Yakananda Business Group Inc v Minister for Lands and Physical Planning and The Independent State of Papua New Guinea (2001) N2159

• Jurisdiction: Papua New Guinea
• Judge: Sevua J
• Judgment Date: 07 December 2001
• Court: National Court
• Citation: (2001) N2159
• Year: 2001
• Judgement Number: N2159

Full Title: Yakananda Business Group Inc v Minister for Lands and Physical Planning and The Independent State of Papua New Guinea (2001) N2159

National Court: Sevua J

Judgment Delivered: 7 December 2001

N2159

PAPUA NEW GUINEA

[In the National Court of Justice]

OS 170 of 1996 (H)

BETWEEN

YAKANANDA BUSINESS GROUP INC.

Plaintiff

AND

MINISTER FOR LANDS & PHYSICAL PLANNING

First Defendant

AND

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

Second Defendant

Mount Hagen & Waigani: Sevua, J

2001: 17th July & 7th December

Administrative Law — Judicial Review — Review of administrative action — Decision of Minister for Lands forfeiting residential lease — Notice to show cause — Not issued prior to forfeiture — Non-compliance with Land Act, s.46(2).

Judicial Review — Forfeiture of lease — Notice of show cause — Whether lessee entitled to receipt of notice prior to forfeiture — Whether breach of s.46(2) constitutes error on face of record — Whether judicial review available.

Held: (1) The issuing of notice to show cause by the Minister is a mandatory

requirement of law therefore the lessee is entitled to be served with notice and is entitled to explain why the lease ought not to be forfeited.

(2) There is error on the face of the record warranting the exercise of the Court's discretion in favour of the plaintiff.

(3) Judicial Review is available where the Minister for Lands has ordered forfeiture of lease contrary to the mandatory requirements of s.46(2) of the Land Act, Ch 185.

Cases cited:

Kekedo v. Burns Philp (PNG) Ltd & Ors [1988-89] PNGLR 122

P. Kunai for Plaintiff

J. Kais for Defendants

7th December, 2001

SEVUA, J: This is the substantive judicial review application, leave having been granted on 26th June 1996. The review is in respect of the decision of the first defendant made on 26th July 1995 whereby he revoked the grant of a lease to the plaintiff over land described as Portion 259, Millinch Wapenamanda, Fourmil Wabag, Enga Province, and forfeited the land to the State.

The facts of this case are quite brief. Pursuant to s.54 of the Land Act, Chapter 185, the Minister for Lands granted a residential lease to the plaintiff for a term of 99 years from the 14th April 1988 to the 13th April 2087. The annual land rent for the first ten (10) years was K350.00 payable in advance on the first day of January each year. The improvement covenant in the lease was that the lessee must erect buildings for residence purposes to a minimum value of K200,000.00.

On 30th July 1994, Joseph Aoae, a delegate of the Minister for Lands & Physical Planning, issued a notice to show cause to the plaintiff pursuant to s.46 (1)(a) of the Land Act, Ch 185. The plaintiff was requested to show cause why the lease should not be forfeited on the grounds that, it had failed to pay the rent for a period of more than six months, and secondly, the plaintiff had refused or neglected to comply with the improvement covenant in the lease.

On 26th July 1995, then Minister for Lands, Sir Albert Kipalan, issued a forfeiture notice on the grounds that firstly, the improvement conditions imposed by the Act have not been fulfilled in respect of the land; and secondly, the rent remained due and unpaid for a period of more than six months.

The plaintiff subsequently instituted these proceedings on 12th April 1996, by way of originating summons, seeking leave for a judicial review; an order for a prerogative writ of certiorari to remove into this Court and quash the decision of the Minister for Lands and Physical Planning; and a declaration that the plaintiff is still the lessee of the land, the subject of these proceedings.

At the outset, when this application was made on 17th July 2001, counsel for the plaintiff, Mr Kunai, informed the Court that this matter had been outstanding for some years now. It should have been dealt with a long time ago, but the trial date continued to be vacated. I alluded to this at this stage because, at the end of the plaintiff's evidence, counsel requested an adjournment for three days to enable the plaintiff to produce to the Court, evidence of payment of rent. The Court refused that request after the defendants objected to it. It has been five (5) years and twenty (20) days to be exact, since leave was granted, and the plaintiff should have prepared for hearing today. It should have brought its rental receipts available for production.

Furthermore, during a mini call-over on Monday, 9th July 2001, the trial date previously scheduled for 24th July 2001, was vacated and brought forward to 17th July, because a number of trials for this month's circuit had to be vacated and the list rescheduled. In my view, the plaintiff and its lawyers have had more than sufficient time to prepare their case for trial. The failure by the plaintiff to provide vital evidence therefore cannot be attributed to the Court's refusal to grant an adjournment. It is the plaintiff's own making, and I find that the plaintiff had no valid reason for failing to produce the relevant evidence relating to payment of rent. One would have been forgiven if the question of non-payment of rent was not an issue in this matter, however it was, and is, an issue. In my view...