PacLII Home | Databases | WorldLII | Search | Feedback

National Court of Papua New Guinea
You are here:  PacLII >> Databases >> National Court of Papua New Guinea >> 2023 >> [2023] PGNC 385

Database Search | Name Search | Recent Decisions | Noteup | LawCite | Download | Help

Kulaih v Hahory [2023] PGNC 385; N10521 (16 October 2023)

N10521


PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]


OS (JR) NO. 74 OF 2023 (IECMS)


PETER KULAIH As Chairman of St Andrew Community College Board of Governors
First Plaintiff


AND
SAINT ANDREW COMMUNITY COLLEGE BOARD OF GOVERNORS
Second Plaintiffs


V
SIMON HAHORY In his Capacity as Director Policy & Legal Service Department of Lands and Physical Planning
First Defendant


AND
BENJAMIN SAMSON In his Capacity as Secretary of the Department of Lands and Physical Planning
Second Defendant


AND
HON. JOHN ROSSO MP MINISTER FOR LANDS & PHYISICAL PLANNING
Third Defendant


AND
INDEPENDENT STATE OF PAPUA NEW GUINEA
Fourth Defendant


Waigani: Miviri J
2023: 21st September, 16th October


PRACTICE & PROCEDURE – Judicial Review & Appeals – Leave Application for Judicial Review – Decision of Secretary Lands Revoking Two Certificates authorizing Occupancy Over Portions of State Land – Revocation of Two Portion 555 & 556 Milinch Muschu Fourmil Wewak – Land Act Section 49 Reservation From Lease or Further Lease – Section 35 of the Interpretation Act 1975 Not 2005 – Conferring of Power by Statute Inclusive of Power Exercisable Same Manner to Alter Instrument Or Decision – No Power Section 49 Conferring Revocation of Portion 555 & 556 – Locus Standi – Delay – Undue Delay – Exhaustion of Internal Processes – Arguable Case – Materials relied More than Sufficient – Application Granted – Costs follow Event.


Cases Cited:
Eremuge v Apa [2021] PGNC 563; N9308
Garo v The Police [1985] PNGLR 320
District Land Court, Kimbe; Ex Parte Nuli, The State v [1981] PNGLR 192
Kekedo v Burns Philp (PNG) Ltd [1988-89] PNGLR 122
Independent State of Papua New Guinea v Kapal [1987] PNGLR 417
Asakusa v Kumbakor, Minster for Housing [2008] PGNC 39; N3303
Innovest Ltd v Pruaitch [2014] PGNC 288; N5949
Kilanda v Enga Provincial Government & Ors [2023] PGSC 54; SC2405
Dupnai v Weke [2016] PGSC 43; SC1525


Counsel:
L. Kuaken, for the Plaintiffs
K. Kipongi, for the State Defendants


RULING

16th October 2023


  1. MIVIRI, J: This is the ruling on the leave application of the plaintiff who pleads pursuant to Order 16 rule 3 (1) and (2) of the National Court Rules and section 155 (4) of the Constitution that leave be granted ex parte to the Plaintiff to judicially review:
  2. They have filed the order 16 Rule 3 (2) (a) Statement of the 05th June 2023. Including affidavit verifying those facts pleaded within. And supporting the plea for leave for Judicial review is the affidavit of Principle of St Andrew Community College, Emily Kopania who deposes that St Andrew College received its registration from Flexible Open Distance Education (FODE) on 27th May 2015. Annexure “A” is copy of the Notice of Registration under FODE. “The Department of Education then took over FODE and the School was given registration No. FODE-ESP-6101. The school serves public purpose in providing secondary education through the distance mode and gives second chance to non-school leavers in East Sepik Province. The school’s recognition and approval as FODE Centre was published by the Department of Education in annexure “B” National Newspaper dated 09th March 2018 by the Department of Education.”
  3. Here evidence in essence is that the school is a Catholic run agency school. It is a public School initially set up as a Vocational School, but recently because of its performance it has been upgraded to a Technical Secondary School registration number 61656 and is a level 9 as of 2022. By the established policy between the State and all Churches in education and health services, it is one such institution emanating. By this fact it receives Government Tuition Fee Subsidy following enrolment figures its students which is more than a thousand each year. This is evident by the support of the East Sepik Provincial Government in its budget support for the school with maintenance and grants each year. There are forty-two (42) teaching positions this year 2023 funded by the Teaching Services Commission of Papua New Guinea. It is therefore a very public run School originally and of the Catholic Education Agency run in cooperation with both the Provincial as well as the National Government benefitting East Sepik Province and the State.
  4. It is also the same evidence set out by the affidavit of the Chairman of Saint Andrew Community College Board of Governors Mr. Peter Kulaih sworn of the 21st July 2023 filed of the 26th July 2023. Both his affidavit and that of the principle set out above establish facts that show clearly that this is a public School owned by the Catholic Education Agency run together with the State as an educational Institution. Common in their evidence establishing these facts are, that the Department of Education has implemented annexure “C” the TCS Payroll implementation for all St Andrew Community College. It is 1-6-6 Policy of the Department of Education that requires land to expand and for St Andrew positions of its said Land was occupied by illegal settlers which led to an eviction proceeding filed in the Wewak National Court OS No. 448 of 2019 St Andrew Community College v Francis Warisan & all other persons residing illegally on Portions 555 & 556 Wewak East Sepik Province, annexure “D” amended originating summons 6th November 2020 by MS Wagambie Lawyers. Which prompted a letter by the illegal settlers of complaint dated 22nd February 2022, annexure “A” alleging that St Andrew Community College was a private run institution and CAO initially granted to the Department of Education must be revoked. The school had proceeded to trial in the eviction proceedings to lead eventually to the eviction of the illegal Settlers, but for the Second Defendant who revoked the CAOs on the 20th June 2020 allowing the illegal settlers to avoid the trial set and the effects of the eviction proceedings set out above. And the subject decision of the second defendant was set out in the annexure “H” National Gazette No. G494 on the 21st June 2023. Annexure “F” is the Legal brief caused by Simon Hahory that resulted in the actions of the second defendant. And annexure “FI” is the revocation notice of the COA over portion 555 dated 20th June 2023. And annexure “G” is the revocation notice of COA over portion 556. Which is invoking the powers under section 49 of the Land Act 1996 read together with section 35 of the Interpretation Act 2005.
  5. That section 49 of the Land Act is in the following terms: - “Reservation from Lease or further Lease.

The Minister may, by notice in the National Gazette, reserve from lease or further lease–

(a) Government land; or
(b) land that is the subject of a State lease,

that he considers is or may be required for a purpose specified in the notice.”


  1. And section 35 of the Interpretation Act not 2005 but 1975 is in the following terms: “Implied Power to Alter

Where a statutory provision confers a power to make an instrument or decision (other than a decision of a court), the power includes power, exercisable in the same manner and subject to the same conditions (if any) to alter the instrument or decision.”


  1. Section 49 of the Land Act deals with reservation from lease or further lease by the Minister. This Statutory provision does not confer any power on Benjamin Samson as Secretary of the Department of Lands and Physical Planning to issue revocation notices as set out in National Gazette G494. He is not the Minister named in that section. He does not have the power to revoke the subject two portions from lease or further lease. He has acted unlawfully and in breach of section 49. There is no authority to his actions in the issue of the instrument and its publication to affect the plaintiff and the school. Because by section 49 the Minister will state in the Notice as to why the subject land is reserved from lease and further lease. There is nothing in that Gazettal to that effect. This Gazettal contains a revocation not a reservation of portion 555 and 556. And therefore, it does not originate from this Section. It is illegal and without the power emanating from section 49.
  2. This is a lease a Certificate of Occupancy on Portions 555 and 556 held by the St Andrew Community College particulars set out in both Gazettes set out above. The opinion relied of the First Defendant acknowledges this fact that the subject portions of 555 and 556 are issued in favour of the Education Department. It is legally in the hands of an Institution of the State run by the Catholic Education Agency. And this opinion could not be the basis to give jurisdiction to the actions of the second Defendant. Because Statute gives the basis for the actions of the Minister here section 49 not the second defendant: Eremuge v Apa [2021] PGNC 563; N9308 (15 November 2021) following Garo v The Police [1985] PNGLR 320. And Statute will set out the procedure to be followed, if not followed will have certiorari lie District Land Court, Kimbe; Ex Parte Nuli, The State v [1981] PNGLR 192.
  3. “Judicial review is available where the decision-making authority exceeds its powers or there is lack of jurisdiction, commits an error of law, commits a breach of natural justice, reaches a decision which no reasonable tribunal could have reached (Wednesbury principles of unreasonableness) or abuses its powers: Kekedo v Burns Philp [1988-89] PNGLR 122 at 124, per Kapi DCJ (as he then was). Also see Independent State of Papua New Guinea v Kapal [1987] PNGLR 417. These grounds on which judicial review is available raise questions of law based on statutory provisions or duties imposed by common law. The pleading of the ground should be such that the clear issues of law are raised for determination by the Court, Asakusa v Kumbakor, Minster for Housing [2008] PGNC 39; N3303 (10 April 2008), affirmed in Innovest Ltd v Pruaitch [2014] PGNC 288; N5949 (17 March 2014).
  4. Give the opinion cannot substitute for the powers by Statute. And the publication of Gazettal drawing from the opinion is unlawful ultra vires section 49. It is not reason in the hands of the Minister, but the second defendant clearly not the Public Official named under section 49 of that Act. So, he does not have the authority to revoke the subject Certificate of Occupancy pertaining:

“At this juncture, we affirm the view taken by the trial judge that a CAO is a Statutory Instrument conferring special kind of interest in State land issued by the Minister for Lands by publication in the National Gazette to governmental bodies for public purposes. It is created and protected by Section 49 of the Land Act. It is not a State Lease and is reserved from lease.


15. Section 52 of the Land Act provides that where land is reserved, no lease shall be granted either on application or tender except for a Special Purposes Lease to be issued and registered in the name of the State. The CAO ceases when the holder of the CAO relinquishes its interest in the land to the State or is otherwise revoked by the Minister responsible for Land matters. In the latter case, there is a statutory duty (Section 122 of the Land Act) on the part of the Minister to give notice of the proposed action to the authorised occupant. The authorised occupant is thus accorded the opportunity to show cause.


16. In the present case, there is evidence that the CAO was cancelled without the knowledge and consent of the first respondent, the authorised occupant. The first respondent’s interest, the CAO, was issued first in time. The subsequent dealings, the unauthorised subdivisions and grant of state leases, over the land the subject of CAO were correctly found to be irregular and unlawful for breaches of various provisions of the Land Act. The state leases issued to the National Housing Commission and subsequently transferred to the Appellant and the first Respondent could not be saved under section 33 (1) of the Land Registration Act by reason of being fraught with fraud,” Kilanda v Enga Provincial Government & Ors [2023] PGSC 54; SC2405 (02 June 2023).


  1. The facts here do not par that but discharge that leave be accorded as pleaded. Both Evidence of the Plaintiff and the Principle clearly show very good development for education and for all the People of East Sepik it is serving. It is now a technical secondary School with over thousand students’ intake and teachers to (42) teaching positions this year 2023 funded by the Teaching Services Commission of Papua New Guinea. The Gazettal is revocation of reservation Notice/Certificate Authorizing Occupancy setting Aside. But section 49 does not deal with that fact because it is already certified for occupancy by an Educational Institution of the Catholic and State School. There are clearly breaches of the law by reading this section. The subject Gazettal reading section 49 would be by the Minister for Lands depicted by the term, “The Minister May”. It does not say by his delegate as is the case of the Gazettal here both set out above. Benjamin Samson a delegate is not the Minister. By that fact this Gazettal is clearly not in compliance of section 49.
  2. The reservation cannot eventuate on land that is already the subject of a certified Occupancy as is the case here. Certification means that it has followed the process of the law to be so accorded. And in so doing what is intended by the Gazettal is intended here, process of law must be ascended to arrive a just revocation for further lease. It is already leased to an educational Institution both of the Catholic Church and the State benefitting all citizens in East Sepik Province and the State. Its life cannot be terminated with a revocation notice in both Gazettal’s as is the case here. There is no power in law by the Gazettal as the section 49 does not accord jurisdiction in the way it is gazetted and implemented against both portions 555 and 556 Milinch Muschu, fourmil Wewak East Sepik Province. The delegate B Samson is not the named person under section 49 of the Land Act. It is the Minister Third defendant here who is not the author of the Gazettals issued in respect of both portions of land subjected here. That renders that Gazettal unlawful and illegal void of no force in law in both instances relating to both portions of land. Section 49 of the land Act does not empower what is done here in the hands of Benjamin Samson Secretary of the Department of Lands and Physical Planning.
  3. Even read with section 35 of the Interpretation Act not 2005 but 1975 is as to the altering of an instrument or decision. This is not the case of amendments to the Certificate of Occupancy of portions of 555 and 556 but revocation which is not the same as amending that certificate. It does not amend but revokes putting to an end the life of both certificates of occupancy relating to both portions. The compound effect is that reading section 49 of the Land Act and section 35 Interpretation Act 1975 the Gazettal in both instances published cannot be issued based on that jurisdiction, as there is none in law. The facts set out above do not enhance the law but breach the law against the defendants in the hands directed impounded compounded upon the plaintiffs. This is a case where breaches of the law stem immediately apparent identified set out above pulling out the feet that is not there holding the actions for the State defendants. For the Plaintiffs this is a cause of action that if the State seeks to defend will end in clear positions of law set out above.
  4. Section 49 of the Land Act read with section 35 of the Interpretation Act not 2005 but 1975 are not the jurisdictional provisions and basis for the Gazettal in both cases of portions 555 and 556 Milinch Mushu, Fourmil Wewak, East Sepik Province. Revocation of the Certificate of Occupancy in both cases cannot take place because the power to carry out that fact in law is not there. The Gazettals in both instances against both portions of land occupied by the Catholic and State School St Andrews Community College are unlawful void of no effect. Children Students of that School are immediately affected if the subject unlawful notice gazetted are given effect to. This is a leave application where not only leave is accorded on all grounds of leave.
  5. There is clear locus standie of Peter Kulaih as Chairman of St Andrew Community College Board of Governors apparent by all set out above. He is affected together with the school he represents with all 42-teaching staff and all including the one thousand (1000) students at that school. The decision has affected such that he has discharged locus standie on the balance required.
  6. The case is not only arguable but is evident by the law relied upon section 49 Land Act and section 35 Interpretation Act 1975 not 2005 that there is no jurisdictional basis for the actions of the second defendant. The law has been breached to issue the revocation notices to both portions of the land 555 and 556. There can be no revocation here as there is error apparent on the face of the record. What has happened is ultra-Vires because section 49 of the Land Act read with section 35 of the Interpretation Act 1975 do not accord power to the Secretary to issue the Revocation of Reserved Notice/Certificate Authorizing Occupancy Setting Aside. And this is the case in respect of both portions of land 555 and 556 Milinch Muschu Fourmil Wewak. No fault nor notice to the plaintiff clearly grounds for Judicial review shown out here.
  7. For the reasons set out above, there is no delay and could not be what the Supreme Court saw in Dupnai v Weke [2016] PGSC 43; SC1525 (19 August 2016). The reasons set out above outweigh and delay is not seen out here. The subject Revocation of reservation notice/Certificate authorizing occupancy setting Aside is of the 20th June 2023. The originating summons here is of 11th July 2023. Given all set out above there is no delay enough to deny this action. Where there are injustice apparent and defiant breaches of the law, delay will not be basis to deny justice to the litigant as here. This ground will not bar the action.
  8. Internal process and procedure is not provided hence this application is brought and satisfies in favour of the applicant. He will be accorded leave as pleaded with Costs to follow the event.
  9. The formal orders of the Court are:

Orders Accordingly.

__________________________________________________________________

Murray & Associates: Lawyers for the Plaintiff/Applicant

Office of the Solicitor General: Lawyers for the Applicant/Defendant

PacLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback
URL: http://www.paclii.org/pg/cases/PGNC/2023/385.html