|
|
Home
| Databases
| WorldLII
| Search
| Feedback
National Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
OS (JR) NO. 642 OF 2019
BETWEEN
FABIAN CHOW, as the Executor of the Estate of late Sir Henry Chow
Applicant
AND:
BENJAMIN SAMSON, as the Registrar of Titles
First Respondent
AND:
CHRIS MANDA, as Surveyor General
Second Respondent
AND:
OSWALD TALOPA, as the Secretary for the Department of Lands & Physical Planning
Third Respondent
AND:
INDEPENDENT STATE OF PAPUA NEW GUINEA
Fourth Respondent
Lae: Numapo J
2020: 25th September
PRACTICE AND PROCEDURE – Leave Application for Judicial Review (O16 r 3 NCR) – Sufficient interest – 99 year lease on land – Cancellation and creation of new leases in breach of the law - Substantive issues of law to be tried- Prima facie Arguable case – Leave granted
Cases Cited:
Papua New Guinea Cases:
Leto Darius v Commissioner of Police [2001] 147, N2046
Kombati v Singin [2004] PGNC 85; N2691
Louis Medaing & Ors v Lima Mulung & Ors [2010] N4001
Dawidi v Jacob [2001] PGNC 130; N2083
Steamships Trading Company Ltd v Minister for Lands and Physical Planning [2000] PGNC 11; N1959
Ken Mondiai & Ors v Wawoi Guavi Timber Company Ltd (2007) SC886
Asakusa v Kumbakor, Minister for Housing [2008] PGNC 39; N3303
NTN Limited v The Board of the Post and Telecommunication Corporation and Others [1987] PNGLR 70
Geno v The State [1993] PNGLR 22
Pora v Leadership Tribunal [1997] PNGLR 1
David v Zurenuoc [2007] N3146
Independent State of Papua New Guinea v Philip Kapal [1987] PNGLR 417
Irene Davis v Karipe Pitzz & The State [1988-89] PNGLR 143
Independent State of Papua New Guinea v Toka Enterprises Ltd [2018] SC1746
Sapu v Commissioner of Police [2003] PGNC 80; N2426
Independent State of Papua New Guinea v Philip Kapal [1987] PNGLR 417
Overseas Case:
Inland Revenue Commissioners v National Federation of Self-Employed and Small Businesses Ltd [1981] UKHL 2; [1982] AC 617
Counsel:
Mr J S. Langah, of Albright Lawyers for the Applicant
Ms S. Maliaki, from the Office of Solicitor General for the Respondents
RULING
25th September, 2020
1. NUMAPO J: This is a ruling on an application for leave for judicial review pursuant to Order 16 Rule 1 & 3 (O 16 r 1 & 3) of the National Court Rules (NCR). The requirement of r 3 sub-rule (3) have been duly complied with by giving notice of the application to the Attorney-General, by service on him of sealed copies of the Originating Summons, Notice of Motion, and Statement in Support pursuant to O16 r 3 (2) (a) and the Verifying Affidavit in accordance with r 3 (2) (b). The defendants were represented by Counsel on the application, though such application are usually made ex parte – r 3 (2) NCR.
2. The Applicant through an Originating Summons filed on the 17th September 2019 sought leave of Court to commence judicial review proceedings against the decisions of the First and the Second Respondents as follows:
(i) The decision by the Second Respondent that cancelled the Survey Plan Cat No. 31/1375 which created Portions 684C and 683C respectively and registered a new Survey Plan Cat No. 31/1557 which created Portion 812C as evident in the Second Defendant’s letter dated 22nd March 2017 to Homestead Corporations Ltd.
(ii) The decision of the First Respondent made on the 11th April 2018, by way of a newspaper publication summoning the Applicant to deliver up the two (2) Original Owners Copy of the Special Agriculture Business Lease (SABL) titles with the descriptions Volume 16 Folio 60 & Volume 61 on Portions 684C and 683C respectively in Milinch Lae Fourmil Markham, Morobe Province.
(iii) Decision of the First Respondent made on the 30th May 2018 cancelling the two (2) SABL leases in Portion 684C and 683C registered in Volume 16 Folio 60 & Volume 16 Folio 61 respectively.
- FACTS
3. Prior to 2008, the land now described as Portion 812C, was formerly described as Volume 16 Folio 60 & Volume 61 on Portions 684C and 683C respectively in Milinch Lae Fourmil Markham, Morobe Province along the speedway road towards the University of Technology, Lae.
4. On the 23rd August 2008, on an application by the customary landowners the customary land described as Portion 812C (formerly Portions 684C and Portion 863C) was acquired by the State through a Lease-Leaseback Agreement and registered as Special Agriculture and Business Leases (SABL).
5. The customary landowners then sold the then Portions 684C and 683C (currently registered as Potion 812C) to the Applicant’s father and was registered on 30th June 2009.
6. However, in or around 2017, the First and Second Respondents made several decisions that led up to the cancellation of the SABL titles then registered to the Applicant as Portions 684C and 683C and a new description was given under a new Survey Plan known as Portion 812C.
7. The land still remains cancelled to date and it has not been granted to anyone. The Applicant’s several requests for the land to be re-registered to the Applicant has failed hence, this application for leave to judicially review the decisions and for appropriate orders to quash the decisions of the First and Second Respondents.
8. The principles of law governing the grant of leave for judicial review is well settled in this jurisdiction. Applicant seeking leave for judicial review pursuant to O16, r 3 of the NCR must satisfy the Court:
(i) that he has the locus standi in that he has sufficient interest in the matter to which the application relates;
(ii) that the decision sought to be reviewed is that of a public body or authority;
(iii) that there is an arguable case on its merits;
(iv) that all administrative or other remedies have been fully exhausted; and
(v) that there has been no undue delay in bringing the application.
9. The above five (5) grounds is the checklist of the minimum requirements the Court must be satisfied with before it exercises its discretion whether or not to grant leave for a judicial review. Kandakasi J (as he then was) summarized well these requirements in Leto Darius v Commissioner of Police [2001] 147. See also: N2046; Kombati v Singin [2004] PGNC 85; N2691; and Louis Medaing & Ors v Lima Mulung & Ors [2010] N4001.
10. The powers of the National Court to grant reliefs sought in judicial review is found in Section 155 of the Constitution.
11. Counsel for the Applicant, Mr Langah raised four (4) grounds seeking leave for review as follows:
12. Applicant/Plaintiff was the registered proprietor of the property (Portions 684C and 683C) prior to the cancellation of the SABLs by the First Defendant in 2017. He is directly affected by the decision of the First and Second Respondents. He has suffered loss of land and business as a result of the decision by the First and Second Defendants.
13. So, does the Applicant have a sufficient interest in the matter to be granted leave for judicial review?
14. The question relating to sufficient interest and locus standi varies from case to case and is often answered by examining the nature of the decision and the context in which it was made. In Steamships Trading Company Ltd v Minister for Lands and Physical Planning [2000] PGNC 11; N1959, his Honour Sheehan J held that; “.....it is essentially a mixed question of fact and law, a matter of fact and the degree of relationship between the plaintiff and the subject matter of his or her complaint....” See also: See Dawidi v Jacob [2001] PGNC 130; N2083.
15. The requirements of sufficient interest is broad in its application and not restrictive. So long as the Applicant is able to show that he has some relationship or connection with the subject matter and that his relationship or interest in the subject matter is so affected by a decision of a public body that in itself, is sufficient ground to seek review. In Ken Mondiai & Ors v Wawoi Guavi Timber Company Ltd (2007) SC886 the Supreme Court held that; “On application for leave the Court must be satisfied that the applicants has sufficient interests in the subject matter of the application...Sufficient interest might be demonstrated by interests of property, legal or financial nature but can include community, environmental, cultural interest and areas of special expertise.”
16. In the present case, the Applicant in his evidence stated that he has an interest on the property currently described as Portion 812C (formerly Portions 684C and 683C) sub-leased to his late father Sir Henry Francis Chow under an SABL arrangement after the customary landowners entered into a Lease-leaseback Agreement with the State regarding their customary land.
17. Applicant produced a copy of the SABL Title Deed (Annexure “B1”) dated 30th June 2009 as proof of lease for a period of 99 years commencing on 23rd August 2008. Attached to the title was the Survey Plan of Portion 684C and 683C also known as “Malac Mambu”.
18. A copy of the SABL granted on a Lease-leaseback to the customary landowners; Venny Arumot, Kelvin Arumot and Delma Arumot (as joint tenants) for Portion 684C and the title of Portion 683C was issued to Venny Arumot for and on behalf of the Arumot family and clan (Annexure “B2”) was tendered into evidence as proof of the lease.
19. The Second Defendant cancelled the Survey Plan Cat No 31/1375 which created Portions 684C and 683C and registered a new Survey Plan Cat no. 31/1557 which creates the new Portion 812C as evident in the Second Defendant’s letter dated 22nd March 2017 to Homestead Corporation Ltd.
20. On the 11th April 2018, by way of a newspaper publication the Applicant was summoned to deliver up the two (2) Original Owners Copy of the SABL titles with the descriptions Volume 16 Folio 60 & Volume 16 Folio 61 on Portions 684C and 683C respectively in Milinch Lae Fourmil Markham Morobe Province.
21. The First Respondent’s decision made on 30th May 2018 effectively cancelled the two (2) SABL leases in Portion 684C and 683C registered in Volume 16 Folio 60 & Volume 16 Folio 61 respectively.
22. Before and up to the date the two SABLs (Portion 684C & Portion 683C) were cancelled, the Applicant, at all material times, was the registered proprietor of the SABLs and has an interest in these two portions of land. Hence, Applicant is directly affected by the decision of the First and Second Defendants. He suffered the loss of land and business as a result of the cancellation.
23. Based on all these, I am satisfied that the Applicant has sufficient interest and locus standi to bring this proceeding. The Applicant has made a strong case to be granted leave for judicial review pursuant to O 16 rr 2, 3 and 5 NCR. Leave is granted accordingly.
24. The leading authority on arguable case is found in Inland Revenue Commissioners v National Federation of Self-Employed and Small Businesses Ltd [1981] UKHL 2; [1982] AC 617; Lord Diplock sets out the principles on arguable case and said at p.644 that:
“If on a quick perusal of the material then available, the Court (at the leave application stage) thinks that it discloses what might on further consideration turn out to be an arguable case in favour of granting to the applicant the relief claimed, it ought, in the exercise of a judicial discretion, give leave to apply for the relief. The discretion that the Court is exercising at this stage is not the same as that which it is called upon to exercise when all evidence is in and the matter has been fully argued at the hearing of the application.”
25. The onus is on the Applicant to demonstrate to the Court that he has an arguable case on merits to be given leave. The Court must be satisfied that the Applicant has an arguable case in that there are serious, substantive and fundamental issues of law to be tried. These must be shown in the grounds for review contained in the statement in support that must be properly and sufficiently pleaded to raise arguable issues of law. See: Asakusa v Kumbakor, Minister for Housing (supra). See also: NTN Limited v The Board of the Post and Telecommunication Corporation and Others [1987] PNGLR 70; and Geno v The State [1993] PNGLR 22. See also: Pora v Leadership Tribunal [1997] PNGLR 1.
26. In the present case the Applicant is alleging that the First and Second Defendants colluded and conspired with the customary landowners (lessee) and cancelled the two SABLs (Portion 684C & 683C) and created a new lease and registered it as Portion 812C without his knowledge and/or approval as a registered lease holder. This is in breach of the law particularly section 38 of the Surveyors Act 1969; sections 33 (1), 160 and 161 of the Land Registration Act and section 41 of the Constitution.
27. Applicant argued that as the current registered proprietor of the two leases he was not given any notice or any reason for the cancellation of the leases and was not given the opportunity to be heard as well. Hence, the whole process pertaining to cancellation of the existing leases and creation of the new lease was flawed, irregular and unlawful.
28. I am satisfied that the Plaintiff has an equitable interest on the land by virtue of his sub-lease titles and has not transferred or forfeited that interest to anyone including the First and Second Respondent for them to deal with it in the manner they did.
29. Furthermore, the legal issues raised in this application pertaining to cancellation and creation of new leases under the relevant laws referred to above, raises a prima facie arguable case as they contain substantive issues of law to be tried.
30. Based on that, I am satisfied that the materials placed before me discloses an arguable case on merits in favour of granting leave to the Applicant.
31. Order 16 Rule 4 (2) prescribed four (4) months as the proximate period within which an application for judicial review must be filed. In the present case, the SABLs were cancelled by the First Defendant on the 30th May 2018. It came to Applicant’s knowledge in or around August 2018.
32. On the 17th August 2018, the Applicant filed contempt proceedings against the First and Second Defendants and sought declaratory orders to declare the decision of the 30th May 2018 illegal and null and void.
33. On 20th June 2019, Justice Makail granted leave to the Applicant to amend the Notice of Motion for contempt and also directed the Applicant to file separate judicial review application.
34. All up there has been a delay of some 13 months, a further delay of about 9 months for purposes of this application under O16 r 4 (2). A total of 22 months altogether.
35. A number of case law precedents has held that the 4 months’ time limit is not mandatory and the Court has the discretion to determine whether or not to grant leave even if the application is filed out of time. The Applicant must give reasonable and satisfactory explanations for the delay. In David v Zurenuoc [2007] N3146 the National Court granted leave even though there was a delay of 8 months, stating that; “The four (4) months period under O.16 r.4 (2) is not mandatory. The Court has a discretion in determining whether or not to grant the relief sought. Each case to be considered on its own merits. A number of variables must be considered....””
36. In Irene Davis v Karipe Pitzz & The State [1988-89] PNGLR 143, plaintiff applied to review a decision of the Minister for Lands to forfeit a State lease. There was delay of almost 2 years and 3 months. Court nonetheless overlooked the delay and granted leave and afterwards granted the actual review application because of the serious issues involved and the arguable nature of the case.
37. Mr Langah referred the Court to the case of Independent State of Papua New Guinea v Toka Enterprises Ltd [2018] SC1746, in that case the Supreme Court said that where a special gravity of the case so warrants, leave must be granted. The Supreme Court granted leave to the State to file a judicial review proceeding after 13 years delay. In particular, the Court outlined in paragraph 11 of its ruling the following grounds:
(i) “Whether the grant of leave would cause substantial hardship to, or substantial prejudice to the rights of any person?
(ii) Whether the grant of leave would be detrimental to good administration?
(iii) Had the position of the parties substantially shifted in those 13 years?
(iv) Were the improvement conditions complied with?
(v) Was the land rezoned?
(vi) Had there been any improvements erected on the land, by whom and of what value?”
38. Relying on the above decision by the Supreme Court, Applicant submitted that no substantial hardship will be caused to anyone if leave is granted. Furthermore, that the grant of leave will not be detrimental to good administration as laws were breached by the First and Second Defendants when they cancelled the previous leases and issued a new one. Position of the parties has not changed since 30th May 2018 and the leases remains cancelled and not granted to anyone. No improvements has taken place on the land since. The land has not been rezoned but a new description was given to it as Portion 812C. Since the land was not granted to anyone, there are no new improvements.
39. I am convinced that there are sufficient materials to have this matter substantively determined in a proper judicial review hearing despite the delay of 22 months. In the exercise my discretion, I grant leave to the Applicant.
40. One of the fundamental rule in judicial review application is that the Applicant for judicial review must exhaust all other remedies available to him. See: Sapu v Commissioner of Police [2003] PGNC 80; N2426 and Independent State of Papua New Guinea v Philip Kapal [1987] PNGLR 417.
41. The Applicant wrote to the First and Second Defendants including the Minister for Lands requesting information about the cancellation but received no response or acknowledgement. This was one of the reasons for the delay (Affidavit of Fabian Chow filed on 17th August 2019 – Para. 15 & 16).
42. Applicant has made several attempts to have the First and Second Defendants review their decision on the cancellation of the two leases (Portion 684C & 683C) and have them reinstated but to no avail. There was simply no response to his letters and correspondences.
43. I am satisfied that the Applicant has exhausted all the administrative avenues available to him by writing the letters but that no appropriate response was forthcoming from the Defendants. Applicant is entitled to leave and I grant him leave accordingly.
44. All in all, I am satisfied that the Plaintiff has made out a prima facie case to be granted leave pursuant to O 16 r 3 NCR and accordingly, I grant leave to the Applicant/ Plaintiff.
ORDER
45. Having granted leave for judicial review pursuant to O 16 r 3, the Applicant/Plaintiff is now directed to do the following forthwith:
(i) File a Notice of Motion for Substantive Review pursuant to O 16 r 5 sub-rule (2);
(ii) File Supporting Evidence;
(iii) File Affidavits verifying the facts to be relied on; and
(iv) File any Disputed Facts.
46. Matter is returnable on the 22nd February 2021 for direction hearings.
47. Costs be in the cause.
Orders accordingly
Albright Lawyers: Lawyer for the Applicant
Solicitor General: Lawyer for the Respondents.
PacLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.paclii.org/pg/cases/PGNC/2020/366.html