N10225

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS (APP) 1 OF 2020 (IECMS)

BETWEEN:
JOHN FRANCIS ROBINSON
Plaintiff

AND:
MINISTER FOR LANDS & PHYSICAL PLANNING
First Defendant

AND:
SECRETARY, DEPARTMENT OF LANDS AND PHYSICAL PLANNING
Second Defendant

AND:
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Defendant

Waigani: Salika CJ
2023: 19th April, 3rd May

PRACTICE AND PROCEDURE – Land Act – Procedure for service of Notice to Show Cause – s. 122 (2) (a) – Procedure for service under s. 169 (1), (2) and (3) not complied with – Effect of such non compliance.

Cases Cited:
University of Papua New Guinea v John Ofoi, Acting Secretary for Lands and Physical Planning and Hon. Benny Allen, Minister for Lands and Physical Planning & Others N6303 (2016)
Dent v. Kavali [1981] PNGLR 488
Davis v. Pitzz [1988-89] PNGLR 143
Yakananda Business Group Inc.v. Minister for Lands and Physical Planning (2001) N2159
Beecraft No. 20 Ltd v. Minister for Lands (2001) N2125
John Mur v. Les Kewa (2010) N4016
Emas Estate Development Pty Ltd v. Mea & The State [1993] PNGLR 215

Counsel:
Mr B Frizzell, for the Applicant.
Mr H Wangi, for the Respondent.

3rd May, 2023

1.	SALIKA CJ: BACKGROUND: The plaintiff has been the registered proprietor of land known as Portion 1177 Granville, 9 Mile, National Capital District, being all the land contained in Special Purpose State Lease Volume 27 Folio 6532 (Portion 1177).

2.	By a public notice published in the National Gazette on 3 May 2018 pursuant to s. 122(1) of the Land Act 1996, the Minister for Lands gave notice of forfeiture of Portion 1177 on the basis of the improvement covenants purportedly not being fulfilled and the lessee having failed to comply with the Notice to Show Cause under s. 122 (2) (a) of the Land Act of 1996.

3.	This appeal is from the gazettal forfeiture of Portion 1177 by the appellant pursuant to Section 142 of the Land Act of 1996 on the basis inter alia, that the requisite notice to show cause required to be served on the lessee/appellant by the Minister pursuant to s. 122 (2) (a) of the said Land Act was never received by the appellant, and as such, the appellant was in no position to show cause as to why Portion 1177 should not be forfeited prior to the public notice in the gazette published on 3 May 2018  which forfeited Portion 1177.

4.	The appellant contends that had he received the notice, he would have responded appropriately to the show cause notice in relation to Portion 1177 Granville, 9 Mile, National Capital District.

5.	The appeal in relation to Portion 1177 was filed on 19 May 2020 after the Court granted an extension of time in which to appeal pursuant to s. 142 of the Land Act.

6.	In relation to the appeals, the appellant relies on the following documents in support of the appeal.  They are:

(a)	Affidavit of John Robinson sworn on 10 September 2020 which annexes:

i)	A copy of the State Leases for Portion 1177;
ii)	The improvement covenants duly complied with;
iii)	And that the requisite notice had never been received at the address of the appellant maintained by the Department of Lands being P O Box 1884, Boroko, NCD.

(b)	Affidavit of John Robinson sworn on 11 November 2021 which show:

i)	Photographs showing all the improvements on the said Portion 1177;

ii)	Refers to the affidavit of Benjamin Samson, which marks reference to the wrong State Lease.

(c)	Affidavit of Christine Samuel sworn on 11 November 2021 which show:

i)	That the Notice of Show Cause was not forwarded by registered post as required by s. 169 (1), (2) and (3) of the Act, but by PNG Post Ltd “Express Mail Service” which is a Courier Service.

ii)	Annexure A, shows a receipt ordinarily obtained from PNG Post Ltd for an article sent by registered post.

(d)	The amended affidavit of Benjamin Samson sworn 19 November 2021 which shows Annexure A, the notice to show cause and Annexure B which shows that a notice to show cause was sent via  “EMS and not by registered post” as declared by Raymond Lavaki in a statutory declaration.

(e)	Affidavit of John Robinson sworn on 25 January 2022 which refers to the amended affidavit of Benjamin Samson and  shows:

i)	That the appellant never received any notice to show cause signed by Minister Justice Tkatchenko and dated 28 January 2019, but that the appellant received the Sipison notice to show cause dated 22 October 2015; and 

ii)	The Sipison notice was responded to by lawyers for the appellant at that time.

(f)	Affidavit of Bill Frizzell sworn on 28 January 2022 which showed:

i)	That in relation to the Sipison notice dated the 22 October 2015, cause was shown by letter to the Secretary dated 21 January 2016; and 

ii)	That the earlier notice which claimed failure to comply with the improvement covenants was replied to which showed that the improvement covenants had been complied with.

The Appellant’s Contention
7.	The appellant contends that the power of the Minister to forfeit a State Lease is in Section 122 of the Act and that the obligations of the Minister under the provisions are mandatory, in particular the requirement under s. 122 (2) (a) of the Land Act which requires the Minister to serve a notice to show cause on the lessee in this case the appellant.  The appellant further contends that the notice to show cause must be effected under s. 169 (1), (2) or (3) of the Act.  The provisions require the notice to be served by “registered post”.

The appellant argues that the Minister cannot forfeit a State Lease under s. 122 of the Act, unless the lessee has failed to comply with a notice to show cause or has failed to show good cause.

8.	The respondent to the appeal on the other hand appear to rely on the affidavits of Benjamin Samson sworn on 17 November 2021 and filed on 19 November 2021 and the affidavit of Benjamin Samson sworn on 19 November 2021 and filed on 2 December 2021.  The Respondent also relies on the affidavit of Sonja Hoa sworn on 16 November 2021 and filed on 19 November 2021.

Issue
9.	The issue of contention is whether the prerequisite notice to show cause was served on the appellant.

10.	The respondent relying on the affidavits of Mr Benjamin Samson argued that the prerequisite notice to show cause was duly served on the appellant.

11.	Mr Samson describing the relevant facts deposed in his amended affidavit sworn on 19 November 2021 and filed on 2 December 2021 said the following:

“3.	I have noted that the parcel of land described as Portion 1177, Milinch Granville, State Lease Volume 27, Folio 6532 located opposite (9) mile cemetery, Port Moresby, NCD, had been registered as  a Special Purpose Lease and transferred to the Plaintiff in 1986.
4.	As a State Lease Title Holder, the Plaintiff failed to pay the annual land rentals and also to improve the land, which prompted the Department of Lands & Physical  Planning (DLPP) to issue a Notice to Show Cause.
5.	The Notice of Show Cause was sent through a registered mail using correct and proper address of the Plaintiff registered with the  department as:  John Francis Robinson, P O Box 1884, BOROKO, NCD.
6.	The Post PNG made several attempts by placing notice for the Post Office Box Holder to collect the package containing the Notice to Show Cause.
7.	Given the failure on the part of the Plaintiff to respond to the Notice to Show  Cause within the required period, the Minister had no choice but to forfeit the State Lease Title over the subject land and its decision was published in the National Gazette.
8.	After gazettal of the forfeiture, the land in question was advertised and put on Public Tender with attached applicants to apply.  The subject land was one of the items considered in the 2019 National Land Board sitting.
9.	Plaintiff was given the opportunity to respond to the Notice to Show Cause through the same postal address but failed to avail itself of the opportunity to show cause.
10.	I advise the Honourable Court that the Plaintiff was transferred the State Lease Title in 1986. For 34 years, the Plaintiff failed to comply with the improvement covenants of the Lease.”
11.	It seems someone is coming to Courts with unclean hands.

12.	The respondent attached two notices to show cause to his affidavit, one by Luther Sipison dated 3rd October 2015 and the other by Justin Tkatchenko, Minister for Lands dated 28 January 2019.

13.	The affidavit also has the Customer Consignment Notification annexed to it as annexures and to make his point clearer he annexed a Statutory Declaration by Raymond Lavaki, an officer of the Department of Lands who declared that he sent the notice to show cause to the appellant under s. 169 (1) (3) of the Land Act  posted it via EMS mail on the 30/11/2018 and 26/02/2019.

14.	Section 169 (1) of the Land Act 1996 says:

“(1) Subject to this section, where, under this Act, a claim, notice or thing is required or permitted to be given or served on a person (other than a Corporation), the claim, notice or thing may be given or served personally or by registered post to his postal address last know to the Departmental Head.”

Section 169 (3) of the same Act says:

“(3)  Where under this Act, a claim, notice or thing is required or permitted to be given to or served on a Corporation, the claim notice or thing may be given or served by registered post to the postal address of the Corporation last known to the Department Head.”

15.	The evidence of Mr Benjamin Samson is that the Notice to Show Cause was sent by way of a EMS mail on 30 November 2018 and 26 February  2019 to the appellant.  The relevant law s. 169 (1) requires personal service or by registered post to his last known address known to the Department Head.  His last known address is P O Box 1884, Boroko, NCD.  That is the address Mr Samson in his affidavit says was the last known address known to him as the Department Head.

16.	The Notice to Show Cause in this case scenario was sent by “post via EMS mail”.  This mode of service is not prescribed by or under the Land Act, s. 169 (1).  Section 169 (1) is very specific; service personally or by registered post to his last known postal address.  The service of the required notice to show cause was not served as prescribed by law.  The provisions of Section 169 (1) are mandatory and must be strictly complied with.  

17.	Nablu J in the University of Papua New Guinea v John Ofoi, Acting Secretary for Lands and Physical Planning and Hon. Benny Allen, Minister for Lands and Physical Planning & Others N6303 (2016), when dealing with the issue of whether Notice to Show Cause in a Judicial Review application was served on the plaintiff as required under s. 122 (2) (b) of the Land Act said:

“16. The question of the validity of forfeiture of State Leases pursuant to the Land Act has been the subject of a number of decisions of the Supreme Court and this Court. The main legal principle applicable is that, the State can lawfully forfeit a State Lease if the mandatory process under Section 122 of the Land Act is complied with. It is trite law that the State has the ultimate power to forfeit a State Lease where the registered proprietor has either failed to comply with the mandatory requirement to pay land rental fees or failed to comply with the land covenants specified in the State Lease. The exercise of this ultimate power of forfeiture can only be validly exercised upon strict observance of the mandatory requirements that are specified under s.122 (2) of the Land Act. The State must give proper notice to the registered proprietor by duly serving a Notice to Show Cause under s.122 (2) of the Land Act.
17. There is a plethora of authority on the steps or procedure of valid forfeiture of a State Lease under the current Land Act and its predecessor Land Act (Chapter 185) (See Dent v. Kavali [1981] PNGLR 488; Davis v. Pitzz [1988-89] PNGLR 143; Yakananda Business Group Inc.  v. Minister for Lands and Physical Planning (2001) N2159; Beecraft No. 20 Ltd v. Minister for Lands (2001) N2125; John Mur v. Les Kewa (2010) N4016).

18. The State’s failure to comply with the mandatory prescribed provisions under Section 122 of the Land Act, are grounds to invalidate the entire forfeiture process. Accordingly, this Court and the Supreme Court has invalidated and set aside a number of forfeitures for failing to comply with the mandatory requirement to show cause (See Emas Estate Development Pty Ltd v. Mea & The State [1993] PNGLR 215).”

18.	The Supreme Court in the matter of Emas Estate v Mea and the State  (1993) PNGLR 215 said that failure to serve personally the Notice to Show Cause on the registered proprietor was irregular and therefore the forfeiture was invalid.  The position in this case is similar as s. 122 (2) (b) was not complied with.  The Notice to Show Cause was not personally served on the registered proprietor, John Robinson, nor was it served by registered post to the postal address of the registered proprietor.  These are mandatory requirements of the law and must be complied with.  Non-compliance means there was no valid service of the Notice to Show Cause and consequently no valid forfeiture.

19.	The submission by the appellant that the power of the Minister to forfeit a State Lease as contained in s. 122 of the Land Act is correct and the obligations on the Minister are mandatory under s. 122 (2) (a) of the Act.  The Minister must serve a notice to show cause on the registered proprietor, in this case, the appellant and such notice is to be served by “registered post” under s. 169 (1), (2) and (3) of the Act.

20.	The Respondent argued that the appellant is only denying receipt of the Notice of Show Cause and that the appellant denies service of the Notice.  The Respondent submitted that the consignment summary deposed to in Mr Samson’s affidavit showed the Notice was served on 14 November  2018 through Express Mail Service (EMS) Courier. The Respondent also submitted that the consignment summary clearly shows the notice was served on the appellant.

21.	The law on the Notice to Show Cause and Notice of Forfeiture is settled under Sections 122 and 169 of the Land Act.  EMS mode of service is not a prescribed mode of service under the Land Act.

22.	Accordingly, the forfeiture of the State Lease of the appellant for Portion 1177 by gazettal notice on 3 May 2018 is declared null and void and the appeal is allowed.

_______________________________________________________________
Warner Shand Lawyers: Lawyers for the Plaintiff
Ipape Lawyers: Lawyers for the Defendants