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Papua New Guinea Air Services Ltd v Wanga [2021] PGNC 286; N8991 (21 July 2021)

N8991

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]
OS (JR) NO. 421 OF 2017


BETWEEN:
PAPUA NEW GUINEA AIR SERVICES LIMITED
Plaintiff


AND:
TIRI WANGA AS ACTING SECRETARY FOR LANDS AND PHYSICAL PLANNING
First Defendant


AND:
SAM WANGE AS CHAIRMAN OF THE PAPUA NEW GUINEA LAND BOARD AND THE MEMBERS OF THE LAND BOARD
Second Defendant


AND:
INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Defendant


And:
EMMANUEL’S SCHOOL OF EXCELLENCE LIMITED.
Fourth Defendant


Waigani: Miviri J
2021: 23rd June, 21st July


PRACTICE & PROCEDURE – Judicial Review & appeals – Substantive Notice of Motion – Order 16 Rule 1 (1) NCR – Certiorari – Error of Law – Declaration – Sections 68, 69, 71, 73, 74 76, 84, 99 Land Act – Error of Law apparent – Incorporation fourth Defendant 8 months after application – State Lease to person at Law not without –Balance discharged –Judicial Review granted – cost follow event indemnity basis.


Cases Cited:


Steamships Trading Company Ltd v Minister for Lands and Physical Planning [2000] PGNC 11; N1959
Open Bay Timber Ltd v Dekena [2013] PGNC 81; N5109
West New Britain Provincial Government v Kimas [2009] PGNC 256; N3834
Emas Estate Development Pty Ltd v John Mea & ors [1993] PNGLR 215
Paki v Motor Vehicle Insurance Ltd [2010] PGSC 2; SC1015
Concord Pacific Ltd -v- Thomas Nen [2000] PNGLR 47


Counsel:


N. Kopunye & E. Tolabi, for Plaintiff
No appearance for Defendants


RULING

21st July, 2021

  1. MIVIRI, J: This is the ruling on the Plaintiff’s notice of motion dated the 27th October 2020 for judicial review moving for the following orders:

is null and void.


(x) An order that the decision of the First, Second and Third Defendants to grant a State Lease over Portion 839 to the Fourth Defendant be quashed.

(xi) An Order that the decision of the First, Second, and Third Defendants to re-zone Portion 839 to “Special Purposes “be quashed.

(xii) A declaration that the Plaintiff is entitled to use and occupy land formerly known as Portion 76 Milinch of Kranket, Fourmil of Madang, Madang Province.

(xiii) An order that the Defendants to pay the Plaintiff’s costs on a Solicitor Client basis.

(xiv) Such further or other orders as this Honourable Court deems appropriate.
  1. This is an action that was not defended despite notice of the hearing and service of relevant papers upon the defendants. There is no representation of the fourth defendant before the Court on the eve of this motion. The Plaintiff has applied to proceed to trial even without the fourth defendant in attendance, on the basis of the affidavit sworn 22nd June 2021 by Nelson Kopunye lawyer for the Plaintiff that service has been made upon Emmanuel’s School of Excellence Limited on Wednesday 16th June 2021 by email, and also a letter dated the same date. That service of a minute of an order made by this Court of the 11th June 2021 setting the matter for trial to Wednesday 23rd June 2021 at 1.30pm. That in the event of non-attendance that constitutes forewarning that Plaintiff will insist on hearing the substantive judicial review without the fourth defendant. It is copied to the lawyers on record than for the fourth defendants, Bernard Koae & Pia K Dometa of Eda Legal Services. The same letter and email have also been earlier served on the Office of the Solicitor General on the 11th June 2021. The email is attention to Mr Geita of that office.
  2. In both cases drawing no attendance before the Court on the eve of the hearing. I pose whether further adjournment is necessary to allow appearance. In the light of the material detailing service of the proceedings and notification of date of hearing it is not necessary to adjourn any further. What is set out above is sufficient compliance of the rules accorded to service. The plaintiff has discharged that requirement and so this proceeding will proceed as it is without none of the defendants in attendance. Particularly with the time limitations evident under the rules of Judicial review of the Court.
  3. It is clear from the record of the Court that the fourth defendant has not been in attendance. The matter is a 2017 case and service has been affected in the light of the evidence above satisfying the rules. There is no prejudice nor injustice to proceed as it is. Accordingly, the application to proceed to trial without either of the defendants in attendance is granted to the plaintiff. It is up to them to make appearance, advise court and advise as to the status of their matters in court.
  4. That aside the evidence in pursuit of the cause relied on by the plaintiff is as follows all in the review book;
  5. For the first second and third defendants they have filed the affidavit of Oswald Tolopa of the 06th September 2018. And in the case of the fourth defendant Emmanuel’s School of Excellence limited, they have filed the affidavit of one Aloysius Golu of the 13th October 2017. He is the sole shareholder and director of the fourth defendant. I have considered his evidence at length comparably with that of the State particulars which I will detail in the course of this Judgement are lacking and not on par with the Plaintiffs evidence. They leave a lot to be desired and it is even more than detrimental to his cause when he has not appeared nor counsel instructing to advance his cause. Why go to great pains to attain and not appear to defend the proceeds?
  6. This is dispute over parcel of land described as Portion 839, Milinch Kranget, Fourmil Madang, Madang Province. And depicted out by the evidence the affidavit of Oswald Tolopa sworn 05th September 2018 filed the 06th September 2018. He was the Secretary for the Department of Lands & Physical Planning that according to the file records of the subject land formally Portion 76 Milinch Kranket Fourmil Madang, Madang Province, there are two survey plans both depicting the type of development or building structure erected on the subject land being the DCA Transmitter site or Transmitting Station. Annexure “A1” is true copy of the registered Survey plan Cat No. 12/161. And marked with annexure “A2” is true copy of the registered survey plan Cat No. 12/268 both depicting the DCA Transmitter Site or Transmitting Station.
  7. On 23rd September 1986 Portion 76 was subdivided into three new allotments now described as Portions 839, 840, 841, Milinch Kranket, Fourmil Madang, Madang Province. That is set out by annexure “B” a true copy of the registered survey plan Cat No. 12/144 showing portions 839, 840 and 841.
  8. I advise this Honourable Court that upon preparation of this Affidavit, we were unable to locate any records or documentary evidence as to the ownership of the subject land when it was initially described as Portion 76 despite numerous attempts of manual file search and database search.
  9. Furthermore, according to the TRP Plan No. 3/96 for proposed subdivision over portion 76 having been approved by the National Physical Planning Board in Meeting No. 01/2010 dated 29th January 2009 and later by the Surveyor General on the 04th of March 2010, the proper zonings for the three newly created allotments mentioned herein varied where Portion 839 was zoned as Residential, Portion 840 as Open Space and Portion 841 as Public Utilities. Annexure “C” is a true copy of the TRP Plan No. 3/96 showing the different zonings.
  10. After the completion of the above two processes, our file records revealed that the fourth defendant lodged a formal application dated 11th April 2012 for a Special Purposes (Public Institution) Lease over the subject Land with the Allocation Unit under the Alienated Land Division at the Department of Lands & Physical Planning. At the time of the lodgement of the said application with the application having a Special Purpose ( Public Institution) Lease zoning being expressed or written on it, the Allocation Unit was led into believing that the zoning of the subject Land was for Public Utilities when in actual fact the correct zoning for the subject land as per the TRP Plan No. 3/96 was residential. Annexure “D” is a true copy of the fourth Defendants application form.
  11. Annexure “D” is the application or tender form. The name on it is Emmanuel School of Excellence P. O. Box 344, Madang. The type of Lease is Special Purpose (School). And the proposed purpose is “Purpose to Build a Secondary High School. (1)Build Classroom/Hall/Field. (2)Staff accommodation. (3) Dormitory Boys & Girls. Attached Approvals Total Cost K 30m. Portion 839 M/L Kranket FM Madang. Signed 11/04/12.” Payment of the application is made of a K100 with the receipt attached.
  12. It prompted the Secretary then Mr Romilly Kila Pat to write to then Minister Hon. Benny Allan by minute dated seeking approval for a notice of exemption over the subject land in favour of the Fourth Defendant as per the latter request. This annexure “E” Minute to the Minister of the 16th April 2013 subjected Notice of Exemption. “I am attaching herewith four (4) Notices of Exemption for your consideration by a local Entrepreneur of Madang. You will note from the submissions that the project proposed are for public purpose and is supported by the Provincial Administration and also financial backing from overseas.
  13. My meeting with the proponents of the projects have expressed genuiness and are committed to ensuring the projects get off the ground as soon as State Leases are issued through process of Land Board. This will be a first of its kind where a local Papua New Guinean Company has embarked on engaging in Public Purpose Projects unlike the traditional business approach to land development. I have perused the documents and do not have any issues with the proposals put forward for your consideration. For your information and advice signed Romilly Kila Pat Secretary, Department of lands and Physical Planning.”
  14. Following is annexure “F” Notice of Exemption under section 69 (2) (d) issued by the Minister Hon. Benny Allan MP. “I Hon. Benny Allan MP, Minister for Lands & Physical Planning by virtue of the powers conferred by Section 69 (2) (d) of the Land Act and other powers me enabling hereby exempt from advertisement, the parcel of Land listed in the following schedule.
  15. The Special reason being that Emmanuel’s School of Excellence is contemplating on putting up a school of excellence. Madang Province is in dire need for grades 9, 10, 11, 12 spaces and schools.
  16. The Special reason being that building a public School on this portions of land will curb the ever-rising law and order in the province as these portions are used by illegal Settlers who breed and support law breakers.
  17. Schedule. All that parcel of land described as portions 839, 840, & 841 M/L Kranket, F/M Madang, Madang Province. Dated 22nd day of April 2013 signed by Hon. Benny Allan MP Minister for Lands & Physical Planning.
  18. That is followed by annexure “G” Department of Lands & Physical Planning Papua New Guinea Land Board Office of the Chairman letter addressed to Emmanuel School of Excellence P. O. Box 344 Madang MP written by Sam Wange Chairman PNG Land Board. The Subject is recommendation of Papua New Guinea Land Board Meeting No. 03/2013 Item No. 189. Here it recommends (b) the lease shall be used bona fide for Special Purposes (Public Institution) Lease. (e) Improvements being Buildings for Special Purposes ( Public Institution) Lease and ancillary purposes to a minimum value of Five Hundred Thousand (K 500, 000.00) shall be erected on the land within three (3) years from the date of grant of the lease and these or similar improvements to the same purposes shall be maintained for the term of the lease;
  19. (f) The successful Leasee shall not enter into any agreement or transaction to sell, lease or sublease wholly or any part of the said land the subject of this title prior to complying with the improvements conditions as stipulated therein............Approved: Recommended in favour of Emmanuel’s school of Excellence for a 99-year lease at a value of K 500, 000.00.
  20. This is all very well done, but the affidavit of Augustine Pais, of the Papua New Guinea Air Services Limited Flight Yield Officer at Madang sworn of the 21st August 2018, filed the 23rd August 2018 shows the contrary. His physical observation there depicts that, there is no school of excellence built of the subject land. It remains bare of any recent improvements to the value of or above K 500, 000.00 or of the K30 million kina that was intimated. There is only transmitting equipment towers belonging to the plaintiff in the vicinity and on the land physically distinctive bearing resembling that that Authority still holds by its equipment on the subject land. There are very good, coloured photographs taken by this witness depicting from annexure “A” to “R” none of which show what is set out by the evidence particularized above of a school of excellence at all. The evidence specially mentions that, “From my observations confirmed by the photographs I say the following: (i) Portion 839 is maintained constantly by PNGASL including the blue coloured Building containing navigational equipment in the fenced area; (ii) Portion 839 contains air navigational equipment’s and /or facilities used by PNGASL for the purposes of providing services air safety and navigation; (iii) there is no development in the surrounding area, including no developments or establishment of any school; (iv) only recently a businessman of Asian origins has cleared an area next to the Portion 839 (apparently to build a shop); (v) the blue building in the picture belongs to PNGASL. I am a long-time resident of Madang and I am not aware of any school called Emmanuel School of Excellence. I usually visit Portion 839 as part of my job to ensure that the area is maintained and the facilities and equipment in the area are in good condition.”
  21. If this was a genuine lease obtained with public purpose a school educating children seriously in mind, there is no evidence of this fact by the fourth defendant in court. It is depicted out to be more fraud and deceit rather than genuiness to serve the Community and the province. It would fall in similar and more of land grabbing to entice enrichment at the misery of the majority. There is no appearance to fight if it was indeed a genuine public project for the benefit of all in the province. The requirements of sections 73, 84, 99 of the Land Act have simply being ignored and not heeded. There is no evidence before me to sway that account was taken of what was called individually severely in each case so that the dictate of the law was acceded to. For instance, there is no evidence of the reserved price fulfilling section 73 of the Act. Further there is no amount in Kina intended appreciating that the land was affixed with state navigational equipment, satisfying what was intended by section 84 of the Act. It has simply been a case where the fourth defendant has become so shy that he cannot even show his face in court despite notice repeatedly issued by the plaintiff. What the plaintiff maintains on that land is air safety equipment necessary for the navigation of aircraft for public Safety for all travelling public, without which or tampering of which will lead to loss of lives and property. Air safety is a very public concern and at the heart of all travelling because safe air travel is confidence to bring development to the country. It is therefore no light matter where land used evidenced clear as broad daylight by the Plaintiff is unceremoniously without compliance and heed of the law exempted from advertisement fulfilling requirements under the Section 69 of that Act. The related sections of 68, 71, 73, 74 are explicit when read together and do not give heed and lawfulness to the actions complained here.
  22. The evidence that I set out above clearly show deceit and fraud to get land for personal profit rather than goodness governance for all. Advertisement of land before grant is in mandatory terms by use of the word “Shall” heed without it in grant is no grant in law. The process has been violated and breached. The recipient receives nothing in the end. There is no lease and this is even grave in the case of an unincorporated entity in law, the fourth defendant here at the time of grant because there was no person in law receiving. He did not satisfy all requirements in law to be a person in law who could hold property, who could be sued and vice versa. The Minister could not have given what he was giving because exemption for a non-existent entity at law meant what he was doing was violating the legal provisions set out above. And Steamships Trading Company Ltd v Minister for Lands and Physical Planning [2000] PGNC 11; N1959 (10 May 2000) makes that point very clear, which is lacking here hence would be in favour of the assertions by the Plaintiff. There is no evidence that the subject land was available by consent of the State for the purpose intended for schools independently of the application made.
  23. It would meet similar fate as in Open Bay Timber Ltd v Dekena [2013] PGNC 81; N5109 (26 March 2013) and it has seen not light given the facts here similar as in West New Britain Provincial Government v Kimas [ 2009] PGNC 256; N3834 (30 December 2009). There are no inroads where advertisement in accordance with section 68 of the Land Act has not been heeded together with all law set out above. What follows is that simply there is no State Lease issued to the fourth defendant here. And it begs as to why in the face of Government establishment both of equipment and resources owned on land visible to the naked eye are defied in the eyes of the law and given as is the case here. There is clear succession of the subject property and the land from the civil aviation authority of the former to the present the plaintiff. There is continuity in law in succession of the subject land and properties on it. It makes it even sinister when not even a notice under section 58 (2) & (10) of the Land Act was given a State entity owning in possession in law of the subject land. But a notice for rental to be paid by the plaintiff 3 years on. A coupled with no developments as applied to date.
  24. This is not a case where the Minister has confirmed by independent evidence that the fourth defendant is a registered provider of education, or that there is agreement with the State and the fourth defendant to build and provide a school as applied in the lease application. And there is no confirmation from the Education Department to that fact. Not even the price for the sale of the land if it were such was open and transparent with a project submission and the like evidenced so that Government land was exempted for a very public purpose by evidence provided. That is not the case here in every aspect and the pleading with the evidence relied and tendered leave no option apparent and identifiable in law other than to grant the case pleaded by the plaintiff. It is a case riddled with fraud and deceit like Emas Estate Development Pty Ltd v John Mea & ors [1993] PNGLR 215 and will suffer the same.
  25. The summary of this case is that it was oriented with error of law against the Land Act particulars set out above. The defendants could not have lawfully exerted what they were doing. The road they took did not parallel the requirements of the law in each case discussed above. Accordingly, what happened was that the plaintiff was deprived what was its without any reason in law, or the fulfillment of the law accorded so that it was lawfully derailed of the subject property. The totality of it is all the unreasonableness that has come out glaring, so much so that it leaves no option apparent or identifiable other than to uphold the case of the plaintiff as pleaded by its notice of motion, particulars set out above.
  26. Cost is discretionary as in Paki v Motor Vehicle Insurance Ltd [2010] PGSC 2; SC1015 (9 February 2010) where the Supreme Court stated that:

“The award of costs on an indemnity basis is discretionary. An order for costs on an indemnity basis may be made where the conduct of a lawyer or a party to the proceedings is so improper, unreasonable, or blameworthy that he should be so punished by such an order. The question is whether the conduct of the appellant in this matter is such that it caused the respondent to incur unnecessary costs.”

  1. What has happened here is clearly abuse that must be exonerated because it was unnecessarily drawn into Court given what was on the land. Any reasonable person seeing what was on that land distinctive towers and communication equipment for navigation of aircraft would have been alerted of that fact, it was occupied not the subject of reissue for a State Lease. It was by fraud clear by all set out above. It was unnecessary costs incurred as in Concord Pacific Ltd -v- Thomas Nen [2000] PNGLR 47. There is blameworthiness on the part of the fourth defendant that must be settled in costs which will be on indemnity basis. Given all set out above this is a case for indemnity of cost to follow the event. Costs will therefore be on indemnity basis to follow the event upon the defendants.
  2. The aggregate is that Judicial review is made out beyond the balance of preponderance on all grounds advanced and the reliefs sought in the terms of the notice of motion of the 27th October 2020 are granted. The formal orders of the Court are:

is null and void ab initio.


(xxiv) An order in the nature of certiorari lies and is granted to bring into Court and quash the decision forthwith of the First, Second and Third Defendants to grant a State Lease over Portion 839 to the Fourth Defendant.

(xxv) An order in the nature of a certiorari lies and is granted in that the decision of the First, Second, and Third Defendants to re-zone Portion 839 to “Special Purposes “is brought into court and quashed forthwith.

(xxvi) It is further declared that the Plaintiff is entitled to use and occupy land formerly known as Portion 76 Milinch of Kranket, Fourmil of Madang, Madang Province.

(xxvii) An order is granted that the Defendants to pay the Plaintiff’s costs on an Indemnity basis.

Orders Accordingly.

__________________________________________________________________


Kopunye Lawyers: Lawyer for the Plaintiff /Applicant

Office of the Solicitor General: Lawyer for the Defendant

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