N10564
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS (JR) NO. 31 OF 2022(IECMS)

WARIPAPAU DEVELOPMENT CORPORATION LIMITED
Plaintiff

V
JOHN ROSSO MP MINISTER FOR LANDS & PHYSICAL PLANNING
First Defendant

AND
SAM WANGE IN HIS CAPACITY AS CHAIRMAN OF THE PNG LAND BOARD REPRESENTING THE MEMBERS OF THE PNG LAND BOARD
Second Defendant

AND
BENJAMIN SAMSON IN HIS CAPACITY AS THE SECRETARY FOR DEPARTMENT OF LANDS & PHYSICAL PLANNING AND DELEGATE OF THE MINISTER
Third Defendant

AND
INDEPENDENT STATE OF PAPUA NEW GUINEA
Fourth Defendant

AND
KOI TRAPPE MP CHAIRMAN OF MUL BAIYER LUMUSA DISTRICT DEVELOPMENT AUTHORITY
Fifth Defendant

AND
MUL-BAIYER LUMUSA DISTRICT DEVELOPMENT AUTHORITY
Sixth Defendant

Waigani: Miviri J
2023: 20th October, 3rd November

PRACTICE & PROCEDURE – Judicial Review – Substantive Notice of Motion – Minister Decision Award Agriculture Lease to Sixth Defendant – Due Process in Grant of Lease – Materials Relied Insufficient – No Error of Law Process to Grant Lease – Mul Baiyer District Development Authority Successful Bidder – Plaintiff Company Unsuccessful – Balance Not Discharged – No Declaratory Orders – Certiorari Burden Not Discharged – Judicial Review Not Made Out – Motion Dismissed –Costs Follow Event.

Cases Cited:
Independent State of Papua New Guinea v Kalaut [2021] PGSC 108; SC2179
Kekedo v Burns Philp (PNG) Ltd [1988-89] PNGLR 122
District Land Court, Kimbe; Ex Parte Nuli, The State v [1981] PNGLR 192

Counsel:
T. Yamarhai, for Plaintiff
R. Mobiha, for First, Second, Third & Fourth Defendants

DECISION

 03rd November 2023

1.	MIVIRI, J: This is the decision on the Plaintiff’s application for Judicial Review by his substantive Notice of Motion of the 18th November 2022. It is in these terms pursuant to Order 16 Rule 1 of the National Court Rules:

(i)	An order in the nature of certiorari to bring into this Court and quash the decision made by the First Defendant on 02nd December 2021 to grant an Agriculture Lease over land described as Portion 05, Milinch Jimi, fourmil Ramu, Western Highlands Province to the Sixth Defendant and further quash the decision made by the PNG Land Board in its meeting No 4 of 2020 held from 07th to 11th of December 2020 that deferred the application and hearing to Western Highlands Provincial Land Board.

(ii)	 A declaration that the gazette tender application for the land, Portion 05, was opened on 23rd March 2017 and closed on 17th May 2017 but the application made by the Sixth Defendant was made on the 18th November 2020 which was three years after the close of the tender and therefore the Sixth Defendant’s application for the land, Portion 05, was not properly before the Land Board hearing from 07th to 11th December 2020.

(iii)	A declaration that the Sixth Defendant’s application was not properly before the PNG Land Board for Hearing as its application was on the Gazette list of applicants for Portion 05 on the 13th of November 2020 even before its application was lodged on 18th November 2020.

(iv)	A declaration that the Sixth Defendant applied for a Special Purpose Lease with a prescribe fee of K 200 contrary to the Publication in the National Gazette No G241 dated 23rd March 2017 which was further confirmed in National Gazette No G773 dated 13th November 2020 for Portion 05, an Agriculture Lease, which the Plaintiff and other applicants applied for with the prescribed application fee sum of K 500.00 pursuant to section 70 of the Land Act 1996 (as amended) and Schedule 1 of the Land (2015 Budget)(Amendment) Regulation 2014.

(v)	A declaration that the Sixth Defendant’s application for Portion 05 was defective and thus null and void.

(vi)	A further declaration that the Sixth Defendant was constructively not an applicant for Portion 05 and therefore the grant of land, Portion 05, to the Sixth Defendant is void and of no effect.

(vii)	A declaration that the PNG Land Board deferred the hearing and determination of Portion 05 to a purported Western Highlands Provincial Land Board was void and of no effect on the basis that the purported Western Highlands Provincial Land Board was not in existence.

(viii)	An Order that the National Court substitute the decision of the First Defendant that the decision of the PNG Land Board be quashed and the Agriculture Lease over the land Portion 05, Milinch Jimi, Fourmil Ramu, Western Highlands Province be awarded to the Plaintiff as the Only Appellant and Applicant.

(ix)	An Order that the Defendants pay the Costs of and associated to these proceedings.

(x)	Any other order the Court deems fit to be so ordered.

2.	The plaintiff seeks to review the decision of the First Defendant of the 21st December 2021 whereby he awarded the land described as Portion 05, Milinch Jimi, Fourmil Ramu, Western Highlands Province to the 06th Defendant upon appeal from the decision of the Papua New Guinea Land Board in its meeting No. 4 of 2020 held from 07th -11th December 2020 in which the PNG Land Board deferred that application and hearing to Western Highlands Provincial Land Board which was non-existent.

3.	The plaintiff lodged his application in response to the publication made in the National Gazette G241 dated the 23rd March 2017 opened and closed on the 17th May 2017. The subject land was described as Portion 05, Milinch Jimi, Fourmil Ramu, Western Highlands Province. And in response to which the Sixth Defendant lodged his application on the 18th November 2020 three years after the application was closed on the 17th May 2017. His application was for a special purpose lease. The subject lease was an agricultural lease. The prescribed fee of Agricultural lease was K 500 and that was paid by all except the sixth Defendant who paid K 200 for the Special Purpose Lease. It would appear that the third defendant and his officers had processed the sixth defendant’s documents and placed them before the Land Board for its hearing from the 07th to the 11th December 2020 even before the purported application was lodged with the Department of Lands and Physical Planning on the 18th December 2020.

4.	And the land Board after hearing the applications decided in meeting No. 04/2020 item 183 to defer the hearing back to the Western Highlands Provincial Land Board which was communicated to the Plaintiff by letter dated 04th January 2021. And the plaintiff appealed that decision basing that the Western Highlands Provincial Land Board did not exist, or it was never established in the Western Highland Province. The Second and third defendants were advised this fact by Benny Laki the Provincial Executive Manager, Division of Lands and Physical Planning Western Highlands Provincial Administration on 14th February and 21st May 2018.

5.	And there were no reasons given by the PNG Land Board to defer the hearing and the determination to the Western Highlands Provincial Land Board which was non-existent where: -

(i)	 The subject land Portion 05 was advertised for tender applications.
(ii)	And in response to which the plaintiff with others applied but not including the Sixth Defendant.
(iii)	The Director of the Plaintiff travelled to Port Moresby for the land Board hearing involving costs of travel, living expenses in Port Moresby and other related and associated costs of the travel.
(iv)	K 500 application fee was paid by the applicant.
(v)	The PNG Land Board heard the applications from the 07th to the 11th December 2020 and all applicants including the plaintiff made presentations before the Board.
(vi)	And to which the PNG Land Board was supposed to make a decision in awarding the subject land to the Plaintiff or any other applicants there. But that was not done the hearing was deferred to the Western Highlands Provincial Land Board that does not exist with full knowledge of this fact.

6.	And the plaintiff was following up on his decision on or around 2nd December 2021 the first defendant decided to award the Land Portion 05 to the Sixth Defendant the appellant. And that decision of the First Defendant was never communicated to the Plaintiff the appellant and no decision was provided for the decision.

7.	It is disputed that the Plaintiff is an incorporated company under the Companies Act 1997 as amended. Mr Geoffrey Ambia is one of the Customary landowners of Portion 05. And it is not indicative that the application document of the Sixth Defendant was properly and formally accepted by the Department of Lands and Physical Planning. And despite the irregularities in the application of the Sixth Defendant it was granted because of political interference. Its application was not on its merits as an applicant.

8.	The issues posed for determination are; Whether the PNG Land Board committed an error of law in its decision by recommending deferral of the Hearing and recommendation of Portion 05 to Western Highlands Provincial Land Board which was non-existent, after hearing each of the application for Portion 05?

9.	Further whether there was breach of the principles of natural Justice under section 59 of the Constitution when it did not provide any reasons for the deferring of the hearing and recommendation to the Western Highlands Provincial Land Board. 

10.	The main affidavit that is relied on at annexure “A1” is certificate of incorporation issued to the applicant under the companies Act making it a corporation limited as of the 28th April 2015. That document sets out the Director as being the deponent Mr Geoffrey Ambia. There appears to be no other directors apart from him. 

11.	This issue poses that the Land Board did not get around to hearing the application that was lodged by the plaintiff to it relating. The affidavit of Geoffrey Ambia sworn of the 28th June 2023 filed of that day shows that a process was followed by the land board. He applied on behalf of the Plaintiff and because of that fact he was invited by letter to attend its hearing in Port Moresby from the 07th to the 11th December 2020. And he was heard in it on the 10th December 2020 for the Plaintiff. But that the hearing was deferred to the Western Highlands Provincial Land Board. And this was by letter dated 04th January 2021. And when he followed up at the Lands Office, he was given a letter dated 14th February 2018 which was by one Executive Land Manager of Western Highlands Province Benny Laki addressed to the chairman of the PNG Land Board and amongst others it concerned the land to which the plaintiff had applied for tender number 006/2017. And the land Board Western Highlands Provincial was not functioning.

12.	This letter by one Executive Land Manager of Western Highlands Province Benny Laki addressed to the chairman of the PNG Land Board is not annexed to the affidavit to confirm what is deposed by the deponent. There is break in the evidence critical to the case of the applicant plaintiff. Further the list of applicants published in annexure “J” of the affidavit sworn of the 7th August 2023, filed 08th August 2023, the National Gazette G773 of Friday 13th November 2020 denotes applicant at number 2 at item number 183 for the land Board meeting 04/2020. By itself is consistent with adherence to the rule of law, need to comply with section 59 of the Constitution, Audi alteram Partum. With this advice the applicant cannot be and will not be heard. This necessitates compliance for the voice of the applicant to heard and considered in the determination to award the subject state lease. And this is further the case by annexure “K” also of that affidavit Land Board Meeting No. 04/2020 item number 183 applicant 02 who is the plaintiff advice of the commencement of that land Board Meeting on the 07th to 11th December 2020. And what should be brought alone that meeting to assist the cause of the applicant before it. 

13.	This is strong evidence that section 59 of the Constitution must be complied with. And the Land Board is adhering by this evidence contrary to the contention of the plaintiff. Annexure “L” is the submission of the plaintiff before the land Board with whatever material was attached for its consideration in addition. It brings the picture even clearer as to what was to be considered for the application lodged by the plaintiff. Evidence of transparency in what was to be considered by the land board. It is a very thick and thorough submission for the consideration of the land Board in the plea of the plaintiff for that land. And annexure “M” is advice by the Land Board through the office of the Chairman of the Board recommendation of that Board as to the application of the plaintiff, that if it is successful advice will be given of that fact, including it is not successful. There it is recommended that item is deferred o Western Highlands Provincial Land Board.”

14.	In my view there is nothing wrong or sinister about that recommendation. It is placed on that table to be considered there. It is still in the bid yet to be considered. Because that is what annexure “N” is all about, the land board in Western Highlands is not functioning does not mean it is not constituted and in place. It is simply not functioning, not operating, or sitting to hear and discharge the application tendered. And because of the magnitude of the land, it is appropriate that it be considered before the PNG Land Board. That is what it is, it is and does not amount to sinister moves to avoid hearing that application. If it is in record as depicted what is there to defy that the law has been breached and broken. That annexure is copied under hand of Benny Laki Executive Land Manager who is in that Department of Lands and Physical Planning. The very department housing the Land Board, so where would such be if it is on the record of the State Department involved. Both aligned to dealing with due determination of the application made. It is copied to the Provincial Administrator of Western Highlands also copied to the Baiyer office, which in my view is closest to the subject land.

15.	Annexure “O1” of that affidavit is receipt of the payment of K500 due on the application now made. Formal record of government money that has come in because of that application in view of that Board of the government concerned. The annexure “O2” formal application for appeal item 183 meeting No. 04/2020 of the 10th December 2020. Yet again adherence to procedure evidence of maintained by the relevant State Department. Annexure “P” is gazette to that effect of G97 dated 16th February 2020. And annexure “Q” National Gazette G829 of the Thursday 2nd December 2021 announcement of the determination of the appeal in particular item 20, Jimi, Ramu, Western Highlands Province. 04/2020 appeal upheld and granted in favour of appellant Mul Baiyer Lumusa District Development Authority. This is overt and defeats any argument that no reasons have been accorded the plaintiff, by the conduct itself it is more than the reasons on paper: Independent State of Papua New Guinea v Kalaut [2021] PGSC 108; SC2179 (23 December 2021). Further it is government records that speak as to what is the course taken on the plight of the plaintiff’s application.

16.	There is nothing out of the ordinary or improper and unlawful in the determination of the appeal in this way with its publication by the National Gazette set out above. Judicial review is centred on the process in arriving at a decision: Kekedo v Burns Philp (PNG) Ltd [1988-89] PNGLR 122. The decision made will not be substituted for what the Court thinks it should because if there is error demonstrated in arriving: District Land Court, Kimbe; Ex Parte Nuli, The State v [1981] PNGLR 192 can it be the case for the decision to be otherwise. Annexure “R” of that affidavit letter written by Hon Koi Tappe MP Member for Mul Baiyer Lumusa & Chairman of the District Development Authority (DDA) dated 06th September 2018 copied to Hon William Duma Minster for State Enterprises addressed to Hon Justin Tkachenko MP Minister for National Lands & Physical Planning P. O. Box 5665 Boroko National Capital District on issue of Certificate of Occupancy of the subjected land, Portion 149, 157, Portion 111, 112, 113, 166, Issuance of title on Portions 1, 2, 3, 4, 5, of Ruti Formally known as Jimi river Cattle Land, is not political game swinging. 

17.	It is intended for the development of the people there. The language is specifically staged, “Minister, you are aware of the current milestone arrangements with the National Government, District Development Authority (DDA) and Trukai Industries to farm rice and arrangement with Mainland Holdings Limited to plant Sorghum. The engagement of Trukai Industries and Mainland Holdings Limited is a huge move by the National Government and the District. Thus we need the certificate of occupancy and clear Land title to Mul Baiyer Lumusa District Development Authority before commencement. I am therefore requesting your Office to process and facilitate theissuance of certificates of occupancy and land titles as stated above. I am looking forward to receiving your favourable response. Signed Hon Koi Trappe MP Member for Mul Baiyer Lumusa & Chairman DDA.” 

18.	Because looking at the affidavit of the Geoffrey Ambia sworn 28th October 2022 filed of the 03rd November 2022, the annexure “A” is minutes of a single person he, not anyone else in that meeting. He is the sole owner director of the Plaintiff Company and would there be a resolution where the composition of that meeting of the Monday 07th February 2022 at 2.00pm is a single person, Geoffrey Ambia sole Director & Shareholder. How would there be a resolution with the composition of the meeting comprising a single person. Where is the coram to constitute that meeting. He is the secretary of that meeting because he signs it at the end in that capacity of sole Director & Shareholder. What this evidence does is to create what is not there, a landowner company interested in the welfare of the people of that area. Which is not the case of the Mul Baiyer Lumusa District Development Authority headed and led by Hon Koi Trappe MP Member for Mul Baiyer Lumusa & Chairman DDA. In my view when evidence is fabricated as here of a meeting that was never there, including the purported resolution because there is no one else in that meeting, it amounts to serious issues against the consideration of the case that is asserted by the Plaintiff. 

19.	Especially when it is against the backdrop of all that the defendants have complied to ensure the road was by due process of the law, not otherwise. It means that the writ of certiorari geared to make right process of law, with the quashing of the decision that is made against, will not lie in favour of the plaintiff. Because it is clear that by annexure “A1” of the affidavit of the 07th August 2023, the company extract Certificate of Incorporation Waripapau Development Corporation Limited 1-106452 incorporated as of the 28th April 2015 has himself, Geoffrey Ambia as sole director and also has 1000 shares to his name, no other. It is not a landowner company consisted of incorporating person other than himself within that area. That is why the supposed meeting of the Monday 07th February 2022 at 2.00pm is a single person, Geoffrey Ambia sole Director & Shareholder, not that area comprising other persons also of that land area. It is not the case with Hon Koi Trappe MP Member for Mul Baiyer Lumusa & Chairman DDA and Mul Baiyer Lumusa District Development Authority. The Heart for the People not the plaintiff all for himself. 

20.	He has misguided himself because this is not a derivative action because how could it amount to that in law when he is the only director Shareholder. Who is there to give him authority even section 143 of the Companies Act has not been heeded to by the plaintiff by all set out above. It is of Equity that He who is of Equity must first do Equity, Equity is not against the law but with the law. And what is set out above accords with the law. He has not discharged that declaration lies in his favour. His pleadings by his notice of motion set out above will not be accorded. Because there is no error apparent on the face of record against the law in any way or form, apparent or identifiable to sway that Judicial review lies in his favour. Certiorari does not lie pursuant. What is firmed out by the evidence that he himself has produced leave no iota of doubt that there was due compliance and adherence leaving no room for the notice of motion, terms of which I set out above. It is without merit and will be refused forthwith. Cost will follow the event if not agreed to be taxed.

21.	The formal orders of the Court are:

(i)	The Notice of motion is without merit.
(ii)	Judicial review is refused.
(iii)	Costs will follow the event forthwith. 

Orders Accordingly.
__________________________________________________________________
Supasonixs & Alu Lawyers: Lawyer for the Plaintiff/Applicant
Office of the Solicitor General: Lawyer for Defendants