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Wang v Wilbur Lee Hing Hung [2019] PGNC 311; N7970 (20 August 2019)

N7970

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS (JR) 905 of 2017

BETWEEN:
NOELYNE JAMES SAKIAS WANG &
NORAK TRADING LIMITED
Plaintiff

AND:
WILBUR LEE HING HUNG
First Defendant

AND:
MR. TIRI WANGA as Acting Secretary - Department of Lands & Physical Planning
Third Defendant

AND:
HENRY WASA as acting Registrar of Titles
– Department of Lands & Physical Planning
Fourth Defendant

AND:
HONOURABLE JUSTIN TKATCHENKO
Minister for Lands & Physical Planning
Fifth Defendant

AND:
INDEPENDENT STATE OF PAPUA NEW GUINEA
Sixth Defendant

Waigani: Thompson J

2019, 14 & 20 August

JUDICIAL REVIEW - Decision of Land Board to recommend grant of lease – whether Land Board obliged to take into account the Bougainville Peace Agreement and Memorandum of Understanding – whether the Peace Agreement or MOU conferred rights on the Plaintiffs – failure to properly plead and prove Grounds of review – no breach of statutory or common law duty shown

Counsel:
Mr. G. Konjib, for the Plaintiff
Mr. M. Kipa, for the First Defendant
Nil representation, for Second Defendant
Mr. R. Uware, for the Third– Sixth Defendants

20^th August, 2019

1. THOMPSON J: On 24 November 2017 the Plaintiffs filed the Originating Summons seeking leave to proceed by way of judicial review against the decision of the PNG Land Board which was said to be made on 15 – 19 and 22 – 23 May 2017 and published in the National Gazette No. G555 of 27 July 2017, to recommend the renewal of a Business Lease to the 1^st Defendant.
2. The PNG Land Board was not named as a Defendant. Instead, the Plaintiffs pleaded that the said decision was of the named defendants “via the PNG Land Board”.
3. There are some documents missing from the court file, and a replacement file was created at some time. It appears that on 19 February 2018 the Plaintiff filed an Amended Statement, and on 3 April 2018 the Plaintiff was granted Leave to proceed by way of judicial review. There was a further order that the grant of leave would operate as a stay of the “decision published in the National Gazette No. 555 of 2017”, pending the determination of the proceedings. It is not clear if the Court was made aware that the decision published in the said Gazette had already been implemented and a State Lease had already been issued when the Minister signed the State Lease on 21 December 2017, and it was registered in the name of the 1^st Defendant on 28 March 2018.
4. The matter proceeded to a substantive hearing on 14 August 2019.
   

Background

5. In about 1960, the 1^st Defendant obtained a portion of vacant land by government tender. In 1961 he applied for and obtained a State Business Lease for the land on Vol 42 Fol 6 Lot 6 Sec 01, Sohano, in Bougainville (“the original Lease”). It had an expiry date of 13 January 2011, and an improvement covenant to the value of A$3000.00. The 1^st Defendant gave evidence that he spent three years reclaiming and filling in the swampy land, and spent about A$/£ 15,000.00 in constructing a building, from which he then commenced operating a retail business. He continued to operate his business there until about 1990, when he left, due to the Bougainville crisis.
6. Before leaving, the 1^st Defendant entered into an arrangement with Isaiah and Kathleen Morok to look after the business. They continued to operate the 1^st Defendant’s business and also operated their own business, from the building. In 1992, the 1^st Defendant gave his consent to a request by Mr and Mrs Morok to permit an extension to be added to the property, at their cost.
7. The 1^st Defendant eventually retired to Australia. Mr and Mrs Morok commenced renting out part of the property to the Plaintiffs in 2010, before Mr. Morok died in 2010. The rent was initially K3,000.00 per month, subsequently increased to K7,000.00 per month. These rental monies were retained by Mrs Morok, and were not passed on to the 1^st Defendant. In 2014 the 1^st Defendant requested that the rental monies be paid to him, but his request was refused.
8. As the original lease had expired, in 2014 the 1^st Defendant applied for a renewal of the Lease. The application was made in the approved form and the prescribed fee was paid. He obtained and provided a market valuation, and the Department of Physical Planning conducted an inspection and produced an Inspection Report. On 14 July 2016 the Department prepared a Land Allocation Lease Renewal Checklist, which confirmed the improvements which had been made to the property and referred to the valuation reports.
9. On 20 April 2017 the land was advertised as available for leasing in the National Gazette G309, and stated that the Land Board would meet at 8.30am on 15 -19 and 22 - 23 May 2017 to consider all the advertised applications. The Meeting duly proceeded on the appointed time and dates, and made a recommendation that a Business Lease be issued to the 1^st Defendant, with a covenant that existing improvements valued at K500,00.00 would be maintained.
10. On 30 May 2017 the PNG Land Board provided a copy of its recommendation to the 1^st Defendant, and on 28 June 2017, the 1^st Defendant gave a copy to the Plaintiffs.
11. On 27 July 2017 the decisions of the PNG Land Board meeting, including the decision on the 1^st Defendant’s application, were advertised in the National Gazette No. G555. On 2 August 2017, the Defendants issued a Notice and Letter of Grant to the 1^st Defendant of his successful application, he signed and returned his Notice of Acceptance, paid the appropriate fees, and on 21 December 2017 the Minister signed the State Lease for Vol 25 Fol 155 Lot 6 Sec 1 Buka Passage, in Bougainville. The title was registered in the 1^st Defendant’s name on or about 28 March 2018. He has been the registered proprietor of the property since then.
12. Section 33 of the Land Registration Act provides that the registered proprietor holds the land absolutely free from all encumbrances, except for nine specified exceptions. The Plaintiffs have not pleaded any of the prescribed exceptions.
13. Section 62 of the Land Act provides that a person aggrieved by a decision of the Land Board, may forward a notice of appeal to the Minister within 28 days. If no appeal is made within that period, the Land Board’s recommendation is referred to the Minister. If the Minister accepts the recommendation, then pursuant to S74, the name of the successful applicant is to be published in the National Gazette. Under S75, after that publication, the Letter of Grant is forwarded to the successful applicant, and pursuant to S76, the Minister signs the State Lease and forwards it to the Registrar of Titles for registration. When the successful applicant forwards his duly signed Lease Acceptance Form, he is then deemed to have executed the lease on the date on which the Minister executed it.
14. The Plaintiffs did not respond to the advertisement of the Land Board Meeting to consider the 1^st Defendants application for the Lease, did not make an application for the Lease at any time since the expiry of the original lease in 2011, did not submit an application or objection to the Land Board before its meeting, and did not forward a notice of appeal after the Land Board meeting, or after they were provided with a copy of the Land Board Decision.
15. Although the Plaintiffs had received a copy of the Land Board decision from the 1^st Defendants’ lawyers by their letter dated 28 June 2017, the 1^st Plaintiff said that she heard “heard from reliable sources that the business lease was renewed in favor of the 1^st Defendant” in October 2017, and so she wrote to the Minister on 5 October 2017. In this letter she made various objections including that there was no Land Board Checklist prior to the Land Board hearing, the 1^st Defendant had left the property, and that the 1^st Defendant must have breached the improvement covenant in the Original Lease. In response, she was advised by the Defendants that the processes had been followed, the 1^st Defendant’s application was the only application, there had been no appeal against the decision, and the decision had been duly gazetted. The Plaintiffs then issued these legal proceedings.
    

The Application for Judicial Review

16. The Amended Statement filed on 19 February 2018 contains three main grounds for review. I will deal with each of them in turn.
1. Ground 3.1.1 – The Defendants failed to advertise the land as required under S68 of the Land Act, or if they did, the Plaintiffs weren’t aware of it because of the fragile situation in Bougainville and a lack of communication between the Plaintiffs and the institutions dealing with land matters at the Autonomous Region of Bougainville.
17. During the hearing, it was conceded by all parties that the Defendants had advertised the land as required under S68 by the Gazettal notice No. G309 of 20 April 2017. The argument then became whether or not the Plaintiffs should have been aware of the advertisement.
18. There was no evidence of what the Plaintiffs meant by a “fragile situation”. The Plaintiffs had put into evidence a copy of a Bougainville Peace Agreement signed on 30 August 2001. This Agreement was stated to be for the purpose of resolving the Bougainville conflict and securing a lasting peace by peaceful means. The Introduction says that the Agreement will form the basis for drafting constitutional amendments and other laws “in order to give legal effect to this Agreement”.
19. The Plaintiffs also put into evidence a copy of a Memorandum of Understanding between the Department of Lands and Physical Planning of the Independence State of PNG and the Division of Lands of Autonomous Bougainville Government (“the Division”) which was signed on 17 February 2011. This MOU stated that the parties were desirous that a framework for the transfer of powers and functions be recorded in the MOU. It goes on to provide that the Division must establish its organization structure with the necessary capacity to administer any transferred functions and responsibilities, which must be administered in accordance with National Legislation until replaced by Bougainville Legislation. The Division must ensure that the transferred functions are administered in the best interests of Bougainville and PNG.
20. These documents were put into evidence without objection by the Defendants. However, they are of limited evidentiary value. There was no evidence that the Division had established an organization structure with the necessary capacity to administer any transferred functions, and there was no evidence that the Land Act or any other relevant legislation had been replaced by Bougainville legislation, which therefore continued to be administered in accordance with PNG laws.
21. The only reasonable inference to be drawn from these documents is that there was no longer a crisis in Bougainville when the Peace Agreement was signed in 2001, and that there was an orderly transition being gradually effected. The documents did not demonstrate a fragile situation in Bougainville in 2017. .
22. The Plaintiffs did not particularize what was meant by their reference to a “fragile situation” or why it resulted in them being unaware of the government gazettes. The Plaintiffs knew since March 2015 at the latest, that the 1^st Defendant’s lease had expired in 2011. Despite this, they did not search the Lands Department records, did not make an application for a lease to be issued to them, and did not monitor or engage an agent to monitor the National Gazettal notices.
23. The Plaintiffs could have applied for the lease at any time since 2011. They could have written letters to the relevant lands departments in PNG and Bougainville, making their interests known. However, the Plaintiffs took no steps at all.
24. Neither the Peace Agreement nor the MOU contain any legal right which could be relied on by the Plaintiffs, and there was no explanation why the allegedly fragile situation in Bougainville gave rise to an error of law by the Defendants. No error or breach of natural justice has been shown.
25. Ground 3.1.2 – The Peace Agreement says that National Government Assets and Land will be transferred to the AROB, and the Defendant’s action in granting the Lease to the 1^st Defendant is contrary to efforts to restore peace.
26. The Peace Agreement confers no rights on the Plaintiffs. It simply sets out the intention to make various transfers of powers from PNG to Bougainville, but makes clear that until they are transferred and there is appropriate Bougainville legislation, PNG legislation is to continue to apply. No evidence was provided to show why the renewal of the lease to the 1^st Defendant affected efforts to restore peace and stability in the AROB.
27. The issue of the Lease was therefore governed by the PNG Land Act, and no error of law or excess of jurisdiction has been identified in the process.
28. Ground 3.2.1 – The decision was unreasonable in the Wednesbury sense because there was no communication between the PNG Department and the Bougainville Department of Lands, which was required by the Peace Agreement and the MOU.
29. The Plaintiffs referred to S1 (4) (a)(b) of the Peace Agreement, which set out the objectives of Autonomy, and state that they are intended to assist the development of the Bougainville identity and relationship between Bougainville and PNG. Neither of the documents imposed a legal obligation on the PNG Department of Lands to communicate with the Bougainville Department of Lands concerning applications for the issue of State leases. There were no statutory or common law rights conferred on the Plaintiffs. No error has been shown.
30. Ground 3.2.2 and 3.2.3 – The Defendants failed to compile and update the Inspection Report but if they did, it was done on the basis of the improvements made by the Plaintiffs.
31. The Plaintiffs gave evidence that the Defendants had conducted an inspection and produced an Inspection Report in May 2015. This was up to date, as it was after the 1^st Defendant had lodged his application for the Lease. The Report included the improvements made by the Plaintiffs, but that was not an error. It was this which presumably formed the basis for the imposition of the covenant to maintain the improvements at the existing valuation. No breach of any statutory or common law right was shown.
32. Ground 3.2.4 – The Land Board failed to take into account the Peace Agreement, the MOU, the Constitution and Bougainville Government requests of 2009.
33. The 2009 requests to the National Government were not identified. There is nothing in the Land Act which requires the Land Board to take into account any matters other than those prescribed under the Act. There is nothing in the Peace Agreement or MOU which imposes any such legal obligation. Those documents make it clear that until such time as the Bougainville Division has established the required organization structure and until the PNG National Legislation has been replaced by Bougainville Legislation, the Government functions and responsibilities must be administered in accordance with PNG National Legislation. No error has been shown.
34. Ground 3.3. – The Plaintiff’s right to be heard under S59 of the Constitution was not given to them, and their rights “in the interests and spirit of the Peace Agreement and the Bougainville Constitution” were not given to them.
35. This Ground is vaguely worded, with insufficient particularity. S59 of the Constitution provides for a duty to act fairly. There is no evidence that the Plaintiffs had a right to be heard at the hearing of Land Board meeting, because the Plaintiffs had not made any application to the Land Board, and had not asked the Land Board to take any matters into account. There was no requirement for the Land Board to take into account the Peace Agreement or Bougainville Constitution, but even if there was, the Plaintiffs have not identified what particular matters should have been taken into account or how such matters would have affected the Land Board decision. When a person has not made an application to the Land Board or even made an objection to another person’s application, it cannot be said that the person has the right to be heard. No error has been shown.
36. Ground 3.4 – The Defendants refused the Plaintiffs and the Bougainville Government an opportunity to contribute to the decision-making process, which was an “inflexible application of government policy”.
37. This ground is vaguely worded and is not pleaded with particularity. The government policy was not identified. It was not identified how the Defendants refused to give the Plaintiffs and the Bougainville Government an opportunity to contribute to the decision-making process. It has not been shown that the Defendants had an obligation to give any such opportunity to the Plaintiffs or the Bougainville Government. No breach of natural justice was shown.

Relief

38. The Plaintiffs have sought various Declarations as well as certiorari and mandamus against the Defendants.
39. No such declaratory relief could be granted. No evidence was produced to show that the Defendant’s decision was either irregular or unlawful. No reason was given why the receipt of documents from the 1^st Defendants lawyers was a breach of the Peace Agreement or Bougainville Constitution. No evidence was produced to show the existence of any of the exceptions referred to in S33 of the Land Registration Act, even if they had been pleaded.
40. As no breaches of statutory or common law duties, and no errors of law, have been shown in the Defendant’s decision-making process, there could be no basis for certiorari to either quash the decision or remit it back for re-hearing by the Land Board.
41. There was no evidence of an “appropriate Lands Physical Planning Division” of AROB which could have any legal capacity to consider an application for the issue of the lease under the PNG Land Act, so there could be no basis for mandamus.
42. The Plaintiffs sought a Declaration that they have an equitable interest in Sec 1, Lot 6, Vol 42, Fol 6 Buka passage, Sohano. First, that title no longer exists. Secondly, the Plaintiffs have not shown that they have an equitable interest in Vol 25, Fol 155, Lot 6, Sec 1, Buka passage. The Plaintiffs have shown they have constructed buildings on the land without the permission of the land owner. Whether or not that may give them a right to make a claim for damages, is not an issue raised in these proceedings, and is not the basis for a declaration.
    

CONCLUSION

43. Even if the court upholds an application for judicial review, the court still always has a discretion whether or not to grant a remedy. (see Isaac Lupari v Michael Somare and Others (2010) PGSC 21). As was stated in Mision Siki v Manasupe Zurenuoc and others (2005) SC 797), “it is one thing to establish an error of law or a breach of natural justice and for the court to uphold an application for judicial review. It is another separate step to establish a case for a remedy.” The Court went on to approve the statement in Tohian v Geita and Mugugia (2)(1990) PNG LR 479 that: “in judicial review, even though the court might find there has been an error, even an error affecting matters of jurisdiction, the court would not thereby be obliged automatically to quash the ........ proceedings. The remedies available under judicial review remain always at the discretion of the court, and will only be granted to avoid injustice.”
44. Even if the Plaintiffs had shown that there was an error in the Defendants decision-making process, they have not shown that it resulted in an injustice. The 1^st Defendant had been the previous owner of the land for 50 years, had reclaimed it from swamp land from his own efforts, and had constructed buildings and operated a business on the land. The Plaintiffs said they only came to Buka in 2010, and had only been operating the business from the 1^st Defendant’s property for four years when he made his application for a new lease. The Plaintiffs never made an application for the lease. A tenant does not acquire any potential right of ownership merely by virtue of paying rent. In the absence of any evidence that the Plaintiffs ever took steps to apply for or otherwise acquire a lease over the land, and did not object to the 1^st Defendant’s application for a lease, it could not be said that there was any injustice caused by the decision to grant the lease to the 1^st Defendant.
45. The Defendants also raised the issue that the Land Board’s decision which is the subject of the review, was only a decision to recommend renewal of the lease. Their recommendation can be accepted or rejected by the Minister. It should therefore have been the Minister’s decision to accept the recommendation, as the subject of the review.
46. This issue arises from the way in which the Plaintiffs pleaded their application for review in the Origination Summons, Statement and Substantive Notice of Motion. The decision which was published in the Gazette No. G555 constituted the Minister’s acceptance of the Land Board’s earlier recommendation without him having received any notice of appeal. The Defendants therefore submitted that even if an error had been shown in the Land Board recommendation, it would not have affected the fact that the recommendation was accepted and implemented by the Minister, his decision to do so was not the subject of the review proceedings, and his decision would therefore remain in effect. However, as no error has been shown in the decision-making process, it is not necessary for me to consider the possible utility of quashing the Land Board recommendation.
47. The Plaintiffs have failed to establish the Grounds of Review. I therefore make the following orders:
    1. The Plaintiff’s application for review of the Defendant’s decision is refused.
    2. The Stay Order granted on 3 April 2018, is discharged
    100. The Plaintiffs are to pay the Defendant’s costs.

________________________________________________________
Konjib & Associate Lawyers: Lawyer for the Plaintiff
Fairfax Legal: Lawyer for First Defendant
Office of the Solicitor General: Lawyers for Third, Fourth, Fifth & Sixth Defendants