Stephen Toimb & Florian S Bahin v Ammie Lesley and Samax & Sons Limited and Registrar of Titles and Minister for Lands & Physical Planning and Papua New Guinea Land Board and The Independent State of Papua New Guinea (2013) N5389

• Jurisdiction: Papua New Guinea
• Judge: Cannings J
• Judgment Date: 24 October 2013
• Court: National Court
• Citation: (2013) N5389
• Docket Number: OS (JR) NO 77 OF 2012
• Year: 2013
• Judgement Number: N5389

Full Title: OS (JR) NO 77 OF 2012; Stephen Toimb & Florian S Bahin v Ammie Lesley and Samax & Sons Limited and Registrar of Titles and Minister for Lands & Physical Planning and Papua New Guinea Land Board and The Independent State of Papua New Guinea (2013) N5389

National Court: Cannings J

Judgment Delivered: 24 October 2013

N5389

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

OS (JR) NO 77 OF 2012

STEPHEN TOIMB & FLORIAN S BAHIN

Plaintiffs

V

AMMIE LESLEY

First Defendant

SAMAX & SONS LIMITED

Second Defendant

REGISTRAR OF TITLES

Third Defendant

MINISTER FOR LANDS & PHYSICAL PLANNING

Fourth Defendant

PAPUA NEW GUINEA LAND BOARD

Fifth Defendant

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

Sixth Defendant

Madang: Cannings J

2013: 12 June, 15, 16 August, 24 October

JUDICIAL REVIEW – decision of Land Board to recommend granting of State Lease – application for review by persons with pre-existing interest in land – whether any error of law made by Land Board.

The plaintiffs applied for judicial review of the decision of the Land Board to recommend to the Minister for Lands that State Leases over two pieces of land be granted to the first and second defendants. Those Leases were subsequently granted in accordance with the Board’s recommendation. One of the plaintiffs had in 1997 been notified by the Secretary for Lands that he was the successful applicant for State Leases over the two pieces of land. He claimed that he paid the necessary fees to enable the Leases to be granted to him but despite his best efforts in pursuing the matter the Leases did not materialise. He nevertheless regarded himself as the lawful occupier of each piece of land and in 2002 allowed the other plaintiff to enter the land, improve it and run a business on it. The plaintiffs say that they received no notice that their interests in the land were to be forfeited or that the two pieces of land were again available for lease or that the Land Board was again considering applications for granting State Leases. They applied for judicial review on three grounds: (1) error of law by the Minister in not granting the State Leases to the successful applicant; (2) error of law by the Land Board in not notifying the plaintiffs that their interests in the land had been forfeited; and (3) breach of natural justice constituted by failure of the Land Board to invite the plaintiff in actual possession of the land to make an application to be granted State Leases.

Held:

(1) The Minister for Lands is responsible under Section 65 of the Land Act for granting of State Leases and is not obliged as a matter of course to act in accordance with recommendations of the Land Board. No error of law was proven against the Minister. Further, the plaintiff who was the successful applicant in 1997 failed to prove that, after being notified that he was the successful applicant, he paid the sum of K16,349.45 in respect of the piece of land that he was required to pay within three months in order to secure each Lease. The first ground of review was dismissed.

(2) No Lease over either piece of land was granted to either of the plaintiffs, so the provisions of the Land Act regarding forfeiture of State Leases were inapplicable. The second ground of review was dismissed.

(3) The Land Board was under no obligation to notify either plaintiff that the land had been advertised for lease, or to invite the plaintiff who was in actual occupation of the land to make an application for granting of a Lease. There was no breach of the principles of natural justice.

(4) As all grounds of review were dismissed all relief sought by the plaintiffs was refused.

Cases cited

The following cases are cited in the judgment:

Dale Christopher Smith v Minister for Lands (2009) SC973

Emas Estate Development Pty Ltd v John Mea & Ors [1993] PNGLR 215

Hi-Lift Company Pty Ltd v Miri Setae [2000] PNGLR 80

Mision Asiki v Manasupe Zurenuoc (2005) SC797

Steamships Trading Company Ltd v Garamut Enterprises Ltd (2000) N1959

Counsel

P K Kunai & B B Wak, for the plaintiffs

T M Ilaisa, for the first defendant

B W Meten, for the second defendant

S Phannaphen, for the third to sixth defendants

24th October, 2013

1. CANNINGS J: The plaintiffs Stephen Toimb and Florian Bahin apply for judicial review of the decision of the Land Board (the fifth defendant) dated 11 February 2010 to recommend to the Minister for Lands and Physical Planning that State Leases be granted over two pieces of land in Madang town. The Board’s recommendation was that State Leases be granted as follows:

· Section 150, Allotment 4 to Ammie Lesley (the first defendant); and

· Section 150, Allotment 5 to Samax & Sons Ltd (the second defendant).

2. Those Leases were on 24 November 2010 granted in accordance with the Board’s recommendation and the first and second defendants are now the registered proprietors of Section 150, Allotments 4 and 5 respectively.

3. The plaintiffs are aggrieved by what has happened due to their pre-existing interests in the land. In 1996 both pieces of land were advertised as being available for lease. Mr Bahin lodged applications, which were considered by the Land Board, and on 6 February 1997 he was notified by the Secretary for Lands that he was the successful applicant for State Leases over both pieces of land. He claims that he paid the necessary fees to enable the Leases to be granted to him but despite his best efforts in pursuing the matter the Leases did not materialise. He nevertheless regarded himself as the lawful occupier of each piece of land and in 2002 allowed Mr Toimb to enter the land, improve it and run a business on it. Mr Toimb says that he has spent a lot of money making the land, which was previously swampy, suitable for the scrap metal business he has been operating on it since 2002. The plaintiffs say that they received no notice that their interests in the land were being forfeited or that the two pieces of land were again available for lease or that the Land Board was again considering applications for granting State Leases. They apply for judicial review of the Land Board’s recommendations on three grounds:

(1) error of law by the Minister in not granting the State Leases to the successful applicant (paragraphs 3(a) to (d) of the statement under Order 16, Rule 3(2)(a) of the National Court Rules);

(2) error of law by the Land Board in not notifying the plaintiffs that their interests in the land had been forfeited (paragraphs 3(e) and (f) of the statement under Order 16, Rule 3(2)(a) of the National Court Rules); and

(3) breach of natural justice constituted by failure of the Land Board to invite the plaintiff in actual possession of the land to make an application to be granted State Leases (paragraph 3(g) of the statement under Order 16, Rule 3(2)(a) of the National Court Rules).

(1) ERROR OF LAW IN NOT GRANTING THE STATE LEASES TO MR BAHIN

4. The plaintiffs argue that the Minister erred in law by not granting State Leases to Mr Bahin as he was notified that he was the successful applicant for both pieces of land and he paid the necessary fees to enable the Leases to be granted to him.

5. It is true that Mr Bahin was notified that he was the successful applicant but there are two flaws in the plaintiffs’ argument. First, The Minister for Lands is responsible under Section 65 of the Land Act for granting of State Leases and is not obliged as a matter of course to act in accordance with recommendations of the Land Board. It would need to be shown that the Minister erred in law in a specific way (eg that he took irrelevant considerations into account or acted in bad faith) for this argument to gain traction. As it stands, the argument is simply that an error was made because the Minister did not act in accordance with the Board’s recommendations. Such a vague proposition of law has no substance.

6. Secondly, Mr Bahin has failed to prove that, after being notified that he was the successful applicant, he paid the sum of K16,349.45 in respect of each piece of land that he was required to pay within three months in order to secure each Lease. The notification to him stated clearly that he had to pay those sums and that failure to comply “may result in extinguishment of any rights granted”. He stated in an affidavit (exhibit P2) that on 6 February 1997 he “paid all necessary fees”. However that statement is vague and uncorroborated. I find that in fact he did not pay the necessary fees. It is unsurprising that the Leases were not granted to him. He did not comply with the conditions attached to the Secretary’s notification that he was the successful applicant.

7. I find no error of law by the Minister for Lands in the manner contended for by the plaintiffs....