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
• Court: National Court
• Citation: (2001) N2159
• Date: 07 December 2001
• Year: 2001

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

1 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 (Ch185), s46(2).

2 Judicial Review—Forfeiture of lease—Notice of show cause—Whether lessee entitled to receipt of notice prior to forfeiture—Whether breach of Land Act (Ch185) s46(2) constitutes error on face of record—Whether judicial review available.

3 Kekedo v Burns Philp (PNG) Ltd [1988–89] PNGLR 122 referred to

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 a State lease contrary to the mandatory requirements of s46(2) of the Land Act (Ch185).

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

The facts of this case are quite brief. Pursuant to s54 of the Land Act (Ch185), the Minister for Lands granted a residential lease to the plaintiff for a term of 99 years from the 14 April 1988 to the 13 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 30 July 1994, Joseph Aoae, a delegate of the Minister for Lands and Physical Planning, issued a notice to show cause to the plaintiff pursuant to s46(1)(a) of the Land Act (Ch185). 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 26 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...