Ramu Nickel Ltd and Imuruba Clan (Imuruba Ilg) & Kurumbukari Landowners’ Association and Anton Gamu (Duakai Owoza Ilg) v The Honourable Dr Puka Temu, MP, Minister for Lands & Physical Planning and Owoza Land Group Inc and The Independent State of Papua New Guinea (2007) N3252

• Jurisdiction: Papua New Guinea
• Judge: Injia, DCJ
• Judgment Date: 05 April 2007
• Court: National Court
• Citation: (2007) N3252
• Docket Number: OS NO. 950 of 2005
• Year: 2007
• Judgement Number: N3252

Full Title: OS NO. 950 of 2005; Ramu Nickel Ltd and Imuruba Clan (Imuruba Ilg) & Kurumbukari Landowners’ Association and Anton Gamu (Duakai Owoza Ilg) v The Honourable Dr Puka Temu, MP, Minister for Lands & Physical Planning and Owoza Land Group Inc and The Independent State of Papua New Guinea (2007) N3252

National Court: Injia, DCJ

Judgment Delivered: 5 April 2007

N3252

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

OS NO. 950 of 2005

Between

RAMU NICKEL LTD

First Plaintiff

And

IMURUBA CLAN (IMURUBA ILG) & KURUMBUKARI

LANDOWNERS’ ASSOCIATION

Second Plaintiff

And

ANTON GAMU (DUAKAI OWOZA ILG)

Third Plaintiff

And

THE HONOURABLE DR PUKA TEMU, MP, MINISTER

FOR LANDS & PHYSICAL PLANNING

First Defendant

And

OWOZA LAND GROUP INC.

Second Defendant

And

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

-Third Defendant

Waigani: Injia, DCJ

2007: 5 April

JUDICIAL REVIEW – Decision of Minister for Lands to grant Special Business and Agricultural Lease to Landowner Group over land the subject of an existing Special Mining Lease – Special Mining Lease conferred indefeasible title – State Lease subsequently granted and registered also conferred indefeasible title – Whether subsequent registered State lease extinguished existing registered Special Mining Lease – Constructive fraud implied - Certiorari granted – Decision quashed – Registered Special Business and Agricultural Lease set aside – Land Act 1996, ss. 11(2), 102, Mining Act 1992, ss. 4, 33, 120; Land Registration Act (Ch.19) s. 33; Land Dispute Settlement Act (Ch. 45), s. 4(1).

Cases cited:

Attorney General Michael Gene v Hamidian-Rad [1999] SC 278

Emma Estate v Mea [1993] PNGLR at 229

Highlands Pacific Resources Ltd v Honourable Sam Akotai & Others (Unpublished Judgement dated 19 November 2005)

Hi Lift Co. Pty Ltd v Miri Setae (2000) N2024

Ramu Nickel Ltd v Dr Puka Temu & Others (Unreported Judgement dated 11 January 2007)

Steamships Trading Company Ltd v Garamut Enterprises Ltd N1959.

Counsels

I Shepherd, for the First Plaintiff

G Yapao, for the Second Plaintiff

C Jaminan, for the Third Plaintiff

R Tanuvasa, for the First and Third Defendants

P Parkop and L Kandi, for the Second Defendant

5 April, 2007

1. INJIA, DCJ: On 15 February, 2007 the first plaintiff filed an application for judicial review under O 16 r 5(1) of the National Court Rules (NCR) after leave was granted on 22 November 2005. The Second and third plaintiffs have been joined as parties under O 16 r 5(2) and r 9.

2. The application relates to a decision made on 18 August 2003 by the then Minister for Lands and Physical Planning the Hon. Michael Nali, to grant a Special Agricultural and Business Lease (SABL) to the second defendant over land described as portion 19C, Milinch Sepu, Fourmil Ramu, Madang Province, known as the “Duakai Owoza” land.

3. The second defendant is an incorporated customary land group which claims ownership of the “Duakai Owozo” land. There is no dispute that the SABL was granted under s 11(2) and s 102 of the Land Act 1996. The SABL was registered under the Land Registration Act (Ch. No. 191) on 22 September 2003.

4. The first plaintiff claims it has a registered Special Mining Lease over the same land which pre-existed the SABL and as such the land was not lawfully available for leasing by the State and it should be set aside. There is no dispute that Portion 19C is included in or is part of land contained in Special Mining Lease No 8 (SML 8) granted to the first plaintiff by the Head of State on 26 July 2000 under s 33 of the Mining Act 1992. The lease was for 40 years. There is no dispute that under s 120 of the Mining Act, the SML confers indefeasible title over the land for mining purposes.

5. The second and third plaintiffs claim they are customary landowners of the same land and their interests were not considered when the SABL was granted. They support the first plaintiff.

6. The first and third defendants have no reply to the plaintiffs’ case except to support the second defendant.

7. The second defendant says the two leases, SABL and SML 8, both grant indefeasible title under the respective Acts and they can co-exist. Alternatively, the first plaintiff failed to comply with a condition of the lease in that it failed to erect improvements in three (3) years as stipulated in SML 8 and therefore, SML 8 ceased to be effective or was terminated by operation of law, hence the land was available for leasing. The second defendant acquired an indefeasible title over the land which can only be set aside on fraud.

8. The second defendant also raises procedural issues as to the proper procedure to follow in challenging a registered State Lease on the ground of fraud and other issues as to standing and delay in bringing the application for leave and the substantive application.

9. All the parties filed affidavits to support their respective cases and these were admitted into evidence and marked with the letters Exhibits “A” – “S”. The party in whose favour the affidavits are admitted is indicated on each affidavit. Counsel representing all the parties made written and oral submissions. I have considered the pleadings of the relief sought and the grounds upon which those relief is sought as pleaded in the Statement filed under O 16 r 3. I have considered the evidence and submissions.

10. The main issue is whether the Minister’s grant of SABL over the existing SML 8 was validly done.

11. The first plaintiff contends that under s 4 of the Mining Act, a dispute relating to customary land contained in a mining lease “shall be settled as provided for by the Land Dispute Settlement Act Ch. No 45”. The “Duakai Owoza” land was the subject of dispute between different groups of landowners including the Second and third plaintiff and the second defendant all of whom claimed customary ownership rights. By notice published in National Gazette No G169 dated 29 December 2001, the Head of State acting on advice declared that there was a dispute over various mining tenements issued to the first plaintiff including SML 8 and ordered the Land Titles Commission to determine customary ownership of these lands.

12. Earlier on the Iwaza Clan, the Owoza Clan and the Imuraba Clan were locked in a bitter dispute over the same dispute before the Lands Courts under the Land Dispute Settlement Act. The Local Land Court granted ownership of the land to the Imuraba Clan. The Owoza Clan appealed to the Provincial Land Court which dismissed the appeal. On application for judicial review of this decision, the National Court at Madang on 15 June 2001 in OS 174 of 1999 quashed the decision of the Provincial Land Court and ordered a rehearing by the Local Land Court before a differently constituted Magistrate and land mediators. The rehearing was pending when the second defendant granted the SABL.

13. Therefore, the first plaintiff submits, the SABL was granted in breach of s 4 of the Mining Act and in breach of the National Court order. The first plaintiff contends that the actions of the second defendant in seeking a SABL and the Minister in granting that lease created confusion, it was irregular, contrary to law and is tantamount to fraud. The first and third defendants have not provided any material or explanation which justifies the validity of the SABL. For these reasons, the SABL should be set aside: per Lay J in OS 1064 of 2005, Ramu Nickel Ltd v Dr Puka Temu & Others (Unreported Judgment dated 11 January 2007), per Lay J in OS 218 of 2005, Highlands Pacific Resources Ltd v Honourable Sam Akotai & Others (Unpublished Judgment dated 19 November 2005) and per Sheehan J in Steamships Trading Company Ltd v Garamut Enterprises Ltd N1959. Also see per Sevua J in Hi Lift Co. Pty Ltd v Miri Setae (2000) N2024 cited in OS 1064 of 2005, supra.

14. The first plaintiff’s next submission is that the first plaintiff and other landowner groups claiming customary land over the land were deprived of their interest in the “Duakai Owoza” land without giving an opportunity to be heard on the matter before the SABL was issued and therefore denied natural justice. The lease should be set aside for this reason: per Salika, J in Emma Estate v Mea [1993] PNGLR at 229.

15. The second and third plaintiffs adopt the first plaintiff’s submission.

16. The second defendant does not dispute the publication of the notice by the Head of State and the National Court order in OS 174 of 1999. It contends that under s 33(2) of the Mining Act, a SML was granted on conditions, the terms of which were set out on the SML. A breach of any one of those prescribed conditions can result in the cessation or termination of the lease by operation of law. In the present case the third condition stated in SML 8 was that the first plaintiff should commence construction of the mine within thirty six (36) months of the grant of SML or from the date of finance being secured whichever occurs first. The first plaintiff failed to construct the mine and later sought an extension which was granted. Upon breach of this condition the SML 8 was terminated or ceased to be effective, hence the land was legally available for leasing under s 11 and s 102 of the Land Act. The SABL was therefore validly granted by the Minister and duly registered by the Registrar of Titles.

17. In the absence of any express provision in the Mining Act, the second defendant invites me to interpret s 33(2) to say that where the holder of a SML fails to comply with a condition specified in the SML, the lease terminates or...