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Wizzy Transport Ltd v Lenturt [2022] PGNC 173; N9600 (5 May 2022)

N9600

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS(JR) NO. 558 OF 2018

BETWEEN:
WIZZY TRANSPORT LIMITED
First Plaintiff

AND:
MULZI FREIGHTERS & LOGISTICS LIMITED
Second Plaintiff

AND:
CHRISTINE K. LENTURT as the National Government Printer
First Defendant

AND:
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Second Defendant

Waigani: Dingake J
2022: 7^th & 21^st March, 20^th April, 5^th May

EQUITY – MANDAMUS - plaintiffs seeks orders in the nature of mandamus compelling first defendant to publish in the National Gazette various state leases – issues are whether or not the First Defendant is bound by Section 2(1) of the Printing of the Laws Act and Section 74 of the Land Act 1996 to publish in the National Gazette the final decision of the Head of State and communicated to the First Defendant for gazetting of properties described - whether or not an Order in the nature of Mandamus, should be issued to compel the First Defendant to comply with Section 74 of the Land Act 1996 to publish in the National Gazette the final decision of the Head of State and communicated to the First Defendant for gazetting of properties - there appears to be no reason why the First Defendant should not be compelled by an Order in the nature of Mandamus, to do his statutory duties - An order in the nature of Mandamus is hereby issued, to compel the First Defendant to publish in the National Gazette the final decision of the Head of State

Counsel:

No Appearance
Mr. Kevin Kipongi, for the Second & Third Defendants

05^th May, 2022

1. DINGAKE J: INTRODUCTION: This is my judgment with respect to a Notice of Motion brought by the Plaintiffs/Applicants seeking the following orders:
   1. An order in the nature of Mandamus to compel the First Defendant, who is bound by Section 2(1) of the Printing of Laws Act and Section 74 of the Land Act 1996 to publish in the National Gazette the final decision of the Head of State dated 23^rd May 2018, and conferred onto the First Defendant on the 13^th of June 2018, as it is the First Defendant’s mandatory duty for gazetting of properties described as:
      1. Business (Light Industrial) Lease over Allotment 48, Section 213, City of Lae, Morobe Province, Item No. 297 as being upheld in favour of the First Plaintiff.
      2. Urban Development Lease (UDL) over Portion 3662 Milinch Granville, Fourmil Moresby, National Capital District, Item No. 225 as being upheld in favour of the Second Plaintiff.
   2. Cost of and incidental to these proceedings be paid by the Defendant.
   3. Such further or other orders the Court deems fit to make.
2. On the 21^st of March 2022, in the presence of Counsels of the parties, this Court directed that the trial of this matter shall proceed on the 20^th April, 2022. The Court directed the parties to file extracts of Submissions before the matter is heard.
3. When the matter was called for a hearing on the 20^th April, 2022, the Plaintiffs without any explanation did not appear, and had not filed any extract of Submissions as ordered by the Court, only Mr. Kipongi, for the Defendants appeared, and had filed the extract of Submissions.
4. The Court, acting pursuant to Order 16 Rule 11(1) proceeded to hear the matter. After Mr. Kipongi made his short Submissions, I reserved my judgment.
5. The agreed facts that underpin this litigation are fairly straight forward. They are contained in the Statement of Facts and Legal Issues signed by the parties, (Document 17) filed of record.
6. In terms of the agreed facts, the First and Second Plaintiffs are successful applicants in a National Land Board appeal decision made by the Head of State on the 23^rd May 2018, pursuant to Section 62 (3) of the Land Act 1996 for State Lease areas respectively described in paragraphs 1 (i) and (ii) above.
7. It is common cause that around 13^th of June 2018, the Secretary for Department of Lands and Physical Planning, pursuant to Section 74 of the Land Act 1996, forwarded copies of the instruments to be published in the National Gazette to the First Defendant for publication under Section 2(1) of the Printing of the Laws Act, which the Defendant failed or neglected to do.
8. The facts summarised above are also discernible from the Affidavits filed by the Plaintiffs, being the Affidavits of Andrew Andup filed on the 15^th of October, 2018 and the Affidavit of John E Kian filed on the 15^th of October 2018 (Doc. No. 7).
9. The averments in the said Affidavits, stand uncontradicted and must be accepted as the truth, for the reason that the Defendants did not file any Affidavit(s) in opposition.
10. The issues for trial, according to the Statement of Facts and Legal Issues signed by the parties are whether or not the First Defendant is bound by Section 2(1) of the Printing of the Laws Act and Section 74 of the Land Act 1996 to publish in the National Gazette the final decision of the Head of State dated 23^rd May 2018, and communicated to the First Defendant on the 13^th June 2018, for gazetting of properties described, earlier at paragraph one (1) above.
11. The other related issue is whether or not an Order in the nature of Mandamus, should be issued to compel the First Defendant to comply with Section 74 of the Land Act 1996 to publish in the National Gazette the final decision of the Head of State dated 23^rd May 2018, and communicated to the First Defendant on the 13^th June 2018, for gazetting of properties.
12. I have read Section 2(1) of the Printing of Laws Act that provides for the printing of laws by the Government printer.

“2. Printing of laws by the Government Printer.

(1) The Government Printer shall print each law in pamphlet form as soon as practicable after it is passed or made.”

13. In terms of Section 74 of the Land Act 1996, the Departmental Head shall publish in the National Gazette the name of the successful applicant for each State Lease, together with particulars of the lands to be leased to him.
14. As indicated earlier, it is a matter of record that by letter dated 13^th of June, 2018, the Secretary, Department of Lands & Physical Planning authorized the First Defendant to publish the decisions of the Head of State with respect to the properties, the subject matter of this litigation.
15. The Defendants are opposed to the relief sought on the basis that the Plaintiff’s Notice of Motion filed on the 26^th of September 2019, is contrary to Section 62(5) of the Land Act.
    • (i) Section 62(5) of the Land Act provides that:

“62. Appeals.

(5) Where an appeal under this section is upheld, the Head of State, acting on the advice of the Minister, may refer the matter back to the Land Board for re-hearing.”

16. Having read and considered the applicability of Section 2(1) of the Printing of Laws Act, Section 62(5) and 74 of the Land Act 1996, it seems to me that, Section 74 of the Land Act obliges the Departmental Head to publish in the National Gazette, the name of the successful applicant for each State Lease. In this case, the Secretary, Department of Lands & Physical Planning by letter dated 13^th of June, 2018, authorised the First Defendant to publish the decision of the Head of State dated 23^rd of May, 2018, but failed to do so.
17. In my considered opinion, Section 62(5) of the Land Act, relied upon by Defendants does not advance the case of the Defendants in any way for the reason that Section 62(4) thereof, make it clear that the determination of the Head of State shall be final.
18. In terms of Section 62(5) of the Land Act, where the appeal is upheld, the Head of State may refer the matter back to the Land Board for re-hearing, which he didn’t do.
19. In the premises, on the facts and the law, there appears to be no reason why the First Defendant should not be compelled by an Order in the nature of Mandamus, to do his statutory duties.
20. I have listened carefully to the parties’ submissions on costs. Ordinarily, costs follow the event. In this case, the Plaintiff was absent in Court on the 20^th of April, 2022, without just cause, notwithstanding having been present when the date of hearing was fixed. It is for this reason, that I would deny Plaintiff recovery of full costs at party to party scale.
21. In the result, it is ordered that:
    1. An order in the nature of Mandamus is hereby issued, to compel the First Defendant to publish in the National Gazette the final decision of the Head of State dated 23^rd of May 2018, and communicated to the First Defendant by letter dated 13^th of June 2018, with respect to the properties appearing at paragraph 1 (i) and (ii) of this judgment.
    2. The Defendants to pay Plaintiff 50% of the costs the Plaintiff would ordinarily be entitled to, such costs to be agreed or fixed.

_______________________________________________________________
Yandeken Lawyers: Lawyers for the Plaintiff
Office of the Solicitor General: Lawyers for the Defendant