N9761

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS (JR) No. 116 OF 2021

BETWEEN:
NATIONAL SPIRITUAL ASSEMBLY OF THE BAHA’IS OF PAPUA NEW GUINEA INCORPORATED
- Plaintiff-

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

AND:
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
-Second Defendant-

Waigani:  Tamade, AJ
2022:  1st April & 15th July

JUDICIAL REVIEW – Land Act - Section 13(6) – Compulsory acquisition- whether State Purpose is special reason- Constitution, Sections 41 – Proscribed Acts- whether Minister’s decision is harsh and oppressive.

Cases Cited:

The following cases are cited in the judgment:

Ombudsman Commission v Yama [2004] SC747
Smith v Minister for Lands [2009] SC973
Mond v Kiap [2021] N5356
Toa v Cuong-Long [2008] PGNC 137; N3471

Counsel: 

Mr. Philip Tabuchi, for the Plaintiff

15th July, 2022

1.	TAMADE, AJ:  This is a decision on the judicial review application filed by the Plaintiff. The Plaintiff was granted leave to proceed with judicial review on 29 September 2021.

2.	The Plaintiff’s claim is that the decision of the First Defendant to compulsorily acquire 0.67 hectares of land from its State Lease, the subject land described as Portion 2352 Milinch Granville, Fourmil of Moresby, NCD containing an area of 3.688 hectares under a State Lease for 99 years granted on 18 May 1995 is not in compliance with section 13(6) of the Land Act as it failed to give special reasons for the compulsory acquisition.

3.	In the Affidavit of Confucius Ikoirere who is the secretary of the Plaintiff filed on 18 August 2021, he states that the Plaintiff owns the subject land. The Plaintiff had plans to fully develop the land which is located on the Waigani Drive directly opposite the National Parliament House. It says that it’s office, administration and staff housing facilities have been built on this land since being granted the State Lease.

4.	The Plaintiff states that it had plans to build it’s House of Worship on the highest peak of this land together with its associated gardens and therefore a significant amount of planning, investment and resources were put into this project in which work commenced sometime at the beginning of 2020.

5.	Mr. Ikoirere states in evidence that in August of 2020, the Plaintiff met with Prime Minister Hon, Mr. James Marape and Mr. John Rosso, the Minister for Lands & Physical Planning and the Plaintiff was informed that the Government had made a decision to build a “Unity Pillar” which was of National Interest and that the appropriate site for the Unity Pillar was to be on the Plaintiff’s land in the area directly facing the Parliament House and the Boulevard.

6.	The Plaintiff was also informed in that meeting that the size of the land required to build the Unity Pillar was about 400 square meters. The Plaintiff informed the Prime Minister and the Minister for Lands & Physical Planning that as they had already commenced work on their House of Worship wherein appropriate permits and approvals had been sought and granted, the Plaintiff requested for a proposal from the government outlining its plan so that the management of the Plaintiff can consider.

7.	On 25 September 2020, Mr. Ikoirere received a letter dated 8 September 2020 from the Minister of Lands & Physical Planning that 0.67 hectares of land would be excised from the Plaintiff’s land for the construction of the Unity Pillar and its associated facilities. The Minister also informed the Plaintiff that he had decided not to compulsorily acquire the land as is within his authority but have instead decided to proceed diplomatically with discussions with the Plaintiff. The Plaintiff then wrote back to the Minister on 5 October 2020 requesting more time to consider their letter of 8 September 2020 citing the nature of the request as to the land to be excised and that they have to consult the Universal House of Justice being the head of the Plaintiff’s faith in Israel.

8.	On 26 October 2020, the Minister wrote to the Plaintiff and informed them that as the matter was urgent, if no response was received from the Plaintiff, the State would commence the excision. The Plaintiff objected by way of a letter dated 6 November 2020 and stated that the excision for such a big portion of land would affect the construction of their House of Worship and therefore they offered that they would contribute a portion of 400 square meters without any need for compensation and also offered to beautify and maintain the surrounds of the Unity Pillar along with their plans to establish attractive gardens in the area.

9.	It was not until 3 August 2021 that the Plaintiff was informed by way of a letter dated 29 July 2021 that the Department of Lands & Physical Planning had informed the Plaintiff that the Minister had excised 0.570 hectares from the Plaintiff’s land pursuant to section 13.6 of the Land Act and that as previously advised, the acquisition of the land was to build a Unity Pillar which is of great significance to the country and was a directive of the government. The Department of Lands & Physical Planning informed the Plaintiff that the certification of the acquisition pursuant to section 13(6) of the Land Act had been published in the National Gazette No. G476 on 15 July 2021.

10.	It is the Plaintiff’s claim that the decision by the Minister to compulsory acquire 0.570 hectares of the Plaintiff’s land published in the National Gazette No. G467 is unlawful, ultra vires and void ab initio as:

i)	Section 13(6) of the Land Act imposes a duty on the Minister to certify that there are special reasons why the process set out in section 13 of the Act does not apply
ii)	That the Minister failed to certify that there are special reasons why the process under section 13 of the Land Act did not apply and 
iii)	By not certifying that there are special reasons means there are no such reasons.

Has the Minister acted ultra vires and therefore his action is unlawful and void abinitio?

11.	Section 13 of the Land Act is reproduced below with sub-section 6 underlined:

13. NOTICE TO TREAT.

(1) The Minister shall not acquire land by compulsory process under this Act unless he has first caused to be served on each of the owners of the land, or such of them as can, after diligent inquiry, be ascertained, a notice inviting the person on whom the notice is served to treat with the Minister for the sale or surrender to the Minister, on behalf of the State, of his interest in the land.

(2) A person served with a notice to treat in respect of land shall, not later than two months after the service of the notice, provide the Minister with particulars of–

(a) the interest claimed by him in the land; and
(b) the amount for which he is agreeable to sell his interest in the land; and
(c) the name and address of any other person known to him to have an interest in the land and the nature of that interest.

(3) On receipt of the particulars referred to in Subsection (2), the Minister may–

(a) treat with the person providing the particulars for the acquisition of his interest by agreement; and
(b) notwithstanding anything in this Act, enter into an agreement with that person for the acquisition.

(4) The Minister may, by written notice to a person served with a notice to treat, withdraw the notice to treat.

(5) Where the owner of an interest in land, who has provided the particulars referred to in Subsection (2), suffers loss by reason of the notice to treat having been given and withdrawn, the State is liable to pay to him such compensation as is determined by agreement between the owner and the Minister or, in the absence of agreement, by action as determined by a court of competent jurisdiction.

(6) This Section does not apply in a case where the Minister certifies that there are special reasons why the Section should not apply.

12.	A reading of the Gazettal Notice reads as follows on the relevant parts:

“I, Hon John Rosso, DPS, MP, Minister for Lands and Physical Planning, by virtue of the power conferred in me under section 13(6) of the Land Act No. 45 of 1996 and all other powers enabling hereby Certify that the land specified and referred to in the Schedule hereunder is acquired through the Compulsory Acquisition for Government’s State purposes.”

13.	The Plaintiff submits that the above fails to comply with section 13(6) of the Land Act and insists that the State should give ‘special reasons’. Is “Government State purposes” not a special reason? I wonder.

14.	The Plaintiff relies on the case of Ombudsman Commission v Yama [2004 SC747 where the Supreme Court said that:

“The duty to give reasons for decisions by a public body or a person exercising statutory power, to a person directly affected by the decision has been recognized and emphasized in several decisions of the National Court on judicial review of administrative action.”

15.	The Plaintiff argues that the reason indicated by the Minister is vague, it is open-ended, and it could mean anything. The Plaintiff submits that special reasons include exceptional, remarkable, unusual or extraordinary.

16.	The Plaintiff draws a contrast with the Gazettal publication in this case and that in the case of Smith v Minister for Lands [2009] SC 973 where the Supreme Court reproduced in full such a certificate which shows the Minister’s decision stating that the special reasons the subject land in that matter was acquired under section 13(6) that the land was required by the NCD Water and Sewerage Limited for construction and commissioning of a new water treatment plant etc and that attempts to negotiate the purchase of the required land with the leaseholder were unsuccessful etc. The Plaintiff submits that in this case, the reason by the Minister is vague and does not elaborate on the State’s purposes which is my understanding of their argument, that the certification has to expressly state that it needed the land to build a Unity Pillar which is of National interest, but it fell short by just stating “State purposes”.

17.	To my mind, there is evidence that shows the correspondence between the Minister of Lands and Physical Planning and his Department and the Plaintiff as to the reason why the State needs to excise the portion of land from their State Lease. The Plaintiffs are aware from the very beginning of their meeting with the Prime Minister and the Minister concerned that the State needs the portion of land to build a Unity Pillar which is of National interest and significance. I am of the view that the Plaintiff is not caught in the dark so to speak, the Plaintiff is fully aware of being the entity affected by the decision through a meeting with the Prime Minister and the Minister concerned and through correspondences with the State, the decision cannot be said to be too vague, open-ended or could mean anything as the Plaintiff is well aware of the decision by the State to excise their land.

18.	I, therefore, refuse this ground of review and accept that the reason by the Minister under section 13(6) of the Land Act being for State Purpose is a special reason under section 13(6) of the Land Act, a special reason being for the construction of a Unity Pillar of National Interest in which the Plaintiff was well informed of.

Is the decision by the Minister to compulsory acquire the subject portion of land in breach of section 41 of the Constitution which is a ground for judicial review?

19.	The Plaintiff submits that in Mond v Kiap [2021] N5356, a breach of section 41 of the Constitution can be a ground for judicial review.

20.	The Plaintiff further submits that in the case of Toa v Cuong-Long [2008] N3471 at page 28, section 41 of the Constitution gives protection against seven sorts of acts listed as:

i)	Harsh or
ii)	Oppressive or
iii)	Not warranted by the requirements of the particular circumstances
iv)	Disproportionate to the requirements of the particular circumstances
v)	Not warranted by the requirements of the particular case or
vi)	Disproportionate to the requirements of the particular case or
vii)	Otherwise not, in particular circumstances, reasonably justifiable in a democratic society having a proper regard for the rights and dignity of mankind.

21.	The Plaintiff particularly relies on the following at page 31 of the case which states that:

“… Section 41 is not confined to physically harsh or oppressive acts. An act can be ‘harsh or oppressive’ if it is unfair, ungentle, unpleasant or unwarranted given all the circumstances of the particular case. Section 41 of one of those provisions that invites, implores and requires the National Court to live up to it’s name as a Court ‘of justice’ : to examine the facts of a case and determine whether the parties have acted decently.”

22.	The Plaintiff submits that the Minister’s decision is harsh and oppressive and disproportionate to the circumstances of the case falling within section 41 of the Constitution because at all material times:

a)	The Plaintiff was ever willing to work with the Defendants
b)	Agreed to provide 400 square meters free of charge
c)	Offered that it would take up the responsibility of beautifying and taking care of the Unity Pillar,
When the Defendants;
d)	Had knowledge of the matters set out above
e)	Knew that work was done and that the House of Worship of the Plaintiff was under construction
f)	Failed to inform the Plaintiff at the very outset of the related facilities to the Unity Pillar
g)	Failed to take into consideration all these matters when it sought to compulsorily acquire the Plaintiff’s land

23.	Section 41 of the Constitution is in the following terms:

41. PROSCRIBED ACTS.
(1) Notwithstanding anything to the contrary in any other provision of any law, any act that is done under a valid law but in the particular case–
(a) is harsh or oppressive; or
(b) is not warranted by, or is disproportionate to, the requirements of the particular circumstances or of the particular case; or
(c) is otherwise not, in the particular circumstances, reasonably justifiable in a democratic society having a proper regard for the rights and dignity of mankind,is an unlawful act.

(2) The burden of showing that Sub-section (1)(a), (b) or (c) applies in respect of an act is on the party alleging it and may be discharged on the balance of probabilities.

(3) Nothing in this section affects the operation of any other law under which an act may be held to be unlawful or invalid.

24.	I am of the view that the facts and circumstances of the case of Toa v Cuong-Long [2008] PGNC 137; N3471 (15 September 2008) are quite distinct in contrast to this case. That was a case where an employee had served the company for 16 years and upon returning from leave, he was given a termination notice and dismissed from his employment. The Court found that his termination was harsh and oppressive within the meaning of section 41 of the Constitution as the employee had served for 16 years, he was seven months into a new contract, and he was not given a right to be heard prior to his termination. 

25.	In this case, the Plaintiff has been informed and allowed to communicate with the State from August 2020 to July 2021 when the Minister made the decision as published in the National Gazette. The Minister had approached the Plaintiff together with the Prime Minister of the intention of the State to acquire the land as it is situated to my mind strategically opposite the Parliament House and it would draw attention to both the National Parliament and the Unity Pillar in the National Interest to unify the people of this country. Be that those were the intentions of the government of the day, the Minister did not outrightly compulsorily acquire the land without notice to the Plaintiff which it had the legal right to do, it offered to approach the Plaintiff in a diplomatic manner and corresponded with the Plaintiff however the Plaintiff was waiting for direction from their leadership in Israel when the State advised that due to the urgency of the matter, the Minister had exercised its mandate under section 13(6) of the Land Act. 

26.	The Plaintiff states that it had not received compensation for the compulsory acquisition however under section 13(6) of the Land Act, the Plaintiff is entitled to pursue compensation as against the State for the compulsory acquisition of it’s land as it’s right to the land is now converted into a right as to compensation under Part IV of the Land Act.

27.	I refuse to accept the ground of review that the compulsory acquisition by the Minister of the Plaintiff’s land is harsh and oppressive pursuant to section 41 of the Constitution as the circumstances of this case do not meet the harsh and oppressive test to my mind. The Plaintiff has been given due notice and has been allowed to be in dialogue with the State. The Plaintiff still has a recourse in compensation. 

28.	I, therefore, make the following orders:

i)	These proceedings are dismissed in its entirety.

ii)	As the Defendants have shown no interest in defending this matter, there will be no award of costs.

Orders accordingly.
________________________________________________________________
Young & Williams Lawyers:  Lawyers for the Plaintiff