Defendants were not obliged to consolidate the allotments into a mission lease pursuant to s 67 of the Act. There is also no evidence that the Defendants committed an error in the decision to consolidate the land into a Special Purpose Lease. For the foregoing reasons the first ground of review is dismissed as having no basis.

C (ii) Breach of Natural Justice

28.     Under the second ground of review the Plaintiffs advanced four allegations as amounting to a breach of natural justice. They are dealt with separately. 

a)	The allegation that the Defendants were aware of the improvements on the land has no basis. It is in the form of a statement and is not a valid ground. It was not a mandatory requirement under the Act for the Defendants to favour someone who had an equitable interest on the land in issue. Whether the Defendants overlooked or rejected the improvements on the land was a matter in their entire discretion.
 
They were not required to accept the improvements as a basis for their determination. The Plaintiff has not satisfactorily established under this claim that a breach of natural justice has been committed by the Defendants by not being cognisant of the improvements on the land. 
 
b)	As to the allegation that the Defendants failed to carry out an inspection of the land and property, it is also not a requirement under s 110 of the Act or any other law to be complied with. The land was not undeveloped under which an inspection was necessary.
 
The land was composed of a number of allotments from which an inference can be safely drawn that it was inspected prior to the allotments being created. 
This allegation does not establish that the decision to grant the lease would have been different had the land been inspected. Breach of natural justice has not been established by this allegation.

c)	As to the appeal to the Minister, in the absence of evidence to the contrary it is considered that the Plaintiffs appeal is pending determination by the Minister. There is no evidence that the appeal was determined. The Plaintiff was entitled to be heard. Failure to hear the Plaintiff’s appeal is a gross abuse of natural justice pursuant to s 59 of the Constitution. This allegation is sustained.

d)	As to breach of s 110 of the Act, it has already been determined that s 110 was not breached since the Plaintiff was not the holder of an urban development lease or another type of lease from which s 110 could be invoked. No breach of natural justice has been established under this allegation.

C (iii) Wednesbury Principle

29.     Under the third ground for review the Plaintiff alleged a breach of the Wednesbury Principle, that the decisions of the 1st, 2nd and 3rd Defendants were unreasonable under the prevailing circumstances.

30.     The basis of this allegation in my view is that the Plaintiff had a legitimate expectation that it possessed a first right of refusal over the land owing to its equitable interest with improvements on it and their long-time occupation of it since 1984. 

31.     It is obvious that the Plaintiff had an equitable interest on the land which would operate in their favour. They had a legitimate expectation that the lease would be granted to it as it had permanent buildings on the land and had occupied it since 1984. It was either overlooked or rejected in the exercise of discretion.  

32.     Be that as it may, the Land Act makes no provision which requires an applicant who has improvements on the land to be awarded the land the subject of a tender. It is entirely in the discretion of the Land Board to recommend the grant of leases to the Minister. 

33.     It is the Minister who grants or refuses to grant a State lease.
 
34.     The Plaintiff did apply for the land after it was advertised but was unsuccessful.

35.     A decision was made to award the land to the 7th Defendant. Despite its seemingly unreasonableness in the decision, the Land Board was entitled in its wisdom to make that decision. The Plaintiff has failed to establish the error committed in the award of the land to the 7th Defendant. The land was advertised for lease. The Plaintiff did apply for the land but was unsuccessful. Unfairness in the award of the land to another applicant has not been satisfactorily established. 

D.	Conclusion 

36.     In conclusion, one important observation is that the process involved in the grant of a State Lease has not been exhausted or subjectively completed. What is supposed to occur after the satisfactory conclusion of the process to grant a State lease has not eventuated. 
 
37.     Events have overtaken the process involved, all because the Minister has been tardy in his duty to consider and make a determination on the Plaintiffs appeal. The Court would loathe intervening with a determination over a matter in which the process has not been satisfactorily exhausted. The Plaintiff’s appeal to the Minister is pending. Therefore, the process must be subjectively completed.

38.     Based on the foregoing observations and determinations the following orders are made in respect of the orders sought in the Notice of motion:

(a)	The order sought in the nature of certiorari to remove into this Court and quash the various decisions made by the Defendants is refused.
(b)	The order sought in the nature of mandamus directing the 4th, 5th & 6th Defendants to complete the process of registering the land as a mission lease in the name of the Plaintiff is refused.
(c)	The order sought in the nature of mandamus directing that the Plaintiffs Appeal in respect of the land to be determined by the 5th Defendant (Minister for Lands) in accordance with s 62 (4) & (5) of the Land Act 1996 is granted.
(d)	It is ordered that pursuant to s 62 (4) & (5) of the Land Act of 1969 the Minister for Lands take immediate steps to determine the Appellants appeal over the award of State Lease on Allotment 11 Section 46 Kavieng, New Ireland Province to the 7th Defendant which is pending before him.
(e)	Costs shall be in favour of the Plaintiff to be taxed if not agreed.  
______________________________________________________________
Titus Lawyers: Lawyers for the Plaintiff
No appearance for the Defendants