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Kamen v Samson [2023] PGNC 242; N10387 (26 June 2023)

N10387

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS (JR) NO. 115 OF 2022

DARRYL KAMEN
Plaintiff

V
BENJAMIN SAMSON SECRETARY FOR THE DEPARTMENT OF LANDS & PHYSICAL PLANNING
First Defendant

AND
TERENCE SOWENI APPEAL OFFICER DEPARTMENT OF LANDS & PHYSICAL PLANNING
Second Defendant

AND
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Defendant

AND
UNIVERSAL DEVELOPMENT SERVICES LTD.
Fourth Defendant

AND
PHOENIX (PNG) LTD known previous PHOENIX HIRE CARS LTD
Fifth Defendant

Waigani: Miviri J
2023: 23^rd & 26^th June

PRACTICE & PROCEDURE – Judicial Review & Appeals – Order 16 Rule 5 Application for Leave for Judicial review – Decision of First, Second & Third Defendants – Grant of State Lease Plaintiff – Appeal Fourth & Fifth Defendants – Out of Time – Arguable Case – Sufficient Interest Locus Standi – No Internal Process to Air – No Delay – Application Unopposed – Balance Discharged – Leave Granted – Cost follows the Event.

Cases Cited:

Wandaki v Minister for Lands [1996] PGNC 71; N1459

Talukdar Enterprise Ltd v Tolopa [2021] PGNC 537; N9343

Geita v Samson [2019] PGSC 107; SC1878

Somare, Re [1981] PNGLR 265

Counsel:

D. Kamen in person.
No Appearance.

RULING

26^th June, 2023

1. MIVIRI, J: This is the ruling on the Plaintiff’s originating summons of the 07^th November 2022 seeking leave to apply for Judicial review of the decision of the first Defendant made on or about the 23^rd June 2022 in accepting and registering the appeals lodged by the Fourth and the Fifth Defendants against the decision of the PNG Land Board in relation to the portion of land described as Portion 3168 Granville, (hohola), National Capital District, as the appeals were lodged out of time. Twenty-Eight (28) days was the Appeal period under section 62 of the Land Act.
   
2. That section is as follows:
   

“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.”

3. Section 63 Reference or reports to Minister : (1) A report or recommendation of the Land Board shall–

(a) if no appeal is made under Section 62, at the expiration of the period referred to in Subsection (1) of that section; or
(b) if any such appeal is made, after the appeal is determined,

be referred to the Minister.

(2) In addition to any other powers conferred by or under this Act, the Minister shall, if he disagrees with a report or recommendation of the Land Board, and may for any other reason–

(a) refer any matter back to the Board for re-hearing, the taking of fresh evidence, the furnishing of a further or additional report, or otherwise; or
(b) refer any matter to the National Executive Council.

(3) The decision of the Head of State, acting on advice, on a matter referred to the National Executive Council under Subsection (2)(b), is final.

4. Its terms are specific that the appeal by a person aggrieved to the Minister is no later than 28 days. And if the appeal is lodged outside of the 28 days the applicant is barred from instituting because it is incompetent and is a nullity: Wandaki v Minister for Lands [1996] PGNC 71; N1459 (28 June 1996), Approved and followed in Talukdar Enterprise Ltd v Tolopa [2021] PGNC 537; N9343 (1 December 2021).
   
5. Plaintiff in so moving relies on his statement filed of the 07^th November 2022, his affidavit verifying also filed the same date and his own affidavit in support dated also the same date. He supplied notice to the Secretary for Justice on the 08^th August 2022. He has accorded all within the rules to bring forth the application for leave.
   
6. His intended challenge is that each of the appeals lodged by the Fourth and the Fifth Defendants against the decision of the PNG Land Board in relation to the portion of land described above were late. And the decision of the first Defendant made on or about the 23^rd June 2022 in accepting and registering the appeals lodged by both were late and contrary to law, section 62 of the land Act set out above. As it stood there was no jurisdiction to take on board the appeal in breach of the law set out above. By itself it is a very clear arguable basis in law presented by the applicant plaintiff. Because both unsuccessful appellants had 28 days to lodge their appeals from the 18^th May 2022.And counting from that date their appeal period lapses on the 15^th June 2022. And the calculation of the Acting Director Policy and legal Services of the Lands Department advising was miscalculated in stating that the appeal period expired on the 22nd June 2022. Because the fourth defendant was late by five days having lodged his appeal on the 20^th June 2022. His receipt paid for the appeal fee confirmed this fact. As for the fifth defendant he lodged on the 21^st June 2022 which was 6 days after the period had expired. What should have happened is that both were informed 18^th May 2022 and therefore had until the 15^th June 2022 to be within the period to lodge the appeals to the land board. The requirement is by law and must be complied with and computation does show that time was late here: Geita v Samson [2019] PGSC 107; SC1878 (1 November 2019) seals this argument. There is arguable basis to bring the matter to a substantive hearing.
   
7. Further that the fifth defendant, the name was changed to Phoenix (PNG) Limited. By so doing he did not have the legal capacity to lodge the appeal.
   
8. In my view this is arguable basis demonstrated on the required balance satisfying this ground by the applicant. Prima facie or upon a quick perusal there is error in law. What has happened is exceeding section 62 of Land Act particularly with reference to appeals by the defendants. It is arguable also no accord was made of Natural Justice. And the totality is that this ground is discharged on the required balance by the applicant plaintiff.
   
9. It means the plaintiff applicant has sufficient interest. He is not a mere busy body as the grant of the appeal outside the time limit set in the favour of the Fourth and the Fifth Defendants against the decision of the PNG Land Board in relation to the portion of land described above were late affecting the plaintiff. And prima facie it against the conduct of the first Defendant. Plaintiff is not a mere mischief maker but effected by the actions complained prima facie: Somare, Re [1981] PNGLR 265. He discharges on the required balance that he has locus standi to bring the cause of action for leave here. He has in so bringing not delayed but within all reasonableness to bring the complaint.
   
10. And there is no other procedure internally and what he has opted is what is in law available. He discharges this balance prima facie. The aggregate is that the application for leave has discharged all relevant grounds, arguable basis, standing being as affected by that decision, and that there are no other avenues in law except to seek it here. And without delay. His application for leave for Judicial review is granted as pleaded in the originating summon filed.
    
11. The formal orders of the Court are:
    
    • (i) The application for leave for Judicial review is granted forthwith.
      
    • (ii) The Plaintiff shall file and serve the substantive Notice of motion for Judicial review by 14 days as of today’s date.
      
    • (iii) The matter will be called for directions Monday 17^th July 2023 at 9.30am
      
    • (iv) Costs will follow the Event.

Orders Accordingly.

__________________________________________________________________

Darryl Kamen in Person

Office of Solicitor General: Lawyer for the Defendants