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National Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
OS (JR) No. 414 OF 2014
BETWEEN:
TONY KALEM for himself and on behalf of 29 Others
First Plaintiff
AND:
MOALE GABUNA Peace and Good Order Community Association Inc.
Second Plaintiff
AND:
YUMI YET TRADING
First Defendant
AND:
EKE LAMA
Second Defendant
AND:
BENJAMIN SAMSON – Registrar of Titles
Third Defendant
AND:
ROMILLY KILA-PAT – Secretary for Department of Lands & Physical Planning
Fourth Defendant
AND:
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Fifth Defendant
Waigani: Nablu, J
2015: 2nd December
2016: 9th September
JUDICIAL REVIEW – Land Act ss. 69, 104, 105 & 106 – Grant of State Lease – Urban Development Lease – Decision of the Head of State – Appeal from Land Board – Breach of the mandatory statutory process – Failure to advertise for tender of Urban Development Lease – null and void abinitio – Tender bid application flawed – Evidence of false documentation – Evidence of “actual fraud” of the registered proprietor – Koitachi Ltd v. Zhang (2007) SC 870 – followed.
Cases cited:
Alan Stevens v. Kopi Lapara (2013) N5425
AviaAihi v. The State (No. 1) [1981] PNGLR 81
Danny Sunu v. The State [1984] PNGLR 305
Helifix Group of Companies v. PNG Land Board & Others (2012) SC1150
Innovest (PNG) Ltd v. Pruaitch&The State (2014) N5949
Kekedo v. Burns Philip(PNG) Ltd [1988-89] PNGLR 122
Koitachi Ltd v. Zhang (2007) SC870
Marginson v. Blackburn Bourough Council [1939] 2 KB 426
MisionAsiki v. ManasupeZurenouc(2005) SC797
Steamships Trading Ltd v. Garamut Enterprises Ltd (2000) N1959
Counsel:
J. Umbu, for the Plaintiff
T. Dalid, for First and Second Defendants
E. Manihambu for the Third, Fourth & Fifth Defendants
JUDGMENT
9th September, 2016
1. NABLU, J: The plaintiffs were granted leave to review the decision of the Head of State to grant a State Lease Volume 54 Folio 2 for an urban development lease to the first and second defendants on 28th May 2013 and decision of the Secretary for Lands and Physical Planning to confirm that decision. The State Lease was granted in respect of the land described as Portion 2699. Also the decision of the Registrar to register two different urban development leases in favour of two different entities that is, the first defendantYumi Yet Trading and then Yumi Yet Shop Limited on 29th May 2013 in respect of the same land described as Portion 2699 and contained in State Lease Volume 54 Folio 2.
2. The plaintiff has identified a number of decisions which they wish to review which are contained in the Statement in support pursuant to Order 16 Rule 3(2)(a) of the National Court Rules. They are as follows;
3. The plaintiff seeks various forms of relief. The main form of relief is an order of certiorari to quash the following decisions;
4. A version of the background of the facts of the dispute is provided for in the Affidavit of Tony Kalem who represents 29 other persons. They currently reside on part of the State Land described as 2699 Milinch Granville, Port Moresby, NCD. The area is commonly known as “MoaleGabuna”.
5. The plaintiffs moved on to the land and lived there since 1984. Majority of the residents were former employees of Suckling Enterprises, Papuan Skyline Theatre and Rouna Phoenix companies. The plaintiff stated that over the years the companies built permanent houses and they made gardens on the land.
6. The affidavit of Tony Kalem filed on 18th June 2014 annexes a copy of a consent form which is signed by the 29 other plaintiffs.
7. On 28th May 2013, the Secretary for Lands and Physical Planning, as the delegate of the Minister for Lands and Physical Planning confirmed the decision of the Head of State pursuant to Section 62 of the Land Act, 1996. The Head of State granted a Urban Development Lease (UDL) title to the first defendant after the second defendant had appealed the decision of the Land Board to withdraw or defer the item from consideration for Portion 2699 (Volume 54 Folio 002, Milinch, Granville, Fourmil Moresby).
8. On 28th May 2013, the title over the land Portion 2699 was produced under the name Yumi Yet Trading and then later it was changed toYumi Yet Shop Limited. According to a company registry search, the business name Yumi Yet Trading is owned by one Big Bel Yauae. Yumi Yet Shop Limited is a different entity and business name which is owned by Eke Lama, the second defendant in these proceedings.
9. Yumi Yet Shop Limited had applied for and held a UDL title over an adjoining parcel of land known as Portion 2577. The UDL had lapsed on 6th January 2012. Sometimes in 2010 the second defendant expressed interest in obtaining a UDL over Portion 2699. The Chairman of the National Capital District Physical Planning Board (NCDPPB) in a letter dated 6th August 2009 reviewed the approval for sub-division, design and zoning on the 25thof June 2008. It is alleged by the plaintiff, that the second defendant had exceeded the boundary and unlawfully commenced work on Portion 2699.
10. On 7th May 2013 the Head of State upheld the second defendant’s appeal against the Papua New Guinea Land Board’s decision to recommend to withdraw the item for the grant of a UDL over portion 2699. The Head of State then, granted the UDL in favour of the first defendant over land Portion 2699. In my view, this is the primary decision which the plaintiff seeks to review. Consequently the Secretary for Lands and Physical Planning as the delegate of the Minister confirmed the decision of the Head of State to grant the UDL to the first defendant.
11. The plaintiff relied on the following affidavits to support their claim. The Affidavits of Tony Kalem filed on 18th June, 2014, 5th September 2014, 31st October 2014, 28th April 2015 and 25th November 2014. The Affidavits of Zebedee Pang filed on 1st August 2014 and 24th April 2015. The Affidavit of David Veveni and the Affidavit of PagaTuvi which were both filed on 24th April 2015.
12. In response, the defendants filed the affidavits of Eke Lama filed on 8th July 2014, 19th August 2014, 17th October 2014, 7th May 2015 and 25th August 2015. The defendants also relied on the Affidavits of Korim Tame filed on 30th July 2014 and 7th May 2015. The Secretary for Lands and Physical Planning,Romilly Kila-Pat also filed an affidavit in support of the defendants on 3rd December 2014.
13. The facts according to the defendants’ are different. In his affidavit filed on 7th July 2014, Eke Lama states that he is the Managing Director and owner of the first defendant, Yumi Yet Trading. He then states that Yumi Yet Shop Limited had shown interest in acquiring land from the State for commercial development, such as residential or commercial development. After consultation, with the Department of Lands, they were granted a Licence 191200(SIR) for a period of 12 months to conduct feasibility studies. A licence fee of K360 was paid in December2006. They then started liaising with the Lands Department to sub-divide the land.
14. On 15th December 2006, Yumi Yet Shop sought an exemption from public advertisement from the Minister. From the evidence before me, it is unclear whether the exemption was granted. The land Portion 2577 was advertised for tender on 8th March 2007. The first defendant bid for the land Portion 2577, after it was placed on tender.
15. He stated that on 25th May 2010, the first defendant also submitted a tender bid for the land Portion 2699, Milinch of Granville, Fourmil Moresby, NCD. On 14th October 2011, the Land Board published the notice that they had considered the first defendant’s Urban Development Lease in the National Gazette.
16. According to Eke Lama’s affidavit, he states that the Land Board considered their application and approved the grant of the lease on 25th, 26th, 27thand 28th October 2011.
17. On 14th November 2011, they received a letter from the Land Board informing them that they recommended Yumi Yet Shop to be granted the lease. The second defendant stated that he undertook consultations with the Department of Lands & Physical Planning. The title over Portion 2699 was issued to Yumi Yet Shop on 27th August 2013.The second defendant, then proceeded to evict the plaintiffs from Portion 2699 by instituting District Court proceedings.
18. The plaintiffs then filed National Court proceedings WS (HR) NO.936 of 2013 on 31stAugust 2013. Interim restraining orders were issued by the National Court staying the eviction. Then on 24th April 2014, the National Court dismissed the entire proceedings.
19. According to the Statement of Agreed & Disputed Facts. The only fact that the parties agree on is that, the first defendant was granted a five (5) year Urban Development Lease. On 28th May 2013 for Portion 2699 under State Lease Volume 54 Folio 2 which contained a land area of 22.6 hectares was granted to the first defendant, Yumi Yet Trading.
20. There were a number of issues for determination as agreed to by the parties. They are;
21. The plaintiff argued that the process was flawed. The second defendant is the proprietor of Yumi Yet Shop and not Yumi Yet Trading.Yumi Yet Trading was a separate legal entity. Two State Leases were issued to YumiYet Trading and Yumi Yet Shop for the same land. The plaintiff does not dispute that the land is State Land. They however say that they have lived on the land for over 30 years. Therefore they are classified as “permissive settlers” and not illegal settlers as contended by the defendants. They maintain that they have an equitable interest over the land.
22. It was difficult to ascertain the grounds of review due to the insufficient form of the pleadings. It would appear to me that the main ground of review is that the decision to issue multiple UDL’s to the first defendant and Yumi Yet Shop Limited was in breach of the prescribed mandatory procedures under the Land Act. Therefore the grant of the State lease was unlawful, ultra vires, null and void.
23. In my view, the particulars of the breach are that the decision-maker failed to comply with the prescribed mandatory procedure stipulated in Sections 104 and 106 of the Land Act by failing to advertise the tender publicly for land Portion 2699. Alternatively, if the Court finds that the Land was duly advertised, then the plaintiff contends that there was no formal decision by the Land Board as to who the successful tenderer was. Thereby breaching ss.73, 74 and s. 75 of the Land Act.
24. The second ground of review is that the defendants failed to comply with the proper appeal process under the Land Act. The Papua New Guinea Land Board on 20th May 2010 considered the first defendant’s tender application in its meeting No. 03 of 2011 and recommended that it be withdrawn and deferred. The decision was published on 20th January 2012 in the National Gazette No. G31 of 2012.
25. The Head of State when making the decision did not comply with Section 62(5) of the Land Act by failing to remit the matter back to the Land Board to consider but instead made the decision to grant the State Lease to the first defendant on its own volition.
The Law
26. An application for judicial review proceeds in two stages. First the applicant must prove one or more of the grounds of review. If the applicant successfully makes a case, then the next stage requires the applicant to make a case for the relief. Judicial review is an equitable and discretionary remedy. It follows, that the grant of relief is also discretionary; MisionAsiki v. Manasupe Zurenouc (2005) SC797.It is also trite law that Judicial Review is concerned about the decision-making process not necessarily the decision the subject of review (Kekedo v. Burns Philip (PNG) Ltd [1988-89] PNGLR 122).
27. It is necessary to set out the relevant provisions of the Land Act and the provisions which relate to the grant of an urban development lease and the appeal process to the Land Board.
28. Section 104 of the Land Act states that;
104. Urban Development Leases to be granted over land in physical planning areas suitable for Sub-division.
29. Section 106 of the Land Act states that;
106. Grant of Urban Development Lease of Government Land.
30. Section 62 of the Land Act states that;
62. Appeals
31. Before consideration of the grounds of review, the defendants have raised two preliminary issues for the Court to determine. The first issue is a contentious one and that is the argument that the plaintiffs do not have sufficient interest to bring this application for judicial review. The second issue which was raised by the State was that the doctrine of res judicata is applicable. I will deal with these issues first before considering the grounds of review.
Sufficient Interest
32. It is trite law that only persons with sufficient interest are granted leave (Order 16 Rule 3(5) of the National Court Rules). If a plaintiff cannot show that he has sufficient interest than the Court cannot invoke its’ powers of judicial review.
33. Sufficient interest is essentially a mixed question of fact and law, a matter of fact and the degree of the relationship between the plaintiff and the subject matter of his complaint. In the case of Steamships Trading Ltd v. Garamut Enterprises Ltd (2000) N1959, His Honour Justice Sheehan stated that;
“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 rights in law has been affected or that he has suffered some prejudice. But the right to invoke the Court’s supervisory jurisdiction is not restricted to protection of personal right only. It can extend to more public issues.” (Emphasis mine)
34. The determination of standing is only possible with an examination of the complaint itself. In the landmark case of SCR NO. 4 of 1980; Re: Petition of Michael T Somare [1981] PNGLR 265, the Supreme Court recognised the right of a citizen to challenge the legality of or constitutionality of legislation. In this jurisdiction the Court has generously interpreted the term “sufficient interest”.
35. The defendant’s in raising this objection argued vehemently that the plaintiffs were illegal settlers and did not have the legal interest to pursue this matter. In fact, they are illegal settlers who have lived there with no lawful authority since the 1980’s. They did not have legal title over the land which they are living on. Furthermore, they did tender for the portion of land but were unsuccessful.
36. On the other hand, the plaintiff argued that they were settled on that land by their former employer. The evidence before me shows that, it is unclear how the former employer was granted the land. It is however not contested, that Portion 2699 is State Land. They have initiated attempts to obtain titles to their land parcels. They had built permanent or semi-permanent homes on the land.
37. When applying the principle in the Supreme Court case of AviaAihi v. The State (No.1) [1981] PNGLR 81. I am of the view that they have equitable interest. According to AivaAihi’s case, the Court should intervene to protect their primary rights to make orders that are appropriate in the circumstances. The Courts’ inherent power stems from s.155 (4) of the Constitution.
38. The discretion will only be exercised where it is in the interests of justice to do so and the Court is satisfied. See Danny Sunu v. The State [1984] PNGLR 305.
39. One may argue conversely that the principle in AviaAihi’s case is only applicable to criminal appeals. There is adequate authority that the principle has been applied in numerous civil and judicial review cases. See Innovest (PNG) Ltd v. Pruaitch(2014) N5949 in regard to a detailed analysis of the Courts’ inherent power to do justice in the circumstances by virtue of Section 155(4) of the Constitution. His Honour, Gavara-Nanu, J eloquently covers and discusses in great detail the case law on the application of the principle that the Court has the inherent power to protect the primary right of the plaintiff pursuant to Section 155(4) of the Constitution (see pages 11-18 of the Judgment).
40. I find that the plaintiffs have lived there on that portion of land for over thirty (30) years. Despite the fact that they did not have legal title. I have taken into consideration the fact that they have lived on that portion of land for a substantial period therefore they would have equitable interest, which in my view insufficient enough to seek judicial review.
41. Judicial Review is an equitable remedy and having an equitable interest they are right to come to this Court of Equity. In saying that, this Court has a duty to protect their primary right to seek judicial review and ensure that the interest of justice prevails as envisaged by Section 155(4) of the Constitution.
42. Notwithstanding the lack of evidence of legal ownership, I am satisfied that the plaintiffs have a primary right to be informed that their livelihood and homes were at risk of been removed. They have the right to seek any legal redress available to them. From the evidence before me, I find that they had attempted to properly sub-divide the land and seek proper legal ownership.
43. The majority view of the Supreme Court in Avia Aihi v. The State [1981] PNGLR 81, stated that Section 155(4) of the Constitution provided an unfettered discretion to tailor the remedial court process to protect an existing primary right. It should be noted that Section 155(4) did not give the Court power to create primary rights. Therefore, such powers must be used cautiously and within the ambits of the law.
44. Therefore, when examing the complaint in light of the facts, I am persuaded that the plaintiff has sufficient interest. For the foregoing reasons, I am satisfied that the plaintiff has an equitable interest in the land by virtue of their long residency and therefore they have sufficient interest. Accordingly, I dismiss the objection raised by the defendants.
Res judicata
45. The next objection raised is that the matters before this Court are res judicata and therefore the principle of estoppel is applicable.
46. The case of Marginson v. Blackburn Bourough Council [1939] 2 KB 426 is a notable authority for the doctrine of res judicata and issue estoppel. His Honour, Poole J succinctly summarised the principles in that case in Alan Stevens v. Kopi Lapara (2013) N5425 which I agree with and adopt;
“ 1. The decision must be judicial.
2. The decision must, in fact be pronounced.
3. The tribunal must have had jurisdiction over the parties and the subject matter;
4. The decision was final and on its merits;
5. The decision determined the same question as that raised in later litigation; and
6. The parties to the later litigation were parties to the earlier litigation.”
47. The defendant’s say that the issues before this Court are res judicata. They contend that a National Court ruling in WS (HR) No. 936 of 2013 determined the issues.
48. When applying those principles to the facts before me. I find that the decision which the first defendant’s argue is res judicata is the decision of his Honour Justice Yagi in proceedings WS (HR) NO. 936/2013. It is not disputed that the decision has been judicially pronounced. The parties are similar. The only exception is that in the present case, the Secretary for Lands, Registrar of Titles and the State are included as defendants. The proceedings were dismissed by the trial judge. The main reason for dismissal was that the pleadings were insufficient. There was a six (6) month delay in which the plaintiff had failed to take appropriate steps to rectify the pleadings. Therefore the Judge exercised his discretion to dismiss the case.
49. I am of the view that the first defendants’ objection which raised the issue of res judicata is frivolous, without merit and should be dismissed.
50. Firstly, the earlier proceeding was a human rights application commenced by way of a Writ of Summons. The present case is an application
for judicial review of the decision of the Lands Secretary and the Head of State. I am not persuaded by the defendant’s objection
that the Court did not determine the issues which are currently before this Court. The Court determined the matter and summarily
dismissed the matter because of a procedural error or technicality. Therefore, I dismiss the objection as been misconceived and without
merit.
Grounds of Review
Breach of Prescribed Mandatory Procedure
51. The mandatory procedure for granting of a State Lease is provided for under Part X of the Land Act. The relevant division which relates to urban development leases is Division 10 of the Land Act. The process is commenced when the Department of Lands and Physical Planning identifies State Land available for leasing and advertises the land pursuant to Section 104 of the Land Act. It should be noted the land may also become available for leasing through the forfeiture process by the State pursuant to Section 122 of the Land Act. The land in most cases is advertised publicly pursuant to Section 69 of the Land Act.
52. In some cases, the Minister or his delegate has the discretion to exempt the portion of land from advertisement. This is only done where the Minister is satisfied that the land should not be advertised because the following conditions exist under Section 69(2) of the Land Act. The interested applicants than lodge their tender bids and the matter is listed before the Land Board for consideration. The Land Board upon consideration then recommends the successful tenderer to the Minister. The Minister then grants the State Lease to the successful applicant subject to conditions for improvement covenants and payment of the annual land rental fee. The State may also impose other conditions such as the value of the improvements or other structure or design conditions.
53. After the Land Board recommendation of the successful applicant, an aggrieved applicant can appeal to the Minister. The appeal should
be lodged with the Minister within 28 days. (Section 62 of the Land Act) It should be noted that these decisions are advertised in the National Gazette. In regard to the urban development lease, the State
has the option to advertise undeveloped land to potential investors to lawfully acquire for development purposes. The process for
the grant of an urban development lease is stipulated in Sections 104, 105, 106 and 107 of the Land Act. The process is the same as any other grant of a State Lease.
54. Where Government Land within a physical planning area is suitable for subdivision, the land shall be offered for lease by tender.
(Section 104 of the Land Act).
55. It is mandatory that the Chief Physical Planner or his delegate certify that the conditions precedent, as provided under Section 105(a) to (c) before the land is offered for tender. The land must be within a physical planning area, properly zoned, suitable for sub-division and suitable for release. There must be consultation with other authorities such as utility providers to avoid undue expense to the State (Section 105(a)(ii) of the Land Act).
56. A plan showing the location of the land and an assessment of the subdivision potential of the land is required as stipulated by Section 105(b) of the Land Act. The plan should specify the lease development conditions. The conditions that are applicable include infrastructure or zoning when part or whole of the land subject to the lease is subsequently surrounded. The tender bid application is exhaustive. The requirements are mandatory and provided for under Section 106 of the Land Act.
57. The plaintiff argues that there are a number of breaches of procedures under the Land Act. I will consider each breach separately. The first is the purported breach of Section 104(1), (2)(a), (b) and (c) of the Land Act. The plaintiff also argues that the defendants did not advertise Portion 2699 publicly as a mandatory requirement under Section 69 of the Land Act.
58. The defendants on the other hand argued that the land was publicly tendered.
59. In my view, this ground of review should be determined first. The land was gazetted on G34/2007 (8th March 2007). In the affidavit of Eke Lama, he states that it was advertised. He annexed a memo from the Lands Department, but I note that there is no Gazette Notice attached.
60. In the affidavit of Romilly Kila-Pat he stated that Portion 2699 was tendered as available for leasing in G31 of 2012 – (dated 20 January 2012). A copy of the gazette notice is annexed as Annexure“E” in that affidavit. However, the actual annexure is, gazette G109 – 20 May 2010. The closing date for the tender was Wednesday 2nd June 2010.I find that there is inconsistencies in the evidence to prove that the tender notice was in fact published for Portion 2699. The evidence indicates that Portion 2699 was advertised in G109 of 2010 (dated 20th May 2010) and not in G34 of 2007 and G31 of 2012 as claimed by the second and fourth defendant.
61. In the evidence before, I find that the tender application stated the Yumi Yet Shop Limited applied for the tender. However, there are some issues with the Tender Form. The advertisement it is referring to is 49/2007. The portion of land is Portion 2577 and the Tender Form is dated 8/07/07. This is in page 507 of the Review Book. The same tender form is included in the affidavit of Korin Tame at page 592 of the Review Book. It is this tender notice which the second defendants argue was the application for tender of Portion 2699.
62. The evidence before me shows that the application for tender was done three (3) years before the land was purported tendered. At the outset, the tender bid application is insufficient it does not include the details which are mandatory under Section 106 of the Land Act.
63. The defendants’ argue that the Portion of land was re-numbered to 2699 hence the change of their application from a tender for Portion 2577 to a tender for Portion 2699. I find that the explanation by the first and second defendants to be unbelievable and not the truth. The land is a large piece of government land. In my view, the process should have been transparent to allow other interested applicants to apply. The change of the portion of land should have been done properly by the Chief Physical Planner. Due to the size of the portion of land, it was incumbent of the officials to take care and ensure that the mandatory statutory process was complied with.
64. I reject these arguments and I reject the evidence of the Korin Tame, Eke Lama and Romilly Kila-Pat because of the clear errors and inconsistencies.
65. Therefore, I find that there is no evidence that the defendants made an application for the land pursuant to the Notice of Tender in G109 of 2010 (dated 20th May 2010). I also find that there is no evidence that the first or second defendant was granted an exemption pursuant to Section 69 of the Land Act. I also find that there the first and second defendants did not formally apply for tender of Portion 2699. I find that the first and second defendant’s applied for Portion 2577 in 2007, not portion 2699.
66. It is mandatory requirement of law to advertise the land for interested applicants to apply. The failure of the Department of Lands to advertise the land leave and the fact that the defendant failed to apply for the land renders the whole process voidab initio.
67. It also raises a reasonable apprehension of bias and questions the legality of the process. I find the whole process unlawful, null and void. In regard to this ground of review, I am satisfied that the plaintiff had made out this ground of review.
68. The defendant’s also stated that the plaintiff also applied for Urban Development Lease but were unsuccessful, therefore they should have followed the appeal process under Section 62 of the Land Act which they failed to do so. Therefore, they cannot now appeal to the National Court for review.
69. The plaintiff argued that they had evidence that they had sought and obtained approval by the NCD Physical Planning Board. They were in the process of surveying and sub-dividing the land. The defendants however, argued that they are illegal settlers who had no lawful authority to reside on the Land. To support their contention, they argued that the second defendant had a State Lease in his company’s nameYumi Yet Shop Limited. He held a legal title over the land and was the registered proprietor.
70. I am of the view that, the proper tender process was not followed under the Land Act. Discrepancies in the affidavit material should not be overlooked.
71. In the present case the plaintiffs argue that they had, in an effort to secure the land on which they were residing, they applied to the National Capital District Commission Physical Planning Board in August 2009. They had also engaged the services of a surveyor who undertook part of the survey of the Land. However, the surveyors work stopped due to the lack of funds.
72. In June 2011, the plaintiffs re-submitted an application for a Urban Development Lease (UDL) and Permission to Occupy Certificate (POC) for part of Portion 2699. The plaintiffs’ submission for permission to occupy was approved by the NCD Physical Board in Meeting No. 02/20/2012. The Board approved their application for a POC, and the subdivision and declaration of the land as a residential zone on 23rd February 2012.
73. A copy of the letter is annexed to the Affidavit of Tony Kalem which was filed on 18th June 2014.
74. I am of the view that the procedure in this matter was not properly followed. It is a mandatory requirement that The Land Board shall consider and make a recommendation on any matter referred to it by the Minister or the Department (Sections 57(1), 71, 106(2) of the Land Act). With respect to UDL’s, it is mandatory that the Land Board consider all applications for the grant which have been investigated and referred to it by the Department. The Land Board must have five (5) persons which include the Chairman or deputy Chairman, Surveyor General or his delegate, and the Chief Physical Planner of his delegate.
75. The only exception is where the Minister is exclusively empowered by this Act to make a direct grant of a State Lease. The process under the Land Act is clear. In the evidence before me, I am satisfied that the statutory mandatory process was not complied with.
76. The grant of an urban development lease is to be done by way of tender. The Land Board has the power to consider the applications for grant of an urban development lease.
77. In the evidence before me, it is clear that the tender application or matter was not duly considered by the Board but was withdrawn. The National Gazette No. G31 of 2012 (dated 20th January 2012; Pages 719 and 721-722 of the Review Book) and the decision by the Land Board on Meeting 01/2012 (Annexure ‘I’ of the Affidavit of Romilly Kila-Pat) is clear the Land Board “RECOMMENDED that the item be WITHDRAWN and that the land be re-subdivided to a reasonable size to cater for other land use requirements.” The Supreme Court in the case of Helifix Group of Companies v. PNG Land Board(2012) SC1150 held that the decision to withdraw an item is not a decision which is subject of review.
78. It is a decision which is of a managerial or administrative nature. The decision is directly related to the manner in which the Board runs it’s business affairs. It is not a decision made pursuant to a statutory provision. Therefore, the Head of State exceeded his powers when he made a decision to uphold the first defendants appeal and grant the State Lease.
79. I am of the view that there were serious breaches of the mandatory procedure under the Land Act which cannot be overlooked by this Court. These breaches are serious errors of law committed by the decision-maker. The Department of Lands failed to advertise the tender. The bid by the second defendant’s was made three (3) years earlier. The Land Board withdrew the application. The second defendant was then allowed to lodge and pursue an appeal to the Head of State. The appeal was incompetent. The Department of Lands then prepared a submission recommending the grant of the lease to the first defendant.
80. The Land Board did not make a decision pursuant to a statutory provision capable of review. I am convinced that the Department of Lands’ submission created an apprehension of bias and such conduct in preparing a subdivision with the knowledge that the tender process was not adhered to was highly irregular and amounted to fraud.
81. This in my view is a case where there is a question of fraud and the question whether the registered proprietor in this case Yumi Yet Trading and Yumi Yet Shop Limited committed the fraud. There is evidence of actual fraud and therefore, the registered title should not be allowed to stand.
82. The Supreme Court in the case of Koitachi Ltd v. Zhang (2007) SC870 held that the term “fraud” pursuant to Section 33(1)(a) of the Land Registration Act, means actual fraud. I am bound to follow the decision of the Supreme Court.
83. I find that the conduct of the first, second and the fourth defendant amount to actual fraud and therefore the registration of the State Lease cannot stand. The fraud in my view, is the submission of a tender application for a portion of land not yet advertised publicly. Then proceeding on to appeal to the Head of State knowing that the tender documents were false. The first defendant, Yumi Yet Trading is a separate legal entity from Yumi Yet Shop Limited.
84. I also find it suspicious that the first and second defendants appear to have various minutes and internal memos in their evidence which raises a reasonable apprehension of bias.
85. In regard to the relief, I am of the view that the breaches are so flagrant, so serious and so blatant that they should not be overlooked by this Court in the interests of justice. Therefore, I will grant orders quashing the decision of the Head of State to grant the urban development lease to the first defendant and the subsequent change of the title to Yumi Yet Shop Limited. I will also grant orders to cancel the registration of the title to Yumi Yet Shop Limited.
86. The plaintiff has also argued alternatively that the Court should declare that Portion 2699 is not vacant State Land. Furthermore, they argue that Portion 2699 should be further sub-divided by the Surveyor-General into reasonable size allotments for other land use requirements including the land currently occupied by the plaintiffs. The plaintiff also sought orders for the Secretary for Lands and the Registrar of Titles to facilitate and register individual State Leases to each of the thirty (30) named plaintiffs in these proceedings in respect of part of the land portion 2699 which they currently occupy.
87. I am of the view that this is a judicial review application, which means the Court is only concerned with the question of whether the decision the plaintiffs are aggrieved about how the decision was arrived at following the mandatory statutory process. I decline to grant that relief, it is an administrative matter for the plaintiffs to pursue with the Department of Lands. Those matters raised by the plaintiffs, are matters which should be considered by the Department of Lands.
88. I refuse to grant those orders sought. I will however, order that the defendants are to pay the plaintiffs costs. Because of the conduct of the parties, I order that 40% of the plaintiff’s costs to be paid by the first and second defendants. The third, fourth and fifth defendants are to pay 60% of the plaintiff’s costs of the proceedings on a party-party basis.
Court Orders:
___________________________________________________________
Saulep Lawyers : Lawyers for the First and Second Plaintiffs
Wantok Legal Group : Lawyers for the First and Second Defendants
Office of the Solicitor General: Lawyers for the Third, Fourth and Fifth Defendants
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