SC1120

PAPUA NEW GUINEA
IN THE SUPREME COURT OF JUSTICE

SCR NO. 15 OF 2006

BETWEEN:

LAE BOTTLING INDUSTRIES LTD
Applicant

AND:

LAE RENTAL HOMES LTD
First Respondent

AND:

INDEPENDENT STATE OF PAPUA NEW GUINEA
Second Respondent

AND:

VIVISO SERAVO
Third Respondent

Waigani: Gavara-Nanu, Davani & Yagi JJ.
2010: 25 October
2011: 2 September

JUDICIAL REVIEW – Constitution; s. 155 (2) (b) – Leave - Criteria for grant of leave – Discretion of the Court to grant leave – Inordinate delay – Issue of delay to be considered subjectively – Circumstances in which leave may or may not be granted discussed – Interest of justice.

JUDICIAL REVIEW – Land Act; ss. 69 (2) (d) and 122 (3) – Forfeiture of lease – Fraud – Flagrant breaches of mandatory statutory requirements – Applicant being fully aware of such breaches - Application for review refused. 
Facts

The first respondent had title over the property described as Section 65 Allotment 1, Lae. By agreement between the applicant and first respondent the applicant was allowed to improve the property up to the value of K300,000.00 and no more. The agreement provided that in the event that agreement was terminated the improvements made to the property were either to revert to the first respondent as landlord or be cleared away. The applicant made improvements worth well over K300,000.00 on the property. The first respondent's lease was forfeited for non payment of lease rentals. First respondent challenged the forfeiture of its lease in the National Court and obtained ex-parte orders restoring its title over the property. The applicant was not made a party to the proceedings in the National Court. Although the applicant became aware of the National Court decision about a week after it was handed down, he failed to appeal the decision. Two years after the National Court decision the applicant filed its review application under s. 155 (2) (b) of the Constitution. 

Held:

(1) Per Gavara-Nanu and Yagi JJ: Although delay was inordinate and no reasonable explanation was given for the delay, there were exceptional circumstances particularly the substantial improvements made to the property which made the case of special gravity. This warranted granting of leave so that the applicant who was not made a party to proceedings in the National Court could be heard.

(2) Per Gavara-Nanu and Yagi JJ: The applicant having satisfied all the criteria for grant of leave except delay leave should be granted in the interest of justice. In this regard the Court has very wide discretion and in exercising the discretion it has to consider the issue of leave subjectively. Leave should be granted.

(3) Per Davani J: In relation to delay, the applicant took no steps to appeal the decision of the National Court or to have set it aside until 3 years later despite being fully aware of the National Court decision about a week after it was delivered. This constituted an inordinate delay. Explanation given by the applicant for the delay is unreasonable and without merit. As no useful purpose would be served if leave is granted, leave should be refused.

(4) Per Gavara-Nanu and Yagi JJ: There was overwhelming evidence that title issued to the applicant was issued irregularly and fraudulently. Mandatory statutory procedures provided under the Land Act were breached by officers of Department of Lands and Physical Planning. The applicant was fully aware of those irregularities and breaches. The trial judge made correct findings. Emas Estate Development Pty Ltd –v- John Mea and Others [1993] PNGLR 315 and Papua Club Inc. –v- Nusaum Holdings Limited and Ors N2603, adopted. 

(5) The decision of the Court in this application for review be dismissed with costs.

Cases cited:

Allan Pinggah v. Margaret Elias & ors (2005) N2850
Alphonse Hayabe v. William Powi (2007) N3113
Avia Aihi –v- The State (No. 2) PNGLR 44
Emas Estate Development Pty Ltd –v- John Mea and Ors [1993] PNGLR 215 
High Lift Company –v- Miri Sasea and Another N2004 
Kitogara Holdings Pty Ltd –v- NCDC and Ors [1988 – 89] PNGLR 346
Mission Asiki v. Manasupe Zurenuoc & Others (2005) SC797
NTN Pty Ltd v. PTC & ors [1987] PNGLR 70 N587
Steamships Trading Company Ltd –v- Minister for Lands and Physical Planning and Others N1959 
The Papua Club Inc –v- Nusaum Holdings Limited and Ors N2603

Counsel

A.	Manase & G. Lau, for the Applicant
M. Pokia, for the First Respondent 
E. Geita, for the Second Respondent 

1.	GARAVA-NANU and YAGI JJ: The right of an applicant under s. 155 (2) (b) of the Constitution to have a decision of the National Court reviewed by Supreme Court stems from s. 17 of the Supreme Court Act, Chapter No.37. This section gives the applicant the primary right to appeal a decision of a National Court but such an appeal must be lodged within 40 days after the date of judgment, or within such further period as allowed by the Court. In this case it is clear that the applicant has lost its primary right of appeal thus it is now invoking the review process under s. 155 (2) of the Constitution to have the decision of the National Court reviewed, however that right of review is not automatic it has to be by leave.

Leave

2.	For the applicant to be granted leave it must satisfy the following criteria:-

(i)	 Whether there was a delay by the applicant in making the application, if so whether there are exceptional circumstances showing manifestation of substantial injustice or whether the case is of such special gravity warranting the grant of leave; 

(ii)	 The grant of leave is in the interest of justice; and 

(iii)	 That there are clear arguable issues warranting leave to review the decision.

3.	Firstly, in regard to the issue of delay it has to be considered subjectively to matters raised by the other criteria for leave. The Court has wide discretion when considering delay, thus, even if the Court finds that there is delay, if the applicant can satisfy all or any of the criteria for leave, the Court can in the exercise of its discretion still grant leave: Avia Aihi v. The State (No. 2) [1982] PNGLR 44. 

4.	There is undisputed evidence that the applicant became aware of the decision of the National Court a week after it was given. The applicant then engaged lawyers who offered him advise on the decision, he did not appeal the decision until two years after the decision when it instituted this application, thus a delay of two years by the applicant in making this application. 

5.	The explanations given by the applicant for the two year delay appear unreasonable and unsatisfactory. The delay also appears to be inordinate. But the question still remains, can the Court in the exercise of its discretion grant leave? 

6.	One of the points stressed strongly by the applicant in seeking leave is that it was not joined as a party to the proceedings in the National Court although its interests were directly affected by the proceedings. The applicant argued that because it was not joined as a party, it did not have the opportunity to be heard by the Court on the issues raised by the respondents. It is not in dispute that the proceedings in the National Court were heard ex-parte and the applicant was not a party to the proceedings. Whilst it is true that applicant was not made a party to the proceedings in the National Court, as one whose interests were directly affected, he had the locus standi to appeal the decision of the National Court: Kitogara Holdings Pty Ltd –v- NCDC and Ors [1988-89] PNGLR 346. 

7.	The applicant says it is coming to this Court under s. 155 (2) (b) of the Constitution so that it can be heard and to challenge the ex-parte decision of the National Court which favored the first respondent. 

8.	The applicant already has a title over the property and has made substantial improvements to the property, these are not disputed. What is in issue is whether that title was obtained legally and whether the improvements made to the property were made legally. If leave is refused on the basis of delay, the end result is that the applicant will not be heard on these two fundamental issues. The application will therefore be effectively refused on the basis of delay alone and costs will most likely also follow the event thus affirming the ex-parte National Court decision. The end result is that applicant's title will be rendered null and void and the first respondent's title to the property will be restored. The decision will also result in the applicant closing business. It can be seen from this that a lot will be at stake for the applicant which in my opinion constitutes exceptional circumstances with special gravity.

9.	Except for the issue of delay, the applicant has in our opinion satisfied the other three criteria stated above for the grant of leave. In our opinion the interest of justice merits a review, given that if the application is dismissed at leave stage on the basis of delay alone, there will be substantial injustice to the applicant, the decision will have serious and grave consequences for the applicant. The manner in which the applicant obtained the title to the property is a serious legal issue which ought to be properly and fully determined on merit. All these matters in our respectful opinion merit review. As we alluded to earlier, the issue of delay has to be considered subjectively and in our opinion the Court would not be exercising its discretion properly and judicially if application is dismissed on the basis of delay alone. 

10.	We would therefore grant leave.

Review

11.	The trial Judge found that the title issued to the applicant was issued irregularly and fraudulently. We find that there is overwhelming evidence in support of this finding: Emas Estate Development Pty Ltd –v- John Mea and Ors [1993] PNGLR 215; Steamships Trading Company Ltd –v- Minister for Lands and Physical Planning and Others N1959; High Lift Company –v- Miri Sasea and Another N2004 and The Papua Club Inc –v- Nusaum Holdings Limited and Ors N2603.

12.	There is clear evidence of gross and flagrant abuse and breaches of the relevant mandatory procedures set out in the Land Act. For instance, We find the following:-

(i)	There is evidence that K86, 100.00 purportedly owed by the first respondent in lease rentals which was the reason why the first respondent's lease was purportedly forfeited was in fact not made up of lease rentals. The actual amount owed in lease rentals by the first respondent was only K14, 350.00 that amount was owing as at 1st January, 1997. 

The amounts which made up K86, 100.00 were Lease Acceptance Fee (LAF) and Land Grant (LG), (see p.65 of the Review Book). It is also noted that the Notice to Show Cause issued against the first respondent was not issued by the Minister for Lands it was issued by the Ministerial delegate namely, Mr. John A. Painap, who was the Secretary for Lands at that time. These factors make the whole process of forfeiture including the Notice to Show Cause issued against the first respondent dishonest and unlawful. 
 
It is further noted that under the conditions of the lease, the first respondent was only required to pay lease rentals.

(ii)	The first respondent's lease was issued on 1st February, 1996, although the lease was to run from 10th January, 1991. The Notice to Show Cause was issued on 11th August, 1997, which was a bit over a year after the lease was forfeited for failure to pay K86, 100.00 which as we alluded to earlier was an amount allegedly owed by the first respondent for the balance of LAF and LG payments, not for outstanding lease rentals. This was unfair to the first respondent, in any case there was no legal basis for Notice to Show Cause to be issued against the first respondent.
 
(iii)	The forfeiture of the first respondent's lease through the National Gazette dated 3rd December, 1997, was the second time the first respondent's lease was forfeited, the first forfeiture was in April, 1996, made by the Ministerial delegate of the then Minister for Lands Sir Albert Kipalan, (see p.234 of the Review Book). It will be noted that the forfeiture of the first respondent's lease on 3rd December, 1997, was also made by the delegate of the Minister Mr. John Painap and the forfeiture was made pursuant to s. 122 (3) of the Land Act. Note that power to forfeit under this section is conferred on the Minister and not on the Ministerial delegate.
 
(iv)	The exemption from advertizing the lease was again not granted by the Minister for Lands but by Mr. John Painap, (see p.76 of the Review Book). The exemption was purportedly granted pursuant to s. 69 (2) (d) of the Land Act, but the power to exempt a lease from being advertised is given to the Minister. This is another clear example of a flagrant abuse of the mandatory procedures set out in the Land Act. Section 69 (2) (d) of the Land Act, expressly states that the State must agree for the lease to be exempted from being advertised. The exemption in this case was not given by the Minister. One asks, why Mr. John Painap and other officers of the Department of Lands were signing all these important documents, including the National Gazette? Note also that the Notices to Show Cause were signed by different officers, one was signed by Mr. John Painap on 11th August, 1997, as the Ministerial delegate (see, p.65 of the Review Book) the other was signed by a Mr. M Kegana (a/SPO Leases) Northern Division, on behalf of a Mr. Daniel P. Katakumb, Acting Deputy Director for Department of Lands, Northern Division (see, p. 69 of the Review Book).

Mr. John Painap also signed the Forfeiture Notice which was given on 3rd December, 1997, (see p.22 of the Review Book). In paragraph (c) of the Notice, the third reason given for the forfeiture was "The lessee had failed to comply with the balance of the Tender Price of K86,000.00, which is currently outstanding as of the date of grant." This affirms that the forfeiture of the lease was not made because of outstanding lease rentals.

(v)	It is interesting to note that Mr. John Painap in a letter dated 19th February, 1997, wrote to the Managing Director of Lae Bottling Industries P/L and advised that – "investigation conducted to ascertain the "legal tenancy revealed that "Lae Bottling Industries P/L" is not the legal tenant of the (property) Section 65 Allotment 1, Lae…"

He went to conclude with these two paragraphs:

"I regret to advise that your title was forged and is fake and "not indefeasible title" meaning that it is not legal.

Please be further advised that Lae Rental Homes P/L are the Legal tenants have obtained the title over the property under registered title volume 6 Folio 144 with lease commencing 10/1/1991." 

That letter was copied to the first respondent, (see p. 236 of the Review Book).

In a letter dated 15th January, 1997, the Acting Provincial Administrator of Morobe, Mr. A R Sengero, wrote to Mr. Mathew Minape of Lae Bottling Industries P/L and advised him that he had confirmed that Lae Rentals P/L was the legal proprietor of the property, (see p.240 of the Review Book).

(vi)	In a subsequent letter dated 5th August, 1997, Mr. Sengero appears to have recommended to the Department of Lands that the property should be secured for Lae Bottling Industries P/L because it was paying the annual fees for the property and had done substantial improvements, (see p.241 of the Review Book).

(vii)	But then in a written brief to the Member for Lae, Mr. Bart Philemon dated 23rd September, 1998, Mr. Sengero highlighted fraudulent activities committed by Lae Bottling Industries P/L to obtain the lease over the property, (see pp 242 – 243 of the Review Book).

(viii)	Then in a Minute to the Minister for Lands by John Tokunai and Tiri Wanga dated 3rd August, 1998, "mysterious" dealings by Lae Bottling Industries P/L to obtain title over the property were highlighted. The title was described as "questionable" and asked the Minister to look into the matter with the view to "returning" the title to the first respondent, (see of p. 238 of the Review Book). 

The second last paragraph of the Minute clearly suggests that Lae Bottling Industries P/L had obtained two leases over the same property. This evidence supports the finding made by the trial Judge that Lae Bottling Industries P/L had first obtained a lease over the property on 29th March, 1996, then on 14th May, 1998, a second lease was granted to Lae Bottling Industries P/L over the same property, (see, pp. 168-169 of the Review Book). There is no dispute that the trial Judge made these findings on the basis of the evidence before him because he referred to the evidence as "Exhibit P5" (see, p. 168 of the Review Book) and "Annexure H" (see, p. 169 of the Review Book). 

(ix)	The substantial improvements made on the property worth in the millions were done in direct breach of clause 19 of the lease agreement between the applicant and the first respondent, which provided that the applicant was only allowed to make improvements worth no more than K300,000.00. The same clause provided that in the event that the agreement was terminated, the improvements were either to revert to the landlord (the first respondent) or be cleared away. There is evidence that before the first respondent's lease was forfeited, the applicant had made improvements worth more that K300, 000.00. 

13.	The foregoing affirm the finding by the trial Judge that there were gross and flagrant abuses and breaches of the mandatory provisions of the Land Act by the applicant and the officials of the Department of Lands when forfeiting the first respondent's title to the property and granting it to the applicant. They not only constituted gross irregularities and abuse but fraud as found by the trial Judge. 

14.	The gist of the applicant's complaint is that it was not given an opportunity to be heard in the court below in relation to the allegations of fraud, gross abuse of process, illegalities and irregularities in respect to the issuance of the title. The evidence in relation to these matters were carefully and extensively considered by the trial judge and he found glaring instances being established and hence the declarations and orders. The affidavits provided by the applicant in support of the review (Tab 7, pp 16 – 46 & Tabs 9, pp 48 – 143) do not provide new evidence(s) that will or may materially affect the substantive findings of the trial Judge. The State and its instrumentality (Department of Lands) were represented by counsel at the hearing. They filed no affidavit material. Therefore there is no evidence by the Department and the State that may go towards contradicting the evidence provided in the court below. Most of these allegations directly affect the propriety of the actions and decisions perpetrated by certain officers of the Department of Lands. The official records are maintained by that Department. It appears the Department, including the State, does not dispute the evidence and finding of the trial judge. We are therefore not convinced that there are grounds for review.

15.	We therefore affirm the decision by the trial Judge and dismiss the application with costs.

16.	DAVANI J: I have read my brothers' opinion and agree with their decision to affirm the trial judge's decision. They have discussed why the application for leave should be granted and proceeded to consider the merits of the review and finding ultimately that the trial judge's decision must be affirmed. They did this by finding that the evidence in the Court below demonstrates a gross abuse of process by the applicant and its representatives together with the then Minister for Lands and his servants and agents.

17.	I also wish to add to their opinion I however, disagree with their findings on the leave application. I have stated my views in relation to delay and together with that, discussed the pleadings in the Court below and generally stated why no useful purpose will be served if leave was granted.

18.	I discuss firstly the principle of delay and how it applies to this case.

19.	Delay: The evidence is that the applicant did not take any steps after the trial judge's decision until about 3 years later. The evidence is also that the applicant knew of the National Court's decision 10 days after it was delivered. The applicant could have utilised O.12 R.8 or O.12 R.35 of the National Court Rules ('NCR') or the Court's inherent jurisdiction to set aside the ex parte order. Also, the applicant could have filed an appeal as he was within time to do that. (See In re Application by John Maddison [2009] PNGSC 12; SC 984 dated 27th July, 2009 per Mogish, Cannings, Manuhu .JJ. However, the applicant took other steps which if pursued, would have no legal basis and would be futile, e.g, he lodged a complaint with the Minister for Lands. In my view, that would not have achieved anything. 

20.	I find that the explanations given by the applicant for not exercising the rights available to him within the mandatory time period, are without merit. As Wilson .J said in NTN Pty Ltd v. PTC & ors [1987] PNGLR 70 N587;

"There comes a time when things are entitled to be as they appear. An applicant who is involved in challenging a decision which has implications for another party or public administration, is under a heavy duty to act expeditiously and fairly."
 (my emphasis)

21.	I find that the applicant has not acted expeditiously. The reasons he gave as explanation for the 3 year delay are not only without merit but are steps that would not have taken him anywhere in relation to seeking a remedy against the National Court's decision. Definitely, lodging a complaint with the then Minister would not have assisted the applicant in challenging the National Court's decision unless the applicant was looking for some reprieve or relief or remedy from the then Minister for Lands.

22.	Having decided that leave should not be granted because of the delay alone, it is not necessary for me to discuss and decide on the other factors submitted by the applicant's counsel. However, I will continue by discussing the pleadings filed by the applicant in the Court below as it is a ground of the review. I will also discuss the futility of this review proceedings, which includes discussion on the merits of the review.

23.	Pleadings: It is a general rule of pleading and a requirement under the NCR that where the facts are substantially in dispute, then the proceedings must commence by Writ of Summons and Statement of Claim. In this case, there are obviously very serious allegations of fraud having been perpetrated upon the records of the Department of Lands in relation to the property the subject of these proceedings, by persons employed by the Department of Lands and the then Minister for Lands. The proceedings should have been commenced by Writ of Summons and Statement of Claim done in accordance with O.4 R.(2)(1)(b) and O.4 R (3)(1)(2) of the NCR because of the extensively disputed issues.

24.	In this case, the first respondent choose to commence proceedings by Judicial Review. Of course, in Judicial Review proceedings, the pleadings are made up of the Originating Summons and the Statement in support. It is noted that the applicant was not a party to the proceedings in the National Court, although the first respondent knew that Lae Bottling Industries Ltd had an interest in the property, the subject of these proceedings. I say this because since 10th January, 1991, the first respondent had a 99 year lease over the property, with title issued to it on 25th January, 1996. It made and installed substantial improvements to the property worth over K400,000.00.

25.	It then entered into a sublease with the Lae Bottling Industries Ltd, the applicant in these proceedings, leasing the property to it at K3,000.00 per month. Thereafter, Lae Bottling Industries failed to pay rent under the agreement. The evidence in the Court below is that the lack of revenue from the lease rentals meant that the first respondent then fell into arrears in paying its annual land rent to the Department of Lands. This resulted in the Lands Department revoking the State Lease and eventually forfeiting it. A lot then happened to the property which were the subject of the trial judge's findings, which he generally found to have involved fraud, deception and the gross abuse of procedure by both the applicant and the then Minister for Lands, the named third respondent and certain officers (named) in the Department of Lands and the Morobe Provincial Government.

26.	It is necessary that I set out firstly, the orders sought in the Originating Summons and the trial judge's findings.

27.	The Originating Summons filed on 7th August, 1999 at the National Court, Lae, OS 200 of 1999 names Lae Rental Homes as the applicant, Viviso Seravo, the first respondent and the State, the third respondent. It pleads the following;

"1. Leave to apply for Judicial Review of the decision of the first and second respondents communicated to the applicant through letter of 14th March, 1999 received by the applicant on 3rd May, 1999 dismissing the applicant's appeal against the decision of the Land Board No. 199.

2. An order in the nature of Certiorari that the decision of the first and second respondents contained in the letter of 24th March, 1999 received by the applicant on 3rd May, 1999 dismissing the appeal against the decision of the Land Board No. 199 be brought into this Honourable Court and be quashed.

3. An order that the applicant's appeal against the Land Board hearing be upheld or alternatively that the Minister for Lands re-hear the applicant's appeal against the decision of Land Board No. 199.

4. Costs of the proceedings.

5. Such further order as this Court thinks fit."

28.	The Statement filed on the same day in support of the application for leave for Judicial Review sought the same orders. Those were effectively, the pleadings in the Judicial Review.

29.	The final orders made by the trial judge on 27th October, 2003, after hearing the substantive Judicial Review, were the following;

ORDER

The Court orders that;

1.	The purported revocation of the grant of title in respect of Section 65 Allotment 1, Volume 144 Folio 6 Lae, Morobe Province to Lae Rental Homes Ltd by the then Minister for Lands, Sir Albert Kipalan KBE LLB on an unspecified date in April of 1996 was improperly issued and is therefore null and void and ab initio;

2.	The subsequent forfeiture of the plaintiff's title to the land known as Section 65 Allotment 1 Volume 144 Folio 6 Lae, Morobe Province was in breach of the Act and is therefore null and void ab initio;

3.	The decision number 199 by the Land Board communicated to the plaintiff by letter dated 24th March, 1999 allocating the land Section 65 Allotment 1 Volume 144 Folio 6 Lae, Morobe Province to Lae Bottling Industries Limited was not arrived at or made in accordance with the provisions of the Land Act and is illegal and void ab initio;

4.	The dismissal of the plaintiff's appeal against the Land Board decision referred to above is null and void ab initio as it was arrived at without good reasons and in the absence of transparency and principles of good governance.

30.	The first respondent, through Mr Pokia, his present lawyer, accepts that the pleadings in the National Court were poorly drafted. If I were to accede to the applicant's application and quash the trial judge's orders, how is that going to impact upon the serious allegations of fraud and irregularities in the Lands Department involving its officers and the applicant's representatives? That is a factor that is foremost in my mind, of course, apart from the established principles on the grant of leave being that it is in the interests of justice to grant leave; that there are cogent convincing reasons and exceptional circumstances and finally; that there are legal grounds meriting a review. That when deciding whether there are cogent and convincing reasons, to also consider the reasons for not filing within time and the merits of the case.

31.	I acknowledge that the drafting of the Originating Summons and the Statement in Support is poor. However, generally, the both documents conveyed the essential issues for the trial judge to consider and address. A reading of the documents will show that it is the decision of the Land Board that the first respondent complains about. Being aggrieved by that decision, the first respondent lodged an appeal to the then Minister for Lands against the decision of the Land Board. Thus, in respect of Ground 1 of the Review application, leave was granted to review the Land Board's decision.

32.	In relation to Ground 2 of the Review, the appeal to the Minister was against the Land Board's decision. It was incumbent on the Head of State to properly consider the appeal which challenged the Land Board's decision. If the first respondent's appeal had been accepted, it would have also meant that the decision to award the land to the applicant would have been nullified. This would have meant that the decisions to forfeit and the actual forfeiture would have been set aside. These were the decisions to make on the appeal. Thus, it was sufficient to appeal against the Land Board's decision to grant the subject land to the applicant.

33.	As for Ground 3 of the Review, it would be of no consequence at all if the Court upheld this ground. This is because the review is also against the State who acted through its agents, the Land Board and the Head of State acting on advice.

34.	In relation to Ground 4 of the Review, I have considered the effect and meaning of s.62 and s.142 of the Land Act. Section 62(1) states "…person aggrieved…" or more appropriately, a person who is affected and desires to appeal against a decision of the Land Board. Section 142 reads "…an interested person…" who seeks to appeal. In my view, 'a person aggrieved', is a person who was involved, or as I said above, a person who is affected by the process employed by the Land Board and the final result. As for 'an interested person', mentioned in s.142, I take that to mean a person who was not involved in the actual process but somebody who has an interest in the proceedings before the Land Board. Whether the first respondent had invoked s.62(1) or s.142. My view is that the first respondent need not have lodged an appeal, thus invoking either s.62(a) or s.142. He choose to challenge the whole process rather than the appeal itself. That is a choice he can make.

35.	Without considering the remainder of the grounds for review, I note that the applicant wants the matter to be reheard by the National Court after its decision of 27th October, 2003 is set aside. That is where the delay is of significance. The Supreme Court Review was filed in 2006, 3 years after the National Court's decision. If this matter were to return to the National Court for rehearing, all the evidence to be relied on, would have all been tainted by events that have occurred since 2006 or even as further back as 2003. Additionally, I pose this inevitable question, would it serve any useful purpose, especially where events that have occurred since then (2003 to 2006 and thereafter) has affected the status quo? In my view, it will not because the trial Court will be considering the same evidence that went before it in 2003. Evidence may also not be available. No useful purpose will be served.

36.	In the case of Alphonse Hayabe v. William Powi (2007) N3113, Hartshorn .J noted that the applicant for Judicial Review was seeking a review of a decision to appoint the first defendant as Acting Provincial Administrator, when the first defendant's appointment had been revoked and the applicant appointed as Acting Provincial Administrator. His Honour said when considering leave that one of the factors to be considered, is whether any useful purpose will be served if the relief sought is granted. If answered in the negative, leave should be refused. In Alphonse Hayabe, the applicant was already appointed as Acting Provincial Administrator and the challenge to the first defendant's appointment was not necessary as the first defendant's appointment had been revoked.

37.	In Allan Pinggah v. Margaret Elias & ors (2005) N2850, Injia DCJ, as he then was, found that there was an error in the decision making process and quashed that decision, but did not grant the relief claimed by the plaintiff as no useful purpose would have been served.

38.	In Mission Asiki v. Manasupe Zurenuoc & Others (2005) SC797, the Supreme Court said that, even if a Court finds that there was errors in the decision making process, it is not automatic that a person is granted a remedy. The remedy remains a discretion. A Court may decide not to even grant a remedy.

39.	In this case, despite the fact that the applicant was not named as a party in the Court below and despite the fact that the applicant was not served the Court documentation filed in the Court below, that on the evidence in the Judicial Review, it is highly unlikely that the applicant would have been granted any reliefs. In my view, even if the applicant was joined as a party, or was served the proceedings, no useful purpose would have been served at trial because the evidence against the applicant is not to his advantage and benefit. 

40.	On consideration of the facts, I note also the brief chronology of events handed up to Court by Mr Pokia for the first respondent. I note from that chronology that the notice to show cause was issued on 11th August, 1997, before the first respondent's State Lease was forfeited, which occurred on 3rd December, 1997. The notice stated that the deadline to show cause was 30 days from the date of the issue of notice which in this case, occurred on 11th August, 1997. The 30 days would have expired on 10th September, 1997. The first respondent was not served the notice and never received such a notice. It was by chance that Mr Nenjipa of the first respondent became aware of the notice then went to the Lands Office and picked up the notice on 6th October, 1997, well after the deadline to show cause.

41.	The purported service of the notice to show cause was served on 4th September, 1997. This only left a matter of days for the first respondent to comply. In addition, service was effected on the land in question at which time the applicant was already in occupation. The evidence is that the applicant never made any attempts to inform the first respondent about the notice. The evidence in the Court below is that the first respondent was never accorded the right or the opportunity to be given or served a copy of the notice and to respond to it.

42.	From perusal of the evidence in the Court below, it demonstrates that the applicant's Managing Director was privy to information from the Lands Department about the steps being taken in the Lands Department to forfeit the State Lease. Indeed, it demonstrates that the applicant's principal and its servants and agents went to great lengths to prevent the first respondent from taking any action until it was too late.

43.	This is confirmed by the trial judge's findings that the applicant had collaborated with the Department of Lands personnel and its Minister then, to deprive the first respondent of a very valuable asset. 

44.	Given the above, the statutory breaches in awarding the land and the later forfeiture of the land, would obviously have attracted the same remedies. Thus, the results would have been no different if the applicant was made a party to the proceedings in the Court below or was served the Court process or there were matters specifically pleaded against it and its servants and agents.

45.	The evidence involving fraud by the applicant is very overwhelming. I say this, noting the evidence in the Court below, painstakingly and exhaustively reviewed by the Trial Judge, more particularly in relation to the processes involved in the awarding of the land to the applicant, demonstrating the extent of the fraud perpetrated on the records and the circumventing of established processes.

46.	The remedy sought by the applicant, is a quashing of the decision of the Court below. In Allan Pinggah (supra), Injia DCJ (as he then was), when considering what remedy ought to be given to a public servant who was not given an opportunity to be heard, said;

"…This is a discretionary matter. A re-hearing is normally ordered where there is a procedural error or blunder committed by the decision-maker and if the matter were to be re-heard following proper procedures, it would be open as a matter of law, the decision-maker to arrive at different results. In my view, in the present case, it is not appropriate to do so. Even if the PSC conducted an oral hearing, as a matter of law, the PSC would still arrive at the same decision. That is, the plaintiff cannot be re-deployed in the Public Service after he was retrenched. It would serve no purpose and therefore detrimental to the good administration of the Public Service to require DPM and DLE re-deployed a retrenched officer contrary to clause 16.7 of General Order 16…".
 (my emphasis)

47.	In Emas Estate Development Pty Ltd v. John Mea & Ors [1993] PNGLR 215, the Supreme Court held that although there was no real evidence of fraud, the issuance of the title was irregular and unlawful in that it was issued in breach of the mandatory statutory procedures set out in the Land Act. That was the basis on which the registered proprietor's title was declared invalid. 

48.	The principle in Emas Estate Development Pty Ltd v. John Mea & Ors (supra) was later applied in Steamships Trading Company Ltd v. Minister for Lands & Physical Planning & Ors (2000) N1959 and Hi Lift Company v. Miri Satae and another (2000) N2004.

49.	Based on the above discussions, I am of the firm view that no useful purpose will be served if leave was granted and matter was referred to rehearing.

Conclusion

50.	To conclude, the aspect of delay, being the overall consideration is a factor that has proven its worth and continues to prove its worth in the many cases deliberated on by the Courts, as demonstrated in my brief discussions on the merits of this case. This is demonstrated in John Mua Nilkare v. Ombudsman Commission (1995) PGNC 29 N1344, where Sheehan .J said;

"It may indeed be a large task to persuade a Court not to grant relief in the face of proven jurisdictional error. But if the Court can be shown, there has been undue delay on the part of alternative remedies exist, relief may be declined.

Order 16 rule 4 of the National Court Rules specifically provides that relief may be declined for undue delay and I am satisfied there has been unwarranted delay in this matter."
 (my emphasis)

51.	No doubt, the granting of the orders sought by the applicant will seriously prejudice the first respondent.

52.	I find that leave must be refused. Because leave is refused, if follows that the trial judge's decision is affirmed.

53.	The Order of the Court is that the decision of the trial judge is affirmed and application for review is dismissed with costs.

_________________________________
Manase & Co. Lawyers: Lawyers for the Applicant
Mirupasi Lawyers: Lawyers for the First Respondent
Solicitor-General: Lawyers for the Second Respondent