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National Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
OS (JR) NO 898 OF 2016
BETWEEN:
RAPHAEL HUAFOLO, Acting Commissioner of Police,
Royal PNG Constabulary
Plaintiff
V
REX TADABE
First Defendant
AND
LUTHER SIPISON, Secretary,
Department of Lands & Physical Planning
Second Defendant
AND
BENNY ALLAN, Minister for Lands & Physical Planning
Third Defendant
AND
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Fourth Defendant
Waigani: Anis J
2021: 14th & 30th July
JUDICIAL REVIEW APPLICATION – challenge on decision that revoked a certificate authorizing occupancy and decision that exempted publication of lease described as allotment 11 section 122 Granville Port Moresby NCD – whether action or inaction contrary to the Wednesbury principles – whether an error of law was committed – whether there was breach of natural justice – considerations – decision of the Court
Cases Cited:
Papua New Guinea Cases
Peter Makeng v. Timbers (PNG) Ltd (2008) N3317
Alex Timothy v. Hon Francis Marus (2014) SC1403
East New Britain Provincial Government v. The Public Service Commission Chairman Dr Phillip Kereme and Jack Kavie (2017) N6706
Open Bay Timber Ltd v. Lucas Dekena [2013] N5109
Nathan Koti v. David Susame (2015) N5860
Mudge & Mudge v. Secretary for Lands, The State and Delt Developments Pty Ltd [1985] PNGLR 386
Overseas Cases
Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1947] EWCA Civ 1; [1948] 1 KB 223
Counsel:
D Kiwai, for the Plaintiff
J. Haiara, for the First Defendant
E. Geita, for the Second, Third and Fourth Defendants.
JUDGMENT
30th July, 2021
1. ANIS J: This was a substantive hearing of a judicial review application filed by way of a notice of motion on 24 April 2017 (JR application), that is, after leave to apply for judicial review was granted on 11 April 2017. The trial was conducted on 14 July 2021. I reserved my decision thereafter to a date to be advised.
2. Parties have been notified of today’s listings so I will rule on it now.
BACKGROUND
3. The contested background to this matter is as follows. The property in question is a state lease. It is described as allotment 11 section 122, Granville (Konedobu), City of Port Moresby, National Capital District (the Property). The plaintiff claims the Property, at the material time, was owned or reserved by the State, to the Royal Papua New Guinea Constabulary (RPNGC) who held a Certificate Authorizing Occupancy (CAO) over it, together with other surrounding allotments. The plaintiff claims, however, that on 20 September 2016, the second defendant wrongly revoked the plaintiff’s CAO over the Property. The Plaintiff claims that the CAO was wrongly revoked by the action of the second defendant when he published a national gazette notice No. G678 dated 20 September 2016 (Gazettal Notice) under s. 49 of the Land Act 1996 (LA). The plaintiff also challenges the decision of the second defendant in exempting the Property from advertisement.
4. The defendants oppose the JR application. The 2nd, 3rd and 4th defendants adopted and supported the submissions of the first defendant. The defendants say there were no wrongs committed and therefore the JR application should be dismissed. They also raise preliminary issues on (i) standing and (ii) whether the issue concerning exemption of the Property from advertisement is properly pleaded before the Court for consideration.
APPLICATION
5. The grounds raised in the JR application are as follows, (i), the second defendant acted unreasonably contrary to the Wednesbury principle of reasonableness, (ii), the second defendant committed an error of law, and (iii), there was breach of natural justice.
REVIEW BOOK
6. The parties by consent tendered the Review Book filed on 20 October 2017 (RB).
PRELIMINARY ISSUES
7. The first defendant raised 2 preliminary issues. The first preliminary issue relates to the standing, which I prefer to address later. The second issue is this. The first defendant submits that leave for judicial review was not granted in regard to the second defendant’s decision in granting an exemption to advertise the Property. In response, the plaintiff submits that when leave was granted by the Court on 11 April 2017 (leave order or leave Court), it was granted as per the relief that were sought in the Amended Originating Summons (AOS). As such, it submits it may be assumed that that would include the plaintiff’s challenge on both decisions of the second defendant at the material time. The plaintiff also submits that the said claim is sought as a relief which is actually pleaded in the AOS and the Amended Statement (Statement) filed pursuant to Order 16 Rule 3(2)(a) of the National Court Rules (NCR). As such, it submits the first defendant’s submission is baseless and should be rejected.
8. I have had the benefit of considering the AOS, the Statement, and the leave order, all of which are contained in the RB. Let me begin with this opening. In judicial review proceedings, the originating summons shall, as its main relief, only seek leave and state the decision that is proposed to be review. No other substantive relief may be permitted. And matters that are pleaded in the substantive judicial review notice of motion where leave had not been sought in the originating summons for their inclusion and reliefs not pleaded in the Statement filed under Order 16 Rule 3(2)(a), cannot be sought or granted in the substantive judicial review notice of motion or application. See cases: Peter Makeng v. Timbers (PNG) Ltd (2008) N3317; Alex Timothy v. Hon Francis Marus (2014) SC1403; East New Britain Provincial Government v. The Public Service Commission Chairman Dr Phillip Kereme and Jack Kavie (2017) N6706. The AOS filed pleaded the decision sought to be reviewed as follows:
Leave of the Court pursuant to Order 16 Rule 3 of the National Court Rules to apply for Judicial Review of the decision of the Second Defendant as a delegate of the Third defendant to revoke the Certificate Authorizing Occupancy [herein “the CAO”] over the land described as Section 122 Allotment 11, Granville (Konedobu), Port Moresby National Capital District [herein “the property”] to the Plaintiff on 20th September 2016.
9. I would partly uphold the submissions by the first defendant. The above decision as pleaded which was granted by the leave court, did not refer to any other decision. As such, I find the second part of the plaintiff’s claim where he also seeks to revoke the notice that was issued under Section 69(2)(d) of the LA (which exempted the Property from being advertised) as a matter that is not properly before this Court for consideration. No leave was sought in that regard. I therefore dismiss that part of the claim and relief.
WEDNESBURY PRINCIPLE
10. The plaintiff relies on the Wednesbury principle as his first ground.
11. The principle was developed in the case Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1947] EWCA Civ 1; [1948] 1 KB 223. It is widely accepted in the jurisdiction in judicial review proceedings as part of the Underlying Law. I adopt what Justice Cannings has said in Nathan Koti v. David Susame (2015) N5860. At paragraph 25, His Honour stated:
By relying on the Wednesbury sense of unreasonableness they are referring to the principles laid down in the classic case of Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1947] EWCA Civ 1; [1948] 1 KB 223, which have long been regarded as forming part of the underlying law of Papua New Guinea. As I pointed out in Saboko v Commissioner of Police (2006) N2975 and Dopsie v Tetaga (2009) N3722, and in the earlier judicial review of the previous Provincial Land Court, the test to apply is:
· is the decision being reviewed so unreasonable or absurd, having regard to all the circumstances, no reasonable decision-maker would have made the decision?
12. Turning my attention to the present matter, I have considered the arguments put forward by the plaintiff and the response by the first defendant. The ground that the second defendant acted unreasonably is contained under Part D, paragraph 11(a) of the Statement at page 23 of the RB.
13. The land in question has a long history. I note the submissions of the parties on this, but I do not think that most of it (i.e., the history) is relevant for this purpose. What is however undisputed and relevant at the material time, is as follows. The Property originated from a government land which was known as portion 2416. Section 122 was created from portion 2416 sometime in 1992 and 1993. On 30 September 1999, section 122 was divided into 10 allotments. Section 122 allotment 5 is relevant for our purpose. It was assigned to the RPNGC under a certificate authorizing occupancy. Then on 27 May 2011, allotment 5 was further sub-divided into 2 allotments, namely, allotments 11 (which consists of the Property) and 12. Allotment 12 was further sub-divided into allotments 14, 15, and 16. At that juncture, allotment 12 ceased to exist. After that and on recommendation by the Department of Lands and Physical Planning (Lands Department) to the RPNGC on 25 June 2014, the RPNGC agreed to and on 8 October 2014, allotments 11 (where the Property is situated), 14, 15 and 16 were issued with individual certificate of occupancies in favour of the RPNGC by the Lands Department. The recommendations by the Lands Department stated one certificate of occupancy for these portions but as it turned out, individual certificate of occupancies was issued for the 4 allotments of section 122, in favour of the RPNGC. The CAO the subject of this review was issued over allotment 11 together with the 3 other allotments on 8 October 2014.
14. The first defendant was at the time occupying the Property. The RPNGC tried to evict him and others on various occasions. On 10 July 2015, the first defendant filed a judicial review proceeding against the RPNGC and others challenging the decision by the Lands Department in issuing the CAO upon the Property to the RPNGC. Before the grant of leave, the second defendant wrote a letter to the RPNGC and informed it that he had decided to revoke the CAO over where the Property is situated. His letter is dated 18 November 2015. After various exchange of correspondence, the second defendant published in the National Gazette on 20 September 2016, where he cancelled the CAO of 8 October 2014 that had been issued to the RPNGC over where the Property is situated. The decision is now the subject of this review.
15. Was the decision so unreasonable that no reasonable tribunal or person would have made under the circumstances of the case? Having considered the submissions of the parties and the relevant case authorities, I would answer the question in favour of the plaintiff or the RPNGC. The first reason is this. The Property had always been government land. It had been assigned to the then Civil Aviation Authority at one time but had reverted back to the RPNGC by the grant of the CAO. That was the status quo before the CAO was revoked or set aside on 20 September 2016. The first defendant claims to be the son of a late ambassador who had occupied the Property as a tenant or government employee. There is however no relevant information in evidence regarding the first defendant. For example, is he a current government employee? How did he come to acquire the Property which has always remained government land and owned by government institutions including its use by the RPNGC? There was reference made of a will he had claimed as the basis for his right over the land. How is that relevant to the Property which was still the subject of a certificate authorizing occupancy before its cancellation in 2016? The Property could not have been owned by the first defendant or his father at the material time. I also note that the first defendant had filed other court proceedings including him being a defendant herein, but I note that there is no evidence of this will or clarity being given, to say what exactly his interest is over the Property. For what the plaintiff or the RPNGC knows, the first defendant is a squatter who had been illegally residing on the premises for many years. It appears that there was no reasonable propriety interest or right that had existed that would have caused the second defendant to bend back-words and have regard to his claim in his decision. The first defendant was not a government employee at the material time; he had no legal or propriety interest over the Property, but rather, was a person who was illegally residing there on what was and still is, which is an old colonial run-down residential house. Those were essentially the relevant facts that were before the second defendant at the material time before he made the decision to cancel the CAO. Compare that to the interest of the RPNGC at the material time which was real and secured under the CAO together with the history of the Property, I find the decision of the second defendant as not only unreasonable but baseless.
16. The second reason is this. The reasons for the second defendant’s decision are set out in his earlier letter to the RPNGC dated 18 November 2015. The letter is located at page 118 of the RB. The stated reason may be found at paragraph 3 of the letter, and I quote in part:
The Department now realizes that there was an oversight where re-survey works were carried out for Section 122 Allotment 05, Granville because it included part of Allotment 11 Section 122 which area currently occupied by the existing high covenant residential house owned by Mr Rex Tadabe, the son of the former Ambassador, Mr Angoa Tadabe.......
17. The second defendant, in my view, appeared to misrepresent the facts with his explanation of a purported oversight for the re-survey works which he said had been carried out for section 122 allotment 5. As revealed in the relevant history, which is stated above, allotment 5 was sub-divided into allotments 11 and 12. Allotment 11 was never dealt with after the cancellation of and sub-division of allotment 5. It was allotment 12 that was cancelled and sub-divided into allotments 14, 15 and 16. Therefore, the explanation given there by the second defendant appears contrary to the events that had occurred. And the second defendant’s reference to the high covenant house being owned by the first defendant does not make legal sense and is in fact not correct. It was not supported with any proprietary interest that the first defendant had over the Property. How was the Property where the house is situated owned by the first defendant as claimed in his letter? What was the evidence or reasonable basis that the second defendant had relied on to make this conclusion or finding that the house or the Property belonged to, or as he puts it, was owned by Mr Rex Tadabe?
18. Photographs of the house that were adduced in evidence by the plaintiff show that the house was in a dilapidated state in 2016. I refer to the affidavit of Raphael Huafolo filed on 23 December 2016. It is located at page 175 of the RB which is or forms the basis of this observation I make. The first defendant himself, in his affidavit, did not say that he owns the house on the Property. His affidavit was filed on 7 June 2017 and is located at page 230 of the RB. His evidence was brief, and I note that most of it contains submissions on law rather than depositions of facts. But the relevant or revealing depositions to the issue, in my view, are contained at paragraphs 5 and 6 where he states:
19. So, that is the purported proprietary interest relied upon by the first defendant over the Property. If I am to accept this, I would have to ask myself this. Where is legal document that gives the first defendant permission or the right to pursue his father’s estate including trying to recover or register the Property to his estate? If he intends to acquire the Property to his own name, as he has indicated, how can he do that without first establishing his father’s legal or proprietary interest over the Property? Is he a government employee? Even if he may be, what gives him the right to acquire a state lease that is the subject of a certificate of occupancy? To me, all these questions are relevant, however, they do not favour the first defendant nor the actions or justification by the second defendant in his decision to revoke the CAO of the RPNGC at the material time. I note that the second defendant lacked this information or facts or answers to these questions yet proceeded to make his decision to cancel the CAO over where the Property is situated.
20. I am satisfied that the plaintiff has established the first ground of review, and I find accordingly in favour of the plaintiff or the RPNGC, that is, that the decision of the second defendant was so unreasonable that no tribunal or reasonable minded person would have arrived at, as had been done in this case by him.
ERROR OF LAW
21. I now consider the second ground of review, that is, whether there was error of law committed. The second part of the plaintiff’s argument is made on the premise that this Court is also reviewing the decision of the second defendant where he exempted the Property from being advertised. I have already ruled on that, so the argument has no relevance here and I dismiss it.
22. The first part of the ground or argument is this. The plaintiff claims that there is no evidence such as an instrument or written authority by the Minister where he had delegated his power to the second defendant to deal with the Property or revoke the CAO. As such, he submits that that was an error of law committed. Counsel also made references to, amongst others, s. 25 of the Ministers (Delegation) Regulation 1976 (Regulation) and the case Open Bay Timber Ltd v. Lucas Dekena [2013] N5109. The plaintiff also makes the argument that s. 49 of the LA does not permit cancellation of a reserved government land after it is granted. It submits that the section only applies to grant of or preservation of government land only. As such, counsel submits that there was no basis where the second defendant could have published a gazettal notice to revoke or cancel the CAO pursuant to s. 49. The first defendant, on the other hand, submits that the claim by the plaintiff is misconceived. It submits that by virtue of s. 36 of the Interpretation Act Chapter No. 2 (Interpretation Act), the second defendant has the power as a delegate of the Minister for Lands to issue and to revoke the CAO. Counsel submits that the gazettal notice shows that the second defendant signed off as the delegate to the Minister and that it was incumbent upon the plaintiff or the RPNGC to prove their allegations on the balance of probabilities; the onus, counsel submits, does not shift to the defendants but rests with the plaintiff to prove. Given these, counsel submits the plaintiff has not proven his claim herein and therefore the ground must fail.
23. I have considered the submissions, law and case authorities referred to by the parties.
24. The relevant legislation to begin with, in my view, would be the Ministers (Delegation) Act Chapter 35 (MD Act). The MD Act is brief and gives powers to the Governor General who, acting on advice, may make regulations to administer delegation of powers by Ministers; powers that are bestowed to them (i.e., the Ministers) in regard to their statutory functions under various statutes or Acts of Parliament. And of relevance is the Regulation which was created for this purpose. The relevant section is indeed s. 25. It reads:
25. Land matters.
The Minister responsible for land matters may, by writing under his hand, delegate to a person all or any of his powers and functions relating to land.
25. Section 49 of the LA is also relevant. It states:
49. Reservation from lease or further lease.
The Minister may, by notice in the National Gazette, reserve from lease or further lease—
(a) Government land; or
(b) land that is the subject of a State lease,
that he considers is or may be required for a purpose specified in the notice.
26. I should also set out ss 35 and 36 of the Interpretations Act herein:
35. Implied power to alter.
Where a statutory provision confers a power to make an instrument or decision (other than a decision of a court), the power includes power, exercisable in the same manner and subject to the same conditions (if any) to alter the instrument or decision.
36. Implied power to remove or suspend.
(1) Where a statutory provision confers a power to make an appointment, the power includes power, subject to Subsection (2), to remove or suspend a person so appointed.
(2) The power provided for by Subsection (1) is exercisable only subject to any conditions to which the exercise of the original power of appointment was subject.
27. With these, I make the following observations. Firstly, by virtue of s. 35 of the Interpretations Act, the Minister for Lands may exercise his powers under the same section, namely, s. 49 of the LA to undo or cancel a certificate authorizing occupancy or government land that had been reserved from lease or further lease. I therefore would dismiss the arguments on this point by the plaintiff. Secondly, I note that s. 36 of the Interpretation Act does not in any way give the second defendant delegated powers of the Minister to act in the manner has he had done. In fact, the provision is misconstrued by the first defendant or his counsel. It has no relevance as it applies in regard to implied powers to terminate or suspend a person from office. I do not see its relevance as claimed by the first defendant.
28. The relevant provisions are s. 49 of the LA, s. 25 of the Regulation and s. 35 of the Interpretations Act. The third defendant, under s. 49 of the LA and s. 35 of the Interpretations, is the only person who may reserve a government land from being leased or for further lease, and he is also the only person who may undo or alter his decision to lease or for further lease. And s. 25 of the Regulation allows the Minister to delegate his said power. But if he chooses to do so, it must be in writing signed by him or under his hand.
29. When I consider the evidence adduced before the trial Court, I note that there is no evidence of such authority being received or granted to the second defendant by the third defendant, that is, before he (i.e., the second defendant) exercised the Minister’s power under s. 49 of the LA as his delegate as alleged. I agree with the submission by the first defendant that the onus is upon the plaintiff or the RPNGC to establish its assertion. The real question however is this: whether the burden of proof has been discharged by the plaintiff to the extent that it shifts to the defendants to disprove. The plaintiff has made references to the law, that is, s. 49, and its requirement in the case where a delegate may sign for the Minister, and he referred to s. 25 of the Regulation. Then he deposes evidence that no such authority was granted by the third defendant to the second defendant, to publish the Gazettal Notice to revoke the CAO. In my view, the allegation is substantiated with evidence and therefore the burden of proof has been met and shall shift to the defendants to disprove. In fact, all that is required of the plaintiff is to raise a reasonable or valid assertion especially when it comes to providing evidence of the decision or documents that are or may be relevant for the purpose of this JR application. Order 16 Rule 13(7)(2) of the NCR states, The Respondent or his/her lawyer is responsible for ensuring that the decision the subject of the review and other documents considered relevant for purpose of the review are included in the Review Book. So, the defendants had the duty to ensure that relevant documentations including the instrument of authority granted by the third defendant to the second defendant to act in the matter, was provided and furnished as evidence before this Court. The defendants appeared to have failed in that regard.
30. I therefore find that the plaintiff or the RPNGC has discharged its burden of proof and the burden shifts to the defendants. As for the defendants, I find no evidence disclosed to disprove the allegation or claim by the plaintiff. I therefore find that the plaintiff or RPNGC has, on the balance of probabilities, established the second judicial review ground, that is, that the action of the second defendant breached ss. 25 of the Regulation and 49 of the LA.
BREACH OF NATURAL JUSTICE
31. The plaintiff or the RCPNG also raises this ground, that is, breach of natural justice. The actual reason is pleaded at the last page of the Statement at page 25 of the RB. It reads:
Failure to take into account and consider the legal interest of the Plaintiff despite being aware of the Plaintiff’s interest on the property.
32. I do not see that as a properly formulated reason that may fall under the claim for breach of natural justice. It rather appears to or may be regarded as an argument that may fall under the Wednesbury principles. I find the pleading under the said ground insufficient, and in so doing, I therefore find that it cannot sustain or justify the ground and dismiss it.
SUMMARY
33. In summary, I have upheld 2 out of the 3 grounds of this JR application.
WHAT ORDERS SHOULD I MAKE?
34. I now refer to the relief sought by the plaintiff. In the JR application, the plaintiff or the RPNGC seeks various relief as follows:
(a) revoking the Certificate Authorizing Occupancy [herein “the CAO”] over the property described as Section 122 Allotment 11, Granville (Konedobu) National Capital District [ herein “the property”] to the Plaintiff on 20th September 2016; and
(b) exempting the land described as the property from advertisement under Section 69(2)(d) of the Land Act 1996 on 20th September 2016.
(a) re-instate the CAO over the property to the Plaintiff; and
(b) revoke the Notice under Section 69 (2)(d) of the Land Act 1996, over the property.
35. In view of my preliminary findings, I refuse to grant sub-relief (b) of relief 1 and sub-relief (b) of relief 2 sought therein. In summary, the plaintiff or the RPNGC was not granted leave to challenge the Notice that was issued under s. 69(2)(d) of the LA, and as such, it is not properly before the substantive review Court to determine.
36. The first defendant also raised a preliminary matter which I said to address later in my decision. I do so now. The issue is jurisdictional in nature, which is this. The first defendant argues that the manner in which the plaintiff has commenced this proceeding appears or implies that the plaintiff is suing for his own personal benefit and not on behalf of or for the benefit of the RPNGC. As such, he submits that the plaintiff has no standing in that sense or that the JR application has no basis and ought to be dismissed. I note the submissions from the parties in this regard. At the hearing, I asked counsel for the plaintiff a hypothetical question, that is, whether the plaintiff would take issue if the name of the current Police Commissioner was put in to replace Raphael Huafolo as the plaintiff. Counsel responded that it would not make any difference. Counsel also submitted that the only reason why the plaintiff was named in this manner was because it would not have been sufficient if only his title or office had been pleaded. Counsel submitted that the name of the individual person that was holding the position Acting Commissioner of Police, Royal PNG Constabulary had to be also pleaded which was why the plaintiff was named in that matter at that time.
37. I uphold the submissions of the plaintiff. Case law is also settled on this. The Supreme Court in Mudge & Mudge v. Secretary for Lands, The State and Delt Developments Pty Ltd [1985] PNGLR 386, per Kidu CJ and Woods J, held on point which I adopt herein, as follows:
There cannot be any doubt that the office is a public service one created by the Head of State on advice pursuant to the Public Service Act (Ch No 67), s 14. As it is not a corporate entity that can sue or be sued I agree with counsel that the first defendant was an incompetent defendant. In law only a person (a human being of age) or a corporate person (an incorporated body) can sue or be sued in a court. In this case the appellant should have proceeded against the occupant of the office of the Secretary for Lands.
......
As a preliminary point it should be noted that the first respondent as named cannot be sued as he has no corporate personality. The first respondent, as denoted, is in fact the servant of the State (the second respondent), so in reality this appeal proceeds against the second respondent.
38. It was necessary for the plaintiff to put down his name with the position that he held at the time. I will also say or make this observation. This judicial review concerns the CAO which had been issued not to the plaintiff in person but to the RPNGC, over land where the Property is situated. The plaintiff had occupied the position Acting Commissioner of Police then which was why the proceeding was filed in the manner as it was and thus remains so to this day. The Statement and evidence filed by the plaintiff all point to the interest of the RPNGC and not the plaintiff as an individual or in his personal capacity. However, for clarity purpose, I am minded to and will make variations or consequential orders in exercise my powers under s. 155(4) of the Constitution so that the end result of the relief made is done so in favour of the RPNGC.
COST
39. An award of cost remains discretionary. I will order cost to follow the event on a party/party basis which may be taxed if not agreed.
ORDERS OF THE COURT:
40. I make the following orders
The Court orders accordingly.
________________________________________________________________
RPNGC - Legal Division: Lawyers for the Plaintiff
Haiara’s Legal Practice: Lawyers for the First Defendant
Solicitor General Lawyer for the Second, Third & Fourth Defendants
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