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National Court of Papua New Guinea |
PAPUA NEW GINEA
[IN THE NATIONAL COURT OF JUSTICE]
OS NO.71 OF 2013
BETWEEN:
ACCIDENT INVESTIGATION COMMISSION
Plaintiff
AND:
JOSEPH KINTAU, Chief Executive Officer and Managing Director, National Airports Corporation Ltd
First Defendant
AND:
NATIONAL AIRPORTS CORPORATION LTD
Second Defendant
Waigani: David, J
2020: 8th December
2021: 5th January
CIVIL AVIATION ACT – application by plaintiff, a State Aviation Enterprise and a statutory regulator established under Civil Aviation Act for an order that allocation or transfer of office premises on land owned by abolished Civil Aviation Authority jointly by Minister for Civil Aviation and Minister for Finance in letter of 3 June 2011 constituted notice of transfer pursuant to Section 329(1), Civil Aviation Act and therefore was proper and lawful and plaintiff be allowed to remain and conduct its statutory business and affairs from the office premises – Head of State acting on advice may by order vest any asset or land of the State in a State Aviation Enterprise under Section 330 Civil Aviation Act for purposes of Section 329(1) - second defendant, another State Aviation Enterprise established under Civil Aviation Act - Civil Aviation Act provides for State Aviation Enterprises other than plaintiff to succeed to assets of CAA – second defendant has succeeded to the office premises – proceedings dismissed.
Cases Cited:
Nil
Counsel:
Renata Yayabu, for the Plaintiff
Dakan Evugoia Doiwa, for the Defendants
JUDGMENT
5th January, 2021
“1. An order by way of a declaration that Gazettal Notice No.G109 of 23rd March 2012 purporting to bring into force the Civil Aviation (Amendment) Act No.7 of 2010 published by the Head of State pursuant to the powers conferred by Section 57(1) of the said amendment Act is defective thereby unenforceable in that the Head of State relied on a wrong provision or a non-existent provision of the law to publish the said gazettal notice.
3. The substantive matter was initially heard by the Court per Kariko, J and on 27 September 2013, the Court found in favour of the defendant, refused the relief sought and dismissed the proceedings. AIC then appealed the decision of the Court in the Supreme Court through SCA No.149 of 2010, Accident Investigation Commission v Joseph Kintau and National Airports Corporation Ltd (Supreme Court SCA No.149 of 2010 proceedings). On 12 December 2014, the Supreme Court upheld the appeal, quashed the decision of the Court and pursuant to Section 16(d) of the Supreme Court Act remitted the matter back to the Court for a rehearing which it ordered to be limited to the hearing and determination of relief number 5 claimed in the originating summons, ie, whether AIC acquired the Office Premises in June 2011 pursuant to Section 329 of the Civil Aviation Act 2000.
EVIDENCE
4. AIC’s case is supported by the following affidavits:
5. The defence case is supported by the following documents:
UNDISPUTED FACTS
6. The facts are largely undisputed.
7. These proceedings concern the succession by a number of State Aviation Enterprises of assets of the Civil Aviation Authority (CAA), a statutory body that solely administered civil aviation duties and functions in the country under the Civil Aviation Act 2000 (Civil Aviation Act) prior to its abolishment. Through amendments brought about by the Civil Aviation (Amendment) Act 2010 (the 2010 Amendment Act), CAA was abolished in 2010 and three new entities were established in its place to take over CAA’s duties and functions. These three new entities were; the Civil Aviation Safety Authority (CASA) under Section 18, Papua New Guinea Air Services Ltd (PNGASL) under Section 143 and National Airports Corporation Ltd (NAC) under Section 147A.
8. NAC is the second defendant. It is a company incorporated under the Companies Act 1997 and as I have alluded to above, it was established pursuant to Section 147A of the Civil Aviation Act. Its primary purpose is to own, operate, manage and maintain airports and provide all related services in the country.
9. At the material time, the first defendant was the Managing Director and Chief Executive Officer of the second defendant.
10. An Assets Distribution Working Committee was established and tasked to do a comprehensive inventory of all the land and assets formerly owned by CAA prior to its establishment in 2010 and to come up with a list of those land and assets for distribution to the State Aviation Enterprises who were entitled to succeed to them under the Civil Aviation Act for gazettal by the Minister for Civil Aviation.
11. The first defendant was appointed as the Chairman of the Assets Distribution Working Committee.
12. AIC is also a statutory regulator and was established on 25 June 2008 under Part XIII, Section 218 of the Civil Aviation Act. The AIC’s principal purpose is to determine the circumstances and causes of accidents and incidents associated with the operation of an aircraft in the country with a view to avoiding similar occurrences in future without ascribing blame to any particular person or entity.
13. CASA, PNGASL, NAC and AIC are all State Aviation Enterprises within the meaning of the term “State Aviation Enterprises” under Section 3 of the Civil Aviation Act.
14. AIC’s establishment was by necessity to comply with international conventions to investigate circumstances surrounding causes of aviation accidents with a view to avoiding similar occurrences in the future without ascribing blame to any particular person or entity.
15. When first established, AIC did not have a permanent office accommodation therefore operated out of an office space within the Head Office of the Department of Transport at Enga Haus 1 & 2, Jacksons Airport next to Airways Hotel.
16. By about mid-2010, there were about fourteen aircraft accidents around the country including the Kokoda crash which required urgent investigation, but due to lack of permanent office accommodation and staff, it made it difficult to investigate all of those accidents. Given that situation, AIC made numerous attempts to establish communication with the responsible Minister as well as the Government Office Allocation Committee (GOAC) and the State Solicitor for allocation of a more permanent office accommodation so that it could carry out its statutory duties and functions effectively and efficiently without undue delay.
17. By a Notice of Commencement dated 25 August 2010 issued by the Head of State acting with, and in accordance with, the advice of the Minister for Civil Aviation, and published in National Gazette No.G186 on 26 August 2010, notice was given that 9 July 2010 was fixed as the date of certification on which all Sections, except Section 113, of the 2010 Amendment Act, were deemed to have come into operation.
18. On 31 August 2010, AIC wrote a letter to the Chairman of GOAC requesting allocation of a permanent office accommodation and setting out its requirements.
19. Section 113 of the 2010 Amendment Act created two new sections to the Civil Aviation Act namely, Sections 324A and 324B. These sections made provision for the succession to all of the assets and liabilities of CAA by CASA, PNGASL and NAC and gave these entities all the powers, authorities, duties and functions in relation to those assets and liabilities and other matters and things to which they succeeded that CAA previously had.
20. On 10 September 2010, AIC wrote a letter to the defendants expressing its interest for office space allocation in the vicinity of the Jacksons Airport area.
21. AIC managed to secure the Office Premises.
22. Portion 2437 is aerodrome land. It was among State assets transferred to CAA by the then Deputy Prime Minister and Minister for Transport & Civil Aviation, Hon. Don Polye and Minister for Finance and Planning Hon. John Hickey through an Agreement for Transfer of Assets between the Independent State of Papua New Guinea and CAA dated 30 March 2007 (Agreement for Transfer of Assets).
23. On 27 October 2010, AIC wrote a letter to the Chairman of GOAC requesting confirmation of the allocation of the Office Premises to it.
24. On 21 February 2011, Hon. Benjamin Poponawa in his capacity as the Minister for Civil Aviation wrote to the first defendant as Chairman of the Assets Distribution Working Committee directing the Committee to formalize the transfer of the Office Premises to AIC after the Minister, satisfying himself, that the Office Premises would fully meet AIC’s specific requirements.
25. On 18 April 2011, the Minister for Civil Aviation Hon. Benjamin Poponawa wrote a letter to the defendants not to interfere with AIC’s occupation of the Office Premises as AIC was an important and integral part of the Department of Civil Aviation and should be allowed to occupy the Office Premises.
26. On 6 May 2011, the first defendant wrote in response to the Minister’s letter of 18 April 2011 implying that the Minister had no authority under the Civil Aviation Act to allocate CAA and NAC assets or aerodrome facilities to any person or entity.
27. Between January 2011 and May 2011, the second defendant entered into lease arrangements with two private companies namely, Pass Security Ltd and Chicago Bridge and Industry Ltd (now Matrix Transport Ltd) to lease from it certain parts of the former CASA building.
28. On 17 May 2011, the Minister for Civil Aviation, Hon. Benjamin Poponawa wrote to the Managing Director of Pass Security Ltd directing the company to immediately vacate the part of the former CASA building which it occupied. In the letter, the Minister stated that as the property in question was under the care and custody of the Minister for Transport and Civil Aviation pending finalization of distribution of the assets of the CAA through formal notice published in the National Gazette, the second defendant did not own the property and therefore lacked capacity and standing to enter into the lease agreement with the company.
29. On 18 of May 2011, the Managing Director of Pass Security Ltd responded to the letter from the Minister for Civil Aviation, Hon. Benjamin Poponawa dated 17 May 2011 stating that the company was not aware that the second defendant did not own the property and therefore had no authority to enter into a lease agreement with it.
30. In a letter to the Minister for Civil Aviation, Hon. Benjamin Poponawa dated 24 May 2011, the defendants set out the legal basis supporting NAC’s position in relation to the allocation of assets and liabilities of CAA under the Civil Aviation Act and under the 2010 Amendment Act and usage of assets within aerodrome land. This letter was copied to the heads of CASA, PNGASL and AIC and then Minister for Finance and Treasury, Honorable Peter O’Neil.
31. On 3 June 2011, the Minister for Civil Aviation, Hon. Benjamin Poponawa and the Minister for Finance, Hon. Peter O’Neil making reference to the position consistently taken by the Minister for Civil Aviation in his letters to the first defendant of 21 February 2011 and 18 April 2011 jointly wrote to the first defendant and advised, among others, that they were acting pursuant to their powers under Section 329 of the Civil Aviation Act to jointly advise that AIC as a State Aviation Enterprise having already occupied the Office Premises be allowed to continue the occupancy of the same.
32. By Notice of Distribution of Assets dated 3 August 2011 published in the National Gazette No.G210 of 4 August 2011 (Notice of Distribution of Assets), the Minister for Civil Aviation, Hon. Francis Awesa gave notice that in the exercise of powers conferred on him by Section 324A of the Civil Aviation Act regarding succession of assets of CAA by entities named in that section, the ownership of all land and assets which were previously vested in CAA were transferred to NAC, PNGASL and CASA in accordance with the Schedule to that notice and vested in those entities with effect from 9 July 2010. The Office Premises was allocated to the second defendant.
33. After the publication of the Notice of Distribution of Assets, the Minister for Civil Aviation Hon. Puri Ruing on 22 September 2011 wrote to the first defendant when he advised that the gazettal notice was illegal from the start including the actual distribution/transfer of assets. It was claimed, among others, that; the distribution/transfer was not jointly authorized by the Minister for Civil Aviation and the Minister for Finance as required by Section 329 of the Civil Aviation Act; and the other State Aviation Enterprises namely, CASA, PNGASL and AIC were not consulted so the distribution/transfer was obviously biased towards NAC with complete disregard of the interests and responsibilities of the other State Aviation Enterprises. The Minister also advised that he would immediately cause a revocation of the Notice of Distribution of Assets. The Minister also directed the defendants to cease conducting any dealings with the assets the subject of the gazettal notice except those currently occupied by NAC to conduct its business.
34. After the publication of the Notice of Distribution of Assets, the Minister for Civil Aviation Hon. Puri Ruing on 29 November 2011 wrote two separate letters to Pass Security Ltd and Chicago Bridge and Industry Ltd to vacate the premises they were occupying as their continued occupation was illegal.
35. On 21 February 2012, the Minister for Civil Aviation Hon. Puri Ruing wrote to the first defendant expressing his disappointment about the first defendant’s continued acts of defiance of previous Ministerial directives issued by his Office in relation to assets formerly owned by CAA and reiterated that the publication of the Notice of Distribution of Assets was illegal and of no effect. The first defendant was directed to comply with the previous directives including termination of all lease agreements it had entered into with Pass Security Ltd and Chicago Bridge and Industry Ltd and cautioned that further defiance of the directives would not be tolerated.
36. By a Notice of Commencement dated 21 March 2012 and published in National Gazette No.G109 of 2012 on 23 March 2012, which stated that it was issued by the Head of State pursuant to powers vested in him by Section 57(1) of the 2010 Amendment Act and all other powers him enabling and acting with, and in accordance with, the advice of the Minister of Civil Aviation, notice was given that 9 July 2010 was fixed as the date on which the 2010 Amendment Act (including Section 113) was deemed to have come into operation. Section 57(1) was unrelated to the commencement of the 2010 Amendment Act.
37. On 12 December 2014, the Supreme Court, in deciding the Supreme Court SCA No.149 of 2010 proceedings, declared that Section 113 of the 2010 Amendment Act and by extension Sections 324A and 324B of the Civil Aviation Act were yet to come into force as law. The Supreme Court then remitted the matter back to the Court to determine the sole issue of whether AIC acquired the Office Premises pursuant to Section 329 of the Civil Aviation Act.
38. On 3 November 2015, the Head of State caused to have published in National Gazette No.G715 of 2015 a Notice of Commencement dated 27 October 2015 (the Notice of Commencement dated 27 October 2015) acting in accordance with powers vested in him by the 2010 Amendment Act and all other powers him enabling and in accordance with the advice of the Prime Minister, in which he fixed the date of publication of the notice in the National Gazette as the date on which Sections 324A and 324B of the 2010 Amendment Act came into operation.
39. By Notice of Declaration of the Date of Succession dated 28 January 2016 published in National Gazette No.G39 of 29 January 2016 (the Notice of Declaration of the Date of Succession), the Minister for Civil Aviation, Hon. Davis Steven by virtue of the powers conferred on him by Section 324A of the 2010 Amendment Act and all other powers him enabling declared 1 February 2016 as the date of succession whereby all assets and liabilities of CAA were succeeded to by CASA, PNGASL and NAC to the extent that such assets and liabilities concerned their respective objectives and functions and in accordance with the assets and liabilities listed in the respective Schedules to the Notice of Declaration.
DISPUTED FACTS
40. AIC acquired the Office Premises from CAA as a result of the intervention of the Minister for Civil Aviation, Hon. Benjamin Poponawa and the Minister for Finance, Hon. Peter O’Neil jointly exercising their powers vested in them under Section 329 of the Civil Aviation Act, as on 3 June 2011, they specifically wrote to the first defendant who was then the Chairman of the Assets Distribution Working Committee and also the Chief Executive Officer of NAC, directing him, among others, that; as AIC was already occupying the Office Premises, it, as a State Aviation Enterprise be allowed to continue occupancy of the Office Premises; their joint decision be endorsed and implemented by the Assets Distribution Working Committee; and the allocation of the Office Premises to AIC by the Assets Distribution Working Committee be expedited for gazettal. The letter dated 3 June 2011 jointly signed by the Minister for Civil Aviation, Hon. Benjamin Poponawa and the Minister for Finance, Hon. Peter O’Neil constituted a notice of transfer under Section 329 of the Civil Aviation Act.
ISSUE
41. The main legal issue is whether the letter to the first defendant dated 3 June 2011 jointly signed by the Minister for Civil Aviation and Minister for Finance to allocate the Office Premises to AIC constituted a notice of transfer and effectively assigned or transferred the Office Premises to AIC pursuant to Section 329 of the Civil Aviation Act.
SUBMISSIONS
AIC
42. Ms. Yayabu for AIC contended that AIC acquired the Office Premises through the lawful action jointly undertaken by the Minister
for Civil Aviation and Minister for Finance by their joint letter to the first defendant of 3 June 2011 exercising the discretionary
and sweeping power vested in them under Section 329 of the Civil Aviation Act as:
1. At the material time, CAA had been abolished;
NAC
43. Ms. Doiwa for NAC argues that AIC did not acquire the Office Premises as contended by Ms Yayabu as:
CONSIDERATION
44. I have considered the parties’ arguments.
45. The question whether the 2010 Amendment Act is wholly in force is no longer in issue. The Supreme Court by its judgment of 12 December 2014 in deciding the Supreme Court SCA No.149 of 2010 proceedings, declared that Section 113 of the 2010 Amendment Act and by extension Sections 324A and 324B of the Civil Aviation Act were yet to come into force as law. That state of affairs has changed since the date of that judgment as on 3 November 2015, the Head of State caused to have published in National Gazette No.G715 of 2015 a Notice of Commencement dated 27 October 2015 acting in accordance with powers vested in him by the 2010 Amendment Act and all other powers him enabling and in accordance with the advice of the Prime Minister, in which he fixed the date of publication of the notice in the National Gazette as the date on which Sections 324A and 324B of the 2010 Amendment Act came into operation.
46. As I understand it, CIA’s main contention is that it was lawfully assigned the Office Premises by the Minister for Civil Aviation and Minister for Finance by a letter to the first defendant dated 3 June 2011 jointly signed by them which constituted a notice of transfer under Section 329 of the Civil Aviation Act. On the contrary, NAC’s main argument is that the action jointly taken by the Minister for Civil Aviation and Minister for Finance by their letter of 3 June 2011 purportedly under Section 329 is invalid and therefore unlawful unless the requirements under Section 330 of the Civil Aviation Act are met.
47. For convenience, I set out below the relevant provisions.
48. Section 329 states:
(1) Notwithstanding any Act, rule of law, or agreement, the Minister and the Minister responsible for finance matters, acting jointly may, on behalf of the State, do any one or more of the following:—
(a) transfer to a State Aviation Enterprise assets and liabilities of the State (being assets and liabilities relating to the activities to be carried on by the State Aviation Enterprise);
(b) authorize the State Aviation Enterprise to act on behalf of the State in providing goods or services, or in managing assets or liabilities of the State;
(c) vest in the State Aviation Enterprise any rights conferred by declarations, instruments, orders or notices applying to land transferred to the State Aviation Enterprise;
(d) grant to the State Aviation Enterprise leases, licences, easements, permits or rights of any kind in respect of any assets or liabilities of the State,
for such consideration, and on such terms and conditions, as the Minister and Minister responsible for finance matters may agree jointly with the State Aviation Enterprise.
(2) The Minister shall lay before the National Executive Council any contract or other document entered into pursuant to Subsection (1) within 10 days after the date thereof.
(3) Assets that are fixed to, or are under or over, any land may be transferred to a State Aviation Enterprise pursuant to this Act whether or not any interest in the land is also transferred and where any such asset is so transferred, the asset and the land shall be regarded as separate assets each capable of separate ownership.
(4) Any asset or liability of the State may be transferred to a State Aviation Enterprise pursuant to this Act whether or not any Act or agreement relating to the asset or liability permits such transfer or requires any consent to such a transfer.
(5) Where a transfer of the kind described in Subsection (4) takes place—
(a) the transfer shall not entitle a person to terminate, alter or in any way affect the rights or liabilities of the State, or the State Aviation Enterprise under any Act or agreement; and
(b) where the transfer is registrable, the person responsible for keeping the register shall register the transfer forthwith after written notice of the transfer is received by him from any person authorized for this purpose by the Minister; and
(c) the laying before the National Executive Council of any contract or other document relating to the transfer shall be deemed to be notice of the transfer, and any third party shall after the date of such contract or document deal with the State Aviation Enterprise in place of the State; and
(d) the State shall remain liable to any third party as if the asset or liability had not been transferred but shall be indemnified by the State Aviation Enterprise in respect of any liability to that third party; and
(e) any satisfaction or performance by the State Aviation Enterprise in respect of the asset or liability shall be deemed to be also satisfaction or performance by the State; and
(f) any satisfaction or performance in respect of the asset or liability by a third party to the benefit of the State Aviation Enterprise
shall be deemed to be also to the benefit of the State.
(6) No provision in any agreement limiting the State's right—
(a) to sell any assets to third parties; or
(b) for determining the consideration for the sale of any assets to third parties, or obliging the State to account to any person for the whole or part of the proceeds of sale by the State of any assets to third parties, or obliging the State to pay a greater price than otherwise by reason of or as a consequence of the sale of any assets to third parties,
shall have any application or effect in respect of any agreement or transfer entered into or effected pursuant to or under this Act
or pursuant to such an agreement or transfer.
(7) In any case where—
(a) the State transfers or agrees to transfer to a State Aviation Enterprise assets which the State acquires or is entitled to acquire from another person for the purpose of carrying on any activity; and
(b) the assets are acquired by the State, or the State's rights to acquire the assets arise, under an agreement with that person that contains a provision specifying or limiting the State's rights to recover compensation or damages; and
(c) the State Aviation Enterprise carries on that activity or part of that activity whether or not it also carries on any other activity,
the provision referred to in Paragraph (b) shall, notwithstanding the transfer of the assets to the State Aviation Enterprise, continue
in force in favour of the State as if the State Aviation Enterprise was part of the State, the State continued to carry on the activity,
and any loss suffered by the State Aviation Enterprise was a loss suffered by the State and not, by reason only of having been suffered
by the State Aviation Enterprise, an indirect or a consequential loss or a loss suffered by a third party.
(8) In any case where—
(a) the State transfers or agrees to transfer to a State Aviation Enterprise assets which the State acquires or is entitled to acquire from another person for the purpose of carrying on any activity; and
(b) the assets are acquired by the State, or the State's rights to acquire the assets arise, under an agreement with that person that contains a provision relieving the State from performing any obligation imposed upon it, or relieving the State from any claim or cause of action based on the failure by the State to perform any such obligation, as a result of any particular event; and
(c) the State Aviation Enterprise carries on that activity or part of that activity whether or not it also carries on any other activity,
the provision referred to in Paragraph (b) shall, notwithstanding the transfer of the assets to the State Aviation Enterprise, continue
in force in favour of the State as if the State Aviation Enterprise was part of the State, the State continued to carry on the activity
and as if the occurrence of any such event referred to in the provision in relation to the State Aviation Enterprise was the occurrence
of the event in relation to the State.
(9) Where—
(a) rights or obligations to provide goods or services to third parties are transferred to a State Aviation Enterprise pursuant to this Act; and
(b) those goods or services have previously been provided by the State on terms and conditions wholly or partly prescribed by any Act; and
(c) the Head of State, acting on advice, has by order declared that this Subsection shall apply in respect of those goods or services—
the goods or services shall, to the extent that those terms and conditions are not already contained in contracts between the State and third parties, from the date of transfer be deemed to be provided pursuant to contracts between the State Aviation Enterprise and the third parties (whether or not the Act is repealed), and each such contract shall be deemed to include such of the terms and conditions contained in that Act (with all necessary modifications), and such of the following provisions as are specified in the order:—
(d) a condition permitting termination at any time by the third party on giving 14 days' notice to the State Aviation Enterprise;
(e) a condition permitting variation or termination at any time by the State Aviation Enterprise on giving to the third party one month's notice in such manner (including newspaper advertising) as the State Aviation Enterprise thinks fit.
(10) Where any land that is subject to any lease, licence, permit or right, created on terms and conditions wholly or partly set out in any Act, has been or is to be transferred to a State Aviation Enterprise pursuant to this Act, the Head of State, acting on advice, may, by order, declare that such of the provisions of that Act as are specified in the order shall continue to apply in relation to the land and such licence, lease, permit or right.
(11) Where an order is made under Subsection (10), the provisions of the Act referred to in the order shall, with all necessary modifications, continue to apply in relation to the land and the terms or conditions of the lease, licence, permit or right subject to any agreement to—
(a) amend or revoke any such term or condition; or
(b) revoke any such term or condition and substitute another term or condition for it, made between the owner for the time being of the land and the holder for the time being of the lease, licence, permit or right.
(12) Notwithstanding any other provision, where prior to the coming into operation of this Act any land was leased to the State under a lease administered by the Minister responsible for land matters, the Minister shall not, except with the consent of the lessor or where the lease so permits, transfer that leasehold interest to a State Aviation Enterprise, but the Minister may enter into an agreement with a State Aviation Enterprise pursuant to Subsection (1)(b) to manage, on behalf of the State, its rights under that lease.
49. Section 330 states:
“330. Orders relating to transfer of assets and liabilities.
For the purpose of facilitating the transfer of assets and liabilities to a State Aviation Enterprise pursuant to this Act, the Head of State, acting on advice, may from time to time, by order, do any one or more of the following:—
(a) vest in or impose on a State Aviation Enterprise any asset or liability, any class of any such asset or liability, that the state aviation enterprise has agreed to have transferred to it;
(b) vest land in a State Aviation Enterprise for the purposes of Section 329(1);
(c) declare that a reference to the State or a Minister, officer, employee, Department or instrument of the State in any or all regulations, orders, notices, or documents shall be deemed to be or to include a reference to a State Aviation Enterprise specified in the order;
(d) declare that a State Aviation Enterprise shall assume or continue to have the rights and obligations of the State or a Minister, officer, employee, Department or instrument of the State in respect of applications for rights, objections, or proceedings before any Court, authority, or other person, being rights and obligations that the State Aviation Enterprise has agreed to assume;
(e) declare that a State Aviation Enterprise is entitled to receive any benefits and be subject to any detriments under any consents, licences, permits, designations, declaration of the State concerning civil aviation;
(f) declare, in respect of any assets or liabilities transferred to a State Aviation Enterprise pursuant to this Act, that the State Aviation Enterprise shall be deemed to have specified rights or obligations in respect of those assets or liabilities, being rights or obligations that are required in respect of those assets or liabilities as a result of the change of ownership or responsibility from the State to the State Aviation Enterprise;
(g) declare that any order made under this section shall be deemed to be notice to all persons, and that specific notice need not be given to any authority or other person;
(h) direct any authority or other person to register or record any such vesting or declaration.” (my underlining)
50. Ms Doiwa advances an interesting argument. I concur with her submission to some extent that the validity of the joint action of the Minister for Civil Aviation and Minister for Finance by their letter to the first defendant dated 3 June 2011 which purportedly constituted a notice of transfer under Section 329 and therefore assigning the Office Premises to AIC was dependent upon compliance with Section 330. That would be true if the State owned the asset. Section 329 is not a stand-alone provision in my view. If the asset belonged to the State, then no evidence has been produced by AIC to show that the Head of State, acting on advice, by order vested the Office Premises in AIC under Section 330(a) or (b) for the purposes of Section 329(1).
51. The word “order” is not defined in the Civil Aviation Act. The Interpretation Act does not give much assistance as well. The closest assistance I can get out of the Interpretation Act is from Section 1 where it provides that the term “legislative instrument” used in that Act includes an order. The literal or plain meaning to be ascribed to the word “order” in the context it is used in Section 330 is that that Section gives the Head of State, acting on advice, the power to make orders, eg, by way of an instrument specifying, amongst the matters specified in that Section, what the order is about. In that scenario, the purported assignment of the Office Premises, if deemed to be asset of the State, by the Minister for Civil Aviation and Minister for Finance was not complete or complemented by an order under Section 330 and therefore it is invalid and unenforceable.
52. The alternative scenario is this and I think this will determine the issue under consideration. As I have alluded to earlier, Portion 2437 which is aerodrome land and on which the Office Premises are situated was among State assets transferred to CAA by the then Deputy Prime Minister and Minister for Transport & Civil Aviation, Hon. Don Polye and Minister for Finance and Planning Hon. John Hickey through the Agreement for Transfer of Assets in 2007. Portion 2437 was an asset of CAA as of 30 March 2007. It was no longer an asset of the State and therefore was not available to the State for purposes of a transfer to a State Aviation Enterprise facilitated under Sections 329 and 330. That view, in my opinion, is in congruence with and reflected by Sections 324A and 324B which specifically facilitate the vesting of assets and liabilities of CAA in CASA, PNGASL and NAC by succession. Under the transitional provisions of Section 324B, these State Aviation Enterprises were in my view temporary custodians of assets and liabilities of CAA they each were to succeed to while the process for succession was being formalised in accordance with Section 324A.
53. Consequently, for the above reasons, the letter to the first defendant dated 3 June 2011 jointly signed by the Minister for Civil Aviation and Minister for Finance which purportedly constituted a notice of transfer to transfer or assign the Office Premises to AIC did not constitute a valid transfer or assignment of the Office Premises to AIC pursuant to Section 329 of the Civil Aviation Act.
54. In addition, events have overtaken the state of affairs since the Supreme Court delivered its judgment on 12 December 2014 in the Supreme Court SCA No.149 of 2010 proceedings. As I have found above, by Notice of Declaration of the Date of Succession, the Minister for Civil Aviation, Hon. Davis Steven by virtue of the powers conferred on him by Section 324A of the 2010 Amendment Act and all other powers him enabling declared 1 February 2016 as the date of succession whereby all assets and liabilities of CAA were succeeded to by CASA, PNGASL and NAC to the extent that such assets and liabilities concerned their respective objectives and functions and such succession was in accordance with the assets and liabilities listed in the respective Schedules to the Notice of Declaration of the Date of Succession.
55. Portion 2437 which appears to have been referred to in the Notice of Declaration of the Date of Succession as Portion 2965, 7 Mile on which are situated the Office Premises (Main Store, Warehouse and Ex-ASR Office Building 2-storey) were succeeded to by NAC as per Schedule 1 of the Notice of Declaration of the Date of Succession. No evidence to the contrary was produced by AIC to demonstrate that Portion 2965 is not the same land as Portion 2437. If Portion 2965 is not the same land as Portion 2437 and has not been listed and identified in the Schedules to the Notice of Declaration of the Date of Succession, then succession of CAA’s assets must still be effected in accordance with Section 324A as indicated at paragraph (e) of the Notice of Declaration of the Date of Succession.
56. I concur with Ms Doiwa’s contention that the Office Premises are located within aerodrome land which are vested in NAC and they cannot be dealt with except in accordance with the Aerodrome (Business Concessions) Act: see Section 54 Land Act and Section 3 Aerodrome (Business Concessions) Act. As NAC is a company, all decisions pertaining to the control, use, leasing, licensing and maintenance of aerodrome land must have the oversight of its Board and Management. Hence, any unilateral action taken by the Minister for Civil Aviation outside the dictates of the Aerodrome (Business Concessions) Act in that regard would be invalid and unlawful.
57. For all these reasons, I find that AIC has failed to substantiate its case for the grant of the relief it seeks. These proceedings are dismissed and the relief AIC seeks is refused.
ORDER
58. The Court’s orders are:
1. The proceedings are dismissed.
______________________________________________________________
AIC In-house Lawyers: Lawyers for the Plaintiff
Makap Lawyers: Lawyers for the Defendants
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