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Erima Community Welfare Association Inc v Wange [2024] PGSC 108; SC2638 (24 October 2024)

SC2638

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCM NO. 59 OF 2021 (IECMS)

BETWEEN
ERIMA COMMUNITY WELFARE ASSOCIATION INC.
Appellant

SAM WANGE, CHAIRMAN PNG LAND BOARD
First Respondent

AND
ALA ANE, A/Registrar of Titles, Department of Lands & Physical Planning
Second Respondent

AND
HON. JOHN ROSSO, Minister for Lands & Physical Planning
Third Respondent

AND
BENJAMIN SAMSON, Secretary for Department of Lands & Physical Planning
Fourth Respondent

AND
INDEPENDENT STATE OF PAPUA NEW GUINEA
Fifth Respondent

AND
ANDREW TUMU LIMITED
Sixth Respondent

Waigani: Murray J, Toliken J, Anis J
2022: 24^thOctober
2024: 24^th October

APPEAL AGAINST REFUSAL TO GRANT LEAVE FOR JUDICIAL REVIEW – Exercise of discretion by the primary judge – whether primary judge erred in exercise of discretion in his consideration and findings on standing, arguable case, delay and exhaustion of administrative remedies – consideration – ruling

PRACTICE AND PROCEDURE – Leave Court’s roles – whether leave Court is permitted to consider and determine substantive matter whilst hearing application for leave to apply for judicial review – Order 16 Rules 3 and 4 – National Court Rules - consideration - ruling

Facts:

The appellant was an interested party to an urban development lease described as Portion 3541, Granville (Erima), Moresby, National Capital District. The land the subject of the lease was first awarded to the sixth respondent. So, in 2016, the appellant lodged a judicial review challenge against the said award before the National Court in proceeding OS (JR) No. 464 of 2016. The appellant’s judicial review application was successful. The Court, amongst others, cancelled the title to the lease and ordered the land to be re-advertised in a public tender. On 7 March 2018, the land was advertised. In 2020, the land was awarded for the second time to the sixth respondent. Aggrieved by the decision, the appellant filed a second judicial review proceeding described as OS (JR) No. 8 of 2021, to challenge the decision to grant the lease to the sixth respondent. On 15 September 2021, the leave Court refused leave to the appellant to apply for judicial review. Aggrieved by the said decision, the appellant filed this appeal.

Held (By the Court):

1. The decision the subject of the appeal concerned exercise of judicial discretion by the primary Judge. Such a decision may be disturbed or set aside by an appellant Court if an identifiable error(s) has occurred, or if not, where the order made may be inferred as so unreasonable or plainly unjust.

[Cases followed: Curtain Bros (PNG) Limited v. UPNG (2005) SC788, The State & Sam Akoita v. Central Provincial Government (2009) SC977, Australia Coal and Shale Employees’ Union v The Commonwealth [1953] HCA 25; (1956) 94 CLR 621 and Breckwoldt & Co. (N.G.) Pty Ltd v Groyke [1974] PNGLR 106.]

2. A leave Court (hearing an application for leave for judicial review) shall not make any substantive findings on matters that are intended for judicial review; and to do so would contravene the fundamental/mandatory requirements or tests that are stipulated (i) under Order 16 Rules 3 and 4 of the NCR and (ii) in the case law.

[Cases followed: Innovest Ltd v Pruatch (2014) N5949, Ted Diro v. Ombudsman Commission of PNG [1991] PNGLR 153, and Tiensten v. Koim and Ors (2011) N4420.]

3. The primary Judge proceeded to determine issues that were intended for judicial review and thus committed fatal or fundamental errors in the exercise of his judicial discretion which were sufficient to uphold the appeal.

4. The respondents concede to the requirements sufficient interest and arguable case.

5. The requirement, exhaustion of administrative remedies, is arguable, that is, whether the appellant was ever served, as required under s.58(10) of the Land Act Chapter No. 191, with the Land Board’s decision that had recommended the grant of the land in question to the sixth respondent; thus, the matter should be left for judicial review; it is also pleaded as a ground for judicial review.

6. There was no delay or undue delay because appellant filed its originating summons for leave to apply for judicial review in less than 3 months from the time the lease was granted to the sixth respondent on 18 November 2020.

7. The appeal is upheld. Leave to apply for judicial review is granted with consequential orders made, and cost is ordered to follow the event.

Cases Cited:

Papua New Guinean Cases
Leto Darius v Commissioner of Police (2001) N2046
Curtain Bros (PNG) Limited v. UPNG (2005) SC788
The State & Sam Akoita v. Central Provincial Government (2009) SC977
Breckwoldt & Co. (N.G.) Pty Ltd v Groyke [1974] PNGLR 106
Ted Diro v. Ombudsman Commission of PNG [1991] PNGLR 153
Tiensten v. Koim and Ors (2011) N4420
Innovest Ltd v Pruatch (2014) N5949
Ted Diro v. Ombudsman Commission of PNG [1991] PNGLR 153
Tiensten v. Koim and Ors (2011) N4420

Overseas Cases Cited:
Australia Coal and Shale Employees’ Union v The Commonwealth [1953] HCA 25; (1956) 94 CLR 621

Legislations/Rules:

Land Act Chapter No. 191
Supreme Court Act Chapter No. 37
Supreme Court Rules 2012 (as amended to date)
National Court Rules 1983 (as amended to date)

Counsel:
R Obora, for the Appellant
K Kipongi, for the First, Second, Third, Fourth and Fifth Respondents
No appearances by the Sixth Respondent

24^th October 2024

1. BY THE COURT: This was a judicial review appeal filed under Order 10 of the Supreme Court Rules (SCR). The appellant filed proceedings in the National Court described as OS (JR) No. 8 of 2021, Erima Community Welfare Association Inc. v. Andrew Tumu Limited and 5 Ors (OS JR 8 of 2021). On 15 September 2021, the primary Judge delivered his decision where his Honour refused to grant leave to the appellant to apply for judicial review. The appellant had applied for leave to review a decision of the second, third and fourth respondents where they had, on 18 November 2020, granted title over an urban development lease to the sixth respondent. The land concerned is described as Portion 3541, Granville (Erima), Moresby, National Capital District (UDL). The decision to grant the UDL to the sixth respondent was premised on recommendations by the Papua New Guinea Land Board (PNG Land Board).

2. The final decision of the primary Judge reads:

The Application for leave for Judicial Review is refused and dismissed.
The Plaintiff shall pay the costs of the Defendants forthwith to be taxed if not agreed.

GROUNDS OF APPEAL

3. The appellant pleads a total of 10 grounds of appeal. They may be summarised into 4 categories as follows:

(i) Locus Standi/Sufficient Interest:

The appellant alleges the primary Judge erred in law and in fact when His Honour refused to find that it had sufficient interest as it was the long-time resident or occupant of the land where the UDL is situated.
The appellant alleges the primary Judge erred in law and in fact when His Honour refused to find that it had sufficient interest; it claims that it had duly completed and lodged its Development Plans to the National Capital District Commission Physical Planning Board for approval to develop the land where the UDL is situated.
The appellant alleges the primary Judge erred in law and in fact when His Honour refused to find that it had sufficient interest because it had invested substantial amount of time and resources to develop the land where the UDL is situated.

(ii) Arguable Case

The appellant alleges the primary Judge erred in law and in fact when His Honour found no arguable case because (i), the public tender notice was opened for 2 days instead of 21 days before the Land Board made a determination and published its findings on the 3^rd day of the tender period; (ii) the appellant asserts that it did not submit its tender application but yet was put down as the runner up to the 6^th respondent in the tender process for grant of the UDL, and, (iii), it is not known whether the sixth respondent had also applied before it was awarded with the UDL by the Land Board.
The appellant asserts the allegations raised raises question of fraud which goes to demonstrate arguable case which the primary Judge did not consider.
The appellant alleges the primary Judge erred in law when His Honour made a finding that the Land Board’s early decision made on the 3^rd day of the tender period did not amount to abuse of the court process or constitute an arguable case.
The appellant alleges the primary Judge erred in law and in fact when His Honour, in considering whether there was an arguable case, made findings on the substantive matter where His Honour (i), found that the Land Board’s decision to award the UDL to the sixth respondent within 3 days after its notice for tender, did not amount to abuse of process, and (ii), made findings concerning the validity or propriety of the Addendum that was published in the National Gazette on 10 March 2018.

(iii) Delay

The appellant alleges the primary Judge erred in law and in fact when His Honour (i) determined delay by computing time from the date of filing OS JR 8 of 2021 to the date of hearing the leave application instead of computing time from the date of the decision the subject of the judicial review to the date of filing OS JR 8 of 2021 or the application for leave for review.
The appellant alleges the primary Judge considered matters under this sub-heading that should have been left for the substantive judicial review Court to decide.

(iv) Exhaustion of Administrative Remedies

The appellant alleges the primary Judge erred in law and in fact when his Honour failed to consider the fact that the appellant was never notified by the Land Board of the outcome of the tender process and its decision concerning the grant of the UDL to the sixth respondent, as required under s.58(10) of the Land Act Chapter No. 191 (LA).
The appellant alleges the primary Judge erred in law and in fact by not considering the fact that because it had not been duly notified of the Land Board’s decision as required by statute, it could not have lodged its appeal or exercised its rights of appeal under s.62 of the LA, and thus, the only remedy available would be to apply for leave for judicial review in the National Court as it had done.
The appellant alleges the primary Judge erred in law and in fact by not considering the fact that the appellant had only learnt of the decision in December of 2020 when the sixth respondent filed and serve it with eviction proceedings it had commenced in the District Court, in proceedings DC. NO 509 of 2020.
The appellant alleges the primary Judge erred in law and in fact by finding that the appellant had slept on its rights and by making determinations on the proposed issues for judicial review.

APPEAL BY WAY OF REHEARING

4. The appeal shall proceed by way of a rehearing. Sections 6 and 16 of the Supreme Court Act Chapter No. 37 (SCA) permit this Court to hear appeals in this manner. The 2 provisions read:

6. APPEAL TO BE BY WAY OF REHEARING.

(1) An appeal to the Supreme Court shall be by way of rehearing on the evidence given in the court the decision of which is appealed against, subject to the right of the Supreme Court–

(a) to allow fresh evidence to be adduced where it is satisfied that the justice of the case warrants it; and

(b) to draw inferences of fact.

(2) For the purposes of hearing and determining an appeal, the Supreme Court has all the powers, authority and jurisdiction of a Judge exercising the jurisdiction of the National Court.

......

16. DECISION, ETC., ON APPEAL.

On the hearing of an appeal, the Supreme Court shall inquire into the matter and may–

(a) adjourn the hearing from time to time; or

(b) affirm, reverse or modify the judgement; or

(c) give such judgement as ought to have been given in the first instance; or

(d) remit the case in whole or in part for further hearing; or

(e) order a new trial.

EXERCISE OF DISCRETION

5. There are 5 main considerations for grant of leave for judicial review in this jurisdiction. They are formulated under Order 16 Rules 3 and 4 of the National Court Rules (NCR) and in case law. We adopt Kandakasi J’s summary of them in Leto Darius v Commissioner of Police (2001) N2046 as follows:

He has the locus standi, that is he has sufficient interest in the matter or has a right which is being affected by way of an injury or damage by the decision sought to be reviewed;
The decision sought to be reviewed is that of a public body or authority;
The applicant has an arguable case on the merits;
All other available remedies have been exhausted; and
The application is being made promptly without undue delay.

6. The decision being challenged concerned exercise of judicial discretion by the primary Judge. Such a decision may be disturbed or set aside by an appellate Court if an identifiable error(s) has occurred, or if not, where the order made may be inferred as so unreasonable or plainly unjust. See cases: Curtain Bros (PNG) Limited v. UPNG (2005) SC788, The State & Sam Akoita v. Central Provincial Government (2009) SC977, Australia Coal and Shale Employees’ Union v The Commonwealth [1953] HCA 25; (1956) 94 CLR 621 and Breckwoldt & Co. (N.G.) Pty Ltd v Groyke [1974] PNGLR 106.

7. The Supreme Court in Curtain Bros stated:

The appellate Court will not interfere with a discretionary judgment on a procedural matter within its jurisdiction, except where the exercise of that discretion is clearly wrong. A discretionary judgment may be set aside if an identifiable error occurred in the exercise of discretion. Alternatively, it may be set aside where there is no identifiable error, but the resulting judgment or order is "unreasonable or plainly unjust" and such that an error can be inferred. These principles are well established. We adopt a passage from Kitto J in the Australian High Court case of Australia Coal and Shale Employees’ Union v The Commonwealth [1953] HCA 25; (1956) 94 CLR 621 at p. 627, which was adopted by Clarkson J in Breckwoldt & Co. (N.G.) Pty Ltd v Groyke [1974] PNGLR 106 at p.112 – 113:

"The decision by the primary judge to stay the action was made in exercise of a judicial discretion and I accept that in those circumstances the principles on which this Court should act are as described by Kitto J. in Australian Coal and Shale Employees’ Union v The Commonwealth ... the true principle limiting the manner in which appellate jurisdiction is exercised in respect of decisions involving discretionary judgements is that there is a strong presumption in favour of the correctness of the decisions appealed from, and that that decision should therefore be affirmed unless the court of appeal is satisfied that it is clearly wrong. A degree of satisfaction to overcome the strength of the presumption may exist where there has been an error which consists in acting upon a wrong principle, or giving weight to extraneous or irrelevant matters, or failing to give weight or sufficient weight to relevant considerations, or making a mistake as to the facts. Again, the nature of the error may not be discoverable, but even so it is sufficient that the result is so unreasonable or plainly unjust that the appellate court may infer that there has been a failure properly to exercise the discretion which the law reposes in the court of first instance ..."
CONSIDERATION

8. From the grounds of appeal, the standalone ground, which if granted would determine the appeal, is the appellant’s claim that the primary Judge, in his deliberation, made substantive findings on matters for review which was contrary to his role as a judge hearing a leave application.

9. We note the submissions of the parties on this matter.

10. To address that, we first refer to the Originating Summons that had sought leave to apply for judicial review that was filed in OS JR 8 of 2021. It is contained in Tab 1 in the Notice of Motion (NoM) filed 13 October 2021. At pp. 2, it reads in part as follows:

THE PLAINTIFF/APPLICANT seeks the following orders: -

AN ORDER granting Leave to apply for Judicial Review pursuant to Order 16 Rule 3 of the National Court Rules, to review the Decisions of the First and Second Respondents to grant Urban Development Lease (UDL) over the land described as Portion 3541, Granville (Erima), Moresby NCD and to issue title on 18^th November, 2020 without following the following (sic) the procedures prescribed by laws under sections 103-110, Land Act, 1996, and without having satisfied with proper development plan requirements under the Physical Planning Act, 1989, respectively.

11. With that, we turn our attention to the written decision of the primary Judge which is contained in Tab 11 of the NoM. We make observations and restate some of the excerpts of the leave Court as follows:

His Honour referred to Annexure L in the supporting affidavit of Felix Kelly filed 2 June 2021, which is contained in Tab 9 of the NoM. The annexure consists of a letter dated 4 May 2018 from the Department of Lands and Physical Planning (Department of Lands) to the appellant. The letter informs the appellant, amongst others, that its application for the UDL was being considered by the Land Board, and that the Land Board would advise the appellant in due course of the outcome, and that in the meantime the appellant should not pay any fees.
So, at para. 7, pp. 4, his Honour states,

“This evidence that's not disclose what is lacking in the bid or tender made by the sixth defendant. In any case that is in the discretion of the defendants when the tender form or application is made to them. It is their record and not the plaintiff. It is not part of the evidence in the case of the plaintiff. So it is not clear how the sixth (6) defendant lacks in the requirements called for by section 106 of the Act, and so sustaining the argument of the plaintiff. In the same way annexure “K” the tender form or application of the plaintiff does not state how much they are financing the tender and if it is granted. It is simply put as, “To have the said portion 3541 incorporated in settlement upgrading program.” In itself it is a very vague proposition it does not make the proposal attainable. And to grant an UDL would be unreal given there is no financial offer upfront to fund the UDL if it is granted. Developments on the land will be with funding. And the tender of the plaintiff is unsustainable and leaves a lot to be desired off.”

We observe that these are findings made on the substantive matter by the primary Judge which the appellant had intended to raise in the judicial review if leave was granted.

At para.11, pp. 6, his Honour stated in part,

“They do not have any rights on the land. Exemption of advertisement set out in the National Court proceedings sets the procedure. But that does not necessarily mean the subject land must be accorded the plaintiff. Because their situation is not likened to Papua Club Inc v Nasaum Holdings Ltd [2005] PGSC 15; SC812 (2 December 2005).”

We observe that these are findings made on the substantive matter by the primary Judge which the appellant had intended to raise in the judicial review if leave was granted.

At para. 14, pp. 6, his Honour stated,

“The proposals are not enough to secure there must be evidence of financial and other resources available for the subdivision. In the case of the plaintiff he does not demonstrate adequately to be favoured in grant. This is the key factor underlying as without money in the pocket of the plaintiff upfront evidence of, his tender will not be on the same par with the others upfront satisfying that fact. The State will earn from that fact for the public purse not without. So if the plaintiff is not on par, he will obviously not secure as was the case here. The process of law has been accorded its dues by the defendants not without.”

We observe that these are findings made on the substantive matter by the primary Judge which the appellant had intended to raise in the judicial review if leave was granted.

At para.15, pp. 7, his Honour stated in part,

“There is no evidence of a tainted process, biased process of the land Board here. It is not the same as when the National Court accorded in his favour because there was no advertisement. He has not demonstrated this ground to the required balance by the laws set out and this ground is not made out in his favour.”

We observe that these are findings made on the substantive matter by the primary Judge which the appellant had intended to raise in the judicial review if leave was granted.

At para.17, pp. 7, his Honour stated in part,

“Questions posed by the plaintiff do not make out his cause. He must provide the evidence that the land Board did not sit in the grant of the UDL to the sixth defendant. It is not the duty of the Court to find the answers in his case for him. He must point the answers by the evidence that he leads.”

We observe that these are findings made on the substantive matter by the primary Judge which the appellant had intended to raise in the judicial review if leave was granted. We also observe that the primary Judge was critically examining and making findings on the evidence.

At para. 21, pp. 8, his Honour stated in part,

“He has slept over his rights to appeal. He discloses no good reason other than that he was not served the decision of the land Board. But that decision was published dated 26^th March 2018. He was notified of the decision with the World and his simply did not exercise what section 62 accorded him.”

We observe that these are findings made in part on the substantive matter by the primary Judge which the appellant had intended to raise in the judicial review if leave was granted.

12. The above excerpts of his Honour’s decision, in our view, are examples of substantive findings of matters that should have been left for the judicial review Court to make. These are fatal and would amount to substantive errors committed by the leave Court which should leave this Court with little or no option but to uphold the judicial review appeal. Making substantive findings at a leave hearing is in contravention to the fundamental/mandatory provisions that are stipulated under Order 16 Rules 3 and 4 of the NCR and those prescribed in the case law. In Innovest Ltd v Pruatch (2014) N5949, his Honour Gavara-Nanu restates the role of a leave Court when hearing an application for leave to review, as follows:

39. Under the last requirement, the Court is only required to see whether on a quick perusal of the materials before it, there is a prima-facie case of an arguable case, or a serious issue to be tried which, on further investigation by the Court, might favour the grant of the claim or relief sought by the plaintiff. If so then that would warrant the grant of leave for judicial review. A quick perusal of the materials should not involve a detailed analysis of the materials. The materials to be perused should include the Statement in Support, more particularly the grounds for review and the supporting affidavits. In Inland Revenue Commission v. National Federation of Self-Employed and Small Businesses Ltd [1981] UKHL 2; [1982] A.C 617 at 644, Lord Diplock in stressing this process said:

"So this is a threshold question in the sense that the court must direct its mind to it and form a prima facie view about it upon the material that is available at the first consideration in the light of further evidence that may be before the court at the second stage, the hearing of the application for judicial review itself".

40. His Lordship then said:

"If on a quick perusal of the material then available, 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 to the applicant the relief claimed. It ought to in the exercise of a judicial discretion, to give him leave to apply for the relief. The discretion that the Court is exercising 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." (my underlining).

41. This principle has been adopted and cited with approval by the courts in many decided cases in this jurisdiction and is the appropriate test for the grant of leave for judicial review . Indeed, by virtue of Sch. 2.2 of the Constitution the principle is part of the underlying law: Ila Geno v. The State (supra); Paul Asakusa v. Adnrew Kumbakor (supra); Willie Edo v. Hon. Sinai Brown (supra) and Pepi Kimas v. Boera Development Corporation Ltd (supra).

13. Sheehan J in Ted Diro v. Ombudsman Commission of PNG [1991] PNGLR 153, stated on point:

An ex parte application for leave to apply is not intended to be as extended or exhaustive as a full substantive judicial review hearing. The purpose is to establish whether the applicant has an arguable case. There will just as likely be an arguable case in opposition. But that would not be a ground for refusal. If the court can be satisfied there is a case fit for further consideration then leave should be granted.

14. Lenalia J in Tiensten v. Koim and Ors (2011) N4420, also stated on point as follows:

20. So in the circumstances of the instant application, I am not required to look into the matter deeply as it would defeat the purpose of it in this jurisdiction as any leave application as provided for under O.16 r.3...

WHETHER LEAVE FOR JUDICIAL REVIEW SHOULD BE GRANTED

15. Instead of referring the matter back to the leave Court to re-convene to determine the leave application, pursuant to the Court’s jurisdiction under ss. 6 and 16 of the SCA, we will proceed to hear the leave application. This option is also sought in the NoM.

16. At the appeal hearing, counsel for the State Mr. Kipongi conceded to the requirements sufficient interest and arguable case in regard to the matter. The only contests were in relation to exhaustion of administrative remedies and undue delay.

17. We note that submissions of the parties on these 2 requirements.

18. In regard to exhaustion of administrative remedies, we are minded to uphold the submissions of the appellant with qualifications. The appellant was successful in its first judicial review proceeding concerning the UDL, that is, in OS (JR) No. 464 of 2016 (OS JR 464). Makail J, amongst others, cancelled the UDL that had been awarded to the sixth respondent, and ordered the Secretary for the Department of Lands to comply with s.68 of the LA, that is, by publishing a notice in the National Gazette to say that the subject land was available for leasing. To comply with the said order, on 7 March 2018, the Department of Lands published the notice in the National Gazette notifying the public that the land, where the UDL was later issued under, was available for leasing. The notice also informed the public that the tender process would close at 3pm on Wednesday 28^th March 2018. The permitted period in the notice for the tender to remain open was 21 days. Three days after and on 10 March 2018, the Department of Lands published an addendum in the National Gazette notifying the public that the Land Board had sat and had considered the tenders of 4 applicants over the land where the UDL would later be granted on. The addendum also informed the public that the Land Board had recommended the 6^th respondent as the successful applicant for the grant of the UDL over the land.

19. The appellant intends to contend as part of its judicial review argument, if leave is granted, (i), that only 3 days had lapsed before the Land Board purportedly conducted its meeting and published it in the National Gazette on 7 March 2018, (ii), that the appellant is at lost of how that Land Board was able to find time to follow the due process as stipulated under the LA, and then meet and recommend in its deliberation that its application was the runner up in the tender bid when the appellant by then did not submit its tender application form to the Land Board for consideration, (iii), that it (i.e., the appellant) was never formally notified by the Land Board of the decision that it was the runner up, as required under s.58(10) of the LA, (iv), that it only became aware of the UDL being granted to the sixth respondent on 9 December 2020 when the sixth respondent filed and served it with court documents for summary ejectment in the District Court in proceeding DC 509 of 2020, (v), that the prescribed time for an aggrieved party to appeal the decision of the Land Board under s.62(1) of the LA, which is 28 days, was subject to the Land Board’s duty to notify the appellant pursuant to s.58(10) of the LA, (vi), and that since no notice was ever issued by the Land Board to it, the said administrative appeal process was exhausted or un-available.

20. Counsel for the State, Mr. Kipongi did not address exhaustion of administrative remedies in his written submission that was filed. But from the oral submissions, counsel submitted that the appellant did not exhaust the appeal process stipulated under 62 of the LA before it applied for leave for judicial review therefore the appellant failed under this requirement.

21. Sections 58(10) and 62 read:

58. MEETINGS OF THE LAND BOARD, REPORTS, ETC.

......

(10) The Chairman shall forward notice of the Land Board’s recommendations, other than a recommendation to which Subsection (8) applies, to every person who, in his opinion, is interested in an application or matter dealt with by the Board.

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.

[Underlining mine]

22. It appears that to make a determinative finding on this issue now may be seen as determining a substantive matter which should be left for the judicial review Court to consider and determine if leave is granted. We say this because the appellant has put down as a ground of review in its Statement that is filed pursuant to Order 16 Rule 3(2) of the NCR (refer to Tab 3 of the NoM), the following:

5.1.3 Denial of Plaintiff’s right to Appeal – The First Defendant failed to inform Plaintiff of the PNG Land Board Decision in its Meeting No. 01/2018 to grant UDL to the Plaintiff (sic) to give the Plaintiff an opportunity to appeal against the decision. The failure by the First Defendant to inform the Plaintiff of its decision amount to breach of the Plaintiff’s right to be heard guaranteed by section 59 of the Constitution.

23. Thus, if we were to say “yes, we are satisfied that the appellant has exhausted the administrative remedies because the Land Board did not comply with s.58(10) which would have permitted the appellant to utilize the appeal process thus the appellant was at liberty to apply to the National Court for judicial review,” the effect of this finding may be determinative of the said proposed ground of review.

24. Therefore, and for this purpose, it is, in our view, safe to say that the issue is contested or arguable but undecided at this stage because to do so would mean to exceed this Court’s power and role sitting as a leave Court for judicial review. The arguments should therefore be left for the substantive judicial review Court to decide, that is, if leave is granted.

25. We turn to the issue of undue delay. We note the submissions of the parties in this regard. Again, for the State, Mr. Kipongi did not address that in his written submission.

26. But in his oral submission, Mr. Kipongi submits that the Land Board’s decision was made on 10 March 2018 thus time should be computed from that time to the date when OS JR 8 of 2021 was filed which was 5 February 2021. If time is computed following the stated period, there would be a delay of about 2 years and 11 months. The State submits that that amounts to undue delay thus leave should be refused.

27. The appellant submits that the Court should look at its pleaded relief as filed, to see the decision that it intends to challenge, and compute time premised on that. We refer to OS JR 8 of 2021. The relief sought which is also quoted above reads in part, to review the Decisions of the First and Second Respondents to grant Urban Development Lease (UDL) over the land described as Portion 3541, Granville (Erima), Moresby NCD and to issue title on 18^th November, 2020...

28. We note that the decision of the Land Board consisted of recommendations. But the decision to issue title over the UDL was a separate decision which would have been made on or about 18 November 2020. And it was that said decision that the appellant had intended to review in OS JR 8 of 2021.

29. Computation of time by a leave Court, in our view, should be premised on what is pleaded in an originating summons and Statement that is filed under Order 16 Rule 3(2) of the NCR. In the present case, the decision sought to be reviewed was made on or about 18 November 2020. This was pleaded in OS JR 8 of 2021 as quoted above. When we compute time premised on that, the length of time from 18 November 2020 to 5 February 2021 is less than 3 months.

30. We therefore reject the State’s submission that there was delay in filing the originating summons for leave to apply for judicial review. We find no delay or undue delay in that regard.

SUMMARY

31. In summary, the judicial review appeal is upheld. Further, and upon hearing the application for leave to apply for judicial review, we find that the appellant has satisfied the Court in regard to the requirements for leave for judicial review. Leave will be granted, and appropriate orders will be issued for the appellant to file its substantive Notice of Motion for Judicial Review under Order 16 Rule 5 (1) of the NCR. Additional orders will also be made for the matter to return before the judicial review listings Court for Directions.

REMARK

32. In closing, we refer to Annexure “G”, Tab 8 of the NoM which is an affidavit by Steven Marape which was filed in OS JR 8 of 2021. The annexure is incomplete and only shows the second page of what may be described as a publication in the National Gazette, that is, G731 dated 2^nd November 2020. In the said schedule, it appears to show recordings of the Land Board’s decision where the Land Board appeared to have determined an appeal that had been filed by the appellant. We note that we pressed both counsel to give clarity on that. However, we received little or no valuable assistance from both counsel.

33. So, we note that that is something that may be considered later in the judicial review application.

COST

34. We will order cost of the appeal to follow the event in favour of the appellant.

ORDERS OF THE COURT

35. We make the following orders:

The appeal is upheld.
An order that the orders of his Honour Miviri J made on 15^th September 2021 in the National Court proceeding reference OS (JR) NO. 08 of 2021 – Erima Community Welfare Association Inc. v. Sam Wange & 5 Ors, is removed into this Court and quashed forthwith.
An order that the National Court proceeding reference OS (JR) NO. 08 of 2021 – Erima Community Welfare Association Inc. v. Sam Wange & 5 Ors, is reinstated, and leave to apply for judicial review is granted to the Appellant (Plaintiff) to proceed with the substantive Application for Judicial Review.
Consequential to the above, and in accordance with Order 16 Rule 5 of the National Court Rules, the Appellant shall file and serve its Application for Judicial Review (which shall be instituted by filing a Notice of Motion) within 21 days from today.
The Appellant shall, after filing, effect service of its Application for Judicial Review on all persons that are directly affected including the Respondents.
The matter shall return to the National Court before the Judicial Review Court for Listings.
The Respondents shall pay the Appellant’s cost of the appeal on a party/party basis to be taxed if not agreed.

The Court orders accordingly

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Raymond Obora Lawyers: Lawyers for the Appellant
Solicitor General: Lawyers for the First to the Fifth Respondents

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