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Dick v Investpac Ltd [2023] PGNC 24; N10135 (13 February 2023)

N10135

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]
OS (JR) NO. 75 OF 2020

BOKE DICK
Plaintiff

V
INVESTPAC LIMITED
First Defendant

AND
HON. JOHN ROSSO, MINISTER FOR LANDS & PHYSICAL PLANNING
Second Defendant

AND
SAMSON BENJAMIN SECRETARY FOR LANDS & PHYSICAL PLANNING
Third Defendant

AND
INDEPENDENT STATE OF PAPUA NEW GUINEA
Fourth Defendant

Waigani: Miviri J
2023: 10^th & 13^th February

PRACTICE & PROCEDURE – Notice of Motion for Judicial Review – Decision of Land Board – Award Land Plaintiff – Appeal first Defendant – Overturned Decision Award First Defendant – Biased – Unfair – Unreasonable – Evidence Relied Whether Sufficient – He Who Asserts Must Discharge Burden – Process Not Decision – No Error in Process – Balance Not Discharged – Judicial Review Refused – Costs follow event .

Cases Cited:

Papua New Guinean Cases
Mudge and Mudge v Secretary for Lands, The State and Delta Developments Pty Ltd [1985] PNGLR 387
Ombudsman Commission v Yama [2004] PGSC 30; SC747
Asiki v Zurenuoc, Provincial Administrator [2005] PGSC 27; SC797
Saboko v Commissioner of Police [2006] PGNC 40; N2975
Hagoria v Ombudsman Commission of Papua New Guinea [2003] PGNC 111; N2400

Overseas Cases
Associated Provincial Picture Houses Limited v Wednesbury Corporation [1948] 1KB 223.

Counsel:
M. Philip, for Plaintiff
B. Samiat, for the First Defendant

DECISION

13^th February, 2023

1. MIVIRI, J: This is the decision after trial on the substantive notice of motion of the plaintiff seeking certiorari against the decision of the second defendant awarding the subject land section 81 Allotment 1 Town of Kiunga to the First Defendant after successful appeal.
   
2. He argues on the basis of two grounds; Firstly, the second defendant/respondent’s decision to overturn the decision of the National Land Board in its meeting of Number 1 of the 2018, to grant the State Lease to the Plaintiff, and on appeal made a decision to grant the lease to the First Defendant/Respondent was biased, unfair, and unreasonable within the “Wednesbury” principles, and no person or tribunal would have made such a decision given the facts before it.
   
3. Secondly, he argues that the second defendant/respondent before exercising its powers to determine the appeal failed to consider the full submission and documentation on the land file before arriving at such a decision which was unfair, biased, and unreasonable.
   
4. The Statement in support filed 30^th November 2020, details that review is sought to overturn the decision of the Land Board made in meeting No.1 of 2018, to grant the state Lease of land described as Allotment 81 section 1 in Kiunga Town to the plaintiff/applicant. The second defendant respondent’s decision made and published on the 02^nd November 2020 in the National Gazette No. G371 advising the head of state to grant the lease to the First Defendant/ Respondent through an appeal process.
   
5. In so pursuing he relied on his own affidavit filed of the 30^th November 2020. Secondly the affidavit of Rupert Tabua filed of the 15^th February 2021. And thirdly his own affidavit yet again of the 19^th October 2022. He also seeks reliance on the two affidavits filed by the first defendant, firstly of one Alwyn Maniura one of the Directors of the first defendant filed of the 06^th September 2021. Secondly also of the same deponent Alwyn Maniura filed of the 28^th November 2022. Also included the evidence from the third respondent which also has two affidavits sworn, firstly of the 07^th September 2021, and then of the 11^th November 2021 by Benjamin Samson Secretary of the Department of Lands and Physical Planning, also the third defendant in the proceedings. His evidence is that records from the subject file maintained by his office established that the subject land was advertised through public tender as available for leasing. The plaintiff and the first defendant and other interested applicants applied for the subject parcel of land when the Department advertised it. And the land Board in considering the application in its meeting number 01/2018 recommended the land in favour of the plaintiff, Boke Dick. This is annexure “A” to his affidavit.
   
6. The First Defendant and a Michael & Jensiana Wapi (Joint-tenant applicant) were second and third choice recommended applicants. Both of whom filed administrative appeals against the recommendation of the Land Board to the Minister. Which appeals after consideration by the Minister were upheld of the First Defendant. And he was granted the subject parcel of land. That advice to the Head of State was confirmed and he was granted the State Lease pertaining. Annexure “B” to his affidavit is the subject appeal submission from former acting Secretary to the Minister containing the reasoning of the Ministers decision and annexure “C” is true copy of the decision of the Minister.
   
7. Primarily the appeal by Investpac is on the terms that Mr. Boke Dick is an illegal applicant because he did not pay the required application fee for a business commercial lease which is the subject lease. And that he is not doing business in Kiunga and therefore is not capable of being recommended as a business commercial lease and is an illegal land grabber. And as such is a killer to Investpac’s business operations in Kiunga as an SME. And that recommending it was improper and illegal because Boke Dick lodged his application when the land was not even made available through public tender. Further that recommendation of the applicant who is of high lands origin is an illegal squatter on State Land. And the Investpac as a local company has an MOU with P’nyang Engineering Services Limited to partner Development of P’nyang Gas Project.
   
8. In considering the appeal the Business Statutory Paper; LB:01/2018 (Southern Region) prepared by the Secretary of Lands for the National Executive Council subjected as Appeal Against the PNG Land Board recommendation, the purpose of the submission was made in accordance with Section 62 of the Land Act No.45 of 1996 which section is in the following terms:

“62. APPEALS.

(1) A person aggrieved by a decision of the Land Board may, not later than 28 days after notice is forwarded under Section 58(10), forward a notice of appeal to the Minister.

(2) An appeal shall be accompanied by a deposit of K500.00, which shall, subject to Subsection (3), be refunded when the appeal has been decided.

(3) If the Head of State, acting on advice, thinks that the appeal has been made on frivolous grounds, the Head of State, acting on advice, may reject the appeal and direct that the whole or any portion of the deposit shall be forfeited to the State.

(4) Subject to Subsection (5), the Head of State, acting on advice, shall determine an appeal under this section, and his decision is final.

(5) Where an appeal under this Section is upheld, the Head of State, acting on advice, may refer the matter back to the Land Board for re-hearing.”

9. Here the Head of State is empowered, acting on advice of the Minister for Lands & Physical Planning to determine all the appeals that are lodged against the recommendation of the Land Board. And he may uphold the appeal and direct the Land Board to reconsider the item or dismiss the appeal and uphold the recommendation or in certain justifiable and substantiated cases, He may decide in favour of the appellant or either one of the appellants, if there more than one appellants. He may, acting on advice determine the appeal and his decision is final. And where he upholds the appeal, he may refer the matter back to the Land Board for rehearing. Where he acting on advice thinks that the appeal is made on frivolous grounds may reject the appeal and direct forfeiture of the whole of the sum deposited of K500 or part of it. Here acting on the advice this Business Statutory Paper number LB:01/2018 (Southern Region) he has upheld the appeal. And this has been on the advice and the recommendations to the Minister that the appeal be upheld and granted in favour of the appellant Investpac Limited.
   
10. The argument of the plaintiff is that it is not the Minister who has made the decision but the Secretary of the Lands & Physical Planning. Because there is a box that has been ticked prior. Here annexure “C” to the affidavit of the Secretary for Lands Benjamin Samson attaches an appeal decision from the Office of the Minister Ministry of Lands and Physical Planning. In it is the following:
    

“I Hon. John Rosso, MP, Minister for Lands & Physical Planning, did consider the Appeal submission of the Appellant under section 62 of the Land Act 1996 pertaining to Allotment 81 Section 01 Kiunga, Western Province. After considering the Appeal, it is my decision that the appeal by the appellant be Upheld and granted in favour of Appellant Investpac Limited signed Hon John Rosso MP Minister for Lands Physical Planning dated 08^th August 2019.”

11. In my view there are two completely different procedure that has happened here, one is the advice prepared in the form of a Business Statutory Paper number LB:01/2018 (Southern Region) by the Secretary of the Department of Lands and Physical Planning on the basis of after consideration the Minister has made an independent decision confirming the appeal. And which decision has been confirmed by the Head of State stating; “I Grand Chief, Sir Bob Dadae, GCL, GCMG., K. St.J. the Governor General of Papua New Guinea, by virtue of the powers conferred by section 62 (3) (4) and (5) of the Land Act 1996 and all other powers enabling me, as Acting with, and in accordance with the advice of the Minister hereby:- Upheld the appeal and the Land be granted in favour of the Appellant Investpac Limited. Schedule, All that piece of land described as:- Allotment 81 Section 01 Kiunga, Western Province. The decision is dated Monday 19^th October 2020 signed by the Governor General.
    
12. And in annexure “D” of the Secretary is the National Gazette Number G731 Monday 2^nd November 2020 publishing that at number 20 of a list of 33 other similar matters out of which the appeal has been upheld in favour of the First Defendant Investpac Limited. And which decision is also the subject of annexure “E” by the Secretary conveying to the First Defendant that decision dated the 09^th November 2020. And followed by annexure “F” Notice under section 75 & 76 of the Land Act No 45 of 1996 signed by the Secretary of Lands & Physical Planning dated the 10^th November 2020 to Investpac Limited detailing award and the fees owing and payable including annual rental dated from the 02^nd November 2020 to 31^st December 2020. Notice also advising timeline for compliance to secure the lease. And then annexure “G” is Notice of Acceptance of Lease by a successful applicant under section 76 of the Land Act 1996. It is signed by Alwyn Maniura also affixing the common seal of that Company dated the 10^th November 2020. It evidences payment of the fees advised and the receipt number of the payment. Then annexure “H” is the State Lease issued under section 92 of the Land Act for a period of 99 years from the 02^nd November 2020 to 01^st November 2119 for Business Commercial to Investpac Limited dated of the 25^th March 2021 signed by the Minister for Lands & Physical Planning with his seal Hon John Rosso.
    
13. These evidence establish the following undisputed facts that are relevantly affirmed by the Statement of Agreed and Disputed Facts and Issues for Trial of the 13^th December 2022. Relevantly the First Defendant and the plaintiff were applicants before the land Board for grant of the State Lease over land described as Section 1 Allotment 81, Kiunga, Western Province. In its deliberations the land Board recommended grant of the State Lease over the land to the plaintiff. Which aggrieved the First Defendant who appealed the decision to the Minister for Lands and Physical Planning under section 62 of the Land Act 1996. He in turn deliberated on the appeal lodged by the First Defendant and advised the Head of State to uphold the Appeal. And this the Head of State did uphold the appeal of the First Defendant issuing him with a State Lease over the subject land on the 25^th March 2021. A true copy of the State Lease is evident as annexure “AMI” in the affidavit of Alwyn Maniura dated the 29^th November 2022 also set out in the affidavit of the Secretary of Lands and Physical Planning set out above.
    
14. In my view it is undisputed by this evidence State Lease dated the 25^th March 2021 issued in the name of Investpac Limited commercial Lease issued from 02^nd November 2020 over that piece of land section 1 Allotment 81 Kiunga Western Province. This is evidence confirming in law the position of the first defendant over the subject land. Because it has brought out a process of law under the Land Act in the various sections set out above, compliance of which has set out eventually the State Lease to the first Defendant. Because the evidence relied of the plaintiff set out above in both cases do not evidence beyond the required balance that there is biasness, unfairness, and unreasonableness. Because he agrees and states at paragraph 21 of this affidavit of the 30^th November 2020, “At the time of filing this affidavit, I do not have the information on hand as to the nature of the appeal and what were the grounds of the appeal. I cannot say whether the conditions of this appeal has been met by the First Respondent and Whether the Minister did indeed consider the appeal and make a decision. We hope the Second Defendant Respondent had read submission on file before making the decision and whether the head of State has also read the Documents on file.” This is admission that the allegation raised of being biased, unfair, and unreasonable is not supported by evidence gathered. The plaintiff is alleging and has admitted here he does not have the evidence to sustain the allegation he is making against the second defendant. He does not have the evidence to set aside the State Lease issued: Mudge and Mudge v Secretary for Lands, The State and Delta Developments Pty Ltd [1985] PNGLR 387.
    
15. In plain there is no evidence depicting that there was biasness unfairness, and unreasonableness in the way the Minister acted in the grant of the State Lease on the appeal lodged by the First Defendant by this evidence or any other evidence whether filed by the plaintiff or the defendants. The allegation is made by the plaintiff and he has not backed up with relevant evidence to seal. He carries the burden as he accuses and must prove on the balance of probabilities. And in the light of the evidence set out above biasness on the hands of the Minister has not been shown out by the plaintiff. Nor has unfairness or unreasonableness.
    
16. What is clear is that this is procedure heeded to by the evidence set out above in compliance of the Land Act 1996, in particular sections 62, 75 & 76 by the second defendant Samson Benjamin, Secretary of the Department of Lands & Physical Planning. There is no error in the procedure which would vitiate the upholding of the appeal of the State Lease granted to the First Defendant. Therefore, Judicial review is not made out in favour of the plaintiff and certiorari does not lie against the decision made. The substantive notice of motion is without the evidence and is denied. Because in Ombudsman Commission v Yama [2004] PGSC 30; SC747 (2 June 2004):
    

“The principles on the nature and scope of judicial review of administrative action of public authorities are established in many cases. Judicial review is about the process by which the decision is arrived at and not about the correctness of the decision. Judicial review is the process by which a person who is genuinely aggrieved by the decision of the public body seeks judicial relief when all other administrative and statutory avenues for appeal or review have been exhausted. Proper matters subject of judicial review are illegality, procedural impropriety and irrationality or unreasonableness. The applicant must come to the Court promptly if he or she is genuinely aggrieved.”

17. And here the plaintiff has not fulfilled to show that there has been error in upholding of the appeal of the first defendant. The compliance of the land Act in arriving at the decision to grant the State Lease to the first Defendant is not unfair, nor is it unreasonable with the definition seen in Associated Provincial Picture Houses Limited v Wednesbury Corporation [1948] 1KB 223. Nor can it be classed as so outrageous in defiance of logic, or accepted moral standard which no sensible person who had applied his mind to it and arrived at that decision. Here is a process instituted in compliance and heed of the law sections 62, 75 & 76 of the Land Act 1996, by the second defendant Samson Benjamin, Secretary of the Department of Lands & Physical Planning, creamed out by the Head of State. It would not follow in similar with Asiki v Zurenuoc, Provincial Administrator [2005] PGSC 27; SC797 (28 October 2005). Nor would it follow Saboko v Commissioner of Police [2006] PGNC 40; N2975 (21 February 2006).
    
18. Here it is evident that the facts lack and do not establish nor do they discharge that there is apprehended biasness, or actual biasness. It would not go past the definition of Hagoria v Ombudsman Commission of Papua New Guinea [2003] PGNC 111; N2400 (26 May 2003). Unfairness likewise does not draw water and this action is in substance without merit and fails. Judicial review will not be accorded given and certiorari does not lie. Costs will follow the event forthwith.
    
19. The formal orders of the Court are:
    
    • (i) Judicial Review is denied.
    • (ii) Certiorari does not lie.
    • (iii) Costs will follow the event forthwith.
      

Orders Accordingly.

__________________________________________________________________

Korerua & Associate Lawyers: Lawyer for the Plaintiff/Applicant

Holingu Lawyers: Lawyer for First Defendants