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Church of Jesus Christ of Latter-Day Saints Inc v Kimas [2020] PGNC 268; N8519 (25 September 2020)

N8519

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS (JR) NO. 950 OF 2018

THE CHURCH OF JESUS CHRIST OF LATTER-DAY SAINTS INC
Plaintiff

V
PEPI KIMAS AS DELEGATE OF THE MINISTER FOR LANDS & PHYSICAL PLANNING
First Defendant

AND
HON JUSTINE TKATRCHENKO AS MINISTER FOR LANDS & PHYSICAL PLANNING
Second Defendant

AND
OSWALD TALOPA AS ACTING SECRETARY FOR LANDS & PHYSICAL PLANNING
Third Defendant

AND
BENJAMIN SAMSON AS REGISTRAR OF TITLES
Fourth Defendant

AND
INDEPENDENT STATE OF PAPUA NEW GUINEA
Fifth Defendant

Waigani: Miviri J
2020: 02^nd September

PRACTISE & PROCEEDURE – Judicial Review & appeals – Originating Summons Order 16 Rule 3 (1) NCR – Substantive Notice of Motion – Non Compliance Order 4 Rule 47 – Concise Reference to Courts Jurisdiction not contained – Motion incompetent – Abuse of Process – In ordinate inexcusable delay 7 years – evidence insufficient on compliance of Section 122 Land Act – Forfeiture of State Lease Section 142 Land Act non-compliance – balance not discharged – Judicial review not made out – Motion refused – cost follow the event.

Cases Cited:

National Provident Fund Board of Trustees v Maladina [2003] PGNC 16; N2486
Papua New Guinea Banking Corporation (PNGBC) v Tole [2002] PGSC 8; SC694
Asakusa v Kumbakor, Minister for Housing [2008] PGNC 39; N3303

Guba v Land Titles Commission [2019] PGNC 257; N8032

Nambawan Super Ltd v Kimas [2013] PGNC 23; N5062

Dupnai v Weke [2016] PGSC 43 ; SC 1525

Lae Bottling Industries Ltd v Rental Homes Ltd [2017] PGSC 43; SC1641

Opi v Telikom PNG Limited [2020] PGNC 168; N8290

Counsel:

M. Adadikam & Pepson, for Plaintiff
K. Kipongi, for the Defendants

RULING

25^th September, 2020

1. MIVIRI, J: This is the ruling of the court on the Plaintiff’s substantive notice of motion for Judicial review of the decision of the First defendant as delegate of the Minister for Lands that on or about the 23^rd May 2007 he purportedly published on the 24^th May 2007 in the National Gazette G82 forfeiture of the Plaintiff’s State Lease Volume 71 Folio 225 Portion 1194 Milinch Granville, Fourmil Port Moresby, National Capital District, “the State Lease” . Then the second defendant on or about the 26th October 2011 granted the subject State Lease to one Lady Ni Cragnolini, “ the second State Lease”. The Plaintiff complains that under section 122 (2) of the Lands Act before the action of the first defendant under subsection (1) he was not given the forfeiture notices. In summary natural Justice was not accorded and the principles in Wednesbury were not either.
   
2. At the outset there are preliminary fundamental observations that must be made of the motion of the plaintiff. The motion is not pleaded out in accordance with what provision of the Order and rules of the Court it is moved upon and what it seeks on the basis of that order or rule. Nor does it set out what law it is relied upon to effect. Its form does not give effect to Order 4 Rule 49 (8) in that it does not contain concise reference to the jurisdiction of the Court to grant the orders it seeks. This rule is clear that it should not have been accepted in its present form by the registry. But in its present form despite that acceptance by the registry by this rule it can be struck out for being incompetent for lack of form.
   
3. Because it must state that it is moved pursuant to for example section 5 of the Claims by and Against the State Act. And then the order and rules upon which the court is empowered to deal with the matter pleaded. In its form the substantive Notice of Motion of the plaintiff at page 104 of the Review Book filed 27^th of August 2019 is not within and adheres to the rules. The effect open given is that it maybe struck out as being incompetent and not in form. Because it is primarily essential as the pleadings drive the cause of the action, “The object of pleadings is to enable the parties to fully disclose in fairness the basis of their claim or a defence with particulars to avoid delay, trials by ambush, evasion and or attrition. They also enable the opposing party to know precisely the claim he or she is to meet and if need be, enable an out of Court settlement or a payment into Court. At the same time, pleadings enable the Court to know exactly what are the issues between the parties and what it is required to hear and determine”: National Provident Fund Board of Trustees v Maladina [2003] PGNC 16; N2486 (5 December 2003).
   
4. And the objection and discontentment raised by the State defendants cannot be swept aside because that is fundamental to any institution of originating process in court. Rightly it is a basis in law and the rules to strike the proceedings out for noncompliance because the Supreme Court made it very clear in, Papua New Guinea Banking Corporation (PNGBC) v Tole [2002] PGSC 8; SC694 (27 September 2002) that reliance on taking issue on pleadings not raised before the National Court was not open to an appellant who did not raise the same there and then. Here the State in raising is proper basis in law and the rules on the balance for dismissal for noncompliance of Form by Order 4 Rule 49 (8).
   
5. This is so because the administrative functions that are discharged by the defendants is a very important function of government in the management of all Land for development of the country and the livelihood of all including citizens both corporate and individuals alike. Seeking certiorari to quash a decision of an official of Government by the process of Judicial review must be not by a blind motion, the source and basis must be set out always in the originating process document here the substantive notice of motion. It must have the basis in the Rules as that is the jurisdiction from which the court is empowered to deliver and dispense Justice for the litigant pleading. Because blanketly the National Court Motions (Amendment) Rules 2005 would be the basis upon which any motion would be based upon procedurally. There are 21 rules altogether and not one rule authorizes a motion without being formally filed. Nor does it authorize a motion to be moved without compliance of the rules. And for Judicial review in particular this is reinforced by Order 16 Rule (13) (13) (1) (2) of the Rules specific to Judicial review where the proceedings can be summarily determined for noncompliance with the Rules. That is the fate due of the cause of action here.
   
6. Because Judicial review is time driven it is a challenge to a decision of a public body here that of the Minister for Lands or his delegate the defendants in this proceeding. Here administrative decisions discharge the role of Government in the management of its land resources for all. Therefore, to stop that process and administration there must and ought to be proper basis in law and the rules to be so stopped. And the pleadings justify and are properly made insisting by the Rules: Asakusa v Kumbakor, Minister for Housing [2008] PGNC 39; N3303 (10 April 2008). Time is of essence by Order 16 Rule 4 because if it is unduly delayed or as is referred in cases in this jurisdiction inordinately delayed because the application is made after that period of 4 months has since expired it is susceptible to be dismissed unless very good reasons are advanced: Guba v Land Titles Commission [2019] PGNC 257; N8032 (3 October 2019).
   
7. Are there good reasons advanced here? Here Leave for Judicial Review was granted by this court on the 12^th February 2019 to review the decision of the First defendant as delegate of the Minister for Lands that on or about the 23^rd May 2007 he purportedly published in the Gazette G82 dated the 24^th May 2007 to forfeit the Plaintiff’s State Lease Volume 71 Folio 225 Portion 1194 Milinch Granville, Fourmil Port Moresby, National Capital District, “the State Lease” . Then the subject State Lease was granted to one Lady Ni Cragnolini on or about the 26^th October 2011 by the second defendant, “ the second State Lease”. And it is the complaint of the Plaintiff here against that the forfeiture notice under section 122 (1) & (2) of the Lands Act did not eventuate in his case before the action of the first defendant. He became aware of the Notices that were issued to him on or about the 26^th June 2018 when viewing the affidavit of Lady Ni Cragnolini in the first proceedings on the 15^th April 2018, when the church sought various declarations and simultaneously injunctions. Which is annexure “DOA 2” of the affidavit sworn 7^th June 2018 dated the 13^th December 2018 in support by Denny Opapo Afualo in the proceedings styled OS 248 of 2018 (CC4) The Church of Jesus Christ of Latter day Saints Inc. Plaintiff against Lady Ni Cragnolini in her capacity as the Managing Director of Yes Management second defendant, Yes Management second defendant and NO Civil works Limited third defendant.
   
8. Lady Ni Cragnolini annexures “LNC 2” & LNC3” copies of the Notice to show cause to the plaintiff in each case addressed with a forfeiture of state lease published in the National Gazette G82 of 2007. Together with the affidavit 8^th February 2019 of Mathew Adadikam Document 12, evidence in this action instituted by the Plaintiff seeking various declarations, simultaneously injunction against Lady Ni Cragnolini at the National court for trespass to certain portion of the land described as Portion 1194 Milinch Granville, Fourmil Moresby, National Capital District. Which action was withdrawn 16^th August 2018 by the Church upon becoming aware for the first time of a competing title over the land.
   
9. In my view this evidence is contradicting the cause of the plaintiff seriously in a number of ways. Knowing that his title had been taken of him in the State Lease without compliance of section 122 of the Land Act he does not fight the cause of action here. He simply withdraws the cause of action instituted. Here was an opportunity at the earliest if he was genuine in the cause of action to bring in court his action. It was an opportunity to show that he had a valid title to the subject land and the notices to show cause “LNC 2” & LNC3” were not real but fraud and he as title holder to the subject State lease were never served them. And that the title professed by Lady Ni Cragnolini was not real in law. It as if he had accepted that he was not the title holder of the subject State lease at law. Hence, he simply withdrew the proceedings he instituted accepting. And it would appear this is the case because the church again institutes OS No. 778 of 2018 (CC4); The Church of Jesus Christ of Latter-Day Saints Inc. v Tiri wanga &ors “the second proceeding” to seek primarily the Court’s directions to file appropriate proceedings and also simultaneously seeking an extension of time to file an appeal out of time. This is not the same as instituting proceedings for his State Lease taken off him without just cause in law. If it is leave, to appeal out of time on what basis is also not clear. Noncompliance of section 122 of the Land Act is not a light matter if he was genuinely aggrieved, he demonstrated no urgency. Here he was advancing time money and resources on an action that did not serve his cause because on the 20^th November 2018 before this court presided by Justice Gavara-Nanu the proceedings were dismissed amongst others for an abuse of process.
   
10. Reverting him to start afresh with the filing of this process again in the same court in the same track judicial review and appeals. In my view this is not a genuine intent on his part as the plaintiff to seek Justice given the fact that his State Lease was taken off him without compliance of section 122 of the Land Act. What is the aggregate totality of all set out above is that he shows no real purpose to get his title back. If judicial review is dictated by time by order 16 Rule 4 to 4 months, he shows no urgency to direct his conduct by litigation immediately to secure back the subject property. The uncertainty with which he sets out in various litigation set out above sees no genuine cause in the plea that he makes here.
    
11. What is probable and open on the evidence is that there were proper notices accorded and dispensed in accordance with section 122 of the Lands Act which I set out as follows; PART XV. – FORFEITURE OF STATE LEASE AND FINES.

Division 1.

Forfeiture of State Lease.

122. FORFEITURE OF STATE LEASE.

(1) The Minister may, by notice in the National Gazette, forfeit a State lease–

(a) if rent on the lease remains due and unpaid for a period of six months; or
(b) if fees are not paid in accordance with this Act; or
(c) if the amount payable in respect of improvements is not paid in accordance with this Act; or
(d) if–

(i) a covenant or condition of the lease; or
(ii) a provision of this Act relating to the lease; or
(iii) a requirement of a notice under Section 91 relating to the lease,

is not complied with; or

(e) if the granting of the lease has been obtained, in the opinion of the Minister, wholly or partly as a result of statements that were, to the knowledge of the lessee, false or misleading.

(2) Before forfeiting a State lease under Subsection (1), the Minister–

(a) shall serve notice on the lessee calling on him to show cause, within a period specified in the notice, why the lease should not be forfeited on the ground or grounds specified in the notice; and
(b) may, whether or not cause has been shown in accordance with a notice under Paragraph (a), serve on the lessee a notice requiring him, within a period specified in the notice, to comply with the covenants or conditions of the lease or the provisions of this Act.

(3) The Minister shall not forfeit a lease under this Section unless–

(a) the lessee has failed to comply with a notice under Subsection (2)(a) or (b); or
(b) the lessee has failed to show good cause why the lease should not be forfeited.

(4) Copies of a notice of forfeiture and a notice under Subsection (2)(a) or (b) shall be served on all persons who, to the knowledge of the Departmental Head, have or claim to have a right, title, estate or interest in, to or in relation to the land, or such of them as can with reasonable diligence be ascertained and found.

(5) No acceptance of rent by the State waives a right to forfeit a lease under this Act.

(6) For the purposes of this Section the grant of an application for a State lease shall be deemed to be the grant of the lease.”

12. And that is clear because even Lady Ni Cragnolini had them in her possession as a person who came into their possession after their execution in accordance with the law set out above. She no doubt had them to defend that she did not come onto the subject State Lease without proper recourse to law section 122 of the Land Act to the plaintiff including the gazettal pertaining. Because as she did this would be the material upon which she would show why She was on the subject land against the action that the Plaintiff instituted. And that is clear from the conduct of the Plaintiff who simply withdrew the action he instituted OS 248 of 2018 (CC4) The Church of Jesus Christ of Latter-day Saints Inc. Plaintiff against Lady Ni Cragnolini (supra) without lifting a finger to fight that he was unjustly and unlawfully derailed of his title to his State Lease. This conduct is reflected although out in the way that he resorts to in the various litigation set out above. He is not a witness of the truth in the way he has demonstrated as set out above. Rather the contrary he is deceitful and wants the Court to believe an assertion that a seasoned core Government Department, its Minister, Secretary, and officers managing all land of the Independent State of Papua New Guinea the Department of Lands and Physical Planning is all a shame and not giving heed to the law governing the Land Act and related laws. Where would the country be if these were rampant and the case, would there be developments as we see them now? Certainly, it leaves a lot to be desired of the conduct of the plaintiff and the case he pleads. As for the conduct of the defendants on the matter Wednesbury principles were given effect to including natural justice that is why there is no vigour in the way he has sought to bring this matter as demonstrated above. He has not fought if that were the case. If it were genuine it would have ended as in Nambawan Super Ltd v Kimas [2013] PGNC 23; N5062 (27 February 2013). No doubt he was aware of it because of the action that he took but did not resort to.
    
13. For the action, He has failed to demonstrate to the required balance beyond preponderance that the defendants have erred in complying with the Land Act section 122, including section 41 of the Constitution, and natural justice. And by order 16 Rule 4 he has failed to bring this cause of action within the time of 4 months because the judicial review proceedings now is 7 years old after the forfeiture. By Dupnai v Weke [2016] PGSC 43 ; SC 1525 (19 August 2016) he will not be accorded Judicial review. He has not made out a case for judicial review. He could have also utilized section 142 of the Land Act in accordance with Lae Bottling Industries Ltd v Rental Homes Ltd [2017] PGSC 43; SC1641 (8 September 2017). For all intent and purposes, he has not demonstrated to the full the balance beyond all preponderance that judicial review lies against the actions of the defendants themselves or through their agents or servants. He has failed on all fours and will see nothing but dismissal in its entirety this proceeding with Costs on a indemnity basis to follow the event: Opi v Telikom PNG Limited [2020] PGNC 168; N8290 (29 April 2020). And the reasons for so awarding are as set out in the facts above warranting the discretion to award in this manner.
    
14. The orders of the court are:
    
    • (1) The application of the plaintiff for Judicial Review is refused
    • (2) The proceeding are dismissed forthwith in its entirety.
    • (3) Costs are on indemnity basis to follow the event forthwith.

Orders Accordingly.

__________________________________________________________________

Dentons PNG: Lawyers for the Plaintiff

Office of the Solicitor General: Lawyers for the Defendants