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Mambi v Ane [2022] PGNC 538; N10047 (25 November 2022)

N10047

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS (HR) NO 19 OF 2020

CHRISTINA MAMBI, ON HER OWN BEHALF AND AS CUSTOMARY REPRESENTATIVE OF THE ESTATE OF LATE JACOB MAMBI
Plaintiff

V

ALA ANE, REGISTRAR OF TITLES
First Defendant

BENJAMIN SAMSON, SECRETARY,
DEPARTMENT OF LANDS & PHYSICAL PLANNING
Second Defendant

HON JUSTIN TKATCHENKO MP,
MINISTER FOR LANDS & PHYSICAL PLANNING
Third Defendant

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Fourth Defendant

DOMINIC YOSI, MANAGER,
NATIONAL BROADCASTING CORPORATION, MENDI
Fifth Defendant

KORA NOU, MANAGING DIRECTOR,
NATIONAL BROADCASTING CORPORATION
Sixth Defendant

Waigani: Cannings J
2022: 29^th August, 8^th September, 10^th October,
14^th, 25^th November

PRACTICE AND PROCEDURE – whether proceedings for enforcement of statutory obligations, commenced as a human rights proceeding, must be commenced under Order 16, National Court Rules – Claims By and Against the State Act, s 5 – whether a proceeding ought to be dismissed for alleged failure to comply with notice requirements of s 5, without evidence of non-compliance – effect of failure of the State and other governmental defendants to file a defence.

LAND – State Leases – government land within urban area – residential property – application for State Lease – recommendation of Land Board – advertisement of successful applicant – whether obligation to give notice to successful applicants – Land Act, ss 74, 75 – effect of status of property as institutional or reserved property.

REMEDIES – whether delay in commencement of proceedings for enforcement of human rights warrants refusal of relief.

The plaintiff is in dispute with the fifth and sixth defendants (provincial manager and Managing Director of the National Broadcasting Corporation (NBC)) over her continuing occupation of a residential property that has for a long period been regarded as an institutional or reserved house for senior officers of the NBC. The plaintiff’s husband was a senior officer of NBC and by virtue of that position, he and the plaintiff moved into the property in the early 2000s. In 2007 they applied for a State Lease over it. In 2014, while he was still a senior NBC officer, the plaintiff’s husband died. In 2015 the Land Board deliberated on the application for a State Lease and recommended to the Minister for Lands that it be granted to the plaintiff and her late husband. That recommendation has, despite attempts by the plaintiff to enforce it, not been implemented. The NBC, through the fifth defendant (the provincial manager) and sixth defendant (Managing Director of NBC), has maintained that the property is subject to a certificate authorising its occupancy and remains reserved for the NBC. It has commenced proceedings in the District Court to assert its interest in the property. Those proceedings have been stayed pending determination of these proceedings, being prosecuted as an application for enforcement of human rights against six defendants (including the State, as fourth defendant), which the plaintiff commenced in 2020. The plaintiff seeks orders compelling the Registrar of Titles, the Secretary for Lands and the Minister for Lands (first, second and third defendants) to perform their duties under the Land Act, which would result, she claims, in registration of a State Lease over the property in her name. She also seeks damages for breaches of human rights. The first to fourth defendants filed a notice of intention to defend but did not file a defence. The sixth defendant filed both a notice of intention to defend and a defence, but did not appear at the trial. Instead, a lawyer from the office of Solicitor-General appeared, representing the first to fourth defendants and without objection tendered an affidavit by the sixth defendant, which was admitted into evidence. The lawyer made submissions in defence of the first to fourth defendants, including preliminary points that the entire proceedings be dismissed on various grounds: abuse of process due to the failure to invoke the procedures of Order 16 (judicial review) of the National Court Rules; failure to give notice in accordance with s 5 of the Claims By and Against the State Act; failure to plead that notice had been given in accordance with that provision; and lack of standing.

Held:

(1) The preliminary points were rejected as the proceedings were validly commenced as an enforcement of human rights, there was no evidence of a failure to comply with s 5 of the Claims By and Against the State Act, it was not a requirement of the National Court Rules that compliance with s 5 be pleaded in the statement of claim and the plaintiff clearly had standing. Further, none of the preliminary points raised jurisdictional issues. It was the first to fourth defendants who were themselves guilty of abuse of process. They filed neither a defence nor a notice of motion seeking dismissal of the proceedings but were permitted to take part in the trial and then made an oral application for dismissal of the proceedings without notice to the plaintiff.

(2) The plaintiff and her husband were the successful applicants for a State Lease over the disputed property. Gazettal of the Land Board’s recommendation in their favour gave rise to an obligation on the part of the Secretary for Lands under s75 of the Land Act to forward to them a letter of grant, which would trigger a statutory process that would, provided conditions set under s 75 were complied with, entitle them to a State Lease over the disputed property.

(3) The purported certificate authorising occupancy of the disputed property by the NBC or categorisation of it as a reserved or institutional property had no effect on the statutory obligations and rights arising under the Land Act. In any event, there was no evidence of such a certificate.

(4) The plaintiff proved a breach of human rights in that she was denied the right to the full protection of the law under s 37 of the Constitution due to the failure on the part of the Secretary for Lands to comply with s 75 of the Land Act.

(5) The considerable delay in commencing the proceedings (2015 to 2020) was explicable in terms of the plaintiff’s attempts to obtain the State Lease before commencing proceedings and was not a good reason in the peculiar circumstances of this case to refuse the primary relief sought by the plaintiff, viz that the statutory process under the Land Act be enforced.

(6) The claim for damages was poorly articulated and was refused.

(7) Ordered: that the Secretary for Lands forward a letter of grant to the plaintiff and that all other processes under the Land Act be followed so that the plaintiff be given a full opportunity to be granted a State Lease over the disputed property.

Cases Cited

The following cases are cited in the judgment:

Atlas Corporation Ltd v Ngangan (2020) SC1995
JNS Ltd v Lae Builders & Contractors Ltd, OS No 846 of 2010, 12.01.11, Ellis J, unreported
Lahari v Koloma (2019) SC1794
Purane v Kaga (2019) SC1796
Telikom PNG Ltd v ICCC (2008) SC906

Counsel

J Gubon, for the Plaintiff
V Balio, for the First, Second, Third & Fourth Defendants

25^th November, 2022

1. CANNINGS J: The plaintiff, Christina Mambi, is in dispute with the fifth and sixth defendants (provincial manager and Managing Director of the National Broadcasting Corporation (NBC)) over her continuing occupation of a residential property in Mendi, Southern Highlands Province, described as Section 29 Lot 4.

2. The property was for a long time regarded as an institutional or reserved house for senior officers of the NBC. The plaintiff’s husband, Jacob Mambi, was a senior officer of NBC and by virtue of that position, he and the plaintiff moved into the property in the early 2000s. In 2007 they applied for a State Lease over it. In 2014, while he was still a senior NBC officer, the plaintiff’s husband died.

3. In 2015 the Land Board deliberated on the application for a State Lease and recommended to the Minister for Lands that it be granted to the plaintiff and her late husband. That recommendation has, despite attempts by the plaintiff to enforce it, not been implemented.

4. The NBC, through the fifth defendant (the provincial manager) and sixth defendant (Managing Director of NBC), has maintained that the property is subject to a certificate authorising its occupancy and remains reserved for the NBC. It has commenced proceedings in the District Court to assert its interest in the property.

5. These proceedings are being prosecuted as an application for enforcement of human rights against six defendants (including the State, as fourth defendant).

6. The plaintiff seeks orders compelling the Registrar of Titles, the Secretary for Lands and the Minister for Lands (first, second and third defendants) to perform their duties under the Land Act, which would result, she claims, in registration of a State Lease over the property in her name. She also seeks damages for breaches of human rights.

7. The first to fourth defendants filed a notice of intention to defend but did not file a defence. The sixth defendant was the only defendant to file a defence. However, the sixth defendant did not appear at the trial. Instead, a lawyer from the office of Solicitor-General, Ms Balio, appeared, representing the first to fourth defendants. Ms Balio, without objection, tendered an affidavit by the sixth defendant, which was admitted into evidence. She also made submissions in defence of the first to fourth defendants, including the preliminary points that the entire proceedings be dismissed on various grounds:

(i) abuse of process due to the failure to invoke the procedures of Order 16 (judicial review) of the National Court Rules;
(ii) failure to give notice in accordance with s 5 of the Claims By and Against the State Act of the intention to make a claim against the State;
(iii) failure to plead that notice had been given in accordance with that provision; and
(iv) lack of standing.

PRELIMINARY POINTS

8. I reject the preliminary points and refuse to summarily dismiss the proceedings for these reasons:

(i) The proceedings have been validly commenced as an enforcement of human rights.

9. Though the proceedings could be characterised as a challenge to decisions or lack of decisions of governmental bodies or decision makers, in which orders are sought in the nature of mandamus (compelling governmental decision makers to perform duties according to law), thus making it appropriate to apply for such relief under Order 16 (applications for judicial review) of the National Court Rules, I find that that was not an exclusive mode of commencement. The relief sought by the plaintiff is pleaded in paragraph 18 of the statement of claim:

(a) An order compelling the first and second defendants to issue letter of grant and the lease acceptance form and have it executed and registered forthwith by the third defendant.
(b) Upon execution, the first defendant register and issue the original owner’s copy of title to the plaintiff within 30 days from the date of this order.
(c) General damages for breach of constitutional rights.

10. Describing the relief sought in those terms makes this case sufficiently removed from the scenario described in Order 16 rule 1 (“an application for an order in the nature of mandamus, prohibition, certiorari or quo warranto”) of the National Court Rules, to give to the plaintiff a choice of mode of commencement (Telikom PNG Ltd v ICCC (2008) SC906). She elected to commence proceedings under Order 23 (human rights) of the National Court Rules. I see no prejudice to the defendants has been suffered by her doing so.

11. The plaintiff has avoided the need to obtain leave of the Court to argue her case, which would have been necessary if she had commenced the proceedings under Order 16. But the issues that would have been raised in a leave hearing (standing, delay, status of defendants as governmental decision-makers, arguable case) will be addressed in these human rights proceedings, so there is still no prejudice to the defendants. No abuse of process is apparent.

(i) No evidence of a failure to comply with s 5 of the Claims By and Against the State Act.

12. The only evidence adduced by the first to fourth defendants has been an affidavit by the sixth defendant. It contains no evidence that the plaintiff did not give notice under s 5 of the Claims Act. There is no evidence in support of the assertion that no notice was given.

(ii) No need to plead s 5.

13. It is not a requirement of the National Court Rules that compliance with s 5 be pleaded in the statement of claim.

(iii) The plaintiff has standing.

14. She has lived in the property for 20 years. It is her home. She does not have to have title in the property, to have standing. She is the successful applicant for a State Lease over the property.

15. Finally, none of the four preliminary points raise jurisdictional issues. It was the first to fourth defendants who are themselves guilty of abuse of process as they filed neither a defence nor a notice of motion seeking dismissal of the proceedings but have been permitted to take part in the trial, then they made an oral application for dismissal of the proceedings without notice to the plaintiff. If they had raised a jurisdictional issue, it would have had to be dealt with on its merits.

16. If they had filed a defence or a notice of motion and raised these issues in a timely manner, the issues would probably deserve a more active consideration. To wait for the trial and raise them without notice to the plaintiff is improper, in my view. It is a practice that must not be condoned, especially in the case of the State, which should always act as a model litigant, as explained by Logan J in Atlas Corporation Ltd v Ngangan (2020) SC1995, at para 69:

Of all of the members of the legal profession in Papua New Guinea, the Solicitor-General and his officers, in acting for the State and its officers and agencies, have a particular duty to act as a model litigant, scrupulously complying with court directions, refraining from taking technical points which divert attention from the substantive issues in the case, putting opposing parties to proof on the existence of facts well-known to the State and, even in the absence of an opposing party, offering the Court the benefit of dispassionate assistance on issues of law and fact, including reference to authorities which may be against the State.

17. The duty of the State and its principal advocate the Solicitor-General to be a model litigant has also been the subject of comment in Lahari v Koloma (2019) SC1794 and Purane v Kaga (2019) SC1796. To uphold any of the preliminary points in the circumstances of this case would be to allow the State and the other defendants represented by the Solicitor-General to benefit from a violation of its duty as a model litigant and cause substantial prejudice to the plaintiff. For those reasons all the preliminary submissions are dismissed.

PLAINTIFF’S PRINCIPAL CONTENTION

18, Mr Gubon emphasised that the plaintiff’s principal contention was that there were obligations under the Land Act that had been breached, which resulted in her being denied the right to become the registered proprietor of a State Lease over the property. This contention is based on ss 74 to 76 of the Land Act, which provide:

74. Publication of names of successful applicants, etc., in the National Gazette.

The Departmental Head shall publish in the National Gazette—

(a) the name of the successful applicant for each State Lease, together with particulars of the lands to be leased to him; and

(b) in respect of that State Lease and those lands—

(i) the name of the applicant considered the second-choice successful applicant; and

(ii) the name of the applicant considered the third-choice successful applicant,

to whom a Letter of Grant may be forwarded on accordance with Sections 75 and 79.

75. Notice to successful applicants.

As soon as practicable after the publication of the notice under Section 74, the Departmental Head shall forward a Letter of Grant to each successful applicant (as specified in Section 74(a)) notifying him of—

(a) the date of the publication of the notice in the National Gazette; and

(b) the terms and conditions of the proposed lease; and

(c) details of all fees due, outstanding tender moneys and any other amounts payable in respect of the proposed lease; and

(d) the need to sign and return an accompanying Lease Acceptance Form to reach the Departmental Head within 28 days of the publication of the notice in the National Gazette, or such later date as is stated in the Letter of Grant, in order to accept the grant of the lease.

76. Acceptance of terms and conditions of proposed leases and execution of State Leases.
    

(1) The Minister, on behalf of the Independent State of Papua New Guinea, shall execute three copies of a State lease and forward the original and a duplicate to the Registrar of Titles for registration.

(2) A successful applicant, who forwards a duly signed Lease Acceptance Form to the Departmental Head in accordance with Section 75, thereby accepts the terms and conditions of the proposed lease as set out in the Letter of Grant and shall be deemed to have executed the lease on the date on which the Minister executes the lease.

19. In National Gazette No G393 of 16 June 2015, the Secretary for Lands and Physical Planning (the second defendant) published in a notice under s 74 of the Land Act the names of Christina and Jacob Mambi, as joint tenants, as the successful applicants for a Residence (Low Covenant) Lease over Section 29 Lot 4 Mendi, pursuant to Land Board meeting No 1 of 2015. The obligation to publish such a notice arose under s 74, and was discharged.

20. I uphold the plaintiff’s argument that publication of that notice gave rise to an obligation on the part of the Departmental Head under s 75 of the Land Act to forward to the plaintiff and her husband, a letter of grant, notifying the plaintiff of the matters set out in ss 75(a) to (d). There is sufficient evidence that that obligation was not discharged.

21. The failure to discharge that obligation meant that the plaintiff was denied the opportunity to sign and return a lease acceptance form under s 75(d). She was thereby denied the opportunity, and the right, upon acceptance of the terms and conditions of the proposed lease to become, in accordance with s 76, the registered proprietor of the State Lease over the property.

22. I find that the existence of a certificate authorising occupancy of the disputed property by the NBC or categorisation of it as a reserved or institutional property would have no effect on the statutory obligations and rights arising under the Land Act. Such certificates have no statutory basis and create no legal or equitable interest in land (JNS Ltd v Lae Builders & Contractors Ltd, OS No 846 of 2010, 12.01.11, Ellis J, unreported). In any event, there is no evidence of the existence of such a certificate.

23. I uphold the plaintiff’s principal contention that the breach by the second defendant of the obligation to forward a letter of grant has resulted in the plaintiff being denied the opportunity to become the registered proprietor.

BREACH OF HUMAN RIGHTS

24. I find that the plaintiff has proven a breach of human rights in that she was denied the right to the full protection of the law under s 37 of the Constitution by the second defendant’s failure to discharge the obligation in s 75 of the Land Act. A breach of s 37 is adequately pleaded as a cause of action in the statement of claim.

25. Breaches of human rights under other constitutional provisions have also been pleaded: ss 37, 41 and 55. I am not persuaded that any of the rights in those provisions have been breached.

REMEDIES

26. The plaintiff seeks damages. However, this part of the statement of claim is poorly articulated. I am not persuaded that this is an appropriate case for an award of damages. The plaintiff wants title. That is the primary relief sought. I have no difficulty, in principle, in making orders that would give her the opportunity to get title. However, I pause and address the issue of delay. There has been a considerable delay, in the period from 2015 to 2020, in commencing these proceedings. Is this a good reason to refuse the plaintiff the primary relief she seeks?

27. I consider that no, the delay, though apparently inordinate, is explicable in terms of the plaintiff’s concerted attempts to obtain the State Lease before commencing proceedings. It is not a good reason in the peculiar circumstances of this case, to refuse the primary relief sought by the plaintiff, viz that the statutory process under the Land Act be enforced. Costs will follow the event.

ORDER

(1) The second defendant shall within 28 days after the date of this order forward, pursuant to s 75 of the Land Act and in accordance with the notice under s 74 of the Land Act published in National Gazette No G393 of 2015 of 16 June 2015, a letter of grant to the plaintiff and Jacob Mambi (deceased) regarding Section 29 Lot 4 Mendi and state that the plaintiff has 28 days after the date of service of the letter of grant to sign and return a lease acceptance form.

(2) If the plaintiff accepts the grant of lease and complies with the conditions of the grant, the third defendant shall pursuant to s 76 of the Land Act execute three copies of a State Lease regarding Section 29 Lot 4 Mendi and comply with all other requirements of the Land Act, and the second defendant shall within 28 days after being forwarded the State Lease regarding Section 29 Lot 4 Mendi, register the State Lease in favour of the plaintiff and Jacob Mambi (deceased) and comply with all other requirements of the Land Registration Act.

(3) The defendants and all other persons are permanently restrained from removing or evicting the plaintiff and all other persons authorised by the plaintiff to be in occupation of Section 29 Lot 4 Mendi, unless and until there is an order from the National Court or the Supreme Court specifically authorising such removal or eviction.

(4) All District Court proceedings regarding Section 29 Lot 4 Mendi are permanently stayed unless and until there is an order from the National Court or the Supreme Court specifically authorising continuation of such proceedings.

(5) The claim for damages is refused.

(6) The defendants shall pay the plaintiff’s costs of the proceedings on a party-party basis, which shall, if not agreed, be taxed.

__________________________________________________________________
Leo Lawyers: Lawyers for the Plaintiff
Solicitor-General: Lawyers for the First, Second, Third & Fourth Defendants