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Mobile Rentals Ltd v Allen [2022] PGNC 434; N9874 (14 July 2022)

N9874

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS(JR) NO. 885 OF 2016

BETWEEN:
MOBILE CITY RENTALS LIMITED
Plaintiff

AND:
HON. BENNY ALLEN in his capacity as MINISTER FOR DEPARTMENT OF LANDS & PHYSICAL PLANNING
First Defendant

AND:
LUTHER SIPISON in his capacity as the SECRETARY DEPARTMENT OF LANDS & PHYSICAL PLANNING
Second Defendant

AND:
CHRIS MANDA in his capacity as ACTING SURVEYOR GENERAL DEPARTMENT OF LANDS & PHYSICAL PLANNING
Third Defendant

AND:
KEPO POMAT in his capacity as CHAIRMAN OF PNG LAND BOARD
Fourth Defendant

AND:
HON. POWES PARKOP in his capacity as CHAIRMAN OF THE NATIONAL CAPITAL DISTRICT PHYSICAL PLANNING BOARD
Fifth Defendant

AND:
SHIRLEY POHEI in her capacity as ACTING REGISTRAR OF TITLES DEPARTMENT OF LANDS & PHYSICAL PLANNING
Sixth Defendant

AND:
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Seventh Defendant

Waigani: Dingake J
2022: 23^rd June, 6^th & 14^th July

JUDICIAL REVIEW – review of decision of the first to the sixth defendants to subdivide portion of land and have the title issued to the eight and ninth defendants when the plaintiff had an equitable interest – plaintiff not given opportunity to be heard when the decision to allocate State Leases to the Eighth and Ninth Defendants was made – whether defendants conduct in not giving the opportunity to the plaintiffs to be heard breached the principles of natural justice – permission to subdivide must be granted by the Minister – defendants failure to seek approval from Minister – defendants conduct in subdividing land contrary to law and is null and void – plaintiff had an equitable interest but was not heard – breach of the principles of natural justice – judicial review granted – orders of the plaintiff granted as sought – costs in favour of the plaintiff

Counsel:

Mr. Gibson Geroro & Mr. Mapu Chou-Lee, for the Plaintiff.
No Appearance, for the Defendants.

14^th July, 2022

1. DINGAKE J: This is an application for judicial review.
2. On the 6^th of July 2022, the trial/hearing of the substantive review application was adjourned to the 14 of June, 2022 on account of the absence of the Fifth, Eight and Nineth Defendants. The Court ordered the Plaintiff to effect service on the aforesaid Defendants who were absent on the 6^th of July, 2022.
3. The aforesaid Defendants were duly served on the 5^th of July, 2022 (Document 42 – Affidavit of Service of Mapusaga Tanuvasa Chou-Lee), but did not appear on the 14^th of July, 2022. No explanation for their non-appearance was available to the Court.
4. Surprisingly, there was no appearance by the First, Second, Third, Fourth, Sixth and Seventh Defendants, who were present in Court on the 6^th of July, 2022 when the matter was adjourned for a hearing to the 14^th of July, 2022.
5. The Court being satisfied that the Defendants knew of the date of trial but were for reasons unknown to the Court not in attendance proceeded to hear the matter.
6. Initially the Plaintiff sought orders reflected in its Notice of Motion filed pursuant to Order 16 Rule 5 of the National Court Rules (NCR) (See pages 165 – 169 of Volume 1 of 2 – Review Book), however during the course of final submissions, the Plaintiff abandoned the following relief para 1 (a) (c), 6, 10, 15, 16 and 17, contained in its Notice of Motion.
7. Essentially the decisions to be reviewed were reduced to only two namely:
   1. The decision of the Third Defendant made on or about 13^th April 2015, to register survey plan catalogue No. 49/3379 as to the subdivision of Portion 2662, Granville, National Capital District (Portion 2662) into Allotment 38, 39 and 41 of Section 356, Hohola, National Capital District.
   2. The decision of the Fourth Defendant, as published by notice on 1^st July 2016, in the National Gazette No. G421, at PNG Land Board Meeting No. 2/2016 at Item No. 195 to recommend grant of State Lease over Section 356, Allotment 38 Hohola, National Capital District, to the Eighth and Ninth Defendants.
8. The grounds of review are captured in the statement in support filed pursuant to Order 16 Rule 3(2) (a) of the National Court Rules. However, at the hearing of the application the Plaintiff focused mainly on two grounds, namely, that the decision of the Third Defendant made on or about 13^th of April, 2015, to register survey plan Catalogue No. 49/3379 relating to the subdivision of Portion 2662, Granville, National Capital District into Allotment 38, 39 and 41 of Section 356, Hohola, National Capital District violated Sections 130 of the Land Act 1996 and Sections 75 and 76 of the Physical Planning Act 1989, and that the decision of the Fourth Defendant published by notice on 1^st July 2016, in the National Gazette No. G421 at PNG Meeting No. 2/2016 of Item No. 195 to recommend or grant State Lease over Section 356, Allotment 38, Hohola, National Capital District, to the Eight and Ninth Defendants was unlawful for want of compliance with the principles of National Justice.
9. The undisputed and material facts which are dispositive of this matter may be stated crisply and briefly.
10. At the heart of this dispute is a piece of land, Allotment 38, Section 356, Hohola, National Capital District. It would appear that the said piece of land arose out of sub-division. Prior to the sub-division, the land was known as Portion 2662. There is evidence on record that following advertisement Allotment 2662, Granville, Moresby, was recommended to be allocated to the Plaintiff (See page 54 of the Review Book), but no formal lease was granted to the Plaintiff following that recommendation.
11. It would also seem that by way of National Gazette Notice No. 9421 of the 1^st of July 2016, the Eighth and Ninth Defendants were granted State Lease over Allotment 38, Section 356, Hohola, City of Port Moresby, National Capital District.
12. At the time of the trial of this matter, based on the material in the Review Book, formal State Lease(s) have not been granted to the Eighth and Ninth Defendants although they have paid the prescribed fees for the processing of State Lease.
13. The Plaintiff is aggrieved by the decisions sought to be reviewed on a number of grounds stated earlier.
14. The Plaintiff also complains that decision of the Fourth Defendant, as published by the Gazette Notice of the 1^st July 2016, mentioned earlier, to grant State Lease over Section 356, Allotment 38, Hohola, National Capital District, to the Eighth and Ninth Defendants violated the Plaintiff’s right to natural justice to the extent that it was recommended to be allocated Portion 2662 and therefore had an equitable interest in the said piece of land but was not heard when the decision to allocate State Leases described above to the Eighth and Ninth Defendants, was made.

Consideration

15. With respect to the Plaintiff’s allegations that approval for subdivision of Portion 2662 was not sought and granted, same finds support in a letter from the National District Commission dated the 8^th of September, 2016 (See pages 511 of the Review Book). Sections 130 of Lands Act 1996, and Sections 75 of Physical Planning Act of 1989, requires permission to subdivide to be approved by the Minister. It follows therefore that the subdivision of Portion 2662 was done in breach of the law and was therefore illegal and I so find.
16. With respect to the issue of breach of natural justice, there is evidence that prior to the purported allocation of Allotment 38, Section 356, Hohola to the Eighth and Ninth Defendants, Portion 2662 was recommended for allocation to the Plaintiff. It follows from the above fact that the Plaintiff had an equitable interest in the property.
17. The rules of natural justice are essentially about fairness. Having acquired equitable interest in Portion 2662, it seems to me that natural justice dictated that the Plaintiff be heard before the said piece of land or a portion of it could be alienated to any other party. This was not done. I find therefore that the decision of the Fourth Defendant published by notice on the 1^st of July 2016, in the National Gazette No. 9421 was unlawful and liable to be set aside for breach of natural justice, as I shall in due course do.
18. In the result, having regard to my findings and conclusions above I will issue the following orders:
    1. The application for judicial review by the Plaintiff is granted in respect of the following decisions:
       1. The decision of the Third Defendant made on or about 13^th April 2015, to register survey plan Catalogue No. 49/3379 as to the subdivision of Portion 2662, Granville, National Capital District (Portion 2662) into Allotment 38, 39 and 41 of Section 356, Hohola, National Capital District.
       2. The decision the Fourth Defendant, as published by notice on 1^st July 2016, in the National Gazette No. G421, at PNG Land Board Meeting No. 2/2016 at Item No. 195 to recommend grant of State Lease over Section 356, Allotment 38, Hohola, National Capital District, to the Eighth and Ninth Defendants.
    2. By an order in the nature of certiorari, the decision of the Fourth Defendant in PNG Land Board Meeting No. 3/2011 at Item No. 252 regarding Portion 2662 is removed into this Honorable Court and quashed.
    100. By an order in the nature of declaration, the decision by the Fourth Defendant in Land Board in Meeting No. 1/2011 at Item No. 111 regarding Portion 2662 to recommend grant of State Lease over Portion 2662 to the Plaintiff is valid and effective.
    4. By an order in the nature of declaration, the decision of the Fourth Defendant in PNG Land Board in its Meeting No. 2/2016 at Item No. 195 to recommend grant of State Lease over Section 356, Allotment 38, Hohola, National Capital District, to the Eighth and Ninth Defendants is invalid, null and void ab initio.
    5. Costs are awarded against the Defendants. Such costs to be agreed or taxed.

_______________________________________________________________
Geroro Lawyers: Lawyer for the Plaintiff
Lawyers for the Defendants: No Appearance