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Manoka v Kimas [2019] PGNC 379; N8126 (22 November 2019)

N8126

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS (JR) No. 409 OF 2007

BETWEEN:
LUCKY MANOKA
First Plaintiff

AND:
BOOTLESS VIEW ESTATE LIMITED
Second Plaintiff

AND:
PEPI KIMAS, SECRETARY FOR LANDS AND PHYSICAL PLANNING
First Defendant

AND:
HON. DR. PUKA TEMU MP, MINISTER FOR LANDS & PHYSICAL PLANNING
Second Defendant

AND:
INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Defendant

AND:
AMAZON REALTY LIMITED
Fourth Defendant

Waigani: Gavara – Nanu, J
2018: 9^th May
2019: 22^nd November

PRACTICE & PROCEDURE – Leases – Land Board – Decisions and recommendations – Land Act, 1996; ss. 62 and 63 – Appeals – Minister for Lands and Physical Planning – Powers of the Minister – Exercise of power.

PRACTICE & PROCEDURE – Minister for Lands and Physical Planning – Power to advice Head of State – Land Act, 1996; s. 62 (3), (4) and (5) -Exercise of power by the Head of State – Decisions of the Head of State.

PRACTICE & PROCEDURE – Appeals – Decisions – Remittance of issues – Land Board – Re-hearing – Issues for re-hearing – Evidence – Grounds – Power of Land Board – Land Act, 1996; s. 63 (2) (a).

Cases Cited:
Papua New Guinea Cases

Jubilee Hambru v. Michael Baur & Ors (2007) N3193
Martin Maso v. Romily Kila Pat, Secretary for Department of Lands & Physical Planning & Ors (2016) N6550
NCDC v. Crusoe Pty Ltd [1993] PNGLR 139
Raho Namo v. Enai (re Hitau) [1971-72] PNGLR 58
Raumai No. 18 Limited v. Country Motors Limited & Ors (2018) N7952

Overseas cases cited:

Associated Provincial Picture House v. Wednesbury Corporation [1974] 2 All ER 680

Counsel:

S. Ketan, for the Plaintiffs
B. Kulumbu, for the First, Second and Third Defendants
R. Mann-rai, for the Fourth Defendant

22^nd November, 2019

1. GAVARA-NANU J: In early February 2005, the plaintiffs wanted to lease a parcel of land within the Port Moresby city area to develop. This led to initial discussions with the relevant officers of the Department of Lands and Physical Planning (Department of Lands) to seek their assistance in identifying a suitable land. Consequently, a parcel of land known as Portion 878, Milinch Granville, Fourmil, Port Moresby, National Capital District (the land) was identified.

2. On 4 March, 2005, the plaintiffs submitted an application to the Land Board for an urban development lease (UDL) for the land.

3. Around June, 2005, the plaintiffs became aware that the land was advertised as vacant in a National Gazette No. 86, dated 9 June, 2005. When the plaintiffs enquired with the relevant Land Allocation Officer in the Department of Lands, namely, Mr Dominic Awamo, they were advised that the land was not for an UDL. As a result, the plaintiffs' initial application for an UDL was given back to them.

4. Mr Awamo advised the plaintiffs that there should not be any problems if they submitted another application for the land. On the basis of Mr Awamo's advice, the plaintiffs around July, 2005, submitted another application to the Land Board for the land.

5. In early September, 2005, the plaintiffs received a letter from one Peter Timothy of the Land Board dated 30 August, 2005 informing them of the Land Board meeting scheduled for 27 to 29 September, 2005, regarding the land and advised them to attend the meeting.

6. In October, 2005, the plaintiffs were advised by the said Peter Timothy in a letter dated 13 October, 2005, that their application was successful and that after the appeal period of 28 days, the lease would be issued in the name of the second plaintiff.

7. After the expiration of 28 days the plaintiffs enquired about the lease. They were told that there were appeals against the Land Board’s recommendation, which favoured the second plaintiff.

8. The plaintiffs were never advised of the outcome of those appeals. But about January, 2006, the plaintiffs received another letter from the said Peter Timothy dated 9 January, 2006, advising them to attend another Land Board meeting regarding the land, scheduled for 18 and 19 January, 2006.

9. After the second meeting of the Land Board, the plaintiffs received a letter from the said Peter Timothy dated 10 February, 2006, advising them that their second application was successful, and the lease would be issued in the second plaintiff’s name after the expiration of the 28 day appeal period.

10. After 28 days, the plaintiffs enquired with the Land Board about the lease. They were told that there were appeals against the Land Board’s recommendation which favoured the second plaintiff. They were told that the matter had been referred to the Legal Division of the Department of Lands for legal advice.

11. On 13 April, 2006, the plaintiffs were told that the then Secretary for the Department of Lands, Mr Pepi Kimas had made a submission to the then Minister for Lands, Honourable Dr Puka Temu, recommending that the decision of the Land Board be revoked, and the lease be issued to the second successful applicant for the land, namely Amazon Realty Ltd, which is the fourth defendant in this proceeding and one of those that appealed against the Land Board recommendation.

12. As a result, on 27 March, 2006, the Head of State upon advice of the Minister for Lands issued a lease in favour of Amazon Realty Ltd for the land.

13. On 27 April, 2006, the plaintiffs wrote to the Minister for Lands expressing their concern about the manner in which a lease was issued to the fourth defendant. The plaintiffs questioned the Minister about the reasons for issuing the lease to the fourth defendant after the second plaintiff was twice recommended by the Land Board for the lease. The plaintiffs also questioned the Minister about the reasons behind the advice given to him by the Secretary for Lands that the lease be issued to the fourth defendant.

14. On 10 May, 2006, the plaintiffs wrote to the Secretary for Lands raising same concerns they earlier raised with the Minister, and questioned the integrity of the process he followed in advising the Minister to issue a lease to the fourth defendant.

15. There were no immediate responses from both the Minister and the Secretary for Lands.

16. Thereafter, on three occasions the plaintiffs approached the Deputy Secretary for Lands, namely, Mr Tony Luben and raised the same concerns they earlier raised with the Minister and the Secretary for Lands. Mr Luben assured them that their concerns would be referred to the Legal Division of the Department of Lands, for legal advice. However, in spite of the assurances by the Deputy Secretary for Lands, the plaintiffs did not receive any response either from the Deputy Secretary for Lands or the Legal Division of the Department regarding their concerns.

17. On 31 July, 2006, the plaintiffs wrote again to the Minister for Lands outlining their grievances, and asked that their grievances be properly addressed. Again, they did not receive any response from the Minister.

18. On 22 August, 2006, the Secretary for Lands wrote to the plaintiffs and advised them that their concerns were referred to the Legal Division of the Department for legal advice. The plaintiffs never heard from the Legal Division of the Department of Lands.

19. There is evidence that the plaintiffs later consulted a number of officers of the Department of Lands with the view that they would eventually address their grievances. One of the officers was the Registrar of Titles; those officers told them that proper procedures were not followed by the Department when issuing the lease to the fourth defendant. They also told them that there were suspicions about the manner in which the lease was issued to the fourth defendant, including the speed at which it was issued.

20. There is evidence that the plaintiffs also filed a caveat but they later found to their surprise that the caveat was never registered.

21. Sections 62 and 63 which is in PART III of the Land Act 1996, set out the procedure for appeals from the decisions of the Land Board. The sections read:

PART VIII—APPEALS AND REPORTS

62 Appeals

(1) A person aggrieved by a decision of the Land Board may, not later than 28 days after notice is forwarded under Section 58(10), forward a notice of appeal to the Minister.

(2) An appeal shall be accompanied by a prescribed fee.

(3) If the Head of State, acting on the advice of the Minister, thinks that the appeal has been made on frivolous grounds, the Head of State, acting on the advice of the Minister, may reject the appeal.

(4) Subject to Subsection (5), the Head of State, acting on the advice of the Minister, shall determine an appeal under this section, and his decision is final.

(5) Where an appeal under this section is upheld, the Head of State, acting on the advice of the Minister, may refer the matter back to the Land Board for re-hearing.

63 Reference or reports to Minister

(1) A report or recommendation of the Land Board shall—

(a) if no appeal is made under Section 62, at the expiration of the period referred to in Subsection (1) of that section; or

(b) if any such appeal is made, after the appeal is determined,

be referred to the Minister.

(2) In addition to any other powers conferred by or under this Act, the Minister shall, if he disagrees with a report or recommendation of the Land Board, and may for any other reason—

(a) refer any matter back to the Board for re-hearing, the taking of fresh evidence, the furnishing of a further or additional report, or otherwise; or

(b) refer any matter to the National Executive Council.

(3) The decision of the Head of State, acting on advice, on a matter referred to the National Executive Council under Subsection (2)(b), is final. (My underlining).

22. One of the plaintiffs' main arguments is that the decision by the Head of State to uphold the appeal by the fourth defendant and issue a lease to the fourth defendant was made in breach of s. 62 of the Land Act. They argued that given the nature of the advice given to the Minister by the Secretary for Lands, the appeal by the fourth defendant was essentially decided by the Secretary for Lands and not by the Head of State upon advice of the Minister for Lands as required under s. 62 of the Land Act.

23. It was submitted by the plaintiffs that the advice by the Secretary for Lands to the Minister formed the basis of the decision by the Head of State. The plaintiffs argued that any form of involvement of the Secretary for Lands on appeals from the decisions of the Land Board is prohibited by law because of the possibility of bias and or causing prejudice to the interested applicants for the land, as he is required to sit in the Land Board meetings and where required by the Chairman of the Land Board, offer advice on matters that are before the Land Board for its deliberations.

24. The defendants’ principal argument, in particular the fourth defendant is that the advice given by the Minister for Lands to the Head of State was proper because the Minister is empowered to give such advice to the Head of State under s. 62 of the Land Act, on issues relating to or arising from the appeals against the decisions of the Land Board. They argued that arguments of the plaintiffs were misconceived.

25. Section 62 (3), (4) and (5) expressly confer power on the Minister for Lands to give advice to the Head of State, thus in this instance it was in my view proper for the Minister to advice the Head of State. What is in issue though is the nature of the advice and the basis of the advice. See, Martin Maso & Ors v. Romily Kila Pat, Secretary for Department of Lands & Physical Planning & Ors (2016) N6550.

26. As to the Secretary for Lands giving advice to the Minister; in my view as the Head of the Department of Lands, ordinarily he is under a duty to give advice to the Minister, as and when his advice is required. But, again what may be in issue is the nature of the advice and the basis of such advice, especially any issues which may bring into question the propriety of the advice.

27. In this instance, there is no dispute that the Land Board had on two occasions recommended that the lease be issued in the name of the second plaintiff. The first decision of the Land Board was appealed by other applicants, one of which was the fourth defendant. After considering the appeal, the Minister upheld the appeal and remitted the matter back to the Land Board for re-hearing. After re-hearing the applications, the Land Board for the second time recommended the second plaintiff for the lease. In other words, the plaintiffs were successful twice in their two consecutive applications for the land. In both occasions, the Land Board made its recommendations in favour of the second plaintiff, after giving due considerations to all the applications.

28. The determinative issue before the Court is whether the fourth defendant's lease was validly issued. The advice by the Secretary for Lands to the Minister for Lands, which was in the form of a “Business Statutory Paper” submission dated 16 March, 2006, which is Annexure ‘L’ to the first plaintiff’s affidavit sworn on 11 July, 2007, clearly formed the basis for the lease being issued to the fourth defendant by the Head of State. The Paper discussed legal issues which prima facie were prepared by the Legal Branch of the Department of Lands.

29. Essentially, the Secretary in that submission advised the Minister that the plaintiffs’ first application for the land breached the tender requirements because the tender was for agricultural lease, but they also indicated in the application that they would later venture into residential development. The plaintiffs’ second application was also considered invalid by the Secretary for Lands because it included fresh materials for re-hearing, thus it was said to be in breach of the tender requirements.

30. The advice by the Secretary for Lands to the Minister is critical, thus the relevant parts of the advice are reproduced below:

“It is imperative to note also that where there is a referral for a re-hearing the same principle that is applied in our courts of law should apply. “No new evidence or materials (i.e submissions or applications, etc.) should be tendered in to support a case. Any materials relied upon should be the ones that were initially tendered in response to the initial tender that was advertised”.

One of the underlying rationale for that principle is to prevent litigants from manufacturing and or tailoring evidence to address or remedy some discrepancies that they failed to plead or address earlier.

As a matter of fact, Bootless view (sic.) specifically mentioned that they are interested in the agricultural lease, as per the tender, so that they can rezone the interest later to a UDL. That implies that their intention is not to develop the lease as per advertised, hence, they have not complied with the tender...

CONCLUSION:

It is alleged that Bootless View Estate Limited initially applied for an Agricultural Lease with the intention of rezoning this parcel of land to a Urban Development Lease (UDL) for property development. They also tendered a UDL development proposal that depicted a major housing or property development proposal. Despite that disparity the Land Board went ahead and recommended the land in Bootless View Estate Limited’s favour and after the successful appeal which led to the referral back to the Land Board for the re-hearing, Bootless View Estate Limited realized its shortfall and changed the presentation to the Land Board without highlighting their intention to rezone later.

The Land Board should have conducted the re-hearing upon the submissions that were on file and not with new/fresh ones. If the successful applicants had applied initially meeting the tender prerequisites and had everything in order and the Land Board decided in their favour then the decision would have been in order but since they have relied on a submission and tender that did not comply with the initial tender requirements they definitely did not qualify to be considered...

RECOMMENDATION

After considering the facts and the comments herein surrounding the appeal against the decision of the Land Board for the subject land I recommend that the appeal by the appellants be:-

UPHELD and the recommendation to the first choice successful applicant be quashed and a grant be made to the second choice successful applicant of the initial Land Board Meeting No. 09/2005...” (My emphasis and underlining).

31. From these excerpts of the advice by the Secretary for Lands to the Minister for Lands, a number of issues emerge, which in my view raise serious questions regarding the probity and the validity of the advice. The advice appears to suggest that generally, an initial application for a land cannot be altered with fresh evidence or materials, if the matter appealed had been remitted to the Land Board for re-hearing. The advice in this regard was in my view in breach of s. 63 (2) (a) of the Land Act, which allows for fresh evidence and or materials to be considered at a re-hearing by the Land Board. The advice drew an analogy with what would happen in a court of law when a matter is remitted for re-hearing. The advice stated that no fresh evidence can be adduced at the re-hearing. This advice was wrong in law as it was contrary to the requirements of s. 63 (2) (a) of the Land Act. The advice also did not provide any reasons for the Secretary for Lands recommending that the fourth defendant be issued a lease. Furthermore, the advice did not give any reasons why and how the fourth defendant’s application met the tender requirements.

32. I find that the Land Board has power under s. 63 (2) (a) of the Land Act, to receive fresh evidence and or materials on re-hearing of a matter for the purposes of properly and fully determining the issues remitted to it after a successful appeal against its recommendations.

33. The Land Board in this instance had in the exercise of its powers twice recommended that the second plaintiff be issued a lease. This decision was made after full and due consideration of all the applications before it, and it is to be noted that the number of initial applicants for the land was 17, out of which the second plaintiff was recommended for the lease. Without any evidence to the contrary, I am bound to accept as a matter of law based on the general principle of regularity that the Land Board conducted its hearings regularly and according to law, thus twice recommending that the second plaintiff be issued a lease. See, NCDIC v. Crusoe Pty Ltd [1993] PNGLR 139 at 153 Jubilee Hambru v. Michael Baur & Ors (2007) N3193. These two cases applied this principle which was uttered in an earlier decision by Clarkson J, in Raho Namo v. Enai (re Hitau) [1971-72] PNGLR 58 at 66, where his Honour said:

“The presumption on which the Crown relies on is as expressed by Brewer J in Knox County v. National Bank [1893] USSC 8; (1892) 147 US 91, 97; [1893] USSC 8; 37 Law Ed. 93 as quoted by Griffin CH in McLean Bros & Rigg Ltd v. Grise [1906] HCA 1; (1960) 4 CLR 835, 850:

“It is a rule of very general application, that where an act is done which can be done legally only after the performance of some prior act, proof of the latter carries with it a presumption of the due performance of the prior act.”

It may well be difficult in any particular case to say whether the factual situation justifies the presumption. After all, it is common experience that not all things are done legally. But we are not dealing with some inflexible rule of law, but merely with a presumption which if justified places some evidential burden on the party against whom the presumption operates.”

34. The main argument by the Secretary for Lands in his advice or brief to the Minister for Lands was that the plaintiffs’ proposals were in breach of the tender requirements because the land was advertised for agricultural development, but the plaintiffs’ proposal was to develop the land for agricultural purposes in the first stage of development then residential development in the second stage. However, it is very significant to note that the proposal by Amazon Realty Limited (fourth defendant) was detailed and was in serious and flagrant breach of the tender requirements than the plaintiffs. For example, its proposal for Stage 1 development of the land was agricultural (development) and Stage 2, was for residential and commercial (development). So, how in all fairness could the plaintiffs be penalised for their proposals? In my view the type of residential development proposed by the plaintiffs were not out of ordinary, because as a large scale agricultural development, it would naturally need residences for the employees. The fourth defendant on the other hand proposed residential as well as commercial developments apart from agriculture.

35. The detailed proposals by the fourth defendant make its intentions very clear that it wanted to venture into almost 100% residential and commercial development and very small percentage of its proposal was for agricultural development. This was a blatant breach of the tender requirements. This is reflected clearly in the excerpt of its “Proposed Development and Funding plans”, as shown in Annexure ‘B’ to the affidavit of Nou Tamarua sworn on 28 September, 2016. The proposals in part read:

“Amazon Reality is a company engaged in Real Estate and Property Developments and is based in Port Moresby. The principal owners have seen limitations in Port Moresby expanding its services in the city and realized the need to expand its economic developments by acquiring the above piece of prime land to build and develop some infrastructure projects which are explained in details (sic.) below. It is anticipated that through this development the city can spread its development and alleviate the congestion of industrial and commercial activities in downtown Port Moresby. The congestion at the downtown wharf and crowded Touaguba, Paga and Ela Makana Hills are becoming unbearable for business to run and operate smoothly and necessitate the need for an alternate site to be developed for some of the city’s services and economic developments.

In 2000 the National Government engaged a Korean company (TON WOO) to look at alternative sites for the relocation of the main wharf. These possible sites were looked at, Tatana, Napa Napa and the Bootless Bay. In brief the report found that there is already a major problem in the future development of the city particularly the port area in downtown Port Moresby and recommended that future expansion will have to take place on possible sites where government has land and access to sea port facilities. The study concluded that Bootless Bay is a possible site as it has ample government land and good deep water for wharf development”. (My underlining).

36. The fourth defendant’s development proposals then went on to itemise the proposed development of the land in four (4) stages:

" Stage 1 – Agricultural development of mix farming, paultry, piggery and vegetable farming and banana planting at a total cost of K350,000.00.

Stage 2 – Rezoning the land to light industrial, commercial, residential and other zoning. Provision of Services (sic.) such as roads, sever (sic.) water, cable and power lines the estimated cost of which will be well over K18 million.

Stage 3 – Light Industrial and Commercial Developments – Shopping complex, sawmill, vineer processing, warehouse sheds, a wharf and a jetty that will cost well over K345 million.

o Light Industrial and commercial development K300m

o Wharf development K30m

o Shopping complex K15m

Stage 4 – Residential, Hotel and Recreational Development. Residential properties, five star hotel and recreational facilities would cost well over K450m.

Residential properties and recreational facilities K150m

Five Star Hotel including international std casino K300m.

""The overall development of the lease will cost approximately US$271 million"".

37. It is very clear from this proposal that the fourth defendant’s intention was residential and commercial development. If one was to rely on the reasons given by the first and second defendants for upholding the appeals against the plaintiffs, then the fourth defendant was clearly in a more serious breach of the tender requirements, thus it should never have been issued a lease.

38. The first and second defendants failed to show that the plaintiffs were in breach of any statutory provisions governing either the tender requirements or issuing of leases. To my mind, there was no proper and legal basis for the lease not being granted to the second plaintiff as recommended twice by the Land Board.

39. It is clear that the Secretary for Lands and the Minister for Lands, who are the first and second defendants in this proceeding, took into account improper and irrelevant considerations when upholding the appeal against the Land Board recommendations favouring the second plaintiff, and issuing the lease to the fourth defendant. The advice to the Head of State was wrong in law and it amounted to an abuse of power by the Minister for Lands.

40. The plaintiffs are seeking among others the quashing of the decision of the Head of State to issue a lease to the fourth defendant and order that the second plaintiff be issued a lease over the land.

41. For the reasons given, I find that the first and second defendants had no proper and valid reasons for upholding the fourth defendant’s appeal against the Land Board’s recommendation that the second plaintiff be issued a lease for the land. I also find the reasons and the decision by the first and second defendants to issue a lease to the fourth defendant unreasonable in the Wednesbury sense. It was not a type of decision any reasonable tribunal or authority could make. See, Associated Provincial Picture House v. Wednesbury Corporation [1974] 2 All ER 680. In this regard I also find that the first and second defendants acted ultra vires in upholding the appeal by the fourth defendant and issuing the lease to the fourth defendant. See, Raumai No. 18 Limited v. Country Motors Limited & Ors (2018) N7952.These anomalies in the exercise of power by the second defendant must have natural effect of vitiating the lease issued to the fourth defendant.

42. In the result, I declare that the lease issued by the Head of State to the fourth defendant Amazon Realty Limited, for the land described as Portion 878 Milinch Granville Fourmil Port Moresby, National Capital District on 27 March, 2006 is null and void and is of no legal effect.

43. The decision of the Head of State made on the 27 March, 2006 to issue a lease for the said land to the fourth defendant is quashed.

44. The Registrar of Titles is ordered to issue a summons under ss. 160 and 161 of the Land Registration Act, Chapter No.191, to the fourth defendant to forthwith deliver up the purported owner’s copy of the lease which was issued to it by the Head of Sate on 27 March, 2006 and cancel the said lease. See, Raumai No. 18 Limited v. Country Motors Limited & Ors (supra).

45. The Registrar of Titles is also ordered to issue a lease in the name of the second plaintiff for the land forthwith, as recommended twice by the Land Board.

46. The lease to be issued by the Registrar of Titles in the name of the second plaintiff is ordered to start from the date it is issued.

47. The first and second plaintiffs’ costs of and incidental to this proceeding are to be paid by the State and the fourth defendant. The State is to pay 75% and the fourth defendant is to pay 25% of the said costs, which if not agreed are to be taxed.

Orders accordingly.
________________________________________________________________
Ketan Lawyers: Lawyers for the Plaintiffs
Solicitor General: Lawyers for the First, Second and Third Defendant
Mann-rai Lawyers: Lawyers for the Fourth Defendant