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Kepe v Rosso [2020] PGNC 294; N8501 (15 September 2020)

N8501

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS. JR NO. 46 OF 2020

BETWEEN
MIKE KEPE in his capacity as Chairman of Tapiani Community Association Inc
First Plaintiff

AND
JEFFERY FEBI for himself and on behalf of 400 plus block holders whose names are contained in the Power of Attorney annexed at the back of the Originating Summons
Second Plaintiff

AND
HON. JOHN ROSSO in his capacity as Minister for Lands and Physical Planning
First Defendant

AND
ALA ANE in his capacity as the Registrar of Titles, Department of Lands and Physical Planning
Second Defendant

AND
BENJAMIN SAMSON in his capacity as the Acting Secretary for Department of Lands and Physical Planning
Third Defendant

AND
DEPARTMENT OF LANDS AND PHYSCIAL PLANNING
Fourth Defendant

AND
NATIONAL CAPITAL DISRICT
Fifth Defendant

AND
INDEPENDENT STATE OF PAPUA NEW GUINEA
Sixth Defendant

Waigani: Makail, J
2020: 11^th & 15^th September

JUDICIAL REVIEW – Leave sought to review decisions of Minister – Forfeiture of State lease – Grant of new State lease – Standing of applicants – Sufficient interest – Direct interest – Absence of title – Long-time occupants of land – Lack of standing – Leave refused – National Court Rules – Order 16, rule 3(5)

Cases Cited:

PNG Ready Mix Concrete Pty Limited v. The State & Ors [1981] PNGLR 396

Counsel:
Mr. C. Gagma, for Plaintiffs
No appearance, for Defendants

RULING ON LEAVE FOR JUDICIAL REVIEW

15^th September 2020

1. MAKAIL, J: The land tenure system in Papua New Guinea is quite settled comprising of two types; State land and customary land but evolving with time where the need for more land for occupation and use is increasing as population increases.

2. Crown land acquired in colonial time and converted to State leases in different forms under the current Land Act of 1996 is identified by a title and map. It is then recorded in the official register of all State land held by the Registrar of Titles. Customary land title is undocumented and expensive to manage. It is based on information passed down from one generation to another, often orally, and presents its own unique challenges where a title is disputed.

3. A record held by the Registrar of Titles is sufficient evidence of a title holder’s entitlement to a State lease free of any encumbrances unless it can be shown that one or more of the exceptions under Section 33 of the Land Registration Act exists to displace this presumption.

4. One of the requirements that must be met by an applicant for leave to apply for judicial review is standing, that it must be demonstrated that “the applicant has a sufficient interest in the matter to which the application relates”: Order 16, rule 3(5) of the National Court Rules.

5. The question of sufficient interest is neither abstract nor remote to the subject of the dispute but one that the applicant is able to show is direct. Where a claim to an entitlement to a State lease is being asserted, based on the land tenure law, an applicant must be able to produce at the preliminary hearing a title to show his entitlement to the State lease. This is the only way the State is going to control and manage the occupation and use of its land in the country in these times where the population is increasing and demand for land is high.

6. This case concerns a State lease and the provisions of the Land Act come into play. It was conceded by Mr Gagma of counsel for the plaintiffs who are applying for leave to review two decisions of the Minister for Lands and Physical Planning that a company called Ilimo Satellite Township Development Limited was the title holder of a State lease in the form of an Agricultural Lease for 99 years dated 10^th July 2015. The original title holder was a company called Ilimo Farm Products Pty Limited whose grant was made on 23^rd March 1979. Following the decision by the Minister, Ilimo Satellite Township Development Limited is no longer the title holder.

7. The plaintiffs asserted that they have been long-time occupants of the land subject of the State lease and have been adversely affected by the decisions; one a forfeiture of the State lease and two, a subsequent grant of a Special Purpose Lease to the National Capital District Commission (NCDC). Those decisions were made and gazetted on 29^th March 2012 and 28^th August 2018 respectively and discovered recently after the gazettal notices were produced in a related proceeding in the Human Rights Track of the National Court.

8. NCDC has now taken steps to evict those occupying the land and wants free and uninterrupted access to the land. Given NCDC’s interest it became rather necessary but for the limitations, given the ex parte nature of leave applications, that Ms Raula of counsel for the NCDC who appeared at the preliminary hearing, willingly and correctly abandoned her representation.

9. However, the production of a title in the name of an entity immediately prior to the recent grant other than the plaintiffs shows that the plaintiffs claim to an entitlement to the State lease has not been discharged. The title prevails over any other interests. Even their assertion of being long-time occupants of the land does not alter the position. Their remedy lies elsewhere: see PNG Ready Mix Concrete Pty Limited v. The State & Ors [1981] PNGLR 396.

10. If anyone is to complain about the forfeiture and subsequent grant, it should be the immediate past title holder, Ilimo Satellite Township Development Limited. It has not complained and it would be fair to infer that it is quite content with the decisions of the Minister.

11. The plaintiffs’ difficulty in meeting the sufficient interest requirement puts them in no position to have standing to litigate issues that concern an entirely different party and seek relief that would otherwise be sought by the immediate past title holder, that the relief being a review of the Minister’s decisions to forfeit the title of Ilimo Satellite Township Development Limited and subsequent grant of State lease to NCDC. This relief has the potential of displacing NCDC’s title and it would be fair and just that the party whose title has been forfeited seek the relief sought.

12. In the end, the plaintiffs have failed to establish standing and the application for leave to apply for judicial review is refused with costs to be paid by them, to be taxed, if not agreed.
Ruling and orders accordingly.
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Gagma Legal Services: Lawyers for Plaintiffs