Jaya & Berjaya Ltd v Rosso [2022] PGNC 481; N10006 (7 November 2022)

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AND
HONOURABLE JOHN ROSSO, MINISTER FOR LANDS AND PHYSICAL PLANNING
First Defendant

AND
ALA ANE, ACTING REGISTRAR OF TITLES DEPARTMENT OF LANDS AND PHYSICAL PLANNING
Second Defendant

AND
BENJAMIN SAMSON, SECRETARY DEPARTMENT OF LANDS AND PHYSICAL PLANNING
Third Defendant

JUDICIAL REVIEW – in the nature of certiorari to review the Ministerial decision in granting an Urban Development Lease- alleged breaches of sections 68, 69 and 73 of the Land Act by failing to take into account relevant considerations - prior State lease – prior Court order against dealing on the same State land.

Paga No. 36 Limited v National Broadcasting Commission and Others (2018) SC1671
Awaincorp Limited v The Honourable Jim Kas MP (2013) N5862
Mudge v Secretary for Lands [1985] PNGLR 387
Niugini Properties Ltd v Jeffery Londari (2014) N5727
Rose Kekedo v Burns Philip (PNG) Ltd
John Mua Nilkare v Ombudsman Commission (1996) SC498
Gwasamum v Commissioner of Police [2010] N3902
State v A’aron [2003] N2432
Kavali v Hoihoi [1984] PNGLR 182
Gawi v Public Service Commission [2014] N5473
Innovest Ltd v Pruaitch [2014] N5949

2. On the 22 February 2022 the plaintiffs’ initiated these proceedings by Originating Summons and filed Notice of Motion for Judicial Review pursuant to Order 16 Rule 5 of the National Court Rules seeking principally an order in the nature of certiorari to quash the aforementioned decision by the second defendant.

3. The plaintiffs filed the pertinent originating summons and the Statement pursuant to Order 16 Rule 3 (2) (a) of the National Court Rules on the 9 February 2022, The latter document enumerated the activities undertaken and various approval on the part of the plaintiffs prior to the surrender of the MTL UDL and the issue of the Completion Certificate.

4. The Statement is supported and verified by two (2) affidavits of David Ling sworn 8 February 2022 and 16 of February 2022 respectively relating to facts, matters and circumstances referred to in the Statement.

5. The requirement for filing a Review Book was dispensed with by Court Order of 29 August 2022.

6. The second plaintiff was granted an Urban Development Lease (hereinafter the “MTL UDL”) over Allotment 8 Section 135 Hohola, National Capital District described as State Lease Volume 32 Folio 20 on the 3 April 2008.

7. The MTL UDL was surrendered by the second plaintiff after the issue of a UDL Completion Certificate by the Chief Physical Planner on 20 July 2012 followed by the Partial/Whole Surrender of MTL UDL in accordance with Section 110 of the Land Act.

8. The said land was resurveyed and further subdivided into 199 blocks by Registered Survey Plan Cat No. 49/3730 approved by the Surveyor General on 16 September 2017 and approved by the NCD Physical Planning Board on 23 October 2017.
9. On 10 April 2018 Minister for Lands and Physical Planning, Justin TKatchenko approved the subdivision pursuant to power given him under section 130 for purposes or use for residence under Section 92 of the Lands Act.

11. The plaintiffs became aware of the fifth defendant’s UDL Bandi 2 on or about 18 January 2022 after being provided with letters from the fifth defendant’s lawyers attaching a copy of the said UDL Bandi 2, issued by the first defendant to the fifth defendant on 15 December 2021 over Allotment 8 Section 135 Hohola, NCD described as Volume 28 Folio 190 and delineated on Registered Survey Plan Catalogue No. 49/2423, bearing the same land description as the land referred to in the surrendered MTL UDL save for volume and folio.

12. In the Statement filed pursuant to Order 16 Rule 3 (2) (a) of the National Court Rules the plaintiff sets out the relief sought and grounds for judicial review and are briefly summarized as two-fold:

Submissions
13. Mr. Shepherd made submission for the plaintiff from the outset based on the well settled legal principle of indefeasibility of title in which a registered proprietor of an estate holds such title absolutely free from all encumbrances except in the case enumerated in Section 33 of the Land Registration Act, (LRA).

14. Counsel contends that two exceptions that are applicable in present case are fraud under Section 33(1) (a) or (c) of the LRA. The latter is where a person is claiming the same land that is under a prior instrument of title.

15. Counsel refers me to Paga No. 36 Limited v National Broadcasting Commission and Others (2018) SC1671 wherein the Supreme Court noted with respect to the onus of proof in matters involving allegations of fraud under s.33(1) of the LRA that:

“the onus of establishing such fraud, or that any of the exceptions in s33(1) of the LRA apply, lies with the party challenging the title. We respectfully adopt the approach of Cannings J in Awaincorp Limited v The Honourable Jim Kas MP (2013) N5862 where His Honour rejected the argument that the plaintiff bears the onus of proof in demonstrating that it has good title. His Honour explained:

6. ...The fact that the leases have been granted to and registered in the name of the plaintiff gives rise to the presumption that it has good and indefeasible title subject only to the exceptions prescribed by Section 33 (1) of the Land Registration Act (Mudge v Secretary for Lands [1985] PNGLR 387). The onus of proving a case of fraud or that any of the other exceptions in Section 33(1) applies rests with the person who challenges the title of the registered proprietor, (Niugini Properties Ltd v Jeffery Londari (2014) N5727). In this case it is the defendants who bear the onus of proving that the plaintiff’s title is defective”.

16. It is not up to the plaintiffs to prove it has good title but rather the onus is on the defendants to prove actual fraud on the civil standard of proof that is, proof on the balance of probabilities. He submits that there is no allegation of fraud against the plaintiffs and no evidence to support any finding that the plaintiffs’ indefeasible title was affected by fraud or that its title was, for some reason, invalid.

17. Premised on the above, Counsel submits that that the Court does not need to look any further than section 33(1)(c) of the Land Registration Act to quash the fifth defendant’s title.

18. Mr. Shepherd also submits that there are other reasons why the title should be quashed including no evidence that the land was ever exempted from advertisement and accordingly the non-advertisement of the tender notice was in breach of Sections 68 and 73 of the Land Act. The flagrant breaches of the Land Act are serious enough to set aside the fifth defendant’s title despite there being no evidence of actual fraud.

19. He further submits that as the development of the Land had been completed, the land description referred to as MTL UDL as Allotment 8 Section 135 Hohola, no longer exists but had been subdivided and two registered survey plans in place of the survey plan referred to in the MTL UDL.

20. In the end the plaintiffs are the registered proprietors of the Land which comprises 199 separate State Leases Mr. Shepherd submits, and that this application for Judicial Review must be granted, and orders made in terms of paragraphs 2, 3, 4 and 5 of the Notice of Motion.

21. The National Court derives its jurisdiction to hear applications for judicial review from Sections 155 (3) and (4) of the Constitution. The judicial review process is regulated by Order 16 Rule 3 of the National Court Rules.

22. The procedure for judicial review is concerned with review by the National Court of decisions that are administrative or quasi-judicial in character. The power vested in the National Court and is discretionary. It is available to correct errors in the decision-making process. See Rose Kekedo v Burns Philip (PNG) Ltd [1988-89] PNGLR 122.

23. Courts in this jurisdiction have settled on the underlying principles to be utilized when considering whether to grant judicial review over an administrative decision. For example, in John Mua Nilkare v Ombudsman Commission (1996) SC498 the Supreme Court held that established grounds upon which administrative decisions can be made are:

(d) where administrative power is exercised in an unreasonable manner-the Wednesbury principle.

24. In considering the decision on the subject of the review application, the Court may have regard to any of the following:

25. The grounds for judicial review are contained in pages 5,6 and 7 of the Statement and categorized into two (2) viz:

(a) the second defendant breached Sections 68, 69 and 73 of the Land Act by failing to consider relevant considerations including, in particular,

(i) the fact that the plaintiffs had been granted prior title over the same property being Allotment 8 Section 135, Hohola in 2008.

(ii) This title was subsequently surrendered in 2013 in exchange for 199 separate State Leases registered in the names of both plaintiffs.

(iii) The plaintiffs have always had the protection of Section 33 of the Land Registration Act; and

(b) there was bias or reasonable apprehension of bias for failing to comply with the rules of natural justice. In particular, not giving any consideration to the development which has already occurred on the land.
26. The plaintiffs rely on the two (2) affidavits of David Ling sworn on the 8 February 2022 and 16 February 2022 respectively. In the first affidavit Mr. Ling deposes that he was aware of dealings and certain steps undertaken to have Allotment 8 Section 135 Hohola issued as UDL MTL in 2008 and the subsequent developments in particular leading to the land being sub-divided into 199 separate allotments. He also deposed of his knowledge of the fifth defendant holding an UDL over the same allotment in 2000.

27. Mr. Ling did not depose to his involvement in the issue of the UDL MTL and the subdivision but of being made aware of what was being undertaken. Also he did not depose to facts or his belief that the first defendant took into account irrelevant consideration in granting the UDL Bandi 2 to the fifth defendant.

28. Mr. Ling also deposed in the first affidavit that he was shown a copy of the Statement marked as “S” at time of swearing of the said affidavit and that he said he verified the facts therein.

29. In the second affidavit Mr. Ling deposed that the fifth defendant was first granted an UDL over Allotment 8 Section 135, Hohola, National Capital District on the 9 August 2000 for the usual term of five (5) years (“the UDL Bandi 1”).

(iii) Order dated 26 April 2007 in proceeding OS No.784 2006 between Bandi Corporation Ltd v Secretary for Lands and State, wherein the National Court:

(A) declared Bandi Corporation Ltd the lawful leaseholder of the property described as Section 135, Allotment 8, Hohola (Waigani) NCD; and

(B) restrained the Secretary for Lands and the State from dealing with the title to the said property, including granting of lease title over the said property to any persons or parties.

31. The plaintiff alleges in the first Ground in the Statement, that the decision of the Minister for Lands and Physical Planning to grant of UDL Bandi 2 to the fifth defendant breaches Section 68 (advertisement of land for leasing), Section 69 (exemption from advertisement) and Section 73 (dealing with tenders) of the Land Act.

32. The plaintiffs had not adduced any evidence to prove the alleged breaches. In submission they assert that that there is no evidence and no explanation given by the first defendants as to why or how they permitted an application by the fifth defendant to proceed before the Land Board (if it did go before a Land Board at all) when even a cursory review or search of the third defendant’s records would have revealed that the plaintiffs had held title over the same property since 2008, almost 13 years prior to the “application” by the fifth defendant.

33. This assertion is merely speculative and runs counter to the established principle of our adversary system. It is not for the first defendant to explain why or how he permitted an application by the fifth defendant to be dealt with and approved, in contravention of the provisions of the Lands Act alluded to in the above Ground. The onus to prove the allegation or assertion vests with the plaintiff on the balance of probability.

34. The evidence as captured in the Table below indicates who the prior holder in title to Allotment 8 Section 115, Hohola, NCD, the dealings and the Court orders. For example, it shows when UDL MTL expired in 2013 leading to partial surrender in 2013 and that on the 10 April 2018 approval for subdivision in accordance with Section 130 of the Lands Act was granted by Minister TKatchenko for Residences.

Plaintiffs			Fifth Defendant
Lease/ Interest	Approved	Expiry	Lease/interest	Approved/Ordered	Expiry
UDLMTL	2008	2013	UDL Bandi 1	2000	2005
Subdivision	2018	current	Court Order	2007	current
			UDL Bandi 2	2021	2026

35. The table also shows that the National Court had made the orders on the 26 April 2007 in proceeding OS No.784 2006 between Bandi Corporation Ltd v Secretary for Lands and State which orders remain binding on the State. It would follow that any dealing with the said land described as Section 135, Allotment 8, Hohola (Waigani) NCD with any persons apart from the fifth plaintiff would be in contempt with the order, and on the face of it null and void.

36. As a court of record, I take judicial notice of and bound by the 2007 order of this Court in proceeding OS No.784 2006 between Bandi Corporation Ltd v Secretary for Lands and State, unless on proper legal basis it is proven that the order has been discharged or dismissed.

37. On the submission that I need not look any further than section 33(1)(c) of the Land Registration Act to quash the fifth defendant’s title, it is my view that a proper case must be made out taking into consideration the competing positions of the plaintiffs and the fifth defendant.
38. The second Ground is based on allegation of bias or reasonable apprehension of bias for failing to comply with the rules of natural justice. In particular, for not giving any consideration to the developments which had already occurred on the land.

39. Real or actual bias must be proved with evidence to prove that the first defendant was prejudiced in favour of granting UDL Bandi 2 to the fifth defendant. A finding of bias conclusively invalidates the decision. For example, see Gwasamum v Commissioner of Police [2010] N3902; State v A’aron [2003] N2432.

40. The principle is summarized in Kavali v Hoihoi [1984] PNGLR182 as: “Natural justice is an important part of the underlying law of Papua New guinea and the courts have a special duty by s.60 of the Constitution. By s.59 (2) of the Constitution “the minimum requirement of natural justice is the duty to act fairly and, in principle, to be seen to act fairly”

41. In relation apprehension of bias there is plethora of case law, however I quote from Cannings J in Gawi v Public Service Commission [2014] N5473 wherein His honour said, “ To establish bias as a ground of judicial review it must be proven that the decision maker was actually biased or that a reasonable apprehension of bias would arise in the mind of a reasonable person with knowledge of the relevant facts and circumstances.”
42. The assertion that the first defendant gave no consideration to the development is just that, as it is not supported by evidence.

43. The heart of this judicial review is a claim of competing rights between the plaintiffs and the fifth defendant which are both being affected by the decision of the first defendant.

44. I will not consider the other usual grounds as these are not pleaded in the Statement by the plaintiff. These include want or excess of jurisdiction, error of law on the face of the record and the unreasonableness of the exercise of administrative power, the Wednesbury Principle.

45. The State is named as the fourth defendant and in my view the test expressed by His Honour Gavara-Nanu J in Innovest Ltd v Pruaitch [2014] N5949 although it relates to application for leave stage, the views are relevant in the review stage and that is:

“ The Court should consider whether the State is likely to suffer prejudice if the application is heard in its absence. Second, the Court should consider whether the case is of such public interest that the State should be heard. If the State is likely to be prejudiced and or the case is of sufficient public interest, then the Court should adjourn the application to a date when the State can make an appearance and be heard...”

46. The State and the the first, second and third defendants filed their Notice of Intention to Defend on the 17 February 2022.

47. This judicial review hearing has proceeded ex-parte when the State is a fourth defendant in the proceeding and is entitled to be heard especially when the decision giving rise to the review relates to interest in the prime land area, which I think is of sufficient public interest.

48. The service on the State is of concern. Order 16 Rule 12 of the National Court Rules stipulates that service on the Secretary for Justice may be made by leaving the document at his office in the Department of Justice with the person apparently occupying the position of personal secretary to that Secretary. The wording is specific. Whereas the affidavit of service filed on the 12 February 2022 deposes to service done on the Solicitor General. In my view the service is defective.

49. The Court will need to be properly appraised of the rationale of the different description of the volume and folio over the same Allotment 8 Section 115, Hohola, NCD.

50. In the end I consider that there are issues that must be resolved in a proper hearing. Hence in the exercise of the Court inherent power pursuant to Section 155 (4) and my judicial power given by Section 158 (2) of the Constitution I will accordingly order:

1. I refuse to grant the orders sought in the Statement in particular to quash the decision of the first defendant made on the 15 December 2021.

2. I order that this proceeding to continue as if commenced by writ and the plaintiff shall plead the cause of action in a Statement of Claim

Ordered Accordingly
__________________________________________________________________
Ashurst PNG: Lawyers for the Plaintiff

National Court of Papua New Guinea

Jaya & Berjaya Ltd v Rosso [2022] PGNC 481; N10006 (7 November 2022)