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North Fly Development Corporation Ltd v Kamana Trading Ltd [2021] PGNC 498; N9266 (13 October 2021)

N9266

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS (JR) 112 OF 2021 (IECMS)

BETWEEN
NORTH FLY DEVELOPMENT CORPORATION LIMITED
Plaintiff

AND
KAMANA TRADING LIMITED
First Defendant

AND
JOHN ROSSO- Minister for Lands & Physical Planning
Second Defendant

AND
BENJAMIN SAMSON-Secretary for Lands & Physical Planning,
Third Defendant

AND
THE REGISTRAR OF TITLES
Fourth Defendant

AND
THE INDEPENDENT STATE OF PNG
Fifth Defendant

Waigani: Tamade, AJ
2021: 29^th September

ADMINISTRATIVE LAW - Judicial review - Application for leave – Seeking Declaratory relief – certiorari - Considerations to grant judicial review – Locus Standi – Arguable Case - Exhausted all administrative processes before coming to court -Undue delay in bringing the application before the Court.

BREACH - lawful process over the subdivision, forfeiture, and allocation of the subject land.

Cases Cited:

Kasper v Kiap [2020] PGSC 134
State v Toka Enterprise [2018] PGSC 89
Alai v Waina [2012] PGNC 98
Pipoi v Seravpoo, National Minister for Lands [2008] PGSC 7; SC909

Counsel:

Mr. J Lome, for the Plaintiffs
Ms Mobiha, for the Defendants

13^th October, 2021

1. TAMADE AJ: This is an application for leave for judicial review by the Plaintiff over several decisions of the Defendants over State land in Kiunga, Western Province.

2. The following are the decisions the Plaintiff seeks a review on:

(a) A decision of the Second, Third and Fourth Defendant made on 24^th April 2010 to effect a sub division of the subject land and to change the original description of the subject land from Section 3 Allotment 41 to Section 3 Allotment 27 Kiunga, Western Province.

(b) The decision of the Second Defendant in forfeiting the subject land described as Section 3 Allotment 27 Kiunga, Western Province, on 20^th October 2010.

(c) A decision of the Second Defendant by his delegate made on 12^th December 2017 to grant the State Lease of the subject land described as Section 3 Allotment 41, Kiunga, Western Province to the First Defendant.

3. The Plaintiff therefore seeks declaratory relief in the form of certiorari to quash the decisions of the defendants and also alleges breaches in the lawful process over the subdivision, forfeiture and allocation of the subject land.

FACTS

4. The Plaintiff states that he was the registered proprietor of the land described as Section 3 Allotment 27, Kiunga, Western Province.

5. On or about 2002 and 2005, a Mr John Kamana and his family moved on to the land without the consent of the Plaintiff and began developing the land.

6. The Plaintiff then attempted to remove Mr John Kamana, and his family and business on the land through eviction proceedings however these were all futile.

7. The Plaintiff then filed proceedings in the National Court in OS 23 of 2016 for eviction against Regina Kamana and others, who are related to a Mr John Kamana who is deceased.

8. The Plaintiff states that through those proceedings, the Plaintiff came to find out from material put forth by the Defendants in those proceedings that the subject property was subdivided in 2010 and was allocated a new description and was also forfeited from the Plaintiff in 2010.

9. The Plaintiff then became aware through an Affidavit from the Secretary for Lands & Physical Planning that the subject land title was granted to the First Defendant on 12^th December 2017.

10. Amongst the allegations of breach of statutory process, the Plaintiff also alleges that the First Defendant was not yet registered with the Companies Office when it applied to the Land Board for the grant of the subject land.

11. The Land Board therefore granted the subject State Lease to the First Defendant on 30^th May 2017 when it was not yet a registered company.

ISSUES

(a) Does the Plaintiff have standing to bring these proceedings?
(b) Does the Plaintiff have an arguable case?
(c) Has the Plaintiff exhausted all administrative processes before coming to this Court?
(d) Is there undue delay in bringing the application before the Court?

12. The above are the considerations for the grant of leave for judicial review.

(a)Does the Plaintiff have locus standi?

13. The Plaintiff asserts a right that it was the registered proprietor having held a registered State Lease in its name.

14. The Plaintiff asserts that pursuant to this right, it had attempted to evict a Mr John Kamana and his family who were conducting business on the subject land.

15. Subsequently, the land was subdivided, a new description of the land was given, it was forfeited from the Plaintiff and then given to the First Defendant.

16. I am satisfied that the Plaintiff has standing in this case having been a registered proprietor and having attempted to evict the late Mr. John Kamana and his family who have now taken residence and interest over the subject property.

(b)Does the Plaintiff have an arguable case?

17. The Plaintiff submits that the information that the subject land was subdivided, given a new description and forfeited from the Plaintiff and given to the First Defendant was only made known in the National Court proceedings OS 23 of 2016 when the Secretary for the Department of Lands filed an Affidavit stating that the title to the subject property was granted to the First Defendant. The Plaintiff only became aware in December 2019 of these information amongst others and resorted to withdraw OS 23 of 2016 and file this application for leave for judicial review.

18. I am satisfied that the Plaintiff has an arguable case before the Court as it appears that he has been pursuing his legal right in Court when he became aware of the change of title to the First Defendant.

(c)Has the Plaintiff exhausted all administrative processes before coming to this Court?

19. The Plaintiff states that there are no further administrative processes to challenge the decisions complained of within this matter. Perhaps this is as to the fact of time. The State submits that the Plaintiff could have appealed the decision of the Land Board granting the land to the First Defendant however the Plaintiff states that it was never aware that the subject matter was before Land Board at the material time. Time had therefore passed making all other administrative avenues closed to the Plaintiff.

(d)Is there undue delay in bringing the application before the Court?

20. Of significance to this case is the question of undue delay. Order 16 Rule Rule 4 of the National Court Rules states that:

(1) Subject to this Rule, where in any case the Court considers that there has been undue delay in making an application for judicial review or, in a case to which sub rule (2) applies, the application for leave under Rule 3 is made after the relevant period has expired, the Court may refuse to grant

(a)Leave for the making of the application; or

(b)Any relief sought on the application

If in the opinion of the Court, the granting of the relief sought would be likely to cause substantial hardship to, or substantially prejudice the rights of, any person or would be detrimental to good administration.

(2) In the case of an application for an order for certiorari to remove any judgement, order, conviction or other proceedings for the purpose of quashing it, the relevant period for the purpose of sub rule (1) is four months after the date of the proceeding.

21. The Plaintiff states from its submissions and in which I take is that the delay in this leave application starts from the time the new State Lease was granted to the First Defendant on 12^th December 2017. The Plaintiff only became aware of the decision in December of 2019 through an Affidavit by the Secretary for Department of Lands & Physical Planning in proceedings OS 23 of 2016.

22. The Plaintiff however did not take any steps for the filing of these proceedings until 9^th August 2021 and blames the recent pandemic and lockdowns for the restrictions and closure of the Registry.

23. I am not satisfied that the pandemic is a good enough reason. Though lockdowns happened in 2020, the Registry enabled filing of proceedings through the IECMS online system, and the Plaintiff did have the opportunity to file online rather than at the Registry which went into a period of partial closure.

24. There are several cases of delay in leave applications for judicial review. The State opposed the application for leave and relies on the case of Kasper v Kiap that a Court should refuse leave if there is undue delay and that an applicant who makes an application for leave late should provide reasonable explanation for the delay.

25. The State also relies on the case of State v Toka Enterprise where the delay in that case was 13 years and where the Court stated that:

“Courts should be on guard to detect long delayed cases that parties rush before the Court to obtain rush judgements that do not properly deal with the substantive issues in the case and as a result of which substantial injustice may occur.”

26. In the case of Alai v Waina [2012] PGNC 98, the Court refused to grant an application for leave to review a decision of the District Land Court made in 1995 in 2012 citing reasons of undue delay.

27. In the case of Pipoi v Seravo, National Minister for Lands [2008] PGSC 7; SC909, the Court stated that:

“In our view, the fact that the Appellants and their lawyers were pursuing their claim or interest at the wrong forum is not a reasonable explanation, because the provisions of the National Land Registration Act are clear and unambiguous. The Appellants and their advisers were not following proper legal procedures which led to the delay of 11 years. We are of the view that had the Appellant filed his application for leave within the time limit provided in the National Court Rules, and the Court had delayed hearing or making its decision which had taken 11 years, it would be reasonable to say that they had been pursuing their interest in Court. However, that is not the case in this appeal. They were pursuing their interest in the wrong forum.”

28. The Plaintiff in this matter has pursued its interest in various District Court proceedings for eviction and through the National Court in OS 23 of 2016. The Plaintiff has therefore been pursuing its legal right in various Court’s until being informed in OS 23 of 2016 through the affidavit of the Secretary for Lands and Physical Planning in December of 2019 that the subject land was granted to the First Defendant. Upon this new information, the Plaintiff abandoned OS 23 of 2016 and filed these proceedings.

29. The State submitted that a grant of leave to allow these proceedings to continue for judicial review would be greatly prejudicial to the First Defendant as they have made improvements to the subject land.

30. Delay and prejudice appear to be the high considerations in this matter as well as whether the Plaintiff has an arguable case. Rather than shutting out the door to the Plaintiff who has been in Court pursuing his interest in the subject land and given the overall consideration of this matter and in the interest of justice, I will grant leave to the Plaintiff to proceed with judicial review in this matter.

31. The Orders of the Court are as follows:

(1) Leave is granted to the Plaintiff to proceed with judicial review of this matter.
(2) Matter shall return for direction hearing to proceed matter to a substantive hearing.
(3) Time is abridged to the date of these orders to take effect forthwith.

Orders accordingly.
________________________________________________________________
Jefferson Lawyers: Lawyer for the Plaintiff
Solicitor General’s Office: Lawyer for the Defendants