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Puipui v Pat [2016] PGNC 326; N6538 (25 August 2016)

N6538
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]


O.S (JR) NO 745 OF 2012


INTHE MATTER OF AN APPLICATION FOR JUDICIAL
REVIEW UNDER ORDER 16 OF THE NATIONAL COURT
RULES


BETWEEN:


JOEL PUIPUI -
Chairman SUKPRAMATKA LAND GROUP INC.
First Applicant


AND:


PENIAS WAGIRE
Acting Chairman SAEL MANDER ILG

Second Applicant


AND:


MATHIAS SABATKA
Chairman MALANGAIT ILG of QAQET CLAN
Third Applicant


AND:


Chief JONAH TODI - AVIR CLAN
Fourth Applicant


AND:


Chief HOSEA KAILAM, URAMAT CLAN
Fifth Applicant


AND:


DANIEL TUVI
President INLAND BAINING LLG
Sixth Applicant


AND:


ROMILLY KILA PAT

Secretary for Lands & Physical Planning

First Respondent


AND:


BENNY ALLAN
Minister for Lands & Physical Planning
Second Respondent


AND:


THE INDIPENDENT STATE OF PAPUA NEW GUINEA
Third Respondent


AND:


KAIRAK ILG
Fourth Respondent


AND:


QAQET TEWARDSHP COUNCIL INC
Fifth Respondent


AND:


EAST NEW BRITAIN PALM OIL LIMITED (NO.3)
Sixth Respondent


Kokopo: Lenalia, J.

2015: 14th, 15th, 16th & 28th August,

22nd & 23rd September, 15th, 16th October, 3rd, 6th, 9th,16th November

2016: 11th March, 2nd& 20th May, 25th August


ADMINISTRATIVE LAW– Judicial review of administrative acts – General principles – Substantive judicial review of administrative processes taken by the Minister for Lands & Physical Planning and the Secretary of the Department.


JUDICIAL REVIEW – Where alternative statutory procedures followed in consideration of rights of interested parties over acquisition of customary land within Portions 908C and 909C Milinch Pondo (NE) (SE) Kokopo (NW) (SW), Fourmil Rabaul.


PRACTICE & PROCEDURE – Process of acquisition of customary land for Business and Agricultural Leases pursuant to Land Act 1996 – Process taken where no diligent and no meaningful consultation with land owners taken by the Minister for Land and Physical Planning and the Secretary for Lands – Whether the Minister failed to comply with statutory preconditions for acquisition of customary land by the State and for granting of lease for special agricultural and business purposes.


Cases cited:
Arowe Logging Pty Ltd v PNG [1988-89] PNGLR 216.
Chan v Ombudsman Commission [1998] PNGLR 171 or Ombudsman
Commission v Yama (2004) SC747
Doriga Mauru & Ors v Hon. Lucas Dekenai & Ors (2013) N5307
Kekedo v Burns Philip & Ors [1988-89] PNGLR 122
Mamun Investment Pty Ltd & Ors v Paul Ponda & Ors (1995) PNGLR 1
Musa Valley Management Company Limited & Musa Century Limited v Pepi Kimas & Ors (2010) N3827
NTN Pty Ltd v PTC [1987] PNGLR 70
NCDIC v Crusoe Pty Ltd [1993] PNGLR 139


Counsel:


Mr. F Cherake, for all Applicants
Ms. S Vate & A. Edo, for 1st – 3rd Respondents
Mr. W. Donald, for the Fourth Respondent
Mr. P Yange, for the Fifth & Sixth Respondents


25th August 2016


1. LENALIA J: The proceedings before this Court is a judicial review of the decisions of the First and Second Respondents over the processes of acquiring customary lands for Special Agricultural and Business Lease (SABL), described and known as Baram / Grangait land over Portions 908C and 909C comprising 10,980 and 23,556 hectares of land respectively. The Portions of land are located on the Inland Baining area in the Gazelle District, East New Britain Province.


2. The six Applicants applied for leave for judicial review back in 2012. Leave for judicial review was granted on 5th March 2013. The following grounds of review are relied on by the six applicants:


(1) The decision by the First Defendant/Respondent breached Sections 10, 11 and 102 of the Land Act in that the Plaintiffs never gave their consent and or did not consent nor approve the lease of the whole of their customary land for 99 years or even if they consented or approved the majority of them did not give their consent or approval over Portions 908C and 909C comprising10, 980 and 23,556 hectares of land respectively.

Particulars


(a) The Instrument of lease of Customary Land (Lease/lease Back Agreement) executed on ............................ Was by the First Defendant/Respondent and/or his predecessor, Pepi Kimas and the fourth Defendant, through a Elias Kamasa only and no one else.

(b) The Fourth Defendant cannot be and or can never be a defined as a “landowner” or “landowners” for purposes of Section 10,11 and 102 of the Land Act because it is a company and the proper acquisition of customary land under a lease/lease back arrangement is for the majority of the landowners either by themselves or through their ILGs to actually sign the instrument which was not the case.

(c) Section 10, 11 and 102 of the Lands Act refers to “landowners” giving their consent and or approvals for the acquisition of their customary land and not by a single corporate entity alone.

(d) The acquisition and subsequent lease of the land was done exclusively between the First Defendant and the Fourth Defendant to the exclusion of the land owners.

(e) The Plaintiffs have not given their Consent and there is no Land Investigation Report confirming or evidencing this over Portions 908C and 909C because there was none done by the State and Department of Lands and Physical Planning.

(f) Additional particulars will be provided prior to or at the hearing.

(2) The decisions of 6th May 2011 was in breach of natural justice principles under Section 57 of the Constitution and is therefore null and void and of no effect.

(3) The series of actions and or decisions individually and/or taken as a whole, is or are harsh and oppressive act(s) within the meanings of “proscribe acts” under Section 41 of the Constitution even if the actions and or decisions are validly done or permitted by law, such actions and decisions are still proscribed acts and is therefore null and void and of no effect.

Particulars


(a) The Plaintiffs/Applications repeats the Particulars above and further says that they will rely on the Affidavits of Patterson Borasu and Affidavit of Wilson Beroro filed in support of this judicial review proceedings to show that the decision of 6th May 2011 is harsh and oppressive and was done in isolation and without their consent, approval and authority.

(b) The creation of Portions 908B and 909C and the decision to grant what is otherwise an illegal and or unlawful extension of an existing lease/lease back area is harsh and an oppressive act done to “expropriate customary land”

(4) The series of decisions, either individually or taken as a whole, is or are unreasonable within the meaning of the common law principle known as the Wednesbury Principles of unreasonableness and is therefore null and void and of no effect.

Particulars


(a) The Plaintiff/Applicant repeats the Particulars above and further says that it will rely on the Affidavits Verifying Facts of Patterson Borasu and Affidavit of Wilson Beroro filed in support of this judicial review proceedings to show that the decision of 6th May 2011 was unreasonable in the circumstances of the case.

The creation of “new” Portions 908C and 909C without proper survey and landowner Identification is unreasonable and tainted with fraud and or foul play at the very least.


3. The power of this Court to review a decision of a public statutory tribunal or authority exercising statutory powers vested upon it by statute where such decision is challenged. Under s. 155 (3) (4) of the Constitution, this Court has power to review decisions of administrative authorities or bodies.


4. This Court has inherent power to review the decisions made quasi-judicial authorities or administrative bodies. Like on the instant review, this Court has power to review the decisions made by the First and Second Respondents in relation to the decision they made to compulsorily acquire the two portions of land referred to as Portions 808C and 809C. Such power comes from the section quoted above and Order 16 of the National Court Rules. Rule 5 of the above Order states:


“(1) Subject to Sub-rule (2), when leave has been granted to make an application for judicial review, the application shall be made by notice of motion to the Court.


(2) The notice of motion must be served on all persons directly affected and where it relates to any proceedings in or before a court and the object of the application is either to compel the court or an officer of the court to do any act in relation to the proceedings or to quash them or any order made in them, the notice of motion must also be served on the clerk or registrar of the court and, where any objection to the conduct of the Judge is to be made, on the Judge.”


5. The instant review relates to a series of decisions made by the First and Second Respondents/Defendants in their capacities as the Minister and Secretary for the Department of Lands and Physical Planning made on 6th May 2011. Decisions made involved acquisition of customary land described as Baram/ Grangait for Special Agricultural & Business Purpose Leases. The applicants argue that, grant of the two leases were done contrary to or in breach of Sections 10, 11, 12, and 102of the Land Act 1996. The process of acquiring customary land for whatever purposes is strictly detailed in the Land Act.


6. Then s.12of the Act gives the Minister on behalf of the State authority to acquire customary land compulsorily provided the Minister has served a Notice to Treat upon customary landowners after diligent inquiry into such inquiry.


7. The relevant provision which provides for a Notice to Treat to be served on each of the owners of the customary land is provided for by s.13 of the Act which sets out the process of compulsory acquisition of customary land by the State. It states:
“13. NOTICE TO TREAT.


(1)The Minister shall not acquire land by compulsory process under this Act unless he has first caused to be served on each of the owners of the land, or such of them as can, after diligent inquiry, be ascertained, a notice inviting the person on whom the notice is served to treat with the Minister for the sale or surrender to the Minister, on behalf of the State, of his interest in the land.

(2) A person served with a notice to treat in respect of land shall,
no later than two months after the service of the notice, provide the
Minister with particulars of –
(a) the interest claimed by him in the land; and
(b) the amount for which he is agreeable to sell his interest in the
land; and
(c) the name and address of any other person known to him to
have an interest in the land and the nature of that interest.

(3) On receipt of particulars referred to in Subsection (2), the
Minister may –
(a)treat with the person providing the particulars for the
acquisition of his interest by agreement; and
(b) notwithstanding anything in this Act, enter into an
agreement with that person for the acquisition.

(1) The Minister may, by written notice to a person served with a notice to treat, withdraw the notice to treat. notice to treat, withdraw the notice to treat.

(5) Where the owner of an interest in land, who has provided the
particulars referred to in Subsection (2), suffers loss by reason of the
notice to treat having been given and withdrawn, the State is liable to
pay to him such compensation as is determined by agreement between
the owner and the Minister or, in the absence of agreement, by action
as determined by a court of competent jurisdiction.

(6 This Section does not apply in a case where the Minister certifies that there are special reasons why the Section should not apply.”

(Emphasis added).

8. After customary land has been acquired in compliance with the above processes, the Minister may then grant a lease or leases for purposes of special SABL pursuant to s.102 of the Act. This section states:

“102. GRANT OF SPECIAL AGRICULTURAL AND BUSINESS LEASES.

(1) The Minister may grant a lease for special agricultural and business purposes of land acquired under Section 11.
(2) A special agricultural and business lease shall be granted;

to who the customary land owners have agreed that such a lease should be granted.

(3) A statement in the instrument of lease in the approved form referred to in Subsection (11) concerning the person, land group, business group or other incorporated body to whom a special agricultural and business lease over the land shall be granted, is conclusive evidence of the identity of the person (whether natural or corporate) to whom the customary landowners agreed that the special agricultural and business lease should be granted.

(4) A special agricultural and business lease may be granted for such period, not exceeding 99 years, as to the Minister seems proper.

(5) Rent is not payable for a special agricultural and business lease.

(6) Sections 49, 68 to 76 inclusive, 82, 83, 84 and 122 do not apply to or in relation to a grant of a special agricultural and business lease.

(7) Notwithstanding anything in this Act, a special agricultural and business lease shall be effective from the date on which is executed by the Minister and shall be deemed to commence on the date on which the land subject to the lease was leased by the customary landowners to the State under Section 11.

Applicants’/Plaintiffs ‘Evidence

9. The six Applicants on this review filed leave for judicial review on 13th December 2012. They were granted leave for judicial review on 5th March 2013. The Applicants alleged in their evidence that the decisions made by the First and Second Respondents on 6th May 2011to compulsorily acquire the customary land known and described as Baram/ Grangait land involving the total land mass of 34,536 hectares over two portions of land was contrary to appropriate law.

10. This review is over two portions of land referred to as Portion 908C and Portion 909C. The Applicants say that, that, the First, Second, and Fourth Respondents failed to comply with ss.10, 11 and 102 of the Land Act1996 in the process of acquiring the above customary land.

11. The two portions of land comprise of 10,980 and 23,556 hectares respectively and are located within the Inland Baining Local Level Government area in the Gazelle District, East New Britain Province. Over 21 witnesses were called for the Applicants/Plaintiffs.

12. Those witnesses call come from the following clans, Sukprumatka, Sael Mander, Avir and Uramat. One witnesses from the Qaqet clan was called but the defence counsel objected to calling any witnesses from that clan because, their clan was withdrawn from being one of the applicants in early stages of the process. The Court up-held the objection and the witness Kenning Kepas was withdrawn. In fact three witnesses from that clan were listed to give evidence and because of the objection, they were not called.

13. A few of those witnesses who are not customary land owners and despite the respondents’ counsels’ objections on the grounds that, this court had refused the settlers’ application to be added as parties to these proceedings, the court over ruled such objections as the settlers have settled on the Inland Baining land for over long periods of time and their rights had been affected by destruction of their food gardens and cash-crops. Such destruction was carried out by the Fifth and Sixth Respondents when they commenced cleaning up for planting of oil palm trees.

SUKPRUMATKA CLAN

14. The first witness evidence for this clan is similar to the evidence of all other witnesses. Mr. Joel Puipui comes from Usuvit village on the inland Baining. He is the Ward Member for Liaga /Usuvit Ward Inland Baining Local Level Government area Gazelle District. He is the Chief of his clan and the Chairman of the Sukprumatka Incorporated Land Group (ILG).

15. That ILG was registered in September 1997. This witness gave sworn testimony to clarify what he deposed to in his three affidavits and their annexure. Those affidavits were tendered through him and marked Exhibits “1”& Annexures “A”, “B” and “C”, Ex. “2” with annexure “A”, “B” & “C”,Ex. “3” with annexure from letter “A” to “I” at65-78, 114-120, and 203-2032 Vol.1 R/B.

16. This witness and 5 other witnesses of the Sukprumatka Clan gave evidence on behalf of their Sukprumatka clan members. The gist of these witnesses evidence is that in the process of acquiring the two portions of land Portions 908C and 909C, the First and Second Respondents erred in not physically carrying out sufficient awareness first to all main clans and sub-clan members about the acquisition of parts of their land and secondly the boundaries in the two portions of land 908C and 909C were never verified prior to obtaining the titles.

17. Only six Sukprumatka Clan witnesses were called to testify on behalf of their clan members and their affidavits were tendered through them. They included Ms. Lina Ainui - Ex. “16”, Joseph Vos – Ex. “17”, Ms. Peniel Misiel – Ex. “18”, James Akuila – Ex. “19”, and Simon Venis – Ex. “20” all support the evidence of Joel Puipui where they testified that, they take the lead in representing their clan members in support of the Chairman of their ILG on these review proceedings against the unauthorized leasing of their customary land by the State which is now titled Portion 908C.

18. Evidence of all those called for the Sukprumatka Clan show that, prior to acquiring the leases for Portions 908C and 909C they were not informed or educated about the effects that would come upon them for the lease granted over their land is for a long time and since it is 99 years, their current and future generations will definitely greatly affected, displaced and will have nowhere for them to live, make gardens, hunt, plant cocoa, coconuts and other cash crops as used to be the case in previous years.

19. Each of these witnesses were cross-examined about knowing any plans by the National Government or the Provincial Government about the relocation scheme of program for those currently affected by dislocating them in the course of the current development that was taking place since July 2011 until they were restrained from further developments because of this case..

20. Each of the witnesses was asked about the awareness meetings conducted at Malabonga Community Hall from 1st to 3rd September 2010. Some of the witnesses said, there was no such meetings and no awareness was conducted to educate or warn all clan members of what was soon to come. A number of witnesses said, they attended one meeting, but it was a meeting by local leaders about illegal settlers on their customary lands and not the ones by the Department of Lands and Physical Planning.

21. Asked if they were present at the meetings at Malabonga Community Hall conducted by the official of the Department of Lands and Physical Planning. They replied that, Inland Baining has a large land mass and if the Department conducted any meetings, they should have travelled from Ward to Ward to carry out such awareness.

SAEL MANDER CLAN

22. Mr. Penias Wagire was called as a witness to represent his Clan. The clan is referred to as Sael Mander Clan authorized him to represent them in these proceedings. He is the Chairman of Sael Mander Incorporated Land Group. This ILG has been registered but has not been gazetted. This witness comes from Gaulim village, Gaulim Ward, Inland Baining, Gazelle District, East New Britain Province.

23. He gave evidence that, he was very surprised when he heard that, the two portions of land within their customary land had been acquired by the State for purposes of Special Agricultural & Business Leases. He described those pieces of land as Baram/Grangait lands. According to this witness, the total land mass area covered by the SABL is 34,446 hectares. In portion 908C covers land mash area of 10,890 hectares while portion 909C covers 23,556 hectares.

24. This witness gave a highlight of other clans and sub-clans who speak Kairak language such as Sukprumatka clan, Avir clan and Kopki clans. Something interesting appears from the evidence of this witness and that of Mr. Joel Puipui. They both say that, Kairak is the name of a language and not a clan or a family group capable of owning land or properties on its own as it is merely the name of a language spoken by a number of clans in the Inland Baining area. Their evidence shows that, the name Kairak is a local language name which they say, is similar to the language spoken by the Tolai community speaking people the, “Kuanua” language. (See Affidavit Exs. “6” & “7”).

25. Other Sael Mander clan witnesses called were Kaminiel Lagun (Ex. “22”), Ms. Monika Ngari-(Ex. “23”) and Modeng Hosea-(Ex. “24”). These three witnesses like Mr. Wagire are members of Sael Mander a sub-clan and their main clan is Uramat Clan. According to Kaminiel, he is a Ward Councilor and the Sael Mander clan own portions of land within portion 909C of the land acquired for purposes of SABL.

26. According to these three witnesses, they all denied receiving any notices about awareness meetings held to gauge the views and opinions of their clan members about giving up their customary portions of land within the Baram/ Grangait land located in Inland Baining Local Level Government area.

27. In case of the Ward Member Mr. Kaminiel Lagun, he recalls that if there were any meetings, the agendas were totally about other issues such as illegal settlers who have bought pieces of lands from individual members of either the four of five main clans or sub-clans. He said as a Ward Member, he had every right to be advised of any meetings if important issues were going to be discussed in relation to acquisition of their land.

28. Mr. Wagire stated in his affidavit at page 105 Volume 1 of the R/B that about 10,000 clans population that occupy and use the two portions of land together with settlers numbering about over 40,000 people have been and they will still be greatly affected in their future generations if the land is not returned to them.

29. All witnesses of the Sael Mander clan were vigorously cross-examined on the issue of whether they attended the awareness meeting held at Malabonga Community Hall. The witnesses said, there was never any awareness campaigns conducted to make people aware that if their customary land was acquired by the State for Special Agricultural Business Leases, it would be leased for 99 years. They said, even no officers from the Provincial Lands Department came to them to compile any Land Investigation Reports.

30. They further said, the only meetings they attended were called by executives of the KAIRAK Incorporated Land Group on the issue of illegal settlers who were buying land from individual members of their clans. On questions about the re-settlement scheme, the witnesses said, they do not consent or agree to relocation from portion 908C to 909 Cor any other locations anywhere outside their customary portions of land because, the process will totally distort their customary history and the future generations will be greatly affected.

AVIR CLAN

31. The Avir Clan nominated Chief Jonah Todi and three other witnesses to represent their clan to give evidence on behalf of their clan members. The evidence of witnesses for the Avir Clan is similar to the other former clan members’ evidence. The evidence of these four witnesses is similar.

32. According to what they testified to in Court and their affidavits, they say that their families and clan members were never consulted, neither was their consent obtained first by the State then by the executives of Kairak Incorporated Land Group for their customary lands contained within portions 908C and 909C for the State to compulsorily acquire them for SABL purposes.

33. Avir Clan members’ witnesses all agree with their Chief Jonah Todi that, they wanted their Chief to represent them and their clan members in Court to air their grievances about the process taken by the First and Second Respondents in how they compulsorily acquire the Baram and Grangait lands for purposes of 99 years lease. They said, they were given authority by their clan to represent them in court.

34. The affidavit evidence of Chief Jonah Todi and that of Nelson Levi, Ruth Kepas and Micah Elias were tendered through each of them. (See Exhibits “9”, “10”, “10”, “11” & “12”-Jonah Todi Vol. 1R/B at 83-86, Ex.”25”-Nelson Levi Vol. 1 at 248-250, Ex. “26”-Ruth Kepas Vol. 1 at 284-287, Micah Elias, Ex. “27” Vol. 1 at 272-275).

35. Two interesting factors appear from the evidence of Nelson Levi and Ruth Kepas. These two witnesses said in Court and in their affidavits that, they own portions of land both in portion 908C and 909C. In case of Nelson, he has five ancestral birth places in both portions of land. Nelson Levi is a Primary School Teacher by profession currently teaching at Vunapalading Primary School in Liaga Ward, in the Gazelle District.

36. Nelson said in court and in his affidavit that, because his clan members were so vocal against the SABL being granted to Kairak ILG, he and other elders like Joel Puipui, Apical Simar and James Akuila were arrested by police and kept in the cells at Keravat for 3 days without being charged.

37. The second aspect of the evidence for the Avir Clan is that according to Micah Elias evidence, meetings held by the Kairak executives were held after the titles to portions 908C and 909C had been issued to Kairak ILG. Like the evidence of the other witnesses, this was the reason why they reacted furiously because they were against the concept of SABL being acquired by Kairak.

38. These witnesses say that, Kairak is the name of a language spoken by a number of clans in the Inland Baining and it is not capable of owning any lands or property of its own. They say that the Department of Lands & Physical Planning both the National and the Provincial officers never conducted any awareness to let them know about the consequences of acquiring their lands and the process of evicting them has greatly affected them and their future is at risk as they have nowhere to re-settle.

39. If there were any meetings, they and their clan members were never advised. Like previous clan witnesses, they say there were no Land Investigation Reports and social mappings were not conducted and produced to them for identification purposes and clear demarcation of their land boundaries.

URAMAT CLAN

40. Chief Hosea Kailam was nominated and authorized by his clan members to represent them on this proceeding. According to Chief Hosea, he estimates that his clan has a total population of 3,600 plus people. They live on Inland Baining Local Level Government area and they are customary landowners of the two portions of land 908C and 909C. He said in evidence that, his custom land is located within portion 909C and parts of their land extends outside the title area.

41. This witness said that he and his clan members were completely taken by surprise when Kairak ILG and the company he referred to as Tzen Niugini Ltd came to them and ordered them to vacate their customary land for purposes of establishing oil palm plantation.

42. Soon after some of their clan members were ordered to move out, heavy machinery including bulldozers were brought on to their land and some of his clansmen lost their homes and cash crops. His clan members and settlers were even threatened and intimidated. He and his people tried to object but police was called in by Kairak Executives and company officials who threatened this witness and his people.

43. The witness expressed shock in his affidavit, Ex. “13” Vol.1 R/B at 79-82, Ex.“14” Vol.1 at 172-174, Ex. “15” Vol.1 at 175-202).He says that, their customary land had been taken away without any consultation with all customary land owners of the two portions of land. This witness says he does not agree with any plans for resettlement scheme and says that, if his people are relocated, they have nowhere to go and it will affect their future generations considering the fact that 99 years lease is more than the life time of any human beings.

44. Evidence by Rupen Hezekiah is similar to that of the above witness and the two following ones. According to this witness, his evidence is that he comes from Gaulim village and he is a clan member of Uramat Clan of Inland Baining. He testified that he was really surprised and shocked to learn that his clan’s land in portion 909C had been acquired by the Fourth Respondent.

45. He said, that land does not belong to Kairak alone. He also says the Department of Lands and Physical Planning did not run any awareness to make the people of his clan aware of what was happening. He denied any Government officials coming to their respective Wards to run any such awareness. (See his affidavit tendered and marked Ex. “28” at 303-306 Vol.1 R/B).

46. Mrs. Munulai Neki & John Naso also gave similar evidence. Both of these witnesses support Chief Hosea Kailam to represent them and other clan members of Uramat Clan of Gaulim on the Inland Baining. John Naso is from Sael Mander clan which is the sub-clan of Uramat clan. They each say that, they never gave their consent for their land in portion 909C to be taken by the State for it to be leased.

47. They further say the manner in which the State and Kairak ILG got their customary land without their knowledge and consent was very unfair and unjust. Their upset is that, they have now been made landless on their own land. They denied having any meetings with either the National Lands Department or the Provincial Lands officers. All witnesses were vigorously cross-examined. They all maintained their stance that, no meetings were conducted to make customary land owners aware of what was happening. (See the Affidavits of Mrs. Munulai Neki, Ex. “29” at 307-310 Vol.1 R/B, John Naso Ex. “30” at 292-295 Vol.1 R/B).

Other Witness Called for the Applicants

48. Daniel Tuvi, the President of the Inland Baining Local Level Government was called as a witness to represent the Applicants in his capacity as the President. He is not a land owner of the two portions of lands in dispute. However, he testified that, the issues on this proceedings relates to the processes taken to secure his people’s customary land for SABL purposes.

49. He said the decision by the First, Second and the Third Respondents following the request by Kairak ILG was quite improper as the land owners were never given appropriate awareness about the process of acquiring their land described as Portion 908C and Portion 909C. He said in chief and cross-examination that, there were no meetings if there was, essential issues of the acquisition of land were never openly discussed with the people. He said, the landowners who were affected by removing them from their locations will be forever affected and their future generations will be greatly affected with nowhere to settle.

50. In his affidavit, and its annexures “31A” & “31B”, the witness gave account of what occurred to him on the night of 9th November 2012. He hired a vehicle and used it to drop off some people after doing business in town. He went to drop off Andrew Gamo at the project site. After dropping them he returned through the same route and on his return trip, he was stopped by Mr. Elias Kamara and his supporters where they severely assaulted him and caused injuries to his body. (See his medical reports Ex. “31A to” to “31B”).

51. The reason for the assault was that, he being the leader of Inland Baining area, he did not support the oil palm project. (See Exhibits marked “31” “31A” and “31B” at 87-96 &121-142 Vol.1 R/B). Attached to this witness affidavit is an executive summary of the process and what should have been done prior to acquiring the two portions of land prepared by Papua New Guinea Integral Human Development Association Inc. from pages 91-96.

52. The evidence of Norbert Kakulai is a Tolai but has lived on the Kairak speaking people for over 40 years. He and his family own a block at Wara Mailo, Vunapalading No.3. He said, the manner in which the settlers were dealt with was breach of human rights because, he and other settlers were never advised about their removal from their blocks until 5th March 2013 when Thomas Kalas came and verbally informed them to vacate their blocks and move somewhere. He said, their future generations will be greatly affected. (See Ex. “32” at 152-160 Vo.1 R/B).

53. Lukas Otto is the Ward Coucillor for Manapki Ward, Vunapalading No.3, and Inland Baining Local Level Government. He originates from East Sepik Province but has lived on the Inland Baining area for over 30 years. He purchased a portion of land from customary land owners and has been there together with other settlers from Sepik, Highlands and Morobeans. Both these two witnesses recall that, there were no awareness done to warn the settlers and they were caught by surprise when told to move.(See Ex. “33” at 97-101 Vol.1 R/B).

54. The second last witness was Esorom Burua. He originally came from Rabagi village. He is currently a block holder and a Ward Councilor of Burit Ward on the Inland Baining Local Level Government area.

55. This witness acquired a block on the disputed portions of land during the Mataungan uprising back during 1970s. He has lived there ever since. This witness said in evidence that, he represents about 400 hundred people who are also settlers and landowners.

56. Mr. Burua said, to the best of his recollection and his capacity as a local leader of people in the Burit Ward, he cannot recall or remember any meetings called to address the issuance of SABL lease to Kairak ILG. He confirms evidence of other witnesses for the plaintiffs that, no Department of Lands & Physical Planning officers both from the National and Provincial authorities came to them to conduct any meetings or awareness campaigns about compulsorily acquiring the land where they have settled. He says, they were caught by surprise. (See Ex. “34” at 327-332 Vol.2 R/B).

57. The final witness for the plaintiffs was the Member of Parliament and Member for Gazelle District, Honorable Malakai Tabar MP. He was then the Minister for Higher Education. He testified that, being a Member of Parliament representing the Gazelle Electorate people he is fully aware of what is happening in his electorate and the people who are affected by grant of the lease for SABL purposes.

58. He said, in 2011 it came to his attention by surprise that two large areas of customary land in the Inland Baining Local Level Government area was or had been granted SABL leases in favour of Kairak ILG.

59. According to his affidavit (Ex. “35” at 110-113 Vol.1), he says that, as a Member for the Gazelle District, he was never consulted and informed about the purposes of the two SABL leases. The Member said in his evidence that there was never any public hearing and wide consultation with the local land owners and the block holders and he as a Member of the National Parliament.

60. He expressed the view that since consultation was so necessary because, many people living on the two portions of land portions 908C and 909C, the customary land owners together with settlers should have been consulted to gauge their views and concerns. He denied, he was not aware of any public awareness of the process of acquiring the two portions of land.

61. The witness was vigorously cross-examined by counsels of the Respondent/Defendants. He was asked questions about the re-settlement scheme by the Kairak ILG and the company. The Member said, he did not hear anything about that proposal and such scheme was an overnight thought and the land owners affected were never informed of anything about where to go and what should happen to the customary land owners who would be and have been displaced by the company.

62. According to this witness, up to date, there are no plans whatsoever to re-settle those who have been affected and as to where they would be relocated, it is not clear. As a Member of Parliament, he expressed concern that, not only those people evicted from their blocks will be affected but their children and future generation.

Respondents/Defendants’ Evidence

63. Because the witnesses for the First, Second and Third Respondents were not available after closure of the Plaintiffs case, witnesses of the Fourth Respondent were first called. For the Fourth Respondent, thirteen witnesses were called.

64. The first witness called was Mr. Thomas Kalas, Ward Member of Malabonga village Gazelle District. He is the Chairman of Fourth Respondent which is Kairak Land Group Incorporated. The evidence of this witness on his testimony and his affidavits relate to certain disputes between the six clans and sub-clans of Inland Baining over what used to be referred to as Trans-Keravat Land. According to this witness evidence, he recalls that meetings were conducted with landowners of some clans to make them aware of the two portions of land to be acquired by the State.

65. The witness mentioned some interesting issues in his evidence. He said, the intention to register the customary portions of land named in this case was to enable his clan to take full control and ownership of their clan’s land in the contemporary society where ethnic groups from other parts of the country were putting undue pressure on Inland Baining landowners to acquire land in the inland Baining area.

66. This is because certain individual landowners were selling portions of land to outsiders causing shortage of land for the future generations of the Baining people. His evidence also reveals that, the two titles Portion 908C is currently being developed with oil palm under commercial arrangement with the developer. That Portion 909C will be reserved and conserved for their future generations.

67. In cross-examination, the witness was asked about the meetings or awareness referred to in his evidence and affidavit (see Vol.2 at 385-505) whether those meetings were held to discuss SABL issues. The witness said, it was about such issues as well as the issue of people from outside the Baining area settling on customary land owned by the Baining people.

68. He said there was a service message put through Radio East New Britain (RENB) for all Baining clan members to attend at Malabonga Community Hall. He said, the meetings were convened on 1st-3rd September 2010. He said, the purpose of those meetings was to inform the people about their land rights so they ought to be aware of liabilities that would come where illegal settlements are rampant on their land.

69. The witness was asked about the Local Land Court decision of 9th September 1992. The witness agreed that part of the land covered by the decision belongs to the Bitagunans of Napapar No.5. (See Ex. “2” Vol.2 at 415).In answer the witness said, the decision of the Local Land Court is clear as at that time there were no other claimants of such land. This witness attached to his affidavits copies of various documents like maps, copies of minutes, and copies of the Local Land Court decision. (See his three affidavits Vol.2 R/B at 385-505, 567-572 & 573-586).

70. The second witness Mr. Elias Kamara of Malabonga village Gazelle District is the Managing Director of Kairak Investment Limited. The first witness, Mr. Thomas Kalas is the elder brother of Mr. Elias Kamara. He has a number of affidavits. He said in evidence that, he is a spokesperson for Kairak clan and the Kairak Incorporated Land Group and he is also the Managing Director of Kairak Investment Limited. Elias recalls that, the land problem they have is not a new issue as the parties have been in and out of court at various times dating back to 9th September 1994 and the Land Titles Commission decision of 1st May 1992.

71. He said in chief that prior to applying for SABL, there were awareness campaigns conducted to educate people about issuance of special agricultural business leases. In cross-examination, this witness was asked if he ever attended any of these meetings conducted by the Lands Department officials. The witness said, he never attended any of such meetings.

72. Asked if he knew that, he being the Managing Director of Kairak ILG, he should have made himself available for the three days meetings. The witness said, he knew but he did not attend those meetings. (See Vol.2 R/B at 510-514, 515-542, 543-566).

73. The next eight witnesses evidence was brief. Ulaias Waninara gave evidence that he comes from Gaulim village Inland Baining LLG. He is one of the elders of Namatlaman sub-clan of Uramot Clan. According to his evidence, the main clan (Uramot Clan) will soon be registered into an ILG. He said, since his father died, sometime in 1975, his clan members and the Kairak clan have enjoyed their relationship with each other and to protect their customary lands, they enjoy inter-marriage within the two clans.

74. This witness was cross-examined about the process of acquiring part of his land acquired by Kairak ILG. He said in answer that, he did not hear about any meetings conducted by the Lands Department officers both local or national lands officers. He said, if there were any meetings about the processes of acquiring part of his clan’s land by the State, he did not attend any meetings.

75. His evidence also shows that, when he heard of news that Kairak had registered part of his clan’s land under Kairak ILG, he was really disappointed. He confirmed that since Kairak ILG has registered part of his customary land into ILG, Kairak now has exclusive rights over the two portions of land. He revealed that, he did not know about Kairak given SABL until after it was registered.

76. He said, when he discussed the matter with executives of Kairak ILG, he found that, the idea to have their land registered was a good intention to protect the inland Baining vast tracks of lands. Ulaias disassociated Chief Hosea Kailam from Uramot Clan saying, that Hosea is not a clan leader and does not have any capacity under the Baining custom to represent the Uramot Clan and its people. (See Ex. “7”).

77. Next witness Kepas Sion of Uramot Clan. His sub-clan is Namatlaman. He comes from Gaulim village. This witness shares the same views with witness Ulaias. He is the Church Elder of the United Church Revival Ministry. He said he represents his sub-clan members in these proceedings and by their custom, he appeared as a representative of his clan members. Evidence of this witness is similar to that of Ulaias.

78. When he heard that, Kairak had registered and got a special agricultural lease on the two portions of land which is known as “Rhaungi”, he was really up-set as he thought that land is not solely owned by Kairak. He never attended any of the three awareness meetings held at Malabonga Community Hall.

79. After he and his clan members were briefed by Kairak executives soon after the SABL had been obtained, about the benefits due to the landowners through Kairak ILG, he forgot his negative thought and informed his clan members to settle with Kairak ILG for the benefits that were due to them and great development was soon coming.

80. In cross-examination, this witness denied attending any awareness meetings held or conducted by any officials from the Department of Lands. (See Ex. “8” “9”, “10”). This witness was asked if he heard any service message from RENB about any meetings to meet with people from Inland Baining about their land to be registered. (Ex. “11” blank Settlers Personal Details, 10 blank pages, & “12” are part of Mr. Kamara’s evidence). He answered that he did not hear anything.

81. Erick Doman was the next witness. His evidence is very similar to that of Kepas. He comes from Main village on Inland Baining LLG. He is aware of these proceedings and he is the spokesperson for Yaram Sub Clan of the Uramot Clan. He said because of his involvement as Chairman of the Wild Dog Mining Area Landowners Association, he did not know what happened when his Sub Clan was registered under Kairak ILG’s name.

82. He said, Hosea Kailam has no authority to represent the Uramot Clan since his father is from Taulil village. According to this witness, the Baining society is mostly patrilineal and therefore, the clan Hosea claims to represent is non-existence.

83. Eric was cross-examined about the process of acquiring the two portions of land 908C and 909C if any meetings were conducted to make or create awareness in terms of the 1996 Land Act. He said he heard about certain meetings but he never attended any of those meetings by the Department of Lands officials from Port Moresby. (See his Affidavit Ex. “13”).

84. Alois Kivung of Riet village, Sinivit Local Level Government area, Pomio District. He is the Treasurer of the Sinivit Landowners Association and the Sub clan leader of the Mararap Sub Clan of the Uramat Clan and as such, he has authority to speak on behalf of his Clan.

85. He says on his affidavit, that the land he refers to as ‘Rhaungi’ has been communally owned by Uramat and Kairak clans and they have had a long history of peaceful co-existence that goes many generations back. This witness like the previous ones revealed in cross-examination that, he never attended any awareness campaigns conducted by the Department of Lands officials, but his uncle heard the news from someone and the uncle came and told him. (See his affidavit Ex. “14”).

86. Waninara Kelep also on Main village of Inland, Gazelle District, East New Britain Province. Evidence of this witness is very similar to those former witnesses Main village. Like other witnesses for the Fourth Respondent, Kelep says that, Hosea Kailam is not from the Uramat Clan as his father is from Taulil Butam a non Baining tribe. The witness was shown his affidavit sworn and filed on 28/82015 and admitted it was his story.

87. He was questioned during cross-examination about whether he knew about the processes of acquiring customary lands for purposes of SABL. The witness said, he does not know anything about the process. Asked if he attended any awareness meetings by officers from the Department of Lands and Physical Planning office. His reply was he never attended any meetings but heard other people telling him that, there were meetings conducted by Kairak ILG officers. (Ex. “15).

88. Evidence of Paul Pamel of Gaulim village, Gabriel Kubakof Kainagunan village, Peter Penie of Gaulim village, and Gerson Kubak of Main village is similar. All these witnesses come from Inland Baining LLG. In their affidavits, (see Exhibits “16”, “17”, “18” and “19”), they all object to Hosea Kailam being a member of the Uramat Clan.

89. Questioned in cross-examination, except for witness Gabriel Kubak, they denied attending any meetings conducted or held by National or Provincial Lands Department officials. In case of witness Gabriel Kubak, he said, what he knew about the process of registration of the two portions of land by Kairak ILG was certain officials from Kairak ILG executives came around and informed him about Portions 908C and 909Cwas to be registered by Kairak.

90. The rest of the other three witnesses, Paul, Peter, and Gerson said, they did not hear anything or news about the meetings and they did not attend any.

91. Mr. John Talvat of Gaulim village, Inland Baining LLG area on Gazelle District, E.N.B. Province. He is one of the leaders of Maderam Sub Clan of Uramat Clan. He says, there are eight Sub Clans of Uramat Clan. He named them as Yaram, Kasapki, Namatlaman, Mararap, Murunga, Maderam (Sael Maderam) Benefit and Aungi. His evidence confirms evidence of previous colleague witnesses that all clans and sub-clans of Inland Baining do not separately own land but only have user rights.

92. Mr. Talvat confirmed in cross-examination that he was first disappointed about the portions of land that were registered under the name of Kairak ILG however, when he was made aware of the consequences of registering the land, he was happy because, he thought that was the way forward for the Baining people to go to have their land registered to safeguard their customary land. In cross-examination, he confirmed attending a meeting conducted by officials of Kairak ILG but not that or those meetings by the Lands Department officials. (See his affidavit Ex. “20”).

93. Wickly Okole of Vunga village, Inland Baining is one of the leaders of Yaram Sub Clan of Uramat Clan. He said, he is aware of the current proceedings between contesting Clans and Sub-Clans of the Inland Baining people. This witness said he is aware of the development going around by the company planting oil palm trees on the land that is now disputed.

94. This witness like the other witnesses said, he did not hear any news about registering the portion of land referred to as “Rhaungi”. He also said, when he was informed of reasons why the land was registered, he was happy that, the Baining custom land is being safeguarded against illegal settlers which practice is so common today. (Ex. “21”).

95. The Chief Executive Officer of the Sixth Respondent, Mr. Tan Eng Kwee was called who confirmed that East New Britain Palm Oil Limited has interest in Portion 908C, Milinch Pondo (NE)(SE) Kokopo (NW)(SW) Fourmil Rabaul, Volume Folio 77, East New Britain Province. His evidence was brief. He confirmed that the Sixth Respondent has expended substantial amount of money by putting all the bits and pieces together would be in the tune of K250 million before production and exportation of produce. (See Ex. “23” Vol.3 at 638-305 R/B).

96. In paragraph 9.4 of his affidavit, Mr. Kwee says that the Oil Palm project was launched onsite in September 2011, where all clans and tribes from Baining were invited to attend and he is aware that Mr. Hosea Kailam attended and he did not raise any objection against the project.

97. Mr. Nicholas Leo is the Chairman and Liaison Officer of the Qaqet Stewardship Council Inc. He gave evidence that he supports the Chairman of Kairak ILG (Mr. Thomas Kalas) for what he said in his affidavit and supports the development going on in portions 908C and 909C in and around the trans-Keravat-land. He did not mention anything about the processes taken to have the two portions of land registered as SABL. (See Affidavit Ex. “24” Vol.3 at 614-637 R/B).

98. Elder Boniface Setavo the Executive Council Member of Qaqet Stewardship Council Incorporation, former President of Sinivit Local Level Government and former Deputy Governor of East New Britain Provincial Government was called as a witness.

99. This witness also gave very brief evidence. His evidence is similar to other witnesses who expressed the concern that, to protect land rights of Inland Baining people, it was proper to have the land in issue leased to the State.

100. The reason given for this as evident from other witnesses’ testimonies is that it was to protect outsiders who have interests in business development as well as mere settling in their customary land. The witness referred to what is currently happening by planting oil palm on their land will definitely assist to remove illegal settlers out of the Inland Baining customary land.

101. Asked in cross-examination if he knows the consequences of the 99 year lease that had been obtained. The witness said, he knows but as a means of securing their land, the course they took was the way forward. (See Ex. 25? Vol.3 R/B).He did not reveal in his evidence if he attended any of the meetings at the Malabonga Community Hall. This was the evidence for the Respondent/Defendants.

102. An officer from the Department of Lands and Physical Planning was called to give evidence to confirm that, on 1st, 2nd and 3rd September 2010. The witness Ms. Elizabeth Tobea said, she was together of other officers from the Provincial Lands office conducted the awareness meetings at the Malabonga Community Hall.

Counsels’ Submissions

103. Since completion of hearing of evidence from the Respondent on 16th November 2015, the Court directed counsels to file their written submissions. Most lawyers did not comply and the matter was adjourned several times until 20th May 2016 when the court heard counsels’ submission.

104. I had the benefit of counsels addressing the Court on the status of law in relation to the Land Act of 1996. Each counsel filed lengthy written submissions and referred to case law authorities in support of their clients’ position. Mr. Cherake for the applicant plaintiffs submitted that, the court has heard the evidence from all parties and pointed out that, the evidence is such that, all his clients as well as the majority of the clients for the respondents were not consulted in the process of acquiring their land.

105. Mr. Edo of counsel for the 3rd Respondent stood in for Ms. Vate, referred to the case of Doriga Nahuru, Waiva Nahuru, Mauru Doriga, Max Doriga Kuruku Nao v Hon Lucas Dekena, Minister for Lands & Physical Planning & 4 Others (1.8.2013) N5305 where Justice Cannings substantially granted review in a similar case. The above case was also referred to by Mr. Cherake.

106. Mr. Donald representing the 4th respondent spoke to his 26 page written submission. Counsel argued that, at no time previously has any of the applicant/plaintiffs in these proceedings have had any dispute with the Kairak clan over the portions of land that are now disputed. He argued that the parties which Kairak clan now had the dispute with are totally different parties who are not a party to these proceedings. Counsel argued that because, ownership was not an issue, Kairak clan decided to register all its customary land to protect illegal sales to outsiders.

107. Counsel referred to a number of cases including that of Mamun Investment Pty Ltd & Ors v Paul Ponda & Ors [1995] PNGLR 1 for the proposition that, an applicant must have sufficient interest in the matter to which the application relates. Counsel thus submitted that, the court ought to accept the fact that, the applicants do not have a case on the merits and the application for review should be refused.

108. Counsel’s argument on Portion 908C had been declared in favour of the Kairak Clan back in 1994 by the Local Land Court and submitted that, this is the case where there was no need to inquire from any other clan except his client’s and the court should accept the evidence for those who gave evidence for KAIRAK ILG.

109. Mr. Yange, counsel for 5th and 6th Respondents spoke to his written submission. Counsel raised a number of issues. Counsel referred to the Local Land Court decision in 1992 and raise similar comments as that by Mr. Donald. Counsel argued that, the First, Second and Third Respondents’ evidence was supported by the evidence of Ms. Elizabeth Tobea who testified that, three days meetings were conducted at Malabonga Community Hall to conduct awareness to all land owners.

110. He also referred to the evidence called by the Fifth and sixth Respondents that of Boniface Setavo and Nick Leo where they said, the inquiries were in fact conducted and there was no breach of ss.10, 11 and 102 of the Land Act. Counsel argued that since all requirements were followed, this Judicial Review filed by the plaintiffs/applicants should be dismissed with costs.

Application of Law


111. The power of this court to review a decision of an administrative body or quasi legal authority comes from a number of sources. First s.59 of the Constitution states:


“Principles of natural justice.


(1) Subject to this Constitution and to any statute, the principles of natural justice are the rules of the underlying law known by that name developed for control of judicial and administrative proceedings.

(2) The minimum requirement of natural justice is the duty to act fairly and, in principle, to be seen to act fairly.”


112. Secondly, s.155 (3) and (4) further gives the Supreme and National Courts the power to review decisions of administrative authorities. This section states:


“(3) The National Court—

(a) has an inherent power to review any exercise of judicial authority; and

(b) has such other jurisdiction and powers as are conferred on it by this Constitution or any law,
except where—

(c) jurisdiction is conferred upon the Supreme Court to the exclusion of the National Court; or

(d) the Supreme Court assumes jurisdiction under Subsection (4); or

(e) the power of review is removed or restricted by a Constitutional Law or an Act of the Parliament.

(4) Both the Supreme Court and the National Court have an inherent power to make, in such circumstances as seem to them proper, orders in the nature of prerogative writs and such other orders as are necessary to do justice in the circumstances of a particular case.”


113. The principles in relation to judicial review is that the National Court has inherent power to review a decision of judicial authority or decisions made by quasi-judicial authorities or administrative bodies. Such power comes from the sections quoted above and Order 16 of the National Court Rules.


114. It has been said that the reviewing court is not a court of appeal: Chan v Ombudsman Commission [1998] PNGLR 171 or Ombudsman Commission v Yama (2004) SC747. The purpose of judicial review is to examine the procedure followed or the steps taken by a person in authority whether quasi-judicial or administrative decision-maker to reach the final decision he reached and which the plaintiff complaints of to determine whether the process or procedure was proper and in accordance with the law.


115. The principles of judicial review of actions or exercise of powers by administrative authorities are well settled in our jurisdiction.


116. It is a process whereby this Court sitting as the reviewing Court to review the process and find out if the process or processes taken from the time the First and Second Respondents decided to lease the land in issue to the 5th and 6th Respondents. Judicial review therefore involves reviewing the legality of the process and procedures followed to arrive at a decision: Kekedo v Burns Philip & Ors [1988-89] PNGLR 122.


117. It is trite law that judicial review concerns the review of the decision making processes and where a decision was reached in such process in breach of the legal framework, it is a nullity. In Francis Damem v Mark Maipakai & Ors [2004] 2 PNGLR 168, Injia DCJ (as he then was) expressed the principle in the following comments:


“It is settled principle that judicial review is concerned with the decision-making process such as certiorari, mandamus and prohibition are available to correct a flawed process and grant appropriate relief to a person aggrieved by the decision made by a public authority or a Minister of the State. It is available in cases where, inter alia, the public decision-making authority or Minister exceeds its powers or commits an error of law such as where it fails to follow decision-making procedure prescribed by Statue: Kekedo v Burns Philip (New Guinea) Ltd. [1988-89] PNGLR 122.”


118. On the instant review, the Land Act sets out the procedure and process that ought to be followed to acquire customary land for SABL purpose or for any other purposes. According to s.13 (1) of the Land Act, the Minister of Lands cannot acquire land by compulsory process under this Act unless each of the land owners has been served with the notice to treat under the section. The processes involves notices to treat to be circulated from the Minister responsible inviting each clan member to notify them about the sale or surrender to the State of their interest in the land. Subsection (1) – (6) of the above section says:

“(1)The Minister shall not acquire land by compulsory process under this Act unless he has first caused to be served on each of the owners of the land, or such of them as can, after diligent inquiry, be ascertained, a notice inviting the person on whom the notice is served to treat with the Minister for the sale or surrender to the Minister, on behalf of the State, of his interest in the land.


(2) A person served with a notice to treat in respect of land shall,
not later than two months after the service of the notice, provide the
Minister with particulars of –
(a) the interest claimed by him in the land; and
(b) the amount for which he is agreeable to sell his interest in the
land; and
(c) the name and address of any other person known to him to
have an interest in the land and the nature of that interest.

(3) On receipt of particulars referred to in Subsection (2), the
Minister may –
(a) treat with the person providing the particulars for the
acquisition of his interest by agreement; and
(b) notwithstanding anything in this Act, enter into an
agreement with that person for the acquisition.

(4) The Minister may, by written notice to a person served with a notice to treat, withdraw the notice to treat. notice to treat, withdraw the notice to treat.


(5) Where the owner of an interest in land, who has provided the
particulars referred to in Subsection (2), suffers loss by reason of the
notice to treat having been given and withdrawn, the State is liable to
pay to him such compensation as is determined by agreement between
the owner and the Minister or, in the absence of agreement, by action
as determined by a court of competent jurisdiction.

(6) This Section does not apply in a case where the Minister certifies that there are special reasons why the Section should not apply.”

(Emphasis added).


119. I also quote s.10, which provides that where customary land is compulsorily acquired for SABL purposes, such acquisition must be authenticated. This section states:


“10. ACQUISITION OF CUSTOMAY LAND BY CONSENT.


(1) Subject to Section 11, customary land shall be acquired in accordance with this Section and shall be authenticated by such instruments and in such manner as are approved by the Minister.
(2) The Minister, on behalf of the State, may acquire customary land on such terms and conditions as are agreed on between him and the customary landowners.
(3) Subject to Subsection (4), the Minister shall not acquire customary land unless he is satisfied, after reasonable inquiry that the land is not required or likely to be required by customary landowners or by persons on whom the land will or may devolve by custom.
(4) Where the Minister is satisfied, after reasonable inquiry, that any customary land is not required or likely to be required for a certain period but is of the opinion that the land may be required after that period, he may lease the land from the customary landowners for the whole or a part of that period.”

(Emphasis added).


120. The next following provision that is s.11 of the Act talks about acquisition of customary land for lease-leaseback purposes. This section states:
“ACQUISITION OF CUSTOMARY LAND FOR THE GRANT OF

“11. ACQUISITION OF CUSTOMARY LAND FOR THE GRANT OF SPECIAL AGGRICULTURAL AND BUSINESS LEASE.


(1) The Minister may lease customary land for the purposes of granting a special agricultural and business lease of the land.

(2) Where the Minister leases customary land under Subsection (1), an instrument of lease in the approved form, executed by or on behalf of the customary landowners, is conclusive evidence that the State has a good title to the lease and that all customary rights in the land, except those which are specifically reserved in the lease, are suspended for the period of the lease to the State.
(2) No rent or other compensation is payable by the State for a lease of customary land under Subsection (1).” of the lease to the State.

(3) No rent or other compensation is payable by the Sate for a lease of customary
121. Then s.12 of the Act gives the Minister on behalf of the State authority to acquire customary land compulsorily provided the Minister has served a Notice to Treat upon customary landowners after diligent inquiry into such inquiry. The above Section states:


“12. COMPULSORY ACQUISITION.


(1) The Minister may, on behalf of the State –

(2) On the publication of a notice under Subsection (1), the land or chattel to which the notice applies is –

(Emphasis added)

122. The process requires the Lands Minister to make diligent inquiry with each of the land owner and notices must be served on all members of the clan. The process requires that after the notice to treat has been served, only after reasonable inquiry has been made and where the Minister is satisfied that the land in issue is not required by customary land owners, then he may acquire the land for lease-lease back purposes for lease either in whole or part of the period of the lease agreement. (See.ss.10, 12, 13 and 102 of Land Act.).

123. After such notices have been served, the Minister of Lands & Physical Planning and officers of his Department are required by law to diligently inquire with customary land owners and unless he is satisfied after reasonable inquiry that the land is not required or likely to be required then he may acquire the land. (See ss.10 (3)


124. The process and procedures for diligent inquiry were set out by Justice Cannings in Doriga Mauru & Ors v Lucas Dekenai & Others(2013) N5305 and Musa Valley Management Company Limted & Musa Century Limited v Pepi Kimas & Ors(2010) N3827

125. The plaintiff applicants argue in their evidence that, they have been unfairly deprived of the use, benefit and enjoyment of their land. They now argue that the processes taken by the Minister and the Secretary for Lands for acquiring their land for SABL breached the processes in ss.9, 10, 11, 12 and 102 of the Land Act of 1996. They further argue that, most if not all land owners were not aware of the consent, given by the 4th respondent.


126. On the issue of the Local Land Court decision dated 9th September 1992, the counsels for the Respondents raised the issue sufficient interests as discussed in many case including Mamun Investment Pty Ltd & Ors v Paul Ponda & Ors (supra) by arguing that, the applicants must have sufficient interest in order for them to come to court. This raises another issue of bona fide connection with this case. It has been stated that the above issue may be flexible to embrace any interest that establishes a bona fide connection or link between the applicant and the matter to which the application relates: NTN Pty Ltd v PTC [1987] PNGLR 70. (See also Arowe Logging Pty Ltd v PNG [1988-89] PNGLR 216.


127. The Applicants who comes to court to give evidence on behalf of their clans who had authorized them to represent in court in my view have rights because they have portions of the land that was heard by the Local Land Court. Where and how do we fit these people’s interest in? Those people affected did not appeal from that decision because they are land owners of Portions 808C and 809C. Due to no development taking place there since the decision by the Land Court, they did not complain. Since 2011 the two portions of land have been compulsorily acquired and to their surprise, their homes and cash crops were destroyed. The case of NCDIC v Crusoe Pty Ltd [1993] PNGLR 139 best illustrates the range of interests that the courts would recognize and the “unlimited flexibility of the connection required between an applicant and the case to meet the test of sufficient interest.”


Findings


128. Having considered the evidence of the plaintiff/applicants and that of the six respondents and all the materials that have been tendered and having considered the law governing grant of SABL. I consider submissions by the lawyers on behalf of their clients. It is quite interesting that even most of those who support the Fourth Respondent gave evidence against their stance saying that they were not at all given sufficient warnings to attend the awareness meetings at Malabonga Community Hall.


129. They say now that, despite that, they support the process taken by the Chairman of the Fourth Respondent. They gave reasons that, because the two portions of land were being used by certain inland Baining individuals for sale to outsiders, they agree with the process of registering their land to protect their land.


130. The review before this court is a rather interesting one. The court finds from all evidence that, it is unusual for a claimant to be a plaintiff and at the same time a defendant. Like on this review, Uramat Clan is the Fifth Applicant/Plaintiff. But many of those who gave contradictory evidence for the Fourth Respondent said, they are from either Uramat Clan of other sub-clans of Uramat main Clan. Most of the Respondents’ witnesses denied attending the three meeting held from 1st – 3rd September 2010 at Malabonga High School Community Hall.


131. Witnesses for the Respondents like Mr. Elias Kamara, Ulaias Waninara, Kepas Sion, Erick Doman, Alois Kivung, Waninara Kelep, Paul Pame, Peter Pennie, Gerson Kubak, John Talvat and Wicky Okole, all said in evidence in chief and cross-examination that, they never attended the awareness meeting conducted at Malabonga High School Hall on 1st, 2nd and 3rd of September 2010.


132. Witness Kepas Sion, even said, he himself was so upset about the two portions of land being acquired for SABL purposes and Kairak Incorporated Land Group is not solely owned by Kairak. Witness Erick Doman said, he was shocked to learn that, his sub-clan Yaram a sub clan of Uramot was registered and he is against Chief Hosea Kailam who is the Fifth Applicant for Uramat Clan. Waninara Kelep also opposes Hosea Kailam.


133. Witness John Talvat for the Respondents of Gaulim village from the Uramat Clan said in evidence, he was disappointed over the acquisition of land by the State under the name Kairak. He said, he later realized that acquisition of that land was to protect the inland Baining customary land for their future generations.


134. I am satisfied that, the three meeting held at Malabonga Community Hall was not attended by all customary land owners of Inland Baining particularly the Portions of Land referred to as Portions 908C and 909C, all customary land owners were not given sufficient warnings as required by ss.10, 11 and 12 of the Land Act 1996.


135. The court finds that, the three days during which the awareness meetings were held at Malabonga Community Hall, was insufficient because Inland Baining is vast area of land mess and evidence reveal that, for many of the witnesses both for the applicants and respondents did not have any radios to listen to service message that was put through Radio East New Britain. That is why they were not aware of what was going on.


136. If there was, such notice had to be served on “each of the land owners” and only after the Minister had been reasonably satisfied after inquiry which ought to show that, the customary land is not required or likely to be required, he can then acquire such land.


137. Acquisition of customary land for purposes of lease-lease back purposes either for SABL or other purposes can only happen after diligent search and inquiries have been carried out with customary land owners. (See ss.10 (4), 12(1) (a) &13 of Land Act). At this stage, the court cannot tell if any notices to treat were issued to appropriate customary land owners or not. The Minister is required to make diligent search and inquiry about the status of the land acquired for SABL purposes then after being satisfied about the inquiries made, he can then acquire the land for purposes of special agricultural business lease.


138. During the course of the trial on this case, the Court making reference to s.12 of the 1996 Land Act concerning the processes required by the Minister for Lands. Mr. Donald of counsel for the Fourth Respondent interjected by saying that, that provision is not appropriate for acquisition of customary land. This is the very provision which provides for the procedure on how compulsory acquisition of customary land can be acquired. I direct counsels’ attention to the interpretation section which is s.2 of the Act.


139. This section gives a comprehensive interpretation of what is the intention of the 1996 Land Act. This piece of legislation was designed to cover customary land for lease and leaseback purposes agreements between customary land owners and the State.


140. I find, the process was hijacked from appropriate land owners as shown by the evidence of all parties and I find that, such process was in breach of ss.10, 11, 12 and 102 of the Act. Such action amounted to no protection from unjust deprivation of property which breaches s.53 of the Constitution. I quote Subsection (1) (a) – (b) of the above section:


“(1) Subject to Section 54 especial provision in relation to certain lands) and except as permitted by this section, possession may not be compulsorily taken of any property, and no interest in or right over property may be compulsorily acquired, except in accordance with an Organic Law or an Act of the Parliament, and unless –

(a) the property is required for –

that is so declared and so described, for the purposes of this section, in an
Organic Law or an Act of the Parliament; and

(b) the necessity for the taking of possession or acquisition for the attainment of that purpose or for that reason is such as to afford reasonable justification for the causing of any resultant hardship to any person affected.”

141. Having considered all evidence tendered either oral and the position in the applicable law governing the grant of SABL, I come to a firm view that the SABL granted for the two portions known and described as Portion 908C and 909C in Inland of Baining, Gazelle District was granted in breach of mandatory and statutory requirements of ss.10 (3) (4),12 (1) (a) (b) and s.13 (1) of the Land Act 1996. There is no evidence before this Court to establish that the Minister of Lands had diligently enquired with land owners of the two portions of land on this review and thus it cannot be said that he was satisfied after making reasonable inquiry with land owners.


142. As I find, all customary landowners were given the privilege of airing their views on how or what would be the effect acquiring their land. The 1996 Land Act requires that the Minister responsible for Land must not acquire land by compulsory process under the Act unless he has either satisfied himself after reasonable inquiry or after a notice to treat has been issued under s.13 of the Land Act, he can then pursuant to s.102 of the Act compulsorily acquire the land. The three days meeting referred to by witness Elizabeth Tobea in my view was insufficient notice. If need be consultations could have been on for 3 to 4 months: Leo Maniwa & Others v Aron Mulijiwi & Others (4.7.2014) N5687. , Doriga Mauru & Others v Honourable Lucas Dekena & Others (2013) N5305.

143. The Minister can only grant SABLs when he is satisfied after reasonable inquiry has been carried out by officers of his Department and the Provincial Lands officers to establish that land owners agree for the land to be compulsorily acquired. I am not satisfied that the three days meeting held at Malabonga High School Community Hall on 1st – 3rd September 2010 met the requirements of meaningful consultation with land owners.


144. Some witnesses for the applicants said in evidence that many of the Inland Baining people do not have radios to hear anything from RNB if there were any air service messages sent to invite them to attend the meetings conducted on the above dates. I find there was not enough awareness conducted by both National and Provincial Lands & Physical Planning officers.


145. I do not consider the consent purportedly signed by the members of the Kairak Clan or other clan members who have switched from their original clans to team up with Kairak. If there was genuine concern by officials of the Department of Lands and Physical Planning, the three days meeting could have been scheduled to various locations within the Inland Baining Area rather than conducting those three meetings at the Malabonga Community Hall.


146. This was the case where landowners were required to be sufficiently informed and educate them about the Government’s intentions to acquire land for SABLs purposes and educate them about what would be the resultant effect of leasing customary land.


147. As the evidence for the Applicants shows, acquiring of their land would certainly adversely affect their traditional lifestyle not only the current generations but their future generations. Displacing those affected people will also affect their future generations. From the evidence of all the parties, Inland Baining economy is based mainly on subsistence agriculture. Custom still governs most land tenure, with land owned by kinship groups and clans or sub clans.


148. Their cash crop is coconut, cocoa, bananas. Persons affected by compulsory acquisition of the two Portions of land have been greatly affected and those evicted from their blocks had lost their gardens, coconuts trees, cocoa trees, fruit trees and betel nuts and mustard plants. All these are economic cash crops and people around that area rely heavily on marketing their cash crops to sustain livelihood.


149. The exercise of awareness on acquisition of customary lands requires all affected Government agencies as the National Department of Lands and Physical Planning and their counterpart in the Provincial level together with the Provincial Government need to make awareness campaigns to educate people and make them aware of what benefits, advantages, disadvantages which will affect the prior to acquisition is granted.


150. I reject the evidence by Mr. Thomas Kalas, Ward Member of Malabonga village Gazelle District not only his oral evidence and affidavits filed where he says that, ownership of Portions 908C and 909C is vested in Kairak clan. He said Portion 908C was awarded to Kairak clan in 1994 by the Local Land Court. Having gone through documents, particularly, the maps of the two Portions of land, there is no clear demarcation showing the boundaries of the two Portions of land.


151. As well, the decision by the Local Land Court dated 9th September 1994, names two clans as land owners of part of Portion 908C as Bitagunan of Napapar No.5 and Kairak. Attached to that decision, is a map only showing KAIRAK in inserted hand-writing. At the bottom of that map, the name Bitagunan is also in hand-writing. Noteworthy is the portion where Kairak is written, it is shaded. Bitagunan is no. Obviously, that could have been inserted by an interested party for and on behalf of Kairak clan. As shown on the map of the old Trans Keravat Land, there is no evidence to show that, Bitagunan clan of Napapar No.5 was included in the Kairak Incorporated Land Group.


152. On the same token, I object to the submission by Mr. Donald that, Kairak solely owns Portion 908C as evidence from the applicants’ show they own portions of land within that portion of land and even the evidence by Mr. Elias Kamara shows that Portion 909C is communally owned by Kairaks and Uramat clan which one of the applicants of this review.


153. Interestingly, witnesses for the Fourth Respondent testified that, even prior to acquiring the two Portions of land, there had been no meetings to educate them about what was happening to their land until after their land had been leased out by the Fourth Respondent and registered as Kairak ILG. These witnesses include, Mrs. Ulaias Waninara, Kepas Sion, Waninara Kelep, Gabriel Kubak, John Talvat and Wicky Okole.


154. The Court comes to the conclusion that, the series of decisions made by the First and Second Respondents on 6th May 2011 in relations to the customary land that used to be customarily described as Baram/Grangaitr which is now described and known as Portions 908C and 909C Milinch Pondo (NE) (SE), Kokopo, (NW) (SW) Fourmil Rabaul in the Inland Baining were made in breach of the statutory provisions and processes set out in ss.10, 11, 12&102 of the Land Act 1996.


155. Consequently, the Court grants certiorari pursuant to orders sought in the Notice of Motion under Order 16 Rule (1) of the National Court Rules and orders that, those decisions made on 6th May 2011 by the First and Second Respondents are now before this Court and such orders quashed on the basis that the processes defined under ss.10, 11, 12, and 102 of the Land Act 1996 were breach as no sufficient notices were served on individual customary land owners. Those decisions cannot stand and having discussed the evidence of all parties and issues involved and the position in law the Court declares that the decisions are null and void. The court orders that, the Respondents shall pay the costs of these proceedings to be taxed if not agreed.


156. The decision of the Local Land Court will not be disturbed. In case where the parties want to reapply to the Minister for Lands and Physical Planning for their customary lands to be compulsorily acquired for purposes of special agricultural business lease, they may do so at their own will.
________________________________________________________________
Namani & Associates : Lawyer for Plaintiffs/Applicants
Solicitor General : Lawyer for 1st- 3rd Respondents/Defendants.
Donald & Company Lawyers : Lawyer for 4th Respondent/ Defendant
Islands Legal Services : Lawyer for 5th& 6thRespondents/Defendants.


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