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Paul Hitamoore Holdings Ltd v Ane [2023] PGNC 355; N10525 (16 October 2023)

N10525


PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]


OS (JR) NO. 82 OF 2023 (IECMS)


IN THE MATTER OF AN APPLICATION FOR JUDICIAL REVIEW
UNDER ORDER 16 RULE 3 OF THE NATIONAL COURT RULES


BETWEEN
PAUL HITAMOORE HOLDINGS LTD
Plaintiff/Applicant


AND
ALA ANE, A/Registrar of Titles,
Department of Lands & Physical Planning
First Defendant


AND
BENJAMIN SAMSON,
Secretary for Department of Lands & Physical Planning
Second Defendant


AND
HON. JOHN ROSSO,
Minister for Lands & Physical Planning
Third Defendant


AND
INDEPENDENT STATE OF PAPUA NEW GUINEA
Fourth Defendant


AND
NATIONAL CAPITAL DISTRICT COMMISSION
Fifth Defendant

Waigani: Shepherd J
2023: 21st September & 16th October


JUDICIAL REVIEW - application for leave to seek review of decisions of defendants to compulsorily acquire large area of customary land which included a smaller portion of land with registered survey previously sold by an ILG to the plaintiff – plaintiff waiting on outcome of hearing by Land Titles Commission of application for conversion order for smaller portion of land – Land (Tenure Conversion) Act 1983, s.7 – Land Titles Commission abolished and replaced by Land Commission of Papua New Guinea – Land Commission Act 2022, s.5(2) – defendants obtained registration of State lease for larger area of customary land – State lease issued to fifth defendant - extinguishment of plaintiff’s interest in the smaller portion – plaintiff seeking judicial review of steps taken by defendants to compulsorily acquire title to the larger area of land – alleged breaches of statutory procedures under Land Act 1996 for compulsory acquisition of customary land.


JUDICIAL REVIEW - application for leave to seek review – National Court Rules, Order 16 r 3 - Court’s discretion - requirements for grant of leave – sufficient interest – no undue delay - no other remedy – decision by public administrative body or public official – whether plaintiff’s application satisfied these requirements – application for leave to apply for judicial review granted.


Cases Cited:


Papua New Guinean Cases:
Asakusa v Kumbakor (2008) N3303
Geno v The State [1993] PNGLR 22
Independent State of Papua New Guinea v Kapal [1987] PNGLR 417
Innovest Ltd v Pruaitch (2014) N5949
Kamally v Tibu (2009) N3646
Kekedo v Burns Philp (PNG) Ltd [1988-89] PNGLR 122
Manjin v Post and Telecommunication Corporation [1990] PNGLR 288
Medaing v Gabut (2016) N6431
NTN Pty Ltd v Board of Post and Telecommunication Corporation [1987] PNGLR 70


Overseas Cases:
Inland Revenue Commissioners v National Federation of Self-Employed and Small Businesses Ltd [1981] UKHL 2; [1982] AC 617


Legislation:
Land Act 1996: ss. 9, 13, 15, 23, 24, 25, 72
Land Commission Act 2022: s. 5(1)
Land Groups Incorporation Act Chapter 147
Land (Tenure Conversion) Act 1963: ss. 7, 9
Land Registration Act 1981: s. 33
National Court Rules: Order 16 rr 3 (2), 4 (1), 6 (2), 6 (3)
Survey Act 1969
Survey Co-ordination Act 1967


Counsel:
Mr Raymond Obora, for the Plaintiff/Applicant
Ms Maria J Narokobi, for First, Second, Third & Fourth Defendants
Ms Maryanne Tusais, for the Fifth Defendant (as observer)

DECISION

16 October 2023

  1. SHEPHERD J: This is an application seeking leave to apply for judicial review of certain decisions of the first, second, third and fourth defendants which resulted in the grant to the fifth defendant of a State lease in respect of 1,686 hectares of semi-urban land. The plaintiff asserts that there have been breaches of procedures and other statutory processes for the State’s compulsory acquisition of the land the subject of the State lease which have adversely affected the plaintiff’s interest in a significant part of the land. The application is made pursuant to Order 16 r 3 of the National Court Rules (NCR) and was initiated by the plaintiff’s originating summons filed on 25 July 2023.
  2. The plaintiff’s application for leave for judicial review was heard by the Court on 21 September 2023 on an ex parte basis but on notice to the State in accordance with Order 16 r 3 (2) and (3) NCR. The plaintiff was represented at the hearing by counsel Mr Raymond Obora. The State as fourth defendant was represented at the hearing by counsel Ms Maria J. Narokobi of the Office of the Solicitor-General. Ms Narokobi also announced her appearance at the hearing as counsel for the first, second and third defendants. The National Capital District Commission as fifth defendant was represented at the hearing by in-house counsel Ms Maryanne Tusais as observer.

AFFIDAVIT EVIDENCE IN SUPPORT OF THE APPLICATION FOR LEAVE

  1. The plaintiff relied at the hearing for leave on a total of 5 affidavits in support of its application:
  2. The first of Mr Hitamoore’s affidavits verified the factual content of the plaintiff’s Statement filed pursuant to Order 16 r 3(2) NCR (Statement). Mr Hitamoore’s second affidavit expanded on the factual content of the plaintiff’s Statement and annexed to it a considerable amount of documentary material in support. Mr Hitamoore’s third affidavit relates to communications he recently had with the Surveyor General after commencement of this proceeding.
  3. Mr Foxie and Mr Tokana state in their respective affidavits to the effect that they each represent an incorporated land group (ILG) and customary landowners whose lands fall within Portion 5245C Milinch of Granville Fourmil of Port Moresby, National Capital District and that their lands have somehow been acquired by the fifth defendant without the prior knowledge of their respective ILGs and clan members. Portion 5245C comprises a very large area of semi-urban land of 1,686 hectares not far from Bomana, Central Province. It includes areas of land known locally as the ATS Settlement, Saiwara land, Farea land and Dogura land. Mr Foxie confirms in his affidavit that the ILG he represents, Moiha ILG, has sold to the plaintiff a part of the land known as Farea (elsewhere referred to as the ATS Settlement) and more formally as Portion 2971C having an area of 105.049 hectares. Portion 2971C comes within the much larger Portion 5245C.

BACKGROUND

  1. The evidence of Mr Hitamoore is that he is the sole director and shareholder of the plaintiff company. He refers to himself as the managing director of his company notwithstanding that he is the only director.
  2. Mr Hitamoore deposes that shortly after his company was incorporated, in September 2012 he identified a large block of customary land located about 5 kilometres north-east of Jacksons Airport, National Capital District that his company wished to purchase for the purpose of agricultural development. The land comprised an estimated area of approximately 200 hectares. Customary ownership of the land at that time was claimed by the Vaeagai Incorporated Land Group (ILG reg. no. 15670) (Vaeagai ILG). Mr Hitamoore was introduced to the land by Mr Manga Saden Kauka, who claimed to Mr Hitamoore that he was the chairman of the committee of the Vaeagai ILG and the principal customary landowner of the subject land.
  3. A copy of the Certificate of Recognition of Vaeagai ILG dated 15 September 2009 issued by the Registrar of Incorporated Land Groups under the Land Groups Incorporation Act Chapter 147 is annexure “B” to Mr Hitamoore’s affidavit filed on 4 August 2023. The Certificate of Recognition states that the members of the controlling committee of Vaeagai ILG were at the time of its incorporation the following persons:

Position Names

Chairman Patrick Borobo Kauka

Deputy Chairman Foxie Manaka

Secretary Tom Beredi

Treasurer Manga Kauka

Assist Secretary Jimmy Manga

Assist Treasurer Michael Foxie

  1. Despite Mr Manga Kauka’s misrepresentation of himself as the chairman rather than the treasurer of Vaeagai ILG, Mr Hitamoore says that in September 2012 agreement was reached between the plaintiff and members of Vaeagai ILG’s committee, including Mr Manga Kauka, whereby:
  2. In October 2012 the plaintiff engaged the services of Kulnel Consulting Surveyors Ltd to carry out the survey work on the land and paid that surveying company an initial deposit of K19,856 to commence the survey work.
  3. On 3 December 2012 the plaintiff made an initial cash payment of K11,000 jointly to Mr Manga Kauka of Vaeagai ILG and to a Mr Eliap Tokana on account of the plaintiff’s purchase of the land. Mr Manga Kauka and Mr Eliap Tokana signed a written receipt for the plaintiff’s deposit of K11,000, each of the recipients stating that they were a “principal landlord” of the land.
  4. The next instalment which Mr Hitamoore deposes was paid on account of his company’s purchase of the land is evidenced by a photocopy of cheque dated 14 December 2012 issued by a company named Panamaseier Resources Pacific Co Ltd which was drawn in favour of payee “Manga Kauka” and is annexure “E” to Mr Hitamoore’s affidavit filed on 4 August 2023. Immediately below the photocopy of this cheque is a copy of a short document bearing the signature of Mr Manga Kauka which states:

“ I, Manga KAUKA – Principal Landlord of the Customary Land Area in ATS had decided to sell off 108 hectares of land to Paul Hitamoore Holdings Limited. The Advanced Payment of PGK100,000 was promised and the half (PGK50,000.00) goes to another Landlord – Eliap TUKANA of the other half (PGK50,000.00). Of the PGK100,000.00, PGK11,000.00 was already received and no portioned PGK44,500.00 whilst the other half goes to Eliap TUKANA. ”

  1. The third instalment which Mr Hitamoore says was paid on account of his company’s purchase of the land is evidenced by a cheque dated 19 December 2012, again from Panamaseier Resources Pacific Co Ltd, for the sum of K44,500 drawn in favour of payee “Eliap Tokana”.
  2. Mr Hitamoore deposes that on 18 February 2013 the plaintiff made a payment of K97,073 to Kulnel Consulting Surveyors Ltd, this payment being the balance of the cost for the survey work which the latter company had carried out in respect of the said land. The receipt dated 18 February 2013, a copy of which is annexure “G” to Mr Hitamoore’s affidavit filed on 4 August 2023, was signed by registered surveyor Mr Welbourne Robin Nelson on behalf of Kulnel Consulting Surveyors Ltd. The receipt states that the sum of K97,073 was for the “payment of survey cost for the survey of the 108.144 ha block at the back of ATS Settlement via Port Moresby, NCD”.
  3. The survey plan prepared by Kulnel Consulting Surveyors Ltd for this land was duly registered by the Surveyor General on 30 May 2013 as survey plan Catalogue No. 3084. The said land was described as Portion 2971C, Milinch of Granville, Fourmil of Moresby, National Capital District comprising an area of 105.049 hectares.
  4. The next instalment which Mr Hitamoore says was paid on account of the plaintiff’s purchase of the land was made by cheque dated 22 June 2013 for K100,000 issued by Panamaseier Resources Pacific Ltd to payee “Manga Kauka”.
  5. Following registration of the survey plan as Catalogue No. 3084, on 29 July 2013 the plaintiff and Vaeagai ILG entered into a formal Contract of Sale in respect of the plaintiff’s purchase of the land, which was referred to in item 3 of the first schedule of the Contract as “Portion 2971C at ATS described as Milinch of: Granville, Fourmil of: Moresby”. A copy of this Contract for Sale is annexure “K” to Mr Hitamoore’s affidavit filed on 4 August 2023.
  6. Item 7 of the Contract of Sale acknowledged to the effect that a deposit of K230,000 had already been paid for the plaintiff’s purchase of Portion 2971C.
  7. Item 8 of the Contract for Sale stated:

“ DATE OF POSSESSION: Temporary Shelters had been already erected and full possession of the LAND will be done when 50% of the Total Value of the Purchase Price of the Land is determined by Independent Land Valuers engaged [sic].”

  1. The affidavit evidence of Mr Hitamoore indicates that further instalment payments were paid by or on behalf of the plaintiff on account of the plaintiff’s purchase of Portion 2971C on the following dates:
  2. During the course of making the instalment payments referred to above, on 20 March 2015 the plaintiff by its director Mr Hitamoore lodged with the former Land Titles Commission (LTC) an application under s.7 of the Land (Tenure Conversion) Act 1963 seeking a conversion order to be issued by the LTC under s. 9 of the Act which would direct the Registrar of Titles to issue to the plaintiff a certificate of freehold title to Portion 2971C under the Land Registration Act 1981. A copy of the plaintiff’s s.7 application is annexure “Z3” to Mr Hitamoore’s affidavit filed on 4 August 2023.
  3. Mr Hitamoore says that on 2 August 2017 Mr Manga Kauka and other landowners registered another ILG, this time named Moiha Incorporated Land Group (ILG registered no. 576) (Moiha ILG).
  4. A copy of the Certificate of Recognition of Moiha ILG dated 2 August 2017 issued by the Registrar of Incorporated Land Groups under the Land Groups Incorporation (Amendment) Act 2009 is annexure “Q” to Mr Hitamoore’s affidavit filed on 4 August 2023. The Certificate of Recognition states that the members of the controlling committee of Moiha ILG were at the time of the ILG’s incorporation the following persons:

Position Names

Chairperson Manga Saden Kauka

Deputy Chairperson John Abari

Secretary Jimy Manga

Treasurer Omani Borobo

Female Representative Rose Pio

Female Representative: Elsie Foxie

  1. Mr Hitamoore deposes that following the incorporation of Moiha ILG in 2017, further instalment payments were paid by or on behalf of the plaintiff to representatives of Moiha ILG on account of the plaintiff’s purchase of Portion 2971C on the following dates:
  2. On 20 September 2018 a change in the composition of the committee of Moiha ILG was registered. A copy of the Certificate of Recognition of Moiha ILG dated 20 September 2018 issued by the Registrar of Incorporated Land Groups under the Land Groups Incorporation (Amendment) Act 2009 is annexure “W” to Mr Hitamoore’s affidavit filed on 4 August 2023. The Certificate of Recognition states that the members of the controlling committee of Moiha ILG as at 20 September 2018 were the following persons:

Position Names

Chairperson Michael Foxie

Deputy Chairperson Tom Beredi

Secretary Beverlyn Ivali Kaeaka

Treasurer Sam Maiva

Female Representative Gana Dibura

Female Representative: Betty Boge Niani

  1. The Certificate of Recognition issued by the Registrar of Incorporated Land Groups to Moiha ILG on 20 September 2018 confirms that whatever position Mr Manga Kauka may have held with the committee of Moiha ILG prior to that date, as from that date he was no longer registered as the chair or a member of the committee of Moiha ILG.
  2. On 25 May 2020 the Office of the Valuer General issued a Certificate of Valuation and Valuation Report which assessed the value of Portion 2971C, Milinch of Granville, Fourmil of Moresby comprising an area of 105.049 hectares as per Catalogue No. 3084 to have a value as at 25 May 2020 of K5,780,000. The Certificate of Valuation stressed that it was “for Land Titles Commission purposes only”. Copies of this Certificate of Valuation and its corresponding Valuation Report of four pages comprise annexure “X” to Mr Hitamoore’s affidavit filed on 4 August 2023.
  3. Mr Hitamoore deposes that soon after the Valuer General issued his Certificate of Valuation, on 5 June 2020 he wrote on behalf of the plaintiff to the management of Moiha ILG under the chairmanship of Mr Foxie and offered to pay Moiha ILG a final purchase price for Portion 2971C of K5,780,000 based on the valuation report of the Valuer General dated 25 May 2020, less the total of the instalments amounting to K897,550 which the plaintiff had already paid on account of the purchase price.
  4. By letter dated 15 June 2020 Moiha ILG replied to the plaintiff’s letter of 5 June 2020 and made a counter-offer. Moiha ILG’s letter of counter-offer, which bore the imprint of the ILG’s common seal at its foot, referred in its heading to Portion 2971C. The letter of counter-offer commenced with an acknowledgment that the plaintiff had in fact made “total upfront payment of K897,550 to one Manga Kauka who had claimed to be the Chairman of our Moiha ILG”. The remainder of the terms of Moiha ILG’s letter of counter-offer are reproduced below without editorial correction:

“ However, you have now realised that there is currently a dispute regarding our ILG because Manga Kauka is NOT the legitimate Chairman of our ILG and does not represent the interests of our Moiha Clan and that we are in fact the legitimate Executives of the Moiha ILG. You have since approached us and renegotiated with us to recognise the previous arrangements and you have now proposed that you will purchase the subject land for the Total purchase price of Five Million Seven Hundred and Eighty Thousand (K5,780,000.00) minus the upfront payments already made for which you have attached a Contract of Sale for us to execute if we accept and agree to your offer.

We have consulted all of our clan members and all of us have agreed and accepted in principle the previous arrangements for you to purchase the land known here. We agreed and accepted that we will not get any new Valuer to value the land but accept the Valuation you came up with which includes your costings. We also acknowledge that you had already made upfront payments totalling K897,550.00 which leaves a balance of Four Million Eight Hundred and Eighty Two thousand Four Hundred and Fifty Kina [K4,882,450] Outstanding to be fully settled or paid.

In Accepting your offer, we would Counter-Offer and request that we execute a separate Memorandum of Understanding (MOU) which will contained terms and conditions to guide us to finalizing the entire Sale and Purchase and said MOU will cater for the following:-

If you are agreeable to the above terms then you can advise us accordingly and we the Executives of Moiha ILG can proceed to Execute the Contract of Sale and you make the upfront payment of K100,000.00. As you will appreciate, the upfront payment is necessary because of the previous payments you made were done to a wrong person who used the money by himself and none of our clan members have benefited. In fact, this upfront payment that you will make, will be used to appease all our clan members and we will also use this to sort our ILG disputes and also obtain Restraining Orders to protect the land and further to assist us in pushing for the Registration of the Land with Land Title Commission.

Please, indicate your position to us as soon as possible so that we proceed with this new arrangement immediately.

Yours faithfully

Moiha Incorporated Land Group

[signature] [signature]
Mr Michael Foxy Mr Tome Beredi

Moiha Incorporated Land Group Moiha Incorporated Land Group ”

  1. The plaintiff agreed to the terms of Moiha ILG’s counter-offer. On 22 June 2020 the plaintiff entered into a Contract for Sale with Moiha ILG whereby the parties agreed that the purchase price to be paid by the plaintiff for Portion 2971C was K5,780,000, of which it was acknowledged the plaintiff had already paid K897,550 to Mr Manga Kauka as former chairman of Moiha ILG, leaving a balance of K4,882,450 to be paid to Moiha ILG. The new Contract for Sale dated 22 June 2020, a copy of which is Annexure “Z2” to the affidavit of Mr Hitamoore filed on 4 August 2023. was executed by both parties under their respective common seals. It replaced the earlier Contract for Sale which the plaintiff had signed with Vaeagai ILG almost 7 years before on 29 July 2013.
  2. Clause 5.1 of the new Contract for Sale stipulated that the date for completion of the plaintiff’s purchase of Portion 2971C was to be within 14 days from the date Moiha ILG or its lawyer notified the plaintiff or the plaintiff’s lawyer that the Contract for Sale and instrument of transfer had been stamped.
  3. The plaintiff has explained in its affidavit material that notwithstanding that its application for conversion of title to Portion 2971C under the Land (Tenure Conversion) Act 1963 was lodged with the LTC on 20 March 2015, its application subsequently languished until it was reactivated when Registrar Mr Ian Sinder of the LTC issued a public notice dated 12 February 2021 which informed all National Capital District applicants and intended parties that the s.7 application of the plaintiff’s Paul Hitamoore, among others, would be heard by the LTC commencing on 22 February 2021 at the Commission of Inquiry Chambers, Kumul Haus, Waigani, NCD. A copy of the LTC Registrar’s public notice is annexure “Z3” to Mr Hitamoore’s affidavit filed on 4 August 2023.
  4. Mr Hitamoore deposes at paras. 34 and 35 of his primary affidavit that there have been substantial delays in the processing of the s.7 application he lodged for the plaintiff on 20 March 2015 for various reasons, some due to factors within the LTC’s jurisdiction, including the amalgamation of the LTC with the National Land Titles Commission. However Mr Hitamoore says to the effect that he is confident that title to Portion 2971C will be issued to the plaintiff after the LTC sits for its next round of land title hearings.
  5. I pause at this juncture as I do not share Mr Hitamoore’s optimism. I observe that the LTC is no longer in existence. Both the LTC and the separate National Land Commission have been abolished and replaced by a single quasi-judicial tribunal known as the Land Commission of Papua New Guinea which was established by s.5 (1) of the Land Commission Act 2022. Notice of retrospective commencement of the new Act on 2 September 2022 was published on 23 May 2023 in Gazette Notice No. 392. In a media release dated 5 June 2023 and published in the daily press, Minister for Justice and Attorney General Hon. Pila Niningi said: “I am confident the new Land Commission of PNG will be operating separately and independently by next year”.
  6. Reverting back to the plaintiff’s position regarding its title conversion application to the LTC, the plaintiff’s Mr Hitamoore contends that while the plaintiff has been waiting for the LTC to deal with its application (which Mr Hitamoore anticipated would ultimately result in the first defendant’s issuance of registered freehold title to Portion 2971C to the plaintiff), the first, second, third and fourth defendants have gone ahead without consulting the plaintiff or Moiha ILG and have compulsorily acquired the larger Portion 5245C, which includes Portion 2971C, and have caused a State lease for Portion 5245C to be granted direct to the fifth defendant under s.72 of the Land Act 1996 without following the statutory process and procedures for the compulsory acquisition of customary land which are prescribed in ss. 9 to 31 of the Land Act 1996.
  7. In particular, the plaintiff, in its Statement filed in this proceeding on 25 July 2023 pursuant to Order 16 r 3(2) NCR and verified by Mr Hitamoore’s affidavit in support filed the same day, claimed at para. 3.20 and pleaded as grounds in para. 5.1 to the effect that the first, second, third and fourth defendants have variously failed to comply with the following statutory procedures relating to the State’s compulsory acquisition of the subject land, that is to say Portion 2971C within Portion 5245C:
  8. The third affidavit of Mr Hitamoore, that is to say his affidavit filed on 18 September 2023, completes his evidence in support of the leave application of the plaintiff, Attached to that affidavit are copies of two important items of correspondence. Annexure “A” includes a copy of Mr Hitamoore’s letter dated 15 August 2023 on the plaintiff’s letterhead addressed to the Surveyor General. In that letter Mr Hitamoore expresses his grievance that the Surveyor General allowed Survey Plan Catalogue No. 49/4308 in respect of Portion 5245C for 1,686 hectares to be registered when that survey plan apparently supersedes and makes no reference to the plaintiff’s earlier Survey Plan Catalogue No. 3084 in respect of Portion 2971C for 105.049 hectares coming within Portion 5245C.
  9. Annexure “A” to Mr Hitamoore’s third affidavit also includes a copy of the Surveyor General’s reply dated 1 September 2023 to Mr Hitamoore’s letter. In his reply, the Surveyor General Mr Jack Yakutung Bakus said this:

“ Dear Sir

Ref: Clarification on Encroachment and Approval Survey Plan Cat. 49/4308 (Portion 5245C - NCD) over Cat. No: 49/3084 – Portion 2971C - NCD. Milinch of: Granville Fourmil of: Moresby

Reference is made to your letter, dated 15th of August 2023, regarding the above mentioned matter.

I initially objected to the registration of this survey plan, 49/4308 when it was lodged to the office by National Capital District Commission.

I argued with them that this survey plan covered several registered survey plans, but they informed me that the State will compulsorily acquire the entire land, including those that were already registered.

They told me that they will deal with you and others whose survey plans were covered by this survey plan.

Therefore you can see them, meaning National Capital District Commission who will be developing this Portion, 5245c and have them compensate you and the others as promised by them.

Thank you.

Yours Sincerely,

[signature]
Jack Yakutung Bakus
(Surveyor General) ” [emphasis as per Mr Bakus’ letter]

  1. Annexed to Mr Hitamoore’s third affidavit and marked “B” is a photocopy of State Lease Volume 108 Folio 102 which was registered on 26 April 2023 by authority of Mr Ala Ane–Registrar of Titles as first defendant and issued to the National Capital District Commission as registered proprietor of the 1,686 hectares comprising Portion 5245C as per survey plan Catalogue No. 49/4306.

REQUIREMENTS FOR GRANT OF LEAVE

  1. The principles for grant of leave for judicial review made pursuant to Order 16 r 3 NCR are well established. Grant of leave is discretionary. The main requirements for the exercise of the Court’s discretion are these:

(a) sufficient interest,

(b) an arguable case,

(c) no undue delay,

(d) exhaustion of all other administrative avenues for redress,

(e) decision made by a public administrative body or public official.

See for example NTN Pty Ltd v Board of Post and Telecommunication Corporation [1987] PNGLR 70 (Wilson J); Innovest Ltd v Pruaitch (2014) N5949 (Gavara-Nanu J); Medaing v Gabut (2016) N6431 (Cannings J).


(a) Sufficient interest

  1. The conventional common law position is that a person who is directly affected by a decision or action taken by a public authority has an interest and acquires the right to challenge it. This is reflected in Order 16 r 3 (5) NCR which states:

“ The Court shall not grant leave unless it considers that the applicant has a sufficient interest in the matter to which the application relates. ”

  1. It is abundantly clear that the plaintiff has a very genuine interest in the land described as Portion 2971C in registered survey plan Catalogue No. 3084 having an area of 105.049 hectares which forms part of the land described as Portion 5245C in registered survey plan Catalogue No. 49/4308 having an area of 1,686 hectares. The evidence adduced for the plaintiff at the hearing of the leave application establishes that the land described as Portion 2971C, together with the remainder of the land in Portion 5245C, has been compulsorily acquired by the State as fourth defendant for the benefit of the National Capital District Commission as fifth defendant. The legality of that compulsory acquisition, insofar as it relates to Portion 2971C to the detriment of the plaintiff’s interest, is squarely challenged by the plaintiff’s application in this proceeding for leave for judicial review.
  2. I find that the plaintiff has demonstrated that it has sufficient interest to pursue judicial review of the various decisions of the defendants and the processes and procedures taken by them which have given rise to the compulsory acquisition of 1,686 hectares of customary land now described in Portion 5245C, which includes Portion 2971C being land in which the plaintiff has a very real vested interest.

(b) Arguable case

  1. When deciding whether an applicant for leave for judicial review has established an arguable case, the Court is required to carefully consider the proposed grounds so that only clearly pleaded and meritorious grounds of review are allowed to proceed to substantive hearing.
  2. In Asakusa v Kumbakor (2008) N3303 Injia DCJ (as he then was) addressed the issue as to what constitutes an arguable case for the purposes of the Court’s determination of an application for leave for judicial review. His Honour said this at paras. 16 and 18 of the judgment:

“16 . The arguable nature of a case should be, in my view, determined with due consideration given to, amongst other relevant matters, two important matters – first, the ground of review pleaded in the Statement filed under O 16 r 3(2)(a) and second, the material placed before the Court by the applicant together with any material that may be presented by the State, who has a statutory right to be heard on an application for leave: s.8 of the Claims By and Against the State Act 1996.

...

18. The Statement is equivalent to a statement of claim in a writ of summons: Lawrence Sasau v PNG Harbours Board (2006) N3253. It must set out, amongst other matters, an accurate description of the decision under review, the relief sought and the grounds upon which the relief is sought. Consistent with the need to prevent abuse of court process by busybodies with misguided or trivial complaints over administrative error, the Statement must plead in a separate paragraph, in clear and concise terms, the grounds relied upon. The grounds must contain reference to some established grounds recognised by law as proper grounds upon which judicial review relief is available and the statutory provision or common law duty alleged to have been breached. The grounds on which judicial review is available are also settled. Judicial review is available where the decision-making authority exceeds its powers or there is lack of jurisdiction, commits an error of law, commits a breach of natural justice, reaches a decision which no reasonable tribunal could have reached (Wednesday principles of unreasonableness) or abuses its powers ... These grounds on which judicial review is available raise questions of law based on statutory provisions or duties imposed by common law. The pleading of the ground should be such that the clear issues of law are raised for determination by the Court. ”

  1. In the present case, there are two aspects of the plaintiff’s grounds for the substantive relief it claims, assuming leave for judicial review were to be granted, that I consider are not arguable as they stand.
  2. First, ground 5.1.6 of the plaintiff’s Statement pleads that s. 24 of the Land Act 1996 was not followed by the defendants and that the plaintiff was denied its right to participate in the conveyancing process and its right to compensation for its interest in the subject land.
  3. I do not agree that any arguable case could be advanced by the plaintiff in respect of alleged breach of s.24 of the Land Act 1996. This is because s.24 of the Act relates to certain exclusionary criteria applicable to a determination of compensation to be paid by the State to a claimant where there has been compulsory acquisition by the State of land connected with the defence or securing of the public safety of Papua New Guinea or land connected with the safety of navigation by land, air or water. In the present instance, the land covered by Portion 5245C described in the State Lease issued by the first defendant under s.72 of the Land Act 1996 is semi-urban land situated on the outskirts of the National Capital District. The purpose for which Portion 5245C has, rightly or wrongly, been compulsorily acquired by the State is stated in item (a) of the State Lease issued to the fifth defendant as follows:

“The lease shall be used bona fide for Special (Settlement Urbanization) purposes.”

  1. Portion 5245C, which includes Portion 2971C, is not land that is connected with any of the defence, public safety or navigation purposes referred to in s.24 of the Act. The plaintiff may therefore wish to reconsider its position regarding its allegation of breach of s.24 of the Land Act 1997 as a ground for substantive relief and plead breach of some other provision of the Act.
  2. Where leave to apply for judicial review is granted, Order 16 r 6 (2) and (3) NCR allows for amendment to the Statement filed under Order 16 r 3 to be made at the substantive hearing provided advance notice of the proposed amendment has been given to all other parties..
  3. Second, the plaintiff has contended in its prayer for relief, when seeking leave for judicial review in its originating summons, and echoed in para. 5.1.7 of its Statement, that a procedure under the Survey Co-ordination Act 1967 for the issuance of a notice that survey plan Catalogue No. 49/4308 superseded the plaintiff’s earlier survey plan Catalogue No. 3084 of land was not followed.
  4. If there is a statutory procedure requiring any of the defendants, presumably the State by its agent the Valuer General, to issue notice of a new survey plan superseding an earlier survey plan, I have been unable to find such a procedure anywhere in the Survey Co-ordination Act 1967 (as amended by the Survey Co-ordination (Amendment) Act 2022) or in the Survey Act 1969. The plaintiff may wish to consider its options if it wishes to pursue substantive relief based on this ground and seek appropriate amendment of its Statement.
  5. However, subject to my abovementioned two observations, I find that the plaintiff has otherwise raised matters of substance that are not trivial or unarguable. The plaintiff has pleaded clear issues of law based on statutory provisions which the plaintiff alleges have not been followed by the defendants and which the plaintiff seeks to have judicially reviewed. Those decisions and procedures are clearly identified in Grounds 5.1, 5.2, 5.3 and 5.4 of the plaintiff’s Statement (excluding references to s.24 of the Land Act 1996 and the Survey Co-ordination Act 1967), as verified by Mr Hitamoore’s first affidavit.
  6. I agree with counsel for the plaintiff that the company has, on the evidence presented to date, an arguable case if it can be established at a substantive hearing that the defendants, or any of them, have committed breaches of the processes and procedures prescribed in ss. 9, 13, 15, 23 and 25 of the Land Act 1996.

(c) No undue delay

  1. An application for leave must be made promptly, without undue delay: Order 16 r 4 (1) NCR. If there has been undue delay, reasons for the delay must be provided by the applicant. If no reasonable reasons have been forthcoming from the applicant, the Court may refuse leave.
  2. The time period within which an application for leave for judicial review should be made depends on the circumstances of each case: see Order 16 r 4 (1) NCR. The time period when seeking an order in the nature of certiorari to remove into the National Court a judgment, conviction or other proceeding for the purpose of quashing it is four months: Order 16 r 4 (2) NCR. This time limit applies unless the Court can be persuaded otherwise.
  3. In all other cases, what constitutes “undue delay” depends on the facts and circumstances of each case: Innovest Ltd v Pruaitch (supra).
  4. In the present instance, the relief which the applicant is seeking, among others, is an order in the nature of certiorari to remove into this Court and quash decisions of the first, second and third defendants to grant State Lease Volume 108 Folio 102 direct to the National Capital District Commission: see para. 4.4 of the plaintiff’s Statement.
  5. The applicant is seeking judicial review of the decisions, processes and statutory procedures taken by the defendants for the compulsory acquisition of land in which the plaintiff has a very real interest and which actions taken by the defendants have culminated in the issuance by the first defendant of a State Lease to the fifth defendant on 26 April 2023 which prima facie appears to have extinguished any prospect of the plaintiff obtaining freehold title to Portion 2971C.
  6. The plaintiff’s originating summons seeking leave for judicial review was filed on 25 July 2023, almost four months to the day after registration of the State lease occurred on 26 April 2023. I find that there has been no undue delay in the commencement of the plaintiff’s application for leave. The application was filed promptly, within the four-month time period for filing an application for leave for judicial review where an order in the nature of certiorari is sought. The application for leave was also filed within a reasonable period of time from the occurrence of the other matters complained of by the plaintiff.

(d) Exhaustion of all other remedies

  1. It is a fundamental principle of procedural law that judicial review is generally not available to an applicant who has not exhausted all other available administrative and statutory remedies. Applications for judicial review should not be granted, save in the most exceptional circumstances, until all alternative administrative and statutory procedures have been exhausted: Independent State of Papua New Guinea v Kapal [1987] PNGLR 417 (Kidu CJ, Kapi DCJ, Woods J); Kekedo v Burns Philp (PNG) Ltd [1988-89] PNGLR 122 (Kapi DCJ, Amet J, Cory J). Exceptional circumstances might be where either the statutory or administrative appeal process is flawed or is not workable: Kamally v Tibu (2009) N3646 (Hartshorn J).
  2. Here, the plaintiff has contended that there is no other remedy available to it but for judicial review. The plaintiff submits that neither he, nor Moiha ILG nor the LTC was ever consulted by any of the defendants in connection with the proposed compulsory acquisition by the State of the land in which the applicant has had a very real interest going back as far as 2012. When the State Lease was registered and issued on 24 April 2023, this completed the compulsory acquisition process prescribed by the Land Act 1996 and gave the National Capital District Commission as fifth defendant indefeasible title subject only to fraud and the other limited matters set out in s.33 of the Land Registration Act Chapter 191. The plaintiff contends that there is no statutory appeal procedure or other administrative remedy which is now available to challenge what has occurred to defeat the plaintiff’s application to the LTC for conversion of title for Portion 2971C.
  3. As already noted, the State as fourth defendant was represented at the leave hearing by counsel from the Solicitor-General’s Office. No submission was made by counsel for the State to rebut the plaintiff’s contention that there is no statutory or administrative avenue available to the plaintiff other than judicial review to challenge what has occurred to the detriment of the plaintiff’s interest in Portion 2971C.
  4. I am therefore persuaded that there are no other remedies which the plaintiff could or should have exhausted before filing its originating summons seeking leave for judicial review. I accordingly find that judicial review is the only remedy available to the plaintiff to bring its grievances to the attention of the Court. The plaintiff’s originating summons, being its application for leave for judicial review, has properly invoked the jurisdiction of the Court under O.16 r 3 NCR. The plaintiff’s application for leave is properly before the Court.

(e) Decision made by public administrative body

  1. The plaintiff is not seeking in this proceeding to enforce private contractual rights between himself and Moiha ILG or to seek the Court’s assistance in dealing with the plaintiff’s long outstanding application to the LTC, the LTC having now been replaced by the Land Commission of Papua Guinea as from 2 September 2022.
  2. The affidavit evidence relied on by the plaintiff at the leave hearing has established to my satisfaction that the preponderance of all decisions, processes and procedures said by the plaintiff to have been taken by the first, second, third and fourth defendants, for which the State may be vicariously liable, and by the fifth defendant as a local-level government authority, were taken by them in pursuit of the State’s compulsory acquisition of land for a public purpose. namely to provide the National Capital District Commission with title to an extensive tract of land of 1,686 hectares which it could develop for special urban settlement purposes. There can be no doubt that the actions of the defendants which have been challenged by the plaintiff were made by public administrative bodies and public officials performing statutory duties.

CONCLUSION

  1. The decision of the Court whether to grant leave for judicial review is ultimately a matter of discretion after consideration of the material presented by the plaintiff. For the reasons I have given, I exercise the Court’s discretion in favour of the plaintiff to grant leave.
  2. However, in conclusion, I draw the plaintiff’s attention to the oft-repeated words of Lord Diplock in the English case of Inland Revenue Commissioners v National Federation of Self-Employed and Small Businesses Ltd [1981] UKHL 2; [1982] AC 617 where his Lordship said this at p.644 in the context of a court’s discretion to grant leave for judicial review:

“ If, on a quick perusal of the material then available, the court (that is the judge who first considers the application for leave) thinks that it discloses what might on further consideration turn out to be an arguable case in favour of granting the applicant the relief claimed, it ought, in the exercise of a judicial discretion, to give him leave to apply for the relief. The discretion which the court is exercising at this stage is not the same as that which it is called upon to exercise when all the evidence is in and the matter has been fully argued at the hearing of the application.”

  1. This statement by Lord Diplock has been adopted in numerous cases in Papua New Guinea: see for example Manjin v Post and Telecommunication Corporation [1990] PNGLR 288 per Hinchliffe J at pp.289-290 and Geno v The State [1993] PNGLR 22 per Kapi DCJ, Woods J, Jalina J at p.24.
  2. In the current matter, the Court has granted leave to the plaintiff for judicial review because I have found that there is substance to the plaintiff’s application. It will now be for the defendants to present their evidence at a substantive hearing and for all parties’ evidence to be tested so that the Court can be fully informed of each party’s case and come to a determination on the merits.
  3. As to the plaintiff’s costs, there is nothing unusual about the application for leave which would warrant the plaintiff’s costs being other than the usual order that costs be in the cause.

ORDER

  1. The terms of the formal Order are:

(2) Costs in the cause.

(3) The time for entry of this Order is abridged to the time of signing by the Court which shall take place forthwith.
_________________________________________________________________
Raymond Obora Lawyers: Lawyers for the Plaintiff/Applicant
Solicitor-General: Lawyer for the First, Second, Third & Fourth Defendants
Legal Division, National Capital District Commission: In-house counsel for NCDC


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