PNG Power Ltd v Edward Maka

• Jurisdiction: Papua New Guinea
• Judge: Thompson J
• Judgment Date: 05 September 2018
• Citation: (2018) N7442
• Court: National Court
• Year: 2018
• Judgement Number: N7442

Full : OS (JR) 25 of 2017; PNG Power Limited v Edward Maka Reipi Compliance Officer and Jason Komet as the Manager for Lease Compliance, Lands & Physical Planning and Luther Sipison as the Secretary of Lands and Physical Planning and Honourable Benny Allan MP, Minister for Lands and Physical Planning and The Independent State of Papua New Guinea (2018) N7442

National Court: Thompson J

Judgment Delivered: 5 September 2018

N7442

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

OS (JR) 25 of 2017

BETWEEN

PNG POWER LIMITED

Plaintiff

AND

EDWARD MAKA REIPI

Compliance Officer

First Defendant

AND

JASON KOMET as the Manager for Lease Compliance, Lands & Physical Planning

Second Defendant

AND

LUTHER SIPISON as the Secretary of Lands and Physical Planning

Third Defendant

AND

HONOURABLE BENNY ALLAN MP

Minister for Lands and Physical Planning

Fourth Defendant

AND

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

Fifth Defendant

Waigani: Thompson J

2018: 5th September

APPLICATION FOR JUDICIAL REVIEW – Minister forfeiting land for failure to show cause – failure to serve Notice of Forfeiture – Compliance with S122 (4) of Land Act mandatory.

Counsels:

Mr D Dusava, for the Plaintiff

Mr W Meninga, for the First Defendant.

RULING

5th September, 2018

1. THOMPSON J: This is the hearing of the Plaintiff’s substantive application for Judicial Review.

Facts

2. Briefly, the Plaintiff was the registered proprietor of three (3) pieces of land in Boroko. By a Notice received on 12 October 2015, the third Defendant required the Plaintiff to Show Cause as to why the land should not be forfeited due to the Plaintiff’s failure to comply with the improvement covenants and failure to pay land rent. On 13 October 2015, the Plaintiff responded by advising that as the land was undeveloped, it was being sold to its employees. No response was received saying that cause had not been shown, and the plaintiff heard nothing further

3. On then discovering that the certificates of title could not be located either in its own records or in the Lands Department records, on 29th March 2016 the Plaintiff applied to the Third Defendant under S 162 of the Land Registration Act for replacement titles to be issued.

4. The Plaintiff became aware in about April 2016 that the land had been forfeited and allocate to the First Defendant, who was an employee of the Lands Department. It was eventually established that Forfeiture Notices had been issued on 21 December 2015, that land had been exempted from advertisement, and in January 2016, the Land Board had granted title to the First Defendant.

5. The plaintiff seeks to review the decision of the Third Defendant made on 21 December 2015 to forfeit its title to three (3) pieces of land in Boroko, and to enforce the Fourth Defendant’s decision of 3 November 2016, to revoke the forfeiture.

Findings

6. The merits of the Minister ‘s decision to not accept the Plaintiff’s response to the Notice to Show Cause as being sufficient , is not subject to his Review. Judicial Review is concerned not with the decision, but with the decision – making process. Unless the decision was so unreasonable that no Minister could have made it, the decision was so concerned with whether or not the Minister followed the required procedures in reaching that decision (see Jean Kekedo v Burns Philip (1988-89) PNGLR 122 et al.)

7. In this case, the decision to find that the Plaintiff’s response did not show sufficient cause, was made after following the required procedures, and was a decision which was open to him on the facts, as it was not in dispute that the Plaintiff had failed to comply with the improvement covenants, which was a ground for forfeiture under s 122.

8. It follows that the decision to forfeit the land was not in breach of the requirements of s 122 (`1), (2) and (3).

9. However, there is no evidence of compliance with S122 (4), which required Notice of Forfeiture to be served on interested parties which clearly would have included the Plaintiff. If the Notice of Forfeiture had in fact been served, it would be surprising if the First Defendant had not been able to produce a copy, as he was working in the Defendant’s office and had access to all the records, and he produced all the other documents. The position therefore remains that there is no evidence that the notice was served.

10. The requirements of s 122 (4) is mandatory – the notice shall be served. Because it was not served, the Plaintiff was denied the opportunity to take action, and in particular to apply for the land title to be reissued to it. I have not had the benefit of reading the case referred to by the First Defendant’s counsel, but it was said to be a National Court decision and apparently relied on a finding that the Plaintiff was already aware of the forfeiture. That would distinguish it from this case, where the Plaintiff was completely unaware of the forfeiture. The Plaintiff received no notification that its response was considered unsatisfactory and had not shown sufficient cause, did not receive a Notice to comply, and was not advised that the Minister had decided to forfeit the lease.

11. The failure to comply with the mandatory provision for service of the forfeiture notice under s 122 (4) had the effect that the forfeiture decision was not validly made.

12. In relation to paragraph 2 (b) of the Amended Statement, the Ground has not been made out. The decision of the Fourth Defendant to direct the revocation of the forfeiture was not valid, as it did not comply with s 123 of the Act, in that there was no allegation of a mistake, and in any event, the notice under s75 had already been published in the Gazette in respect of another applicant, namely the First Defendant.

13. In relation to the Grounds set out in the Statement:

a) This is not a proper Ground of review clearly known to law.

b) The merits of the Plaintiff’s response showing cause, is not reviewable, The decision that sufficient cause had not been shown was reasonably open to the Third Defendant.

c) A notice to Comply is not mandatory. Only discretionary.

d) The Minister had complied with s 122 (3) (b) because he formed the view that the Plaintiff had failed to show good cause.

e) This Ground is not particularised and is not made out.

f) This Ground is not particularised and is not made out.

g) &h) There was no Notice of Forfeiture served as mandated by s 122 (4) of the Act, and so the forfeiture did not follow the prescribed process.

14. As these two Grounds have been made out, in relation to the Relief sought in paragraph 3 of the Amended Statement, the following orders are made:

a) This declaration is refused, as there was no valid revocation of the Forfeiture Notice.

b) This relief is granted and I make an order in the nature of certiorari quashing the decision of the Third Defendant made on 21 December 2015 to forfeit the land at Section 116, Lots 130, 141 and 143, Boroko.

c) This request for mandamus is refused, as there was no valid revocation of the Forfeiture.

d) I make a Declaration that the Plaintiff remains the registered proprietor of the land at Section 116, Lots 130, 141 and 143, Boroko.

e) Pursuant to Section 162 of the Land Registration Act, the Registrar of Titles is to issue replacement titles to the Plaintiff for the land at Section 116, Lots 130,141 and 143, Boroko.

Costs

15. As the Plaintiff did not succeed on most of the Grounds which occupied much of the evidence and arguments in this case, the Fifth Defendant is to pay 50% of the Plaintiff’s costs.

16. All the other parties are to pay own cost.

________________________________________________________________

PNG Power Ltd: Lawyer for the Plaintiff

Bradshaw Lawyers: Lawyer for the First Defendant

Solicitor – General: Lawyer for the Second, Third, Fourth & Fifth Defendants