Home | Databases | WorldLII | Search | Feedback National Court of Papua New Guinea

Pauwa v Brutten [2025] PGNC 56; N11187 (17 March 2025)

N11187

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS NO. 280 OF 2024

BETWEEN
GIBSON PAUWA for himself and on behalf of Awa Block Settlers whose consent and authority are attached to the Originating Summons
Plaintiff

AND
Max Brutten as Provincial Administrator Morobe Province
First Defendant

AND:
INDEPENDENT STATE OF PAPUA NEW GUINEA
Second Defendant

LAE: DOWA J
11, 17 MARCH 2025

PRACTICE & PROCEDURE – Originating Summons – Order 16 Rule 3 (1) & (2) NCR- Application for leave to apply for Judicial review – decision of Provincial Administrator -issuing Notice to Quit under Section 145 of the Land Act-prerequisites of leave- whether grounds exist for leave- applicants have no standing nor arguable case -all requirements not met-leave refused.

Cases cited

NTN v PTC (1987) PNGLR 70
Kekedo v Burns Philp (1988-89) PNGLR 122
Wai v PNG Ports Corporation Limited (2025) N11133

Counsel

S Toggo for the plaintiffs
N Kibikibi for the defendants

RULING

1. DOWA J: This is a ruling on the Plaintiffs’ application for leave to apply for Judicial Review of the decision of the first Defendant, the Provincial Administrator for Morobe Provincial Administration, who issued a Notice To Quit dated 7^th May 2024 pursuant to Section 145 of the Land Act to the Plaintiffs to quit the land particularly described as Flood Zone Reserve Vacant State Land located alongside Bumbu River from United Church to 13A Market, Lae city, Morobe Province.

2. By Originating Summons, the Plaintiffs apply for leave for judicial review of the decision of the first Defendant dated 7^th May 2025 which issued the Notice To Quit the land described above.

Background Facts

3. The Plaintiffs are residents of Awa Block, along the Bumbu River, Lae, Morobe Province. The lead Plaintiff, Gibson Pauwa, and more than 47 others are settlers residing at Awa Block and the surrounding areas on land along the Bumbu River on land the subject of the Notice to Quit. The land described as Flood Zone Reserve Vacant State Land is located between the United Church on the Western part of Bumbu River to 13A Market, that is between Cormorant Street and Eagle Street, along the Cassowary Road, Lae City.

4. On 7^th May 2024, the first Defendant, Provincial Administrator of Morobe Provincial Administration, issued a Notice to Quit under Section 145 of the Land Act to the settlers residing on the subject land to vacant the land within 21 days.

5. The Plaintiffs, allege, they are long-time residents and have settled on the subject land with the consent of the original customary landowners. They are aggrieved by the decision of the first Defendant giving them statutory notice to vacate.

Grounds for the application

6. The Plaintiffs challenge the decision of the first Defendant on the following grounds:

1. The Plaintiffs are residents of the land, having lived with their families many years at the invitation and consent of the original customary landowners and the customary landowners have not given the consent for the first Defendant to issue the Notice to Quit.
2. The Plaintiffs are not charged and convicted of an offence under Section145(1) of the Land Act.

100. A Notice to Quit issued under Section 145(3) of the Land Act without a conviction under Subsection (1) of the Act is a breach of the Plaintiff’s rights under Section 37 (1) of the Constitution.

4. The subject land is not Government land. The Minister for Lands has not acquired and declared the subject land as government land following the process under Sections 7-13 of the National Land Registration Act.
   

7. The application is opposed for the following reasons:

1. The Plaintiffs are settlers and do not have sufficient interest in the subject land.
2. The subject land is within the precinct of Lae city and is a flood zone reserve state land situated along the Bumbu riverbank.

100. Notice to Quit issued under Section 145(3) of the Land Act is not subject to subsection (1) of the Act.
     

The Law

8. Applications for leave for judicial review under Order 16 of the National Court Rules involve the exercise of discretion. The principles applicable to an application for leave for judicial review are well settled in the cases, NTN v PTC (1987) PNGLR 70 and Kekedo v Burns Philp (1988-89) PNGLR 122.

9. In NTN v PTC (supra) the Court said:

“Applications for leave for judicial review, involve the exercise of discretion, such discretion must be exercised judicially. Once a court is satisfied that the applicant has sufficient interest it then exercises his discretion whether leave should be granted.”

In exercising its discretion, the court must consider whether the applicant has an arguable case. In Inland Revenue Commissioners v National Federation of Self-Employed and Small Businesses(1982) AC 617 Lord Diplock set out the principles upon which the court should act and I respectfully adopt them-If on a quick perusal of the material the court (that is the judge who first considers the application for leave ) thinks that it discloses what might on further consideration turn out to be an arguable case in favour of granting the applicant the relief claimed, it ought, in the exercise of a judicial discretion, to give him leave to apply for the relief. The discretion that the court is exercising at this stage is not the same as that which it is called upon to exercise when all the evidence is in and the matter has been fully argued at the hearing of the application.”
10 The main prerequisites an applicant for leave must show under Order 16 Rules 3 & 4 of the National Court Rules are:

1. The Plaintiff must have locus standi/sufficient interest.
2. He must have an arguable case.

c) Exhausted other administered avenues.

4. no undue delay
5. decision made by public Administrative Body
   

Standing/Sufficient Interest

11. The Plaintiffs are residents of Awa Block, Bumbu Riverside, Lae. They are residing on land between the United Church and 13 A Market along the Bumbu Riverbank, on portions of the land described as Flood Zone Reserve Vacant State Land. It is not suitable for settlement or human habitation. It is prone to landslides brought on by continuous flooding of the Bumbu River. The Plaintiffs are all settlers. They are not customary landowners. They do not have titles or any proprietary interest in the subject land. The Plaintiffs have not clearly demonstrated any legal or tangible interest in the subject land. They do not have sufficient interest and thus have no legal standing to seek review of the decision of the first Defendant.

Does the Plaintiff have an arguable case

12 The next important prerequisite is that they must have an arguable case. The Plaintiffs’ main argument is that Section 145 (3) of the Land Act is subject to Section 145 (1) of the Act. Counsel for the Plaintiff submits that the Plaintiffs must be criminally charged and convicted of an offence under Section145(1) of the Land Act before Notice to Quit is issued under subsection (3) of the Act. He submits that the first Defendant in issuing a Notice to Quit under Section 145(3) of the Land Act without a conviction under Subsection (1) of the Act is a breach of the Plaintiff’s rights under Section 37 (1) of the Constitution and thus the Plaintiffs have an arguable case.

13. Section 145 reads:

“145 UNLAWFUL OCCUPATION OF GOVERNMENT LAND AND CUSTOMARY LAND.

(1) A person who, without authority, enters, occupies or uses Government land or customary land, is guilty of an offence.

Penalty: For a first offence–a fine not exceeding K500.00 or imprisonment for a term not exceeding 6 months.

For a second or subsequent offence–a fine not exceeding K1,000.00 or imprisonment for a term not exceeding 12 months.

(2) It is not a defence that the entry, use or occupation of the land was under a claim of right.

(3) A person who contravenes Subsection (1) and refuses to leave after receiving notice to quit from the Departmental Head or the Provincial Administrator of the province in which the land is located may be forcibly ejected by a member of the Police Force.”
14. The text of Section 145 of the Land Act is plain and clear. A person who enters and occupies Government or customary land without authority is, apart from being charged with a criminal offence, is liable to be forcibly ejected by a member of the Police Force. Subsection (1) makes it an offence for a person who enters and occupies either customary or government land without authority. Subsection (3) of the Act gives power to the Police to forcibly eject a person who enters and occupies either customary or government land without authority after the Departmental Head or a Provincial Administrator has issued a Notice to Quit to that unauthorised occupant. Subsection (3) is not subject to Subsection (1) of the Act. Subsections (1) and (3) operate independently as different consequences flow from the same acts of unauthorised entry and occupation.

15. The elements to be satisfied under Subsection 145 (3) as held in Wai v PNG Ports Corporation Limited (2025) N 11133 are:

1. The land is either government land or customary land
2. The entry, occupation or use of the land is unauthorised
3. Notice to quit must be issued by the Departmental Head or the Provincial Administrator
4. Notice to quit must be served on the unauthorised occupant.
   

16. The Notice to Quit show the subject land is known as Flood Zone Reserve Vacant State Land. It is State Land. The law allows for the Minister for Lands to declare certain portions of land as reserve land. The land, located along the Bumbu riverbank, is prone to regular flooding and landslides and not suitable for human habitation.

17. The Plaintiffs have not demonstrated that the subject land is anything other than Reserve State Land. As I have found, the Plaintiffs have no proprietary interest in the land they are settling. The Plaintiffs are occupying the reserve state land without authority.

18. The Notice to Quit issued by the first Defendant, as Provincial Administrator, is lawful and is in accordance with Section 145 (3) of the Land Act. The evidence shows, the Plaintiffs have been duly served with the Notice to Quit.

19. In the circumstances, the requirements under Section 145 (3) of the Act are met.

Conclusion

20. I have considered the documents filed by the Plaintiffs and reached a conclusion that the Plaintiffs do not have sufficient interest or locus standi. Secondly, they do not have an arguable case. This is not a case that upon further consideration or with additional information would change the status quo. It is untenable and bound to fail. Therefore, leave will not be granted for the matter to proceed to a substantive application for judicial review.

Orders

21. The Court orders that:

1. The Plaintiffs’ application for leave to apply for judicial review is refused.
2. The Plaintiffs will pay the costs of the application, to be taxed, if not agreed.
3. Time be abridged.
   

_______________________________________________________________
Lawyers for the plaintiffs: Toggo Lawyers
Lawyer for the defendants: Solicitor General