Gire Gire Estates Ltd v Barava Ltd

• Jurisdiction: Papua New Guinea
• Judge: Anis AJ
• Judgment Date: 07 October 2016
• Citation: (2016) N6473
• Court: National Court
• Year: 2016
• Judgement Number: N6473

Full : OS (JR) No 285 of 2008; Gire Gire Estates Ltd v Barava Limited and Raga Kavana as the Registrar of Titles, Department of Lands and Physical Planning and Hon. Puka Temu as the Minister for Lands and Physical Planning (2016) N6473

National Court: Anis AJ

Judgment Delivered: 7 October 2016

N6473

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

OS (JR) No. 285 OF 2008

BETWEEN:

GIRE GIRE ESTATES LTD

Plaintiff

AND:

BARAVA LIMITED

First Defendant

AND:

RAGA KAVANA as the Registrar of Titles, Department of Lands and Physical Planning

Second Defendant

AND:

HON. PUKA TEMU as the Minister for Lands and Physical Planning

Third Defendant

Kokopo: Anis AJ.

2016: 30th June, 15th July and 7th October

JUDICIAL REVIEW – Special Agriculture and Business Leases - whether land was customary land before transfer - allege breach of sections 10, 11 and 102 of the Land Act and the Land Registration Act Chapter No 191- whether there were compliances - want of relevant considerations - want of natural justice - whether breaches and actions tantamount to constructive fraud

PRACTICE AND PROCEDURE – discussing question of standing - whether it is available - whether issue properly before the Court

Cases cited

Central Provincial Government v. NCDC (2013) N5262

Doriga Mahuru v. Hon. Lucas Dekena (2013) N5305

Elizabeth Kanari v Augustine Wiakar (2009) N3589

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

Galem Falide v. Registrar of Titles and the State (2012) N4775

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

Johannes Leahy v. Tom Otri (2009) N3860

Joshua Kalinoe v. Paul Paraka (2014) SC1366

Kapiura Trading Ltd v Bullen (2012) N4903

Koitachi Ltd v Walter Schnaubelt (2007) SC870

Lae Rental Homes Ltd v Viviso Seravo (2003) N2483

Madang Cocoa Growers Export Co. Ltd v. Lauatu Teairiki Tautea (2012) N4584

Martina Jimmy v. Kevemuki Clan (2010) N4101

Mosoro v Kingswell Ltd (2011) N4450

Musa Valley Management Company Ltd v. Pepi Kimas (2010) N3827

Open Bay Timber Ltd v Minister for Lands & Physical Planning (2013) N5109

Pacific Equities and Investment Ltd v. Don Sawong (2006) N3258

Ramu Nickel Ltd v Temu (2007) N3252

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

Stephen Toimb v. Ammie Lesley (2013) N5389

The Papua Club Inc v Nusaum Holdings Ltd (No 2) (2004) N26030

The Right Honourable Sir Julius Chan v. The Ombudsman Commission of Papua New Guinea (1998) SC557

West New Britain Provincial Government v Kimas (2009) N3834

Yakananda Business Group Inc v Minister for Lands (2001) N2159

Counsel

Mr N Saroa, for the Plaintiffs

Mr E Paisat, for 1stt Defendant

JUDGMENT

7th October 2016

1. ANIS AJ: This is a judicial review hearing. The plaintiff challenges the decision of the third defendant (3rd defendant). The 3rd defendant's decision relates to him granting two (2) state leases called Special Agricultural and Business Lease (SABL) in 2004.

2. The 1st defendant contests the review. The other defendants have shown no interests in the matter to date and they made no representations at the hearing.

PRELIMINARY MATTER

3. During the hearing, the 1st defendant questioned the legal standing of the plaintiff as a registered company. I asked counsel why he did not raise that earlier or at the leave stage. In reply, counsel said the 1st defendant had been refused leave to appear at the time of the hearing of the leave application. Obviously, the reason I note would be that it was an ex-parte hearing as of right.

4. Nevertheless, I do not find this explanation valid. I note that leave for this judicial review was granted on 4 June 2008. The 1st defendant has waited for more than 8 years and now raises this issue on the 11th hour or during the substantive hearing of this judicial review. This to me is unacceptable. Secondly, the 1st defendant failed to exercise its right of appeal. The issue had been considered at the leave stage by His Honour Justice Lay. There is a written judgment for that which was handed down on 4 June 2008. I note that because the leave hearing was, by law, heard ex-parte as of right by the plaintiff, it cannot be set aside by an aggrieved party like the 1st defendant except of course the State who has a right of hearing at the leave stage of the proceeding. As for the 1st defendant, it should have appealed against the decision under Order 16 Rule 11 of the National Court Rules and Order 10 of the Supreme Court Rules. That would have been the correct step to take. (See the case of The Right Honourable Sir Julius Chan v. The Ombudsman Commission of Papua New Guinea (1998) SC557)

5. I note that the 1st defendant's counsel, in its written submission, has pointed to what Justice Lay had said at paragraph 24 of his judgment when His Honour granted leave to this judicial review. His Honour said and I read "At the leave stage the test is less stringent and nothing is finally determined at that stage". The 1st defendant used that phrase to present its submission on the issue of standing. In my opinion, I think counsel has misapprehended the point made by the Judge. The Court, in my opinion, was simply expressing its view regarding its role when hearing such matters at the leave stage. The Court simply stated, in my opinion that its role was not to determine the actual judicial review but to be satisfied of the basic requirements for judicial review to ensure for example like only meritorious judicial review proceedings are allowed to pass.

6. I note that the 1st defendant has referred to a purported breach under section 378(1) of the Companies Act 1997 (Companies Act), to argue lack of standing. The said section states and I read:

378. Registrar may restore company to register.

(1) Subject to this section, the Registrar shall, on the application of a person referred to in Subsection (2), and may, on his own motion, restore to the register a company that has been removed from it during the previous six years where the Registrar is satisfied that, at the time the company was removed from the register—

...

7. The 1st defendant's contention based on its extract of submission filed on 18 July 2016, is that the Registrar of Companies did not have the discretion to restore the plaintiff after the expiry of six (6) years after the plaintiff had been de-registered. In my opinion, this is a challenge made on the exercise of power by the Registrar of Companies under the Companies Act. The 1st defendant is asking this Court to firstly make a finding on that so that based on the Court's finding, the Court should consider whether it applies to this case and if so dismiss the proceeding. This, in my opinion, is wrong. Section 378 deals with some of the powers of the Registrar of Companies in restoring de-registered companies. If the plaintiff had been de-registered and then restored, and if someone like the 1st defendant is unhappy about it, the question I would ask is this: What should or should have been the correct approach to take? In my opinion, the correct process should have been to file proceeding to challenge the decision of the Registrar of Companies. It is futile to raise the issue here because the correct party, which is the Registrar of Companies, is not a party to this proceeding, and this Court is dealing with a separate judicial review matter.

8. I turn to the next reason. At the trial, the plaintiff's counsel pointed out that the 1st defendant had filed a proceeding, that is, MP No. 52 of 2009. In the said proceeding, the Registrar of Companies was the defendant. The 1st defendant and the Registrar of Companies then entered into a consent order to remove the plaintiff from the company register, that is, whilst this proceeding was at that time being appealed to the Supreme Court. The plaintiff said it applied to be joined in the said MP proceeding. It said it set aside the consent order that had been entered into between the 1st defendant and the Registrar of Companies, and it later dismissed the said MP proceeding. Now obviously the issue of standing or the registration status of the plaintiff were or would have been issues before the said Court. If the 1st defendant still has issues on this point as it is clearly demonstrating here, it should have appealed either against the consent order or against the order that dismissed the MP proceeding, to the Supreme Court. It seems to me clearly here that the 1st defendant is attempting to abuse this Court process by raising an issue which had already been before another Court and had been dealt with. As such and in my opinion, what the 1st defendant is doing now by raising this point is a futile exercise as well as it is an attempt to mislead this Court and abuse its process.

9. Finally, I refer to the first defendant's evidence that is Exhibit D1. Annexure A is a company extract of the plaintiff that was issued on 1 March 2008. It shows the registration status of the plaintiff as "Operating". Annexure B of the same affidavit is another company extract copy relating to the plaintiff. It was obtained on 1 July 2014....