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PDA Investment Ltd v Rosso [2022] PGNC 222; N9641 (10 June 2022)

N9641

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS(JR) NO. 18 OF 2020

BETWEEN:
PDA INVESTMENT LIMITED
Plaintiff

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

AND:
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Second Defendant

AND:
PAIYO BALE
Third Defendant

Waigani: Dingake J
2022: 7^th & 24^th March, 11^th & 14^th April, 5^th & 11^th May

JUDICIAL REVIEW - Land Act 1996 – Section 122(2) and (4) – failure to serve notice on Plaintiff – forfeiture void ab initio.

Case Cited:

Lae Bottle Industries v Lae Rental Homes Ltd (2017) SC1641
PNG Power Ltd v Edward Maka [2018] PGNC 362 N7442
Markham Farming Company Ltd v Tiri Wanga, Secretary of Lands & Physical Planning & Others [2019] PGNC 366; N8103.

Counsel:

Mr. Johannis Poya, for the Plaintiff
Mr. Max Tukuliya, for the First & Second Defendants
Mr. Jeff Lome and Nelson Kopunye, for the Third Defendant

10^th June, 2022

1. DINGAKE J: This is an application for judicial review. The Plaintiff seeks to review the decision of the First Defendant forfeiting the Plaintiff’s State Lease and transferring same to the Third Defendant on the 15^th of March, 2019, over property known as Section 449, Allotment 77, Hohola, Volume 31, Folio 131, National Capital District.
   
2. The above review is being sought pursuant to Order 16, Rule 3 (2) (a) of the National Court Rules.
   
3. The Plaintiff seeks to review and set aside the decision of the First Defendant on the grounds of violation of natural justice, unreasonableness and illegality. The Plaintiff’s ground of illegality is grounded on alleged violation of Section 122(2) and (4) of the Land Act.
   
4. The application is opposed by the Defendants.
   
5. When the matter was called for hearing on the 11^th of May, 2022, Mr. Kopunye, learned Counsel for the Third Defendant, on his feet and from the bar, raised preliminary objections on the competency of the judicial review application.
   
6. Essentially, Mr. Kopunye argued that the judicial review was incompetent for non-compliance with Section 142 of the Land Act 1996 and Order 16 Rule 9 (2) of the National Court Rules.
   
7. Section 142 (1) (b) of the Land Act provides that an interested person may appeal to the National Court with respect to the forfeiture of a lease. Mr. Kopunye submitted, in effect, that the Section 142 (1) (b) is mandatory notwithstanding the use of the word “may” in that section. Mr. Kopunye cited the Supreme Court case of Lae Bottle Industries v Lae Rental Homes Ltd (2017) SC 1641 in support of his submission.
   
8. I have read the above case with extreme care. I do not agree that it supports the submission that the procedure under section 142 (1) (b) is mandatory. I understood the case to say the very opposite of what Mr. Kopunye was contending, namely that section 142 (1) gives an interested person, in this case the Plaintiff, an option or discretion as to whether to appeal the decision to forfeit the lease.
   
9. At paragraph 35, the Court rendered itself as follows:
   

“35. It is our respectful view that, the correct interpretation of the phrase “may appeal” in Section 142(1) would be that submitted by the appellants which we accept and that is that it gives an interested person an option or discretion as to whether or not to appeal the decision to forfeit the lease. So an interested person who decides to challenge the forfeiture of his or her lease must do so within 28 days, but if out of time, then he or she may seek an extension of time under Section 142(2) demonstrating special reasons within which to lodge an appeal.”

10. At paragraph 39, the Court stated that:
    

“39. Where no appeal is made to the National Court, then the protection is lost, unless the interested person seeks redress in the National Court through another process which we will address shortly.” (emphasis mine)

11. Overall, the Court was of the view that where an interested party loses his or her right to appeal, the only remedy available to him or her is to approach the Court under Order 16 of the National Court Rules, which the Plaintiff has done.
    
12. There is in my mind another reason that renders the argument that the Plaintiff failed to comply with Section 142 (1) meritless. The other reason being that the Plaintiff was never served with the notice of forfeiture that would have triggered an appeal contemplated by the aforesaid section, if the Plaintiff was so inclined.
    
13. I find no merit in the argument that the judicial review mounted by the Plaintiff is incompetent for failure to comply with s.142 of the Land Act 1996.
    
14. I turn now to consider the second competency objection raised by Mr. Kopunye. Mr. Kopunye submits that the judicial review launched by the Plaintiff is also incompetent for failure to comply with Order 16 Rule 9 (2) of the National Court Rules, in that the Plaintiff has failed to show that it has lodged with the Secretary for Justice a copy (of the forfeiture) verified by Affidavits or accounts for his failure to do so to the satisfaction of the Court.
    
15. Order 16 Rule 9 (2) provides that:
    

“9. Hearing of application for judicial review. (UK. 53/9)

(2) Where the relief sought is or includes an order of certiorari to remove any proceedings for the purpose of quashing them, the applicant may not question the validity of any order, warrant, commitment, conviction, inquisition or record unless before the hearing of the Notice of Motion he has lodged with the Secretary for Justice a copy verified by affidavit or accounts for his failure to do so to the satisfaction of the court hearing the summons.”

16. It is a matter of record that the Plaintiff filed and served Affidavit verifying facts pursuant to Order 16 Rule 3 (3) and an application for judicial review as required by Order 16 Rule 3 (3) on the Secretary of Justice prior to the hearing of the leave application. In the circumstances, I do not think the Secretary of Justice has been prejudiced in anyway, by non-compliance with Order 16 Rule 9 (2) of the National Court Rules. Furthermore, I do not have the benefit of any Affidavit deposed by the Secretary of Justice alleging any prejudice. In the absence of any such affidavit, I find that the Secretary of Justice did not suffer any prejudice as a result of non-compliance with the aforesaid section.
    
17. I have also taken into account that at the heart of this judicial review is a claim relating to land, a very important commodity, and it would be unjust to allow technicalities to prevail and prevent the matter from being ventilated on the merits, in circumstances, where non-compliance with the rules does not occasion any injustice. None of the technical points raised by Mr. Kopunye ought to succeed as no prejudicial effect has been shown for any non-compliance.
    
18. I turn now to the merits of the judicial review.
    
19. It is common cause that prior to the forfeiture of the said property, the Plaintiff was the title holder.
    
20. The First Defendant claims that it caused the Notice to Show Cause dated 1^st of March, 2018, to be served on the Plaintiff by registered mail, inviting the Plaintiff to show cause why the land described in paragraph one hereof should not be forfeited.
    
21. The Plaintiff on the other hand claims that it never received the said Notice of Show Cause, and as proof of this claim it made certain investigations whose import was to suggest that such Notice was never served on it. The investigation relied upon by the Plaintiff to support its assertion that it never received the Notice to Show Cause is littered with hearsay evidence and it is not admissible and or reliable.
    
22. The evidence of the First Defendant suggesting that the Notice to Show Cause was sent to the Plaintiff by registered post is admissible. (See Affidavit of Raymond Lavaki at pages 83 – 94 of the Review Book). Once there is evidence as in this case that the notice was sent by registered post, duly paid for, to the correct address, the notice is presumed to have been effected and such presumption – can only be displaced by cogent evidence to the contrary, which in this case was not done.
    
23. Having regard to the above evidence, I am satisfied on a balance of probabilities that the Notice to Show Cause was duly served on the Plaintiff by registered post consistent with the provisions of section 169 (3) of the Land Act dealing with service of notices.
    
24. The second ground upon which the Plaintiff seeks to review and set aside the decision of the Minister is that it violates Section 122 (4) of the Land Act.
    
25. As indicated earlier, it is not in dispute that the Forfeiture Notice was not served on the Plaintiff as required by Section 122 (4) of the Land Act.
    
26. There is a respectable line of authorities of this Court that have held that the provisions of Section 122 (4) of the Land Act are mandatory (see Power Ltd v Edward Maka Recipi (2018) PGNC 362 N7442); Markham Farming Company v Tiri Wanga, Secretary of Lands & Physical Planning & Others (2019) PGNC 366 N8103.
    
27. I am in respectful agreement with learned Counsel for the Plaintiff, Mr. Poya, that the First Defendant’s failure to serve the Plaintiff with the Forfeiture Notice, also resulted in the Plaintiff being denied natural justice. In that the Plaintiff was denied the opportunity to exercise his discretion to appeal, pursuant to Section 142 (1) of the Land Act, to appeal the decision to forfeit the land. I also agree with Mr. Poya that the First Defendant acted unreasonably in forfeiting the State Lease held by the Plaintiff when he failed to direct himself properly in law by taking into account the fact that the Forfeiture Notice was not served on the Plaintiff as required by law.
    
28. Based on all the foregoing reasons, in particular the First Defendant’s failure to comply with section 122 (4) of the Land Act, I hold that the purported forfeiture of the Plaintiff’s State Lease, on or about the 1^st of March, 2018, wherein the First Defendant forfeited the Plaintiff’s State Lease and transferred same to the Third Defendant on the 15^th of March, 2019, over the property known as Section 449, Allotment 77, Hohola, Volume 31, Folio 131, National Capital District, is void ab initio.
    
29. In the result, I make an Order in the following terms:
    1. An order in the nature of a Certiorari to remove into the Honourable Court and quash the unlawful decision of the First Defendant dated 1^st March 2018 to forfeit the State Lease and transfer of the same lease to the Third Defendant on 15^th March 2019 over the property known as Section 449 Allotment 77, Hohola, Volume 31, Folio 131, National Capital District.
    2. A declaration that the decision of the First Defendant made on 1^st March 2018 to forfeit the title of the Plaintiff pertaining to the property known as Section 449 Allotment 77, Hohola, Volume 31, Folio 131, National Capital District be declared null and void.
    100. An order in the nature of Certiorari quashing and or nullifying subsequent dealings or transaction pertaining to property known as Section 449 Allotment 77, Hohola, National Capital District being the State Lease Volume 31 Folio 131 as a result of forfeiture.
    4. An order that the property known as Section 449 Allotment 77, Hohola, National Capital District being the State Lease Volume 31 Folio 131 registered in the name of the Third Defendant be cancelled forthwith.
    5. An order that the property known as Section 449 Allotment 77, Hohola, National Capital District being the State Lease Volume 31 Folio 131 be reinstated in the name of the Plaintiff.
    6. An order that the Third Defendant give vacant possession of property knows as Section 449 Allotment 77, Hohola, National Capital District being the State Leave Volume 31 Folio 131 to the Plaintiff within 21 days from the date of these orders.
    7. Costs of and incidental to the proceeding herein be paid by the Defendants.

_______________________________________________________________
Poya Legal Services: Lawyers for the Plaintiff
Office of the Solicitor General: Lawyers for the First & Second Defendants
Jeffersons Lawyers: Lawyers for the Third Defendant