N10362	

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS (JR) No. 14 of 2021, OS (JR) No. 32 of 2021, OS (JR) No. 38 of 2021, OS(JR) No. 39 of 2021, OS (JR) No. 42 of 2021, OS (JR) No. 43 of 2021,
OS (JR) No. 44 of 2021, OS (JR) No. 45 of 2021, OS (JR) No. 46 of 2021,
OS (JR) No. 47 of 2021 & OS (JR) No. 49 of 2021

MICHAEL WAPI AND JENSIANA WAPI
Plaintiffs

AND
DR. ERIC KWA
SECRETARY FOR JUSTICE & ATTORNEY GENERAL, NOMINAL DEFENDANT FOR THE GOVERNOR GENERAL OR HEAD OF STATE
First Defendant

AND
HONOURABLE JOHN ROSSO, MP
MINISTER FOR LANDS AND PHYSICAL PLANNING
Second Defendant

AND
INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Defendant

AND
BENJAMIN SAMSON
SECRETARY, DEPARTMENT OF LANDS AND PHYSICAL PLANNING
Fourth Defendant

ALA ANE
ACTING RESGISTRAR OF TITLES, DEPARTMENT OF LANDS AND PHYSICAL PLANNING
Fifth Defendant

AND:
MARIA PALA
Sixth Defendant

Waigani:  Kandakasi DCJ
2020:	21st June
2022: 23rd November

JUDICIAL REVIEW – Application for leave – application by an unsuccessful applicant for grant of State lease - decision by a statutory authority – no reasons given for decision - no prescription by statute for reasons to be given – main issue – whether decision reviewable – standing of the applicants – no conflict in relevant Supreme Court decisions – decision maker obliged to give reasons for decision – No reasons provided – presumption – good order, transparency and good administration require reasons to be given - Lands Act 1996 ss. 58 (9) and 62. 

Facts

The plaintiffs are husband and wife who applied for grants of State Leases over certain vacant State Leases or land (State Land).  They owned no State Land and were hoping to own one through the applications they lodged.  They submitted detailed development plans and their means to achieve their plans.  But for only one of the many applications of the plaintiffs, the National Land Board decided against each of the plaintiffs’ application and granted the lands they applied for to other people, some of whom were already the owners of other State Land.  No reasons were provided for the Land Board’s decisions. Aggrieved by those decisions the plaintiffs appealed unsuccessfully to the Head of State acting on the advice of the National Executive Council (NEC) (Appeal Authority).  That authority also provided no reasons for its decision.  

In respect of the only application in which the plaintiffs succeeded, a competing applicant for the same State Land appealed to Appeal Authority.  That appeal was determined against the plaintiffs and the land was given to the plaintiffs’ competitor. Again, that was done without any reasons given for the decision. 

Aggrieved by the said decisions, the plaintiffs filed for leave for judicial review. The State challenged the plaintiffs’ application only on two grounds.  These grounds were: (1) the plaintiffs’ lack the relevant and necessary standing as unsuccessful applicants for State Lands; (2) they did not present an arguable case mainly because the decision makers were not obliged to provide any reason for their respective decision.  In support of that argument, they cited the decision of the Supreme Court in Helifix Group of Companies Limited v. Papua New Guinea Land Board (2012) SC1150. The plaintiffs in response say they have the necessary standing and that the decision relied upon by the defendants is not good law and should not be followed and cited the decision in John Wanis Wek v. Sobol Trading Ltd & Ors (2016) SC1535.  Hence the issues were one of standing of the plaintiffs and arguable case regarding the need to provide reasons for a public authority’s decision.

Held:
 
1.	The requirement in judicial review for applicants to demonstrate they have the necessary standing to bring the application is well settled and there is no conflict in the authorities.  The courts have broadened the tests that must be met to determine if any applicant has any standing to even allow for persons not directly affected but interested in good administration, or a protection or an enforcement of a right or interest to come to the Court.

2.	The plaintiffs are directly affected by the decisions the subject of the proceedings having applied in response to an advertisement for interested persons to be considered for the grant of certain State Land.  They are unlike the appellant in Helifix Group of Companies Limited v. Papua New Guinea Land Board.  They therefore have the necessary standing to bring their various applications.

3.	On the question of arguable case, in particular the need to provided reasons for their decisions by public authorities, the law is also well settled.  All decision makers are obliged to provide reasons for their decision. A failure to provide any reason renders the decision in question not a good decision and is therefore null and void.

4.	In the present case, although there is no expressed provision requiring the National Lands Board and the Appeal Authority to give reasons for their decision, the preponderance of decisions of the Supreme and National Court’s require as a matter of law, that reasons be given for transparency, better accountability, and sound public administration.  

5.	The failure by the National Lands Board and the Appeal Authority to give any reasons for their respective decisions at the time of arriving at their respective decisions renders all the decisions null and void.

6.	The application for leave for judicial review of each of the decisions were therefore granted. 

Cases Cited:
Papua New Guinean Cases

John Wanis Wek v. Sobol Trading Ltd & Ors (2016) SC1535
Helifix Group of Companies Limited v. Papua New Guinea Land Board (2012) SC1150
Leto Darius v. The Commissioner of Police (2001) N2046
GR Logging Ltd v. David Dotaona (2018) SC1690
John Wanis Wek v. Sobol Trading Ltd (2016) SC1535
Jim Kas v. Sevua (2000) N2010
Papua New Guinea Air Pilots Association v. The Director of Civil Aviation and the National Airline Commission trading as Air Niugini [1983] PNGLR 1
NTN Pty Limited v. The Board of Post & Telecommunications Corporation [1987] PNGLR 70
Arawe Logging Pty Ltd v. The State [1988-89] PNGLR 216
National Capital District Interim Commission v. Crusoe Pty Ltd [1993] PNGLR 139
Steamships Trading Limited v. Garamut Enterprises Ltd (2000) N1959
Aquila Sampson v. NEC (2019) SC1880
David Kabomyap Allolim v Biul Kirokim (2018) SC1735
Electoral Commission v Bernard Kaku (2019) SC1866
Re Gegeyo v. Minister for Lands and Physical Planning [1987] PNGLR 331
Pius Sankin, Jimmy Lingau and James Numbunda v Papua New Guinea Electricity Commission (2002) N2257
Sir Arnold Amet v. Peter Charles Yama & Electoral Commission (2010) SC1064
Ombudsman Commission v. Peter Yama (2004) SC 747
Godfrey Niggints v. Henry Tokamv & 2 Ors [1993] PNGLR 66
Mission Asiki v. Manasupe Zurenuoc & Ors (2005) SC797
 Hon Ben Micah MP v. Rigo A Lua (2015) SC1445

Overseas Cases

Inland Revenue Commissioners; ex parte National Federation of Self-Employed and Small Business Limited [1981] 2 WLR 722.
Australian Conservation Foundation Inc. v. Commonwealth of Australia (1980) 146 C.L.R. 493; 54 A.L.JR. 176.
Robinson v. The Western Australian Museum (1977) 138 C.L.R. 283.

Counsel:
	
Mr. M. Wapi in Person, for the Plaintiffs
Ms. B. Kulumbu Shepherd, for the First to the Fourth Defendants 

23rd November, 2022

1.	KANDAKASI DCJ: These are various applications for leave for a review by Mr. Michael Wapi and his wife Mrs. Jensiana Wapi (the Wapis) of:

(a)	decisions by the National Land Board (the Land Board) rejecting the plaintiffs’ applications for grant of State Leases or Land (State Land) over several pieces of State Land;

(b)	decisions purportedly made by the Head of State dismissing the appeals against the decisions rejecting the plaintiffs’ applications; and

(c)	a decision purportedly by the Head of State upholding an appeal against a decision by the Land Board recommending grant of a State Land to the plaintiffs by an Andro Holdings Limited.

2.	These proceedings were dealt with together because the facts and issues presented in each case is similar. 

Parties’ claims

3.	The Wapis advanced several grounds in their applications.  One of the main ones is a claim that the decisions sought to be reviewed are flawed, erroneous and null and void because no reason has been provided.  Another ground they claim is that the purported decisions on appeals were not the decision of the Appeal Authority, namely the Head of State acting on the advice of the National Executive Council (NEC) in accordance with the requirements of s. 62 of the Lands Act 1996.

4.	The State does not take issue with most of the requirements for grant of leave for judicial review and the plaintiffs’ arguments.  The only issues it is taking is first, the Wapis’ standing to bring these applications.  This argument is based on the Wapis being mere applicants with no rights or interest vested in them to give them sufficient interest and, hence standing.  Secondly, the State claims the Wapis have not presented an arguable case.  This is premised on its claim that there is no obligation for the Land Board and the Appeal Authority to provide reasons for their respective decisions. A requirement to do so would be reading into the relevant provisions of the relevant applicable statute.  The Wapis, argue to the contrary.  In support of their arguments especially regarding their standing, they cited several Supreme Court decisions, including the decision in John Wanis Wek v. Sobol Trading Ltd & Ors (2016) SC1535 while the State cited the decision in Helifix Group of Companies Limited v. Papua New Guinea Land Board (2012) SC1150 which decisions appear to contradict each other.  Consequentially, the State argues, there is a conflict in the Supreme Court decisions or authorities and I should follow the judgment they are relying upon.

Relevant issues to be determined

5.	Given these arguments, the main issues this Court must determine are these:

(1)	Do the Wapis have the necessary standing to bring these proceedings? 

(2)	Is there a serious conflict in Supreme Court decisions on the question of standing in judicial review applications questioning the decisions of the Land Board and the Head of State on appeal?

(3)	Can this Court lawfully read into the relevant provisions of the Lands Act a requirement for the Lands Board and the Head of State a requirement for each of them to give reasons for their respective decisions in relation to grant or no grant of State Leases?

6.	It will be convenient for me to deal with the first and second issues together because they both concern the doctrine of standing in judicial review proceedings. I will deal with these issues first since standing is one of the fundamental requirements that must be met before any of the other requirements an applicant in a leave for judicial review application must meet.  Thereafter, the third and remaining issue to be dealt next.

Relevant background facts

7.	The facts are similar or the same for each of the cases except only for the description of the various State Lands the Wapis applied for, the various dates for the relevant events, names of other applicants and the various and or relevant government gazette.  I will therefore use the facts surrounding the Wapis application for a grant of State Lease for a land located in Kerema, Gulf Province, which will represent the relevant facts and background for the other cases.  I read and considered the relevant facts in each of the case but will not separately state the relevant facts for each of the cases in this judgment to avoid repetition.   The only fact that must be mentioned is the fact that the Wapis succeeded before the Land Board but failed at the appeal stage only one of their applications. The relevant proceeding is OS (JR) No. 38 of 2021.  

8.	The Wapis are Papua New Guineans by birth and by citizenship.  Professionally, Mr. Wapi is a lawyer and Mrs. Wapi is a teacher. They own and run small businesses. They have no State lease registered under either of their names.  On various dates, they applied as joint tenants under their registered business names Hotsprings Transport Services (Taxpayer Identification Number-TIN 500878672) and Hotsprings Consultancy Service (Taxpayer Identification Number-TIN 500880186). In the table below I set out the land they applied for and the corresponding proceedings.

1	State Lease described as Residence (High Covenant) Lease over Allotment 64 Section 123, Madang (New Town), Madang Province	OS (JR) No. 14 of 2021	
2	State Lease described as Business (Commercial) Lease over Allotment 20 Section 22, Kerema, Gulf Province	OS (JR) No. 32 of 2021	
3	State Lease described as Business (Commercial) Lease over Allotment 05 Section 67, Wewak, East Sepik Province	OS (JR) No. 38 of 2021	
4	State Lease described as Residence (High Covenant) Lease over Allotment 18 Section 03, Wewak, East Sepik Province	OS (JR) No. 39 of 2021	
5	State Lease described as Business (Commercial) Lease over Allotment 81 Section 01, Kiunga, Western Province	OS (JR) No. 42 of 2021	
6	State Lease described as Business (Commercial) Lease over Allotment 19 Section 22, Kerema, Gulf Province	OS (JR) No. 43 of 2021	
7	State Lease described as Business (Commercial) Lease over Allotment 18 Section 20, Maprik, East Sepik Province	OS (JR) No. 44 of 2021	
8	State Lease described as Business (Commercial) Lease over Allotment 19 Section 20, Maprik, East Sepik Province	OS (JR) No. 45 of 2021	
9	State Lease described as Business (Light Industrial) lease over Portion 2678, Milinch Megigi, Fourmil Talasea, West New Britain Province	OS (JR) No. 46 of 202	
10	State Lease described as Agriculture Lease over Portion 2071, Milinch Ulawun, Fourmil Talasea (Magalona), West New Britain Province	OS (JR) No. 47 of 2021	
11	State Lease described as Residence (High Covenant) Lease over Allotment 03 Section 01, Lae (Top Town), Morobe Province	OS (JR) No. 49 of 2021	

9.	 The fourth defendant, the Secretary for the Department of Lands & Physical Planning (the Secretary for DL&PP) offered for lease through an open tender no. 020/2018 which appeared in the National Gazette No. G468, State Lease described as Business (Commercial) Lease over Allotment 20 Section 22, Kerema, Gulf Province and the tender closed on 15th August 2018 at 3:00pm.

10.	On 02nd August 2018, the Wapis responded to the public tender and paid K200.00 application fee and subsequently submitted their tender form accompanied by their application fee receipt on same date to the Secretary for DL&PP. After the close of the tender, the Secretary for DL&PP accepted the Wapis’ application and referred it to the Land Board.

11.	On 04th October 2018, the Land Board then accepted and published tender no. 020/2018 and listed the Wapis as the applicants with another applicant namely Maria Pala in the National Gazette no. G648.  The Wapis were advised and invited along with other applicants, to appear at the PNG Land Board meeting no. 05/2018 scheduled to be held in Port Moresby from 29th October – 02nd November 2018. The Plaintiffs were listed under item No.18 of the Land Board gazette list as applicant No. 02 in that gazette whilst Maria Pala was listed as applicant No. 01.  They did appear before the Land Board and made submissions as to why they should be granted the State Lease and not the other applicants or any other person.  In their submissions they alleged illegality and other factors rendering the other applications invalid and not open for consideration. 

12.	The Allocation Officers within the Alienated (State) Land Division of the DL&PP, the Land Board accepted and approved three (3) different purported applications or tender forms for the same State Lease or land the Wapis applied for.  The first of those letters was dated 18th October 2017. The second tender form was dated 18th October 2017. Finally, the third and final was dated 18th October 2017.  These letters appear to have been received on 06th June 2018 and 24th July 2018, respectively. The letter date 24th July 2018 appears to have been tampered with to make it look as if the purported application or tender form was received on that date. Also, a receipt for the application fees of K200.00 dated 06th June 2018 is for Global Customs and the date of payment made is earlier than the tender period, namely, 17th July 2018 to 15th August 2018.

13.	On 14th November 2018, the Land Board by letter informed the Wapis of its decision.  The Wapis were informed that the Board recommended in favour of Maria Pala for a 99-year Business Lease at the value of K300,000.00 and decided not to make a decision or make a recommendation on the Wapis’ application. No reasons were given for the decision. Aggrieved by that decision, the Wapis on 26th November 2018, lodged their appeal against the decision pursuant to s. 62(1) of the Land Act 1996 and paid their appeal fee of K500.00.

14.	 In their appeal, the Wapis raised the issue of no reasons being provided by the Land Board for its decision and a failure to give any consideration to their submissions in support of their tender. They brought to the attention of the appeal authority the decision of the Supreme Court in Patrick Towingo & Ors v. The State (2008) SC983 and repeated the submissions they had put to the Board.  Ultimately, the Wapis requested the Head of State, through the Secretary of the DL&PP to uphold their appeal, reject the recommendation or the decision of the Land Board, which they submitted was against public policy and public interest and asked a substitution of the same with its own decision and grant in the plaintiffs’ favour the relevant State Lease.

15.	On 02nd November 2020 the Head of State through the Minister, decided on the Wapis appeal, dismissing the appeal and confirmed the Board’s decision.  That was again without giving any reason for the decision.  The decision was confirmed by a gazettal in the National Gazette no. G731, item number 16. There is no evidence that the decision purportedly by the Head State was on advice of the NEC.  On 17th November 2020, the Wapis received a letter notifying them of the Head of State’s decision on the appeal without a provision of the decision itself with the reasons for the decision.  Aggrieved by that decision the Wapis filed their judicial review proceeding on 03rd March 2021, seeking leave to apply for a judicial review of both the Land Board and the purported decision by the Head of State.

16.	In their Statement in Support pursuant to Order 16 Rule 3 (2) (a) of the National Court Rules, filed 03rd March 2021, the Wapis plead several grounds of review each based on an allegation that the successful applicants were not applicants for the relevant State Lease, they did not submit their tender within the required timeframe and did not meet the required application fee of K200.00.  Further, grounds of allegations of error of law, ultra vires the Land Act 1996 and/or Land (Amendment) Act 2018, unreasonableness, and a breach of natural justice for the failure of the decision makers contrary to Section 59 of the Constitution in not giving reasons for their decision.

17.	With these facts in mind, I will turn to a consideration of the issues presented.  But before I do so, I consider it important that I should remind myself of the principles that govern applications for leave for judicial review.  Those principles are well settled, so much so that there is no need to cite any authority.  I will only remind myself of what I have said about the principles with the endorsement of the Supreme Court.  A relevant decision on point is my decision in Leto Darius v. The Commissioner of Police (2001) N2046, after considering the relevant case authorities on point at the time and the relevant provisions of the National Court Rules, I held that:

“According to these rules and the case law on it to date, the requirements amongst others that must be met by an applicant for leave for judicial review, can be summarised as follows:

1.	He has the locus standi, that is he has sufficient interest in the matter or has a right which is being affected by way of an injury or damage by the decision sought to be reviewed;
2.	The decision sought to be reviewed is that of a public body or authority;
3.	The applicant has an arguable case on the merits;
4.	All other available remedies have been exhausted; and
5.	The application is being made promptly without undue delay.”

18.	Several National and Supreme Court decisions have adopted and applied this statement of the law.  That includes the Supreme Court decisions in GR Logging Ltd v. David Dotaona (2018) SC1690, per Cannings, Collier & Dingake JJ and John Wanis Wek v. Sobol Trading Ltd (2016) SC1535, per Kirriwom, Cannings & Neill JJ.

19.	In this case, as already noted, the only issues revolve around the first and the third requirements, namely standing and arguable case.  I will deal firstly with the issue of standing as well as the issue of conflicting authorities on standing in the context of an application for leave for judicial review by a failed applicant in an application for a grant of a State Land.

Issues (1) & 2 - Locus Standi and conflicting authorities

20.	There is a large body of case law clearly establishing the principles governing the issue of a person’s locus standi or standing to bring judicial review proceedings.  Firstly, locus standi is a threshold issue which must be determined first: See Inland Revenue Commissioners; ex parte National Federation of Self-Employed and Small Business Limited [1981] 2 WLR 722 per Lord Diplock, as adopted and applied in Jim Kas v. Sevua (2000) N2010 by Sakora J.  Secondly, depending on the nature of the relief being sought, a plaintiff will in general have locus standi when he can show actual or apprehended injury or damage to his property or proprietary rights, to his business or economic interests and perhaps to his social or political interests: See Australian Conservation Foundation Inc. v. Commonwealth of Australia (1980) 146 C.L.R. 493; 54 A.L.JR. 176, per Mason J; Papua New Guinea Air Pilots Association v. The Director of Civil Aviation and the National Airline Commission trading as Air Niugini [1983] PNGLR 1, per Andrew J.  Thirdly, the cases are various and so much depends in each case on the nature of the relief sought because, what is sufficient interest in one case may be less than sufficient in another: See Robinson v. The Western Australian Museum (1977) 138 C.L.R. 283, per Mason J.  Fourthly, the Courts have on many occasions expended the categories or situations in which a person could have locus standi simply by reference to having ‘sufficient interest’ in the matter, which may not necessarily be a right: See NTN Pty Limited v. The Board of Post & Telecommunications Corporation [1987] PNGLR 70, per Wilson J; Arawe Logging Pty Ltd v. The State [1988-89] PNGLR 216, per Brunton AJ; and National Capital District Interim Commission v. Crusoe Pty Ltd [1993] PNGLR 139, per Brunton J.  Fifthly, the concept of “sufficient interest’ is essentially a mixed question of fact and law and the degree of the relationship between the Plaintiff and the subject matter of his complaint. Generally, a plaintiff will have standing if he can show that he has a reasonably arguable claim that by an invalid exercise of statutory power, some private right in law has been affected or that he has suffered some prejudice: see Steamships Trading Limited v. Garamut Enterprises Ltd (2000) N1959, per Sheehan J as endorsed by the Supreme Court in Aquila Sampson v. NEC (2019) SC1880, per Anis J with Kassman and Toliken JJ agreeing; David Kabomyap Allolim v Biul Kirokim (2018) SC1735, per Batari J, David & Frank JJ.  Sixthly, the right to invoke the Court’s supervisory jurisdiction is not restricted to protection of personal rights. It can extend to more public issues. In determining standing, Court decisions in our jurisdiction lean strongly towards the granting of locus standi to citizens seeking to complain of what is seen as breaches of laws of the country: See Steamships Trading Limited v. Garamut Enterprises Ltd (supra), endorsed by the Supreme Court in Aquila Sampson v. NEC (supra).  Finally, the relevant decisions on point show an inclusive rather than an exclusive view of applicants with standing, holding that, challenges by citizens to the validity of decisions of statutory or public authorities should not too readily be excluded from the Courts on grounds of lack of direct personal interest or right. Very often determination of standing is only possible with an examination of the complaint itself: Steamships Trading Limited v. Garamut Enterprises Ltd (supra) as endorsed by the Supreme Court in Aquila Sampson v. NEC (supra).

Applying the law to the present case

21.	In the present case, as already noted, the Wapis relying as they do on the decision of the Supreme Court in John Wanis Wek (supra) case, argue as applicants for each of the State Lands, they have an interest in them and the decisions that went against them with no reasons provided.  They therefore have the necessary standing.  Again, as noted, in taking issue with the Wapis locus standi, the State through counsel argue to the contrary, relying upon the decision in Helifix (supra) case.  

22.	I considered both of decisions of the Supreme Court.  Having done so, I note, they both had to deal with applications for leave for judicial review and not the substantive reviews in both cases.  They both did not give any consideration to the cases on point as I tried to do in the forgoing.   In the John Wanis Mek (supra) case, the applicant had illegally entered a State Lease. The National Court had concerns amongst others, about people who without title or permission enter State land, improve, and build dwellings on it.  The Supreme Court on appeal noted that and said:

“14.	We do not disagree with his Honour’s concerns about the spectre of people, who do not have title, entering Government land, improving it and building dwellings on it. Such persons, we agree, do so at great risk. The appellant has indeed taken a great risk in entering the land and spending a considerable amount of money by building a dwelling on it, while knowing all along that he did not have title and that he did not have a right to be granted title.” 

23.	However, the Court considered the appellant’s conduct would “be a relevant consideration in deciding whether he is granted a remedy at the trial of the judicial review, when he can be given a right to be heard on that issue.”  For the purposes of leave for judicial review the Court found:

“…there was ample evidence that the appellant had engaged in a course of conduct that demonstrated his actual interest in the subject matter of the decisions he wanted to have judicially reviewed.”  

24.	Specifically, the Court noted the appellant:

(a)	had taken steps (including having the land surveyed and seeking preliminary planning permission) over a number of years through normal administrative channels to demonstrate his interest in this particular portion of land; 
(b)	he was an applicant for an Urban Development Lease; and
(c)	he was a statutory appellant against the decision of the Land Board. 

25.	The Court then concluded in favour of the plaintiff that:

“The appellant’s actual interest was a sufficient interest. We find, with respect, that the learned primary Judge erred in his approach to the question of whether the appellant had a sufficient interest.”

26.	On the other hand, I note, in Helifix, the Land Board decided to withdraw from the list of matters gazetted to be considered in one of its meetings. That was an application by Helifix for a State Land. Helifix following a decision of the Minister for DL&PP to exempt the land from advertisement had applied for it for purposes of an urban development lease. The Land Board’s decision was made without notice to Helifix, on advice from the Secretary for the DL&PP and the Registrar of Titles, who cautioned that the relevant portion of land was surrounded by controversy as the relevant lease over the land had previously been granted to another company, that it was unclear whether that lease had been revoked and that an urban development lease could not be exempted from advertisement. That saw an exchange of correspondence over several months between Helifix’s lawyers and the Secretary and the Deputy Secretary of the DL&PP.  That did not result in any change in the Department’s position. Consequently, Helifix’s application was not re-listed for consideration by the Land Board.  That led to Helifix commencing judicial review proceedings in the National Court.

27.	The trial judge found or labelled Helifix as a mere applicant.  In response to the submission against such labelling the Supreme Court was not persuaded.  In its own words the Court said:

“We are unpersuaded by those submissions. We do not consider that his Honour erred in labelling the appellant as a ‘mere applicant’. His Honour did not say that the appellant was a ‘mere busybody’, the term used in the classic dictum of Lord Diplock in R v Inland Revenue Commissioners; Ex parte National Federation of Self Employed and Small Business Ltd [1982] AC 617. By using the term ‘mere applicant’ his Honour was simply emphasising that the appellant had no right or legitimate expectation regarding the consideration of its application by the Board on the date that the Board decided to withdraw the appellant’s application from consideration. It is incorrect to say that the appellant had a proprietary interest in the land. It had no proprietary interest in the land; it was only an applicant for a proprietary interest. His Honour fully appreciated that by virtue of the terms of the notice of exemption from advertisement signed by the Minister, the Helifix was the sole applicant.” 

28.	The fact that Helifix was the sole applicant based on the exemption from advertisement did not mean that he had any greater interest in the subject land if it had been one of several applicants.   

29.	On the question of arguable case in the context of the case before it, the Court found the learned trial judge was correct in finding no arguable case capable of review was presented.  The Court reasoned:

“… the appellant had no arguable case as the decision was a simple matter of administration concerning the management of the business of the Board. Such a matter falls into the area of managerial or administrative discretion. It is not the sort of decision that is susceptible to judicial review ... Furthermore, it is not correct to describe the Board’s decision as a refusal to consider the appellant’s application. It was simply a decision to withdraw it from consideration on a particular day. … his Honour made no error of law in concluding that the Board’s decision … was not capable of being judicially reviewed.” 

30.	The distinction between these two cases is very clear. In the John Wanis Mek case, even though illegal, the appellant had taken steps to have the land acquired and did something about it.  On the other hand, the appellant in the Helifix case, did not take any steps to acquire the land apart from securing the exemption from advertisement, which was illegal anyway. That resulted in a withdrawal of the sole application by Helifix from being considered by the Land Board on the relevant date and time for good reasons. The decision to withdraw from consideration would have given other persons interested in the land to be given the equal opportunity to apply for it.  The appellant would also be free to apply for the land in much the same way has others, rather than receive a preferential treatment.   

31.	I do not see any conflict in these two cases.  I find the Supreme Court in each case, considered their peculiar circumstances. Although neither expressly cited nor applied the relevant principles on point, they nevertheless adopted the relevant principles governing the question of locus standi in judicial review proceedings.  They both gave serious consideration to the circumstances in each of the cases.  Based on the circumstances in each case, the Supreme Court found for standing in John Wanis Wek’s case, in view of the appellant having done something more than applying for a grant of a State Lease and he also applied for the relevant State Lease as did others.  In the Helifix case however, the appellant appears to have done nothing more than only securing the exemption from advertisement, which was contrary to law and hence improper. The appellant would have had the opportunity to apply for the State Lease along with others.

In the present case

32.	In the present case, the Wapis applied as did others for a grant of anyone, more or all of the State Lands they applied for.  In their applications they also made submissions as to why the applications by the others should not be considered and granted.  The minimum of their expectation was that their applications would be considered on their own merits.  If they were not successful and someone else was, good reason had to be provided.  State land resources are very limited.  The Lands Board as a more onerous task and a duty to ensure that all Papua New Guineans are given a fair opportunity to apply for and their applications are considered on their merits. The principle of fairness would cause the Lands Board to consider each application and amongst other consider granting a State Lease to a person who does not already have one when on consideration, all factors are considered equal amongst the applicants.  This necessarily requires giving an applicant who is unsuccessful good reason for not being given the opportunity be the holder of a State Land.  In this case, the Wapis were given no reason for the decisions by the Land Board and the relevant appellate authority.  Given these facts and factors and in view of the broad application of the concept of locus standi as defined by the authorities on point, most of which are noted and stated in paragraph 20 above, I find the Wapis have the necessary standing to bring their applications.  Accordingly, I find for the Wapis on the question of standing in each of the applications. 

33.	This takes us to the remaining issue of whether this Court can read into the Lands Act 1996, a requirement for the Land Board or the Head of State through the Minister for DL&PP to give reasons for their respective decisions.

Issue 3 – Can this Court read into Lands Act a Requirement for the Lands Board and the Minister for Lands for each of them to give reasons for their respective decisions under the Act?

34.	As noted, learned counsel for the State argues, since there is no requirement in the Lands Act for the Land Board or the Head of State acting on advice to give reasons for their respective decisions, this Court cannot read into the relevant provisions of the Act a requirement for them to do so for their respective decisions.  This requires a consideration of the relevant provisions of the Land Act. Section 58 (9) and s. 62 of that Act are most relevant.  These provisions read:

“58.	Meetings of the Land Board, reports, etc.
…

(9)	In respect of each application the Land Board shall recommend—
(a)	the applicant to whom, in the opinion of the Land Board, the State Lease should be granted; and
(b)	the applicant who, in the opinion of the Land Board, is the second-choice successful applicant; and
(c)	the applicant who, in the opinion of the Land Board, is the third-choice successful applicant,
and where the Land Board, in making a recommendation in any case, considers that two or more applicants are of equal merit, it may decide the matter by ballot and shall report on the ballot to the Minister within 14 days.
(10)	The Chairman shall forward notice of the Land Board's recommendations, other than a recommendation to which Subsection (8) applies, to every person who, in his opinion, is interested in an application or matter dealt with by the Board.
(11)	A member of the Land Board shall not sit on any matter in which he is directly or indirectly interested.”
…
“62. APPEALS.
(1) A person aggrieved by a decision of the Land Board may, not later than 28 days after notice is forwarded under Section 58(10), forward a notice of appeal to the Minister.
(2) An appeal shall be accompanied by a deposit of K500.00, which shall,
subject to Subsection (3), be refunded when the appeal has been decided.
(3) If the Head of State, acting on advice, thinks that the appeal has been
made on frivolous grounds, the Head of State, acting on advice, may reject the appeal and direct that the whole or any portion of the deposit shall be forfeited to the State.
(4) Subject to Subsection (5), the Head of State, acting on advice, shall
determine an appeal under this section, and his decision is final.
(5) Where an appeal under this Section is upheld, the Head of State, acting on advice, may refer the matter back to the Land Board for re-hearing.”

35.	As can be seen from these provisions, there is no provision expressly requiring the Land Board and or the Head of State to give reasons.  It is however trite law that every public decision maker is obliged to give reasons for their decision.  The decision in Electoral Commission v Bernard Kaku (2019) SC1866 is one of the latest decisions on point.  There, in the context of a review of a decision by the National Court in an election petition sitting as a single judge of the Supreme Court, I review the decisions on point. I then said:

“Obviously, as a decision maker, the learned trial Judge was obliged to give his reasons for either deciding against the Commission’s Objection or his decision not to make a decision on that Objection.  It is settled law that, every decision maker is obliged to give his or her reasons for their decisions.  In Lee & Song Timber (PNG) Co Ltd v. Nathanael Burua (2003) N2404, I discussed the law in the following terms:

‘One of the minimum requirements of the principles of natural justice enshrined in our Constitution under s.59 (2) is the duty to act fairly, and in principle, to be seen to be acting fairly.   This is in effect a codification of an old established principle represented by cases like that of R v. Sussex Justice; Ex Parte McCarthy [1942] 1 K.B. 256.
The need to provide good reasons for any decision-maker for a decision he or she makes is an important part of the principles of natural justice.  For a failure to give reasons has the potential to form the foundation for a suggestion or suspicion that the decision is without good reason.   Lord Denning in General Electric Co. Ltd v. Price Commission [1975] 1 C.R. 1 at 12 made that clear in these terms:
‘If it (the decision maker) gives no reasons in a case when it may reasonably be expected to do so, the Courts may infer that it had no good reason for reaching its conclusion and act accordingly.’”

36.	The Court then noted that, earlier decisions of the Court in Re Gegeyo v. Minister for Lands and Physical Planning [1987] PNGLR 331 at 335 enunciated and applied these principles.  

37.	 I re-echoed and applied these principles in my decision in Pius Sankin, Jimmy Lingau and James Numbunda v Papua New Guinea Electricity Commission (2002) N2257.  There I said:

“It is settled law that, a discretion that is vested in a decision-maker in a democratic society such as ours must be exercised on proper consideration as to the relevant facts and the law. There is no such a thing as unfettered discretion.  Good reasons must be given for an exercise of discretion.  A failure to do so may leave open the floodgate for all sorts of allegations, including allegations that the discretion was exercised for ulterior motives.  For examples of authorities on this point, see The Application of Moge Enga and Kuipi Group in the Matter of a Decision of the Minister for Lands Concerning Section 30 Allotment 7 Mt. Hagen [1995] PNGLR 246 and An Application of the NCDIC [1987] PNGLR 339.”  

38.	Having regard to these authorities I expressed the principles in other words in these terms:

“Providing reasons for decisions made by public authorities is a necessary element of being transparent unless the security of the nation or a statute specifically dictates or provides otherwise.  Hence, I do not consider it appropriate that it should be left to the circumstances to dictate whether or not reasons should be provided for every decision by a public authority or tribunal.  The reason for this is simple, unless good reasons are provided, a decision by a public authority or tribunal could be perceived as being arrived at unfairly and being actuated by such things as bias, bribery and so on and not necessarily on its merits.” 

39.	A string of Supreme Court decisions reinforces and reiterates these principles. This line of decisions includes the decision in Sir Arnold Amet v. Peter Charles Yama & Electoral Commission (2010) SC1064, Ombudsman Commission v. Peter Yama (2004) SC 747, Godfrey Niggints v. Henry Tokamv & 2 Ors [1993] PNGLR 66 and Mission Asiki v. Manasupe Zurenuoc & Ors (2005) SC797.

40.	Finally, the decision in Hon Ben Micah MP v. Rigo A Lua (2015) SC1445, the Supreme Court elaborated on the principles in this way:

“If a decision-maker has a duty to accord natural justice, there is a duty to give reasons; and if no reasons are given, that means there are no good reasons and the decision-maker will have acted in excess of jurisdiction. If there is no express duty to give reasons, the duty will be implied. Those principles were applied by the Supreme Court in Ombudsman Commission v Peter Yama (supra) and Mision Asiki v. Manasupe Zurenuoc (2005) SC797.  The National Court has applied the same principles, some of the cases were Niggints v. Tokam [1993] PNGLR 66; Yawip v. Commissioner of Police [1995] PNGLR 93; Wena v. Tokam (1997) N1570; Graham Kevi v. Teaching Service Commission Disciplinary Committee [1997] PNGLR 659 and Michael Anis Winmarang v. David Ericho and The State (2006) N3040.”

41.	The requirement to give reasons for every decision made by a public authority whether expressly required by its enabling statute or not is firmly established in our jurisdiction.  Hence, that requirement can be read into the provisions of ss. 58 (9) and 62 (3) and (4) of the Lands Act 1996.  It should follow therefore that, the Land Board under s. 58 (6) and the Head of State under s. 62 are respectively required to give reasons for their respective decisions. The submission by learned counsel for the defendants defies the firm position of the relevant law.   Accordingly, that submission must fail. 

42.	Going by the foregoing reasons and answers to the questions presented, I have ultimately arrived at the decision that the Wapis have the necessary locus standi or standing to bring these proceedings.  I have also come to the decision that they have arguable cases.   The applications for leave for judicial reviews have been made out.  Accordingly, I make the following orders:

(1)	Leave is granted for a review of each of the decisions, the subject of these applications.
(2)	The substantive matters are listed for directions on 6th December 2022 at 13:30pm or soon thereafter.
(3)	Unless the Land Board and the Head of State provide their respective reasons for their respective decisions as at the time of their arriving at their respective decisions, the defendants are required to meet with the plaintiffs and discuss the reliefs the Plaintiffs are seeking and return to the court with draft consent orders finalising each of the proceedings.
(4)	Costs to the Plaintiffs to be taxed, if not agreed.

(5)	Time for the entry of the orders is abridged.

__________________________________________________________________
M. Wapi: In person for the Plaintiffs 
Solicitor General: Lawyers for the State