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Koregai v Ane [2023] PGNC 340; N10490 (13 September 2023)

N10490

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS (JR) NO. 50 OF 2023 (IECMS)

HENRY KOREGAI, ALEX RABIA, NAMODIA ASIGAU HORSBURGH, SINO GAIGO, IVURA SIAI & OTHERS OF TATANA VILLAGE NCD
Plaintiff

V

ALA ANE IN HIS CAPACITY
AS REGISTRAR OF TITLES, DEPARTMENT OF LANDS AND PHYSICAL PLANNING
First Defendant

And
BENJAMIN SAMSON IN HIS CAPACITY AS THE SECRETARY OF LANDS AND PHYSICAL PLANNING
Second Defendant

And
HON. JOHN ROSSO IN HIS CAPACITY AS THE MINISTER FOR LANDS AND PHYSICAL PLANNING
Third Defendant

And
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Fourth Defendant

And
NENEHI IDIBANA PROJECT LIMITED
Fifth Defendant

Waigani: Miviri J
2023: 12^th & 13^th September

PRACTICE & PROCEDURE – Judicial Review & appeals – Originating Summons – Order 16 Rule 3 (1) & (2) Leave for Judicial review – Certificate of Title Ranuhedadi Portion 4174C Milinch Granville Fourmil Moresby NCD – Reissuance of Second Title over Existing – Plaintiffs Title Holders – Locus Standi – Arguable – Delay – No Other Administrative Avenue – No Evidence Contrary – Materials Sufficient – Leave Granted – Costs follow Event.

Cases Cited:

Kimas v Oala [2015] PGSC 69; SC1475

Kekedo v Burns Philp (PNG) Ltd [1988-89] PNGLR 122

Geno, Lawton and Mambu v The State [1993] PNGLR 22

Asakusa v Kumbakor, Minster for Housing [2008] PGNC 39; N3303

Counsel:
P. Wariniki, for Plaintiff
M. J. Narokobi, for Defendants

RULING

13^th September 2023

1. MIVIRI, J: This is the ruling on the Plaintiff’s application for leave for Judicial review instituted by originating summons of the 1^st June 2023, invoking Order 16 Rule 3 of the National Court Rules over:
   
   • (a) the decision and or actions of the third defendant in issuing a 99 year Special Purpose State lease to the fifth defendant of land described as Portion 4445, Milinch Granville, Fourmil Moresby, NCD contained in State Lease Volume 96 Folio 37 when the land is customary land owned by the Nenehi Idibana Clan of Tatana Village, NCD and no compulsory Acquisition was undertaken by the First Second and Third Defendants pursuant to Section 10, 11, 12, and 13 of the Land Act 1996 therefore title was obtained fraudulently;
     
   • (b) in issuing the State Lease noted in paragraph (a) when the plaintiff did not give their consent to the Sale of the land to the fifth Defendant or conversion of title from Customary land title to 99-year State Lease Title,
     
2. By his statement pursuant to Order 16 Rule 3 (2) (a) of the National Court Rules the plaintiff pleads this so as to review the decision and or actions taken by the First Second and third defendants respectively. He verifies this by the affidavit of lead plaintiff applicant Henry Koregai of the 27^th April 2023 filed 1^st June 2023. Who is supported by the affidavits further of, Ivura Siai sworn of the 1^st June 2023 filed the 08^th June 2023; and affidavit of Dairi Gaigo sworn of the 11^th May 2023, filed 1^st June 2023.
   
3. These establish that all deponents are descendants of the decision of the Land Titles Commission annexure “A” to the affidavit of lead plaintiff Henry Koregai. That is the 1966 decision declaring the following persons as customary owners with usufructuary rights: Daure Ibu, Asigau Veri, Siro Gaigo, Daure Veri, and Lohia Lohia. And that Daure Ibu is represented by Gabe Gaigo who uses and controls the subject land. And the decendents of Asigau Veri are represented by Gaigo Asigau. Siro Gaigo is represented by Madaha Resena, with the four others named. Daure Veri is represented by Baia Lohia. And Lohia Lohia is represented by Daure Koregai now represented by Henry Koregai. Seri Garu is from the adjourning land to Kau. He is from Garu land. His evidence is similar in all material particulars to the others. It is not necessary to repeat.
   
4. In this regard it is arguable that the plaintiff could not obtain a 99-year State lease title without going through the compulsory acquisition process set out under sections 10, 11, 12, and 13 of the Land Act 1996. There is no evidence of a notice to treat in accordance. To understand that a just and fair compensation is paid to the landowners. Each of the plaintiffs do not evidence receipt of the notice to treat. And no compensation has been paid the plaintiff applicants. Nor have each of the deponents consented to the compulsory acquisition, or its conversion thereafter to a state lease held. By these facts it satisfies that the case is arguable. There are serious issues of law to be tried because of the requirements of law set out above.
   
5. In this regard the plaintiff applicants have standing in law to come before the Court as they are directly affected, the land is theirs and has been treated in this way. The effect is that they are persons with interests that must be addressed in this Court. They therefore satisfy this requirement. Because this land is no longer a straight-out customary land per se. It is called in the actions of the Registrar of titles, the Secretary, and the Minister. It is therefore properly before this Court which has jurisdiction to determine. And it therefore distinguishes the case Kimas v Oala [2015] PGSC 69; SC1475 (17 December 2015). A customary land has now become a State Lease by the actions of the defendants which has effected the plaintiffs applicants no fault of theirs. And in any case annexure “G” to the affidavit of Dairi Gaigo evidence certificate of title held by Veihiho Incorporated Land Group who is the sole proprietor of an estate in fee simple encumbrance noted in all that piece of land known as Ranuhedadi being portion 4174C Milinch of Granville, Fourmil Moresby, NCD having survey area of 10.47 hectares. A registered survey plan of the land is Plan catalogue No 49/3835 in the Department of lands and Physical Planning Waigani, National Capital District. These facts in my view call that these records were in the title’s office kept by the officers now named as defendants. The issue is why register on top of a title already in place held by another. There is therefore a clear distinction between the present case and Kimas (supra). There is therefore locus standi established on the required balance including that it is arguable per se in favour of the applicants.
   
6. In the argument that there is undue delay for the reasons set out above this action was instituted in this court on the date set out in the originating summons over a matter that arose in 12^th April 2021 when the Minister issued a 99 year lease. As it is, it would be almost two years since which given the facts here is not as serious as in Dupnai v Weke [2016] PGSC 43; SC1525 (19 August 2016) which runs almost over three years into four. Here the reasons advanced set out above warrant that leave be granted. It cannot be that there are two leases issued over the same land. If the certificate of title held by the plaintiffs are genuine than the other new reissued must be settled by proper hearing. For these reasons I will determine this ground in favour of the applicant plaintiff. There cannot be any avenues administratively to settle the matter except to do as is the case here. A compulsory acquisition under section 10, 11, 12, and 13 of the Lands Act was not heeded to and without the recourse that the plaintiffs seek here there is no other avenue to settle the matter. This ground is determined in their favour.
   
7. These facts are consistent with Kekedo v Burns Philp (PNG) Ltd [1988-89] PNGLR 122 that the applicant plaintiff has discharged the balance that leave be accorded him for Judicial review. It is grave given the consequences that come out of the facts raised and would fall in similar vein in law as observed in Geno, Lawton and Mambu v The State [1993] PNGLR 22 including Asakusa v Kumbakor, Minster for Housing [2008] PGNC 39; N3303 (10 April 2008) which are satisfied by the Statement filed pursuant to O 16 r 3 (2) (a) of National Court Rules and material filed in support of application for leave.
   
8. In the aggregate the application for Leave for Judicial review has been made out on the material relied on and is granted the plaintiff. Plaintiff will file and serve the substantive notice of motion by or before Wednesday 04^th October 2023. And the matter will be called up at Directions on Monday the 09^th October 2023 at 9.30am. Costs will follow the event forthwith.
   
9. The formal orders of the Court are:
   
   • (i) Leave is granted.
   • (ii) The plaintiff will file the substantive Notice of Motion by or before Wednesday 04^th October 2023.
   • (iii) The matter will be called for Directions Monday 09^th October 2023 at 9.30am.
   • (iv) Costs will follow the event.
     

Orders Accordingly.

__________________________________________________________________

Wariniki Lawyers & Consultants: Lawyers for the Plaintiff/Applicant

Office of the Solicitor General : Lawyers for the Defendants