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Smith v Minister for Lands [2021] PGNC 96; N8749 (8 February 2021)

N8749

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]


OS (JR) NO. 402 OF 2000


BETWEEN:
DALE CHRISTOPHER SMITH
Plaintiff


AND:
THE MINISTER FOR LANDS
First Defendant


AND:
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Second Defendant


AND:
NCD WATER & SEWERAGE LIMITED Trading as EDA RANU
Third Defendant


Waigani: Miviri J
2020: 19th November


PRACTICE & PROCEDURE – Judicial Review & appeals – Originating summons – Trial – Section 12 (1) (c) & 13 (6) Land Act Compulsory Acquisition – Public Purpose – Bona Fide – Right to be heard – denial of Natural Justice – Remedies appropriate – 20 years since action first instituted – developments on subject land – Whether Certiorari appropriate – Whether declaration appropriate –Evidence compliance of procedure – No procedural ultra vires –no substantive ultra vires – Judicial review not made out – proceedings dismissed –cost follow event.


Cases Cited:
Papua New Guinea Cases


Kekedo v Burns Philip (PNG) Limited [1988-89] PNGLR 122

Koima v Independent State of Papua New Guinea [2014] PGNC 48; N5568

Ramu Nickel Limited v Temu [2007] PGNC 15; N3116

Takoa Pastoral Co Limited v Dr. Temu Ministry for Land [2009] PGNC 97; N3711


Overseas Cases:


Associated Provincial Picture houses Limited v Wednesbury Corporations [1947] CA 1KB 223.


Counsel:


B. Frizell, for plaintiff
R. Uware, for First & Second Defendants
L. Manua, for Third Defendant


RULING

08th February, 2021


  1. MIVIRI, J: This is the ruling on the substantive proceedings filed by the plaintiff of the 27th July 2000, seeking certiorari to remove into this court and quash the decision of the Minister for Lands of the 24th February 2000, wherein he effected by gazettal G17, certifying noncompliance pursuant to section 13 (6) of the Land Act in respect of land known as Portion 1435, Milinch Granville, Fourmil Port Moresby; and acquisition of that land Portion 2460, Milinch Granville, Fourmil Port Moresby, and Portion 2461, Milinch Granville, Fourmil Port Moresby, gazetted in Plan Catalogue No. M49/2135 by compulsory process described of the Department of Lands.
  2. He seeks declaration that the purported certificate of non-compliance under section 13 (6) of the Land Act, and subsequent acquisition of land by compulsory process aforesaid is null and void, because he was not accorded the right to be heard, denying him natural justice.
  3. And further a declaration that he remains and is the registered proprietor of all that land described as Portion 1435, Milinch Granville, Fourmil Port Moresby, State lease Volume 119, Folio 78.
  4. He instituted the proceedings initially in 2000 after the subject parcels of land were compulsorily acquired by the State on the 24th February 2000 for Public Purpose namely, the construction and commissioning of a new water treatment plant, pumping plant and purpose ancillary. He sought declaratory orders challenging that acquisition contending that no proper procedures were followed and complied within section 13 (6) and related provisions of the Land Act.
  5. Initially it was heard on the 20th December 2002 in the National Court decision OS 402 of 2000, Dale Christopher Smith v Minister for Lands & The Independent State of Papua New Guinea & NCD Water and Sewerage Limited trading as Eda Ranu. His judicial review application was upheld awarding him K370, 000.00 as compensation for the acquisitions of the said parcels of land. He was not content and appealed to the Supreme Court in SC973 Dale Christopher Smith v Minister for Lands & The Independent State of Papua New Guinea & NCD Water & Sewerage Limited trading as Eda Ranu on 25th November 2008 & 1st June 2009. He contended that he had not pleaded for compensation that was awarded. He had pleaded as he does now which the Supreme Court upheld and ordered for a rehearing. Hence this hearing which was conducted before late Justice Nablu not concluding because of her passing.
  6. All the parties rely on the same evidence as in that proceedings contending the same contention there and here. He relies on his own affidavits sworn and filed in the Review Book (RB) in the pursuit of the remedies set out above. These are in RB pages 12-62 of Dale Christopher Smith sworn 06th August 2000 filed the 27th July 2000, 167-172 of Dale Christopher Smith sworn 28th September 2001 filed 29th September 2001, 178-180 of Dale Christopher Smith sworn of the 12th October 2001 filed the 17th October 2001, 202-266 of Dale Christopher Smith sworn the 26th November 2002 filed the 27th November 2002, 340-380 of Dale Christopher Smith sworn the 27th September 2017 filed the 28th September 2017, and 383 -385 of Dale Christopher Smith sworn the 06th November 2017 filed 08th November 2017.
  7. He will also refer to the affidavits that the third defendant relies on in his case, which are the affidavits of Billy Imar sworn 04th September 2000 RB page 68, Affidavit of FC Cheah sworn 16th October 2000 page 84 RB, affidavit of Allan Nema sworn 09th October 2001 page 174 of RB, second affidavit of Allan Nema sworn 15th March 2002 page 186 of the RB and lastly affidavit of Royale Thompson filed.
  8. And from all this evidence, it is undisputed and established that Mr Dale Christopher Smith was the registered proprietor of a 78-hectare parcel of land in the Nine Mile area on the outskirts of Port Moresby. In February 2000, 14.79 hectares of his land was compulsorily acquired by the State under the Land Act 1996. It has since been developed by Eda Ranu, the third defendant, and is now the site of a pumping station and other facilities that are part of the Port Moresby water Supply system. The plaintiff wants his land. Hence certiorari to quash the decision of the Minister and declarations that the acquisition was null and void underlying that the plaintiff was still the registered proprietor of the subject parcels of land.
  9. The procedure for compulsory acquisition of land is threefold. Firstly, the Minister gives notice to treat to the owner, in the present case is Dale Christopher Smith. And after the lapse of two months after service of the notice. This is compliance of sections 12 (1) (a) and 13 (1) to 13 (5). Secondly where the owner of the land cannot be located section 12 (1) (b) comes into play. And the Minister completes by certification that there are special reasons why the Notice to treat provisions of section 13 should not apply compliance of sections 12 (1) (c) and 13 (6). The effect of this process is the land becomes vested in the State as is the case here section 12 (2). And what follows by the operation of section 14 is a right to compensation. Here for the incumbent Dale Christopher Smith.
  10. Here it is undisputed that on the 24th February 2000, gazettal G17, the Minister published and certifying noncompliance pursuant to section 13 (6) of the Land Act and acquired the subject land. The dispute raised is that the special reasons referred to by the Minister in the gazettal 24th February 2000 purportedly and in pursuance of section 13 (6) of the Land Act are not Bona fide in so far as it was said there were negotiations for sale of the land between NCD Water & Sewerage Limited and the plaintiff. The plaintiff denies that there were negotiations between him and the defendants in the eventual compulsory acquisition of the subject land. What really happened was that there was offer and counter offer between himself and the defendants in particular, the third defendant.
  11. Secondly that negotiation was at no time carried out in a bona fide manner and the real purpose of the Minister exercising powers under section 13 (6) of the Land Act were to avoid NCD Water & Sewerage Limited having to purchase the said Land at its real value. The Minister in exercising his powers under section 13 (6) of the Land Act failed to consider matters relevant to the exercise of his discretion.
  12. And thirdly no reasonable person considering relevant grounds could have come to the decision which the Minister did in respect of the special reasons purportedly advanced for the exercise of his powers under section 13 (6) of the Land Act. The total effect is that he was not accorded hearing before his property was compulsorily acquired and therefore a serious breach of procedure. Certiorari lies reverting the subject land back to where it was in law his property. And to give effect a declaration be made of that fact.
  13. This has now to be balanced with the undisputed fact that there is permanent public facility administered by the third defendant that serves the Public and the city of Port Moresby with a basic human need of water. And the interests of the Plaintiff who has been denied his land by the acquisition set out above.
  14. Relevantly the evidence to the point in this issue is the affidavit of Dale Christopher Smith sworn the 06th July 2000, filed 27th July 2000. He confirms that he was written to on the 09th August 1995 by the National Capital District Commission annexure “B”. In that letter addressed to Guard Security Services P. O. Box 648 Port Moresby, subject is land for Mt Eriama Pumping Station Portion 1435 Granville. The letter expresses at the outset its immediate and foremost plans to purchase and acquire part of the subject land under the immediate possession of the addressee. It expresses the matter of priority under water Improvement Programme. That the site and location to the present Mt Eriama Water Treatment Plant and Storage is more proper and appropriate than any sites in the vicinity. And the commission request urgent attention in the release of that part of the portion of your land which it is interested to make way for the following proposed developments to eventuate without causing any unnecessary delays. And the land is in addition to Mt Eriama Storage and treatment Plant required for the construction of;

(i) New Raw Water Pumping Station,

(ii) Chemical Storage Shed,

(iii) New Transmission Lines and Staff Housing,

(iv) Other integral developments.


  1. The letter goes onto say that as soon as the Commission receives your written confirmation in releasing part of your land it will do the following to legalize ownership. It will undertake a boundary survey recommending to the physical Planning Board to rezone that part of the land under Agricultural use to be released for special purpose. And that the Commission will ensure that the description of both parcels of land are affected together with the Lands Department and the Physical Planning of which you will be notified. And just valuations and considerations will be called for and into account for a permanent lease to be arranged with the Department of Lands. And ending with the conclusion to treat the matter with urgency and looking forward to the continuity of the matter. The letter is signed by Merea Navuru city Manager.
  2. This is responded to by letter dated the 18th August 1995 addressed to the City Manager National Capital District Commission signed by the Plaintiff. He thanks and acknowledges the open dialogue in relation to the portion of my property which has been used by the NCDC for the past seven years without permission or offer of recompense. And this is the Eastern side of Mt Eriama approximately five and half hectares which he is prepared to sell to the NCDC on the following conditions acknowledging another offer from a commercial entity to purchase the same area. Firstly, that the NCDC pay a back rental for the usage of the land for the last five years at .55t per square meter per annum, the total area to be confirmed by survey. And Secondly the NCDC to pay and undertake a boundary survey and rezoning of portion 1435 and all necessary steps to have the title split to enable the area as marked for the allocation of a separate title on the completion of the purchase agreement. And thirdly that the purchase price is two hundred and fifty thousand kina. And fourthly the NCDC to relocate the present squatters off the property. That should there be further discussion he would make himself available by appointment with three days’ notice.
  3. The next is annexure “D” letter in the official letter head of Warner Shand Lawyers Port Moresby dated the 05th November 1996 addressed to the The Executive Chairman of the NCD Water & Sewerage Pty Ltd P. O. Box 1084 Waigani NCD attention one Mr Hull. The subject is Purchase of Part of Portion 1435 Granville From Dale Christopher Smith. They are the lawyers on record acting for the plaintiff. And have instruction from him that you are interested in purchasing part of the subject property 1435 which they particularize with the enclosure shaded in orange on the title deed that is attached and forwarded with the letter. And then details out the proposal of the plaintiff as:

On the basis that the NCDC has used part of the property for the past seven years without the permission of the plaintiff without payment of rental, five years rental be paid at the rate of K 0.55 per square meter per annum. On this basis the plaintiff is prepared to sell the property at the purchase price of K 250, 000.00. And that this represents a land value of approximately K 18, 518.00 per acre and that if it were to be subdivided into residential block, he would sell at least 100 blocks with net return of K 5000.00 per block.


(ii) Lease Agreement

In the alternative the plaintiff is prepared to lease the property to you for the duration of the State Lease less one day at a rental of K 30, 000.00 per annum with rent review provision for an increase of rental per annum at the rate of 5 percent which reflects investment at the rate of approximately 12 percent which less than the commercial accepted practice in Port Moresby currently.


(iii) And that the offer is made subject to the following for the NCD Water and Sewerage Pty Ltd to be liable for its own legal costs disbursements including stamp duty and for the lease agreement the same applicable, Including costs of the lessor.

(iv) And further that the NCD Water and Sewerage Pty Ltd undertakes to pay for and carry out a survey and rezoning of the subject land and attend to the arrangements for the subdivision of it and the issuance of two separate titles one which will be the subject of the sale to you and the other will be the balance of to be retained by the plaintiff.

(v) The plaintiff looks forward to a response to the proposal and request for the lawyers to be contacted if there is further need of the property of the proposal. It is signed by R. W, Robinson Warner Shand Lawyers.
  1. The next annexure is “E” in the letter of Young & Williams Lawyers dated the 2nd January 1997 of P. o. Box 1817 Boroko attention Mr. Robinson. The subject is NCD Water & Sewerage Pty Ltd and Dale Smith: Portion 1435 Granville.

“Its in this terms;


“To assist our client in considering your client’s proposition for the Lease or sale of this property, we enquire as to whether you or your client have a survey plan which shows the position of:

(1) The access road to Mt Eriama Treatment Plant;
(2) The position of the houses constructed by NCDC;
(3) The position proposed by the NCDC for the chemical store and any other relevant landmarks.

As part of the information gathering exercise for the purpose of putting a proposition to our client’s Board, our client wishes to instruct a valuer. Would you kindly obtain your client’s permission for a valuer to enter the land for the purpose of preparing a valuation for the Board.” It is signed by Young and Williams as lawyers for NCD Water & Sewerage Pty Ltd.


  1. In response to that letter is annexure “F” letter head of Warner Shand Lawyers acting for the plaintiff dated the 22nd January 1997 addressed to Young and William Lawyers P. O. Box 21 Port Moresby attention Mr Lay. The subject is Dale Smith and NCD Water & Sewerage Pty Ltd Portion 1435 Granville. The contents reads:

“Further to our letter 05th January 1997 we enclose a copy of a survey plan showing that part of portion 1435 relating to our client’s position and note:- (1) The access road to Mt Eriama Treatment Plant is the road nearest the letter C marked in blue ink on the plan;

(2) The houses constructed by the NCD are adjacent to the letter “B” on the plan. Those are not to scale and there maybe other house than indicated on plan;

(3) The NCD Chemical Store is roughly on the intersection of the lines A-A and B-B.

Our client consents to a valuer entering upon the land for the purpose of preparing a valuation for the Board.” The letter is signed by Warner Shand Lawyers per Bill Frizzell.


  1. Which is responded to by Letter head of Young & Williams dated the 19th March 1997 addressed to Warner Shand Lawyers P. O. Box 1817 Boroko attention Mr. Bill Frizzell The Subject is NCD Water & Sewerage Pty Ltd and Dale Smith; Portion 1435 Granville. The letter reads: “Thank you for your recent correspondence. Unfortunately, until now during 1997, pressing matters have prevented further consideration for your client’s proposal. However, the matter is now under active consideration and we expect that it will be considered by the April meeting of the Board.” It is signed by Young and Williams lawyers.
  2. Then there is a further letter annexure “H” Young & Williams Letter head dated the 07th April 1997 which draws the need for a survey plan to be executed and completed before there is detailed discussion on the subject land 1435 and that permission be obtained from the plaintiff for the entry of the surveyor to effect that purpose. This is responded to by annexure “I” letter in response by Warner Shand Lawyers dated the 07th April 1997 confirming instruction by the Plaintiff for a surveyor to enter the land for the purpose of carrying out a survey. That copies after being provided and the valuation documents of the said property. That contact be made with R W Robinson Warner Shand Lawyers for the plaintiff.
  3. This is followed by annexure “J” Pato Lawyers Letter head dated 21st December 1998 addressed to Warner Shand Lawyers 2nd Floor Brian Bell Plaza Building Turumu Street P. O. Box 1817 Boroko. The subject is NCD Water & Sewerage Pty Ltd- Dale Smith and Portion 1435 Granville. That Pato Lawyers act for the Eda Ranu who has interest to acquire the subject land. That for confirmation to be made whether the plaintiff has successfully sought declaration from the National Court in respect of a later lease issued to a third party by the Lands Department in the proceedings titled OS 356 of 96 Dale Smith v ROT & ors. And whether there has been appeal to the Supreme Court in the matter. For Warner Shand Lawyers for the plaintiff to inform of the status of that matter in court. This is so that the Eda Ranu will engage surveyors to prepare a cadastral survey of the property. And the letter is signed by Lawyer Alfred Manase of that firm acting for them.
  4. Annexure “K” is Eda Ranu letter dated the 22nd July 1999 addressed to Mr. R W Robinson Warner Shand Lawyers P. O. Box 1817 Boroko NCD acknowledges the resolution of the dispute between the plaintiff and another. And that NCD Water & Sewerage Pty Ltd has had opportunity to review its options and the extent of the subject land which they had proposed for purchase from the plaintiff. And it was determined that 13.77 hectares of land within that portion 1435 adjoining the access road to Mount Eriama Water Treatment Plant defined in the appending plan that Eda Ranu would at the earliest convenience of the plaintiff to respond to that revised proposal if acceptable in principle should specify a selling price and any other conditions. It is signed by Eda Ranu Executive Chairman Jamie Maxtone Graham.
  5. Annexures “L” is Warner Shand Lawyers letter head dated the 27th July 1999 addressed to Young & Williams Lawyers and the subject is Dale Smith and NCD Water and Sewerage Ltd Portion 1435 Granville. The correspondence refers to an earlier correspondence of the 18th November 1997 and enclose a copy of an earlier letter dated the 22nd July 1999. And the following observations are made, “Our Client has instructed us that the area defined in the plan appended to correspondence 22nd insert is much greater than what he had originally envisaged conveying to your client.

Our client wishes to have a physical inspection of the area with an appropriate officer of your client before taking matters in the last paragraph of your client’s correspondence.

Please advise as soon as convenient the appropriate officer of your client so that ours can arrange an inspection directly.” It is signed by Warner Shand Lawyers per Bill Frizzell.


  1. Following this annexure “M” Warner Shand Lawyers letter head dated the 17th August 1999 addressed to Mr. Jamie Maxtone-Graham Executive Chairman of NCD Water & Sewerage Limited P. O. Box 1084 Waigani NCD. The subject is Part Portion 1435 Granville, “.... Our client having carried out inspection of the area with the officers of Eda Ranu has now instructed us he is prepared to sell the area defined in the plan appended to your letter dated 22nd July 1999 for the sum of K 400, 000. 00 subject to the parties agreeing on suitable terms and conditions of a contract for sale and purchase of land to be entered by them, inter alia must include a provision that Eda Ranu pay all the costs of the subdivision and subsequent issuing of titles.

Please advise whether you are prepared to enter discussions on the contractual terms and conditions with our client.” It is signed by Bill Frizzell Warner Shand Lawyers.


  1. Following this is annexure “N” Pato Lawyers letter head dated the 2nd September 1999 addressed to Warner Shand Lawyers subject Dale Smith- Portion 1435 Granville. It is in the following terms:

...As you are aware, our client has expressed its interest to acquire part of Portion 1435, Milinch Granville for certain developments. The proposed areas are:-

(1) Area One (1) is the undeveloped hill-top land along the sealed road containing an area of about 6.07 hectares.
(2) Area (2) is undeveloped undulating land along the sealed road containing area of about 7.70 hectares.

The total undeveloped land area is 13.77 hectares. A draft Survey Plan is enclosed. The valuer General has valued area one at K 12, 000.00 and area two at K 10, 000.00 being a total of K 22, 000. 00. In the circumstances and for purposes of expending settlement our client is prepared to counter- offer the sum of K 40, 000.00 for the two land areas.

Please take your instructions and let us know by return.” It is signed by Pato Lawyers copied to The General Manager Eda Ranu. It is received by Warner Shand Lawyers 13th September 1999.


  1. Annexure “O” Letter head Warner Shand Lawyers dated the 15th September 1999 subject is Dale Smith- Portion 1435 Granville. It is in the following terms:

“We refer to our facsimile 14th September 1999. Our client instructs us that the land is not for Sale.” And the letter is signed by Warner Shand Lawyers per Bill Frizzell.


  1. Annexure “P” is the notice that was advertised in G17 of the 24th February 2000 relating to the subject land. It is a two-page advertisement.
  2. Annexure “Q” is valuation Summary and Report by Professionals by one Mr. Kaluwin Potuan registered valuer no 63 in respect of Portion 1435, Milinch of Granville 9-mile area, Round Road Port Moresby prepared for the Managing Director Guard Dog Security Service P. O. Box 648, Port Moresby. The date of the valuation is 24th September 1997. These are excerpts which are pertinent to the issue posed here. “Subject to stipulations and assumptions contained within the body of this report, it is our opinion that the present-day market value of the subject property is assessed at Eight Hundred and four Thousand Kina (K 804, 000. 00) as at the date of valuation.

Market Value:

Market Value is defined as the best Price at which the interest in the property being valued might be expected to be sold at the date of valuation assuming:

(a) Willing but not anxious vendor and Purchaser;
(b) A reasonable period in which to negotiate the sale, taking into account the state of the market;
(c) The value will remain static throughout the period;
(d) The property will be freely exposed to the Market;
(e) No account is to be taken of any additional bid by a “Special purchaser”

Service and Amenities:

Reticulated town water, electricity are available and 5 minutes’ drive to the City.

Road and Access:

Rouna Road is a bitumen sealed road and allows easy and direct access onto the property.

Land:

And inside parcel of land having an area of 78. 00 hectares. The property is flat, undulating to high hills, has a dugout quarry site near the workshop. Has a road easement to the Mt Eriama Water Treatment Plant Area.

Improvements Include:

(1) Dormitories x2:
(2) Mess/kitchen
(3) Workshop (Boat)
(4) Workshop (Vehicles)
(5) Staff Quarters x4
(6) Shower/ Toilet Block
(7) Horse Stables x4
(8) Staff quarters x3

Comments:

The subject property is located at 9-mile area, opposite the Turf Club, there is an access road on site which leads to the Mt Eriama Treatment Plant (Eda Ranu). Currently there is a quarry extraction for road purposes, location suits its purposes overall presentation is fair.

Valuation Apportionment:

The valuation figure of K 804, 000. 000 is apportioned as follows:

Land

78.0 hectares special use land as described K 468, 000. 00.

Improvements:

Staff Quarters, Dormitories,

Workshop and horse stables

As described including all normal fixtures, fittings, and sewerage installation plus other associated improvements K 336, 000.00. added together giving total of K 804, 000. 00.” That is certified by the valuer. But then he qualifies, “We advise that we have not carried out a detailed site survey and we have of necessity assumed for the purpose of this valuation that all structural improvements have been erected within the title boundaries.

Structural Survey:

Whilst we have carried out a careful building inspections, we advise that we have not completed a detailed structural survey, tested any of the services, or inspected unexposed or inaccessible portions of the buildings, and are therefore unable to state that these are free of defect, rot or infestation. We have viewed the general state of the buildings and have assumed that the Structural improvements are reasonably sound considering their age.


  1. Relevant also is the affidavit of Billy Imar General Manager of NCD Water & Sewerage Limited trading as Eda Ranu, sworn of the 04th September 2000. That on the 16th June 1988 the plaintiff was granted the subject lease with no improvements erected on the land for well over 11 years. This is 1435 which comprises 78 hectares of which two smaller portions 13.77 hectares known as 2460 and 2461 were excised and compulsorily acquired by the State here. Further and significantly, “Further, in the works programme, the contractor identified two sites that were suitable for constructing a second treatment plant and pumping station and chemical storage shed and other ancillary works, both on portion 1435 but on each side of the road going to Mt Eriama Treatment Plant. Under the Contract Eda Ranu is obliged to secure all the land required for the upgrading works to be carried out by the Contractor.

In respect of paragraph 14 of the affidavit, I state that the Valuer General’s office had conducted a valuation of the two potions of land in their report of March 1999, valued them at K 12, 000.00 and K 10, 000.00 respectively at a total of K 22, 000.00 for an area of approximately 14 hectares. In accordance with that valuations, Pato Lawyers were instructed to offer a slidely increased figure of K 40, 000.00 as a purchase price which is marked annexure “N.” That letter also contains the nature of the land, i.e. hilltop etc with a copy of the survey plan.

By Warner Shand Lawyers letter of 15th September 1999, Pato’s advised that Dale Smith’s land was not for Sale. That is the reason why the Land was acquired by the State compulsorily for this very important project of public importance.

In respect of paragraph 15 of the affidavit the private valuation Report is for the whole of Portion 1435 comprising 78 hectares giving a value of K 804, 000. 00. However, Eda Ranu wanted to acquire only 13.77 hectares of land as stated in annexure “N”therein.

Further, the Port Moresby Water Upgrading Project is of national significance in that millions of Kina was brought in from offshore and contractually the land had to be made available by the recipient organization, in this case Eda Ranu and the State.

Under the contractors works programme, the time for the contractor to enter the site was drawing near and Eda Ranu did not secure the land yet. Therefore, the State was bound to acquire the land so as not to breach its contractual obligation as Mr Dale Smith could no longer negotiate with Eda Ranu.

Eda Ranu is aware, that this is a project for the benefit of the whole populace of the NCD and surrounding areas, and that the particular sub-portions had not been developed since 1988 (11 years) and the Minister for Lands was approached to acquire the land through compulsory process in the exercise of his powers and under the NCD Water and Sewerage Act. ........... In response to the whole of the affidavit, I state as follows:-

(a) Eda Ranu made an effort to acquire the land through outright purchase at the unimproved value of those two portions of land with only 13.77 hectares, but the offer was rejected with a “not for sale”reply.
(b) The total valuation of the two portions of land by the Valuer General’s Office was K 22, 000.00, however the sum of K 40, 000.00 was an offer made by Eda Ranu.
(c) The new proposed portion 2460 is a hill which is suitable to put a treatment plant which requires enough height to provide the pressure to push the water through to consumers.
(d) Portions 1185 has a whole series of pipelines underground under pressure, and in practise no structure can be built over pipelines.
(e) Portion 2461 (6.07) hectares is to put the pump station chemical storage shed, pipelines and associated works. The balance of that is for the treatment plant on the other side of the road.
(f) The hill is the most ideal location for a second treatment plant. This is a project for the benefit of the public at large and should not be comprised to the value of rock underground on commercial terms, and for an individual’s benefit.
(g) All efforts were made to buy the land from Dale Smith, but the answer was no sale. The contractors works programme was catching up and Eda Ranu contractually has to provide the land required to put the infrastructure under the upgrading works programme.
(h) Further Eda Ranu is a public utility Company owned by the Government to provide services to the public at large. The money for the upgrading works is being financed from offshore and efforts must be made to ensure there are no setbacks.
(i) The approximately 14 hectares of land which in part of Portion 1435 acquired through Compulsory process by the Minister had no improvements done on it since the title was issued some 11 years back.
(j) Since gazettal of the lands Minister’s decision to acquire the land by compulsory process, the contractor has moved on to the site and stored the pipes for constructions, part of which can be seen lying along the road Erima.”
  1. In my view the following evidence excerpts of which have been detailed above show a consistent path of informed negotiation starting initially on 09th August 1995 by the National Capital District Commission, giving effect to the fact that the subject property is of the plaintiff. The last communication is 14th September 1999 by Warner Shand Lawyers for the Plaintiff asserting that the property is not for Sale. This is five years in the making of communication negotiations between the plaintiff and the defendants.
  2. Plaintiff is entitled to be paid just compensation and value for the subject property. And the evidence also shows that the plaintiff has not accepted what has been proposed by the defendants through the office of the Valuer General. He has insisted upon the figures at the highest K 804, 000. 00 and at the lowest K 250, 000.00. Whereas the defendants have proposed K 40, 000.00 at the highest. He has not accepted the proposition outright coming with the stance that the property is not for sale. And this is despite being drawing during the course of that negotiation shown out by the evidence above of the importance of the project for all citizens of Port Moresby. Given particularly and humanely that water is a basic human need and good water for all city dwellers of Port Moresby and the National Capital District must be supplied not without. And that contractual engagements have been made with source of funding from external sources, time is of essence and must be affected without any further delay. All is depended on the subject land, because of its geography and topography, in that it is elevated so that pressure to supply the city is maintained from that leverage down. The land because of that feature cannot be sacrificed for another, but just compensation based on valuation that is true and worthy of what is on the land must be paid to him as the registered proprietor of the land.
  3. This is clear from the evidence set out above that it has been seriously addressed by the defendants taking account no doubt of Section 53 of Constitution which provides for the Protection from unjust deprivation of property. And in this regard the provision of the Land Act evidenced by the excerpts that I have set out above of the tedious attempt to comply and give effect to leading up to compulsory acquisition. It is not a land grabbing exercise nor can it be termed as what the plaintiff terms not bona fide. Government officers Statutory Organization set out up by an Act of Parliament National Capital District Water Supply and Sewerage Act 1996, with a project that is set to enhance water needs can be tainted so much so that a citizen is unceremoniously forced off his land. The evidence set out above do not depict this. There is dialogue leading to the compulsory acquisition. It is the final in view of all facts set out above. And the evidence by the plaintiff together with Mr. Billy Imar General Manager of NCD Water & Sewerage Limited trading as Eda Ranu. The decision has been guided by Lawyers and Valuers. It is not forced upon the plaintiff because it is informed in this regard. What has not come to terms is the value of the land.
  4. In this regard the valuation that the plaintiff has given through Mr. Kaluwin Potuan registered valuer no 63 is not conclusive nor is it reliable in view of the words expressed, “Whilst we have carried out a careful building inspections, we advise that we have not completed a detailed structural survey, tested any of the services, or inspected unexposed or inaccessible portions of the buildings, and are therefore unable to state that these are free of defect, rot or infestation. We have viewed the general state of the buildings and have assumed that the Structural improvements are reasonably sound considering their age. In my view insistence on the figure that is expressed of K 804, 000. 00 is questionable. It is not determinative of the exact value and therefore is inconclusive and cannot be just compensation. Because it will need to be properly affirmed to alleviate this doubt. And the valuation is not explained as to how the figure of K 804, 000. 00 is arrived at. Especially in the light of the assertions by the defendants that the subject land are undeveloped land. And in this regard, it makes sense for the figures proposed. Conversely if there are indeed permanent structures on the subject land it has not been seen in the valuation by the valuer General. K 40, 000.00 would be 20 times over to give that figure.
  5. Given these facts seen in the light of Kekedo v Burns Philip (PNG) Limited [1988-89] PNGLR 122 I am mindful of the public policy considerations that are before me by the facts and law. Including the socio -political consideration in the provision of water as a basic human need for the vast majority of the populace including the plaintiff. And by the technical knowledge necessary for Eda Ranu to operate to give effect to the legislation that sets it up. I am also mindful of Koima v Independent State of Papua New Guinea [2014] PGNC 48; N5568 (14 April 2014) and in similar vein am not convinced that the Plaintiff has been unjustly deprived in that he was not given a right to be heard in the acquisition of his property. The evidence set out above is to the contrary. And there is compliance with sections within section 13 (6) and related provisions of the Land Act. There is no procedural ultra vires nor is there substantive ultra vires given these facts. Twenty years has now lapsed in this matter and the acquisition serves the Capital and its masses of its water needs.
  6. It cannot be said to be unreasonable within Associated Provincial Picture houses Limited v Wednesbury Corporations [1947] CA 1KB 223. Because of the evidence set out above. There is communication leading to the eventual compulsory acquisition. It would be unfair and unreasonable to hold the populace of Port Moresby to ransom by water development due and to be provided for them, but land that is held out by the plaintiff who is not content with money offered. The State is entitled to serve its people and citizens with a human basic need in water. And the Plaintiff must be truthful in just compensation not enrichment at the expense of the city of Port Moresby. Given the observation made above the figure K 804, 000. 00 is unrealistic and lacks basis upon which to draw out in favour of the plaintiff. But on the other side taking account of the Constitutional provisions in particular sections 53 and 54 and in particular Ramu Nickel Limited v Temu [2007] PGNC 15; N3116 (11 January 2007).
  7. I am mindful that this is a declared public purpose and it does not defeat the Constitutional provisions set out above. What is due to the plaintiff is just compensation for his land as it was at 24th February 2000 as the date of the compulsory acquisition notice to that effect published. Just compensation is the true and fair value of the status of the property there and then, not before that notice and after that notice. I mindful that time has lapsed and therefore will start the scale as it were there for just compensation there and then.
  8. This does not mean by the evidence set out above that there has been breach. There is no room given in the evidence to hold that there was error in the way procedure was followed under section 13 (6) of the Land Act to arrive at compulsory acquisition. The evidence set out above is settled that there was compliance of section 13 (6) Land Act by the defendants. Certiorari does not lie in favour of the Plaintiff. And it will not revert that the land be declared as he seeks and that is refused. The decision to compulsorily acquire stands in law by the evidence set out above. Because the evidence does not warrant given, Takoa Pastoral Co Limited v Dr. Temu Ministry for Land [2009] PGNC 97; N3711 (23rd February 2009).
  9. The formal orders of the court are;

Orders Accordingly.

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Warner Shand Lawyers: Lawyer for the Plaintiff/Applicant

Rageau Manua & Kikira Lawyers: Lawyer for Third Defendants

Office of the Solicitor General: Lawyer for First & Second Defendant

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