Kapiura Trading Limited v Thomas Bullen, Acting Chairman, Land Board and Raga Kavana, Registrar of Titles and Pepi Kimas, Secretary, Department of Lands & Physical Planning and Hon Dr Puka Temu MP, Minister for Lands & Physical Planning and Hon Dr Allan Marat MP, Attorney-General, Nominal Defendant for the Governor-General and The Independent State of Papua New Guinea and Hamamas Trading Limited (2012) N4903

• Jurisdiction: Papua New Guinea
• Judge: Cannings J
• Judgment Date: 29 November 2012
• Court: National Court
• Citation: (2012) N4903
• Docket Number: OS (JR) NO 342 of 2008
• Year: 2012
• Judgement Number: N4903

Full Title: OS (JR) NO 342 of 2008; Kapiura Trading Limited v Thomas Bullen, Acting Chairman, Land Board and Raga Kavana, Registrar of Titles and Pepi Kimas, Secretary, Department of Lands & Physical Planning and Hon Dr Puka Temu MP, Minister for Lands & Physical Planning and Hon Dr Allan Marat MP, Attorney-General, Nominal Defendant for the Governor-General and The Independent State of Papua New Guinea and Hamamas Trading Limited (2012) N4903

National Court: Cannings J

Judgment Delivered: 29 November 2012

N4903

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

OS (JR) NO 342 OF 2008

KAPIURA TRADING LIMITED

Plaintiff

V

THOMAS BULLEN, ACTING CHAIRMAN, LAND BOARD

First Defendant

RAGA KAVANA, REGISTRAR OF TITLES

Second Defendant

PEPI KIMAS, SECRETARY,

DEPARTMENT OF LANDS & PHYSICAL PLANNING

Third Defendant

HON DR PUKA TEMU MP,

MINISTER FOR LANDS & PHYSICAL PLANNING

Fourth Defendant

HON DR ALLAN MARAT MP, ATTORNEY-GENERAL,

NOMINAL DEFENDANT FOR THE GOVERNOR-GENERAL

Fifth Defendant

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

Sixth Defendant

HAMAMAS TRADING LIMITED

Seventh Defendant

Cannings J

Kimbe: 18 July 2012

Waigani: 29 November 2012

JUDICIAL REVIEW – decision of Head of State to uphold appeal against decision of Land Board to recommend grant of State Lease to plaintiff, Land Act 1996, Section 62

LAND – granting of State Leases – duty of Department Head to notify and publicise “successful applicant” – identity of successful applicant

NATURAL JUSTICE – appeals under Land Act, Section 62, against decisions of Land Board – whether a person recommended by the Land Board to be granted a State Lease must be notified of an appeal against the recommendation – whether a right to be heard as to merits of appeal – whether a right to be given reasons – principles of natural justice

LAND – State Leases – whether the Minister can grant a State Lease to a company that does not exist on the date of execution of the Lease

The plaintiff applied for a State Lease over land in a town in response to an advertisement. Its application, amongst others, was considered by the Land Board, which recommended that the lease be granted to it. An unsuccessful applicant (the seventh defendant) lodged an appeal with the Minister under Section 62 of the Land Act against the decision of the Land Board to recommend the grant of the State Lease to the plaintiff. The appeal was upheld and the Minister granted the State Lease to the seventh defendant. The plaintiff applied for judicial review of the decisions to uphold the appeal and to grant the State Lease to the seventh defendant on three grounds: (1) error of law constituted by failure of the Departmental Head (the third defendant) to notify the plaintiff and publish in the National Gazette that the plaintiff was the successful applicant as required by Sections 74 and 75 of the Land Act; (2) breach of natural justice constituted by failure of the Minister (the fourth defendant) and/or the Head of State (the fifth defendant) to notify the plaintiff that there was an appeal and to give the plaintiff an opportunity to be heard and to give reasons for upholding the appeal; and (3) error of law by the Minister in granting the State Lease as the seventh defendant, as at the date of granting the Lease, did not exist.

Held:

(1) The Departmental Head is obliged by Sections 74 and 75 of the Land Act to publish in the National Gazette the name of the successful applicant and to notify and forward a Letter of Grant to the successful applicant. “Successful applicant” in these sections refers to the person whose application has ultimately been successful after completion of the appeal process, which in this case was the seventh defendant. The first ground of review was dismissed.

(2) The existence of a statutory appeal procedure presupposes that it must comply with the principles of natural justice and accordingly: any person whose interests are likely to be affected by the appeal must be notified of the appeal and be given an opportunity to be heard and the persons managing and determining the appeal must act judicially, not arbitrarily, and rationally determine the grounds of appeal and give reasons for determination of the appeal that must be provided to all persons with a genuine interest in the matter (NCDIC v Crusoe [1993] PNGLR 139, Application of Moge Enga [1995] PNGLR 31 applied). Here, the plaintiff had a genuine interest in the appeal but was not notified of the appeal and all other requirements of natural justice were breached. The second ground of review was upheld.

(3) It is necessarily to be implied that the power conferred on the Minister by Section 65 of the Land Act to grant State Leases of government land in accordance with the Act is subject to the precondition that the lessee be a legal person, capable of holding an interest in land. Here, the lessee named in the grant (the seventh defendant) was not a legal person and did not exist on the date of grant. The third ground of review was upheld.

(4) As two grounds of review were upheld the determination of the appeal and the decision to grant the State Lease to the seventh defendant were susceptible to judicial review and it was appropriate as a matter of discretion for the court to declare that both the determination of the appeal and the decision to grant the State Lease to the seventh defendant were unlawful and null and void and of no effect, and further that, given the circumstances in which the State Lease was unlawfully granted it was a case of fraud for the purposes of Section 33(1)(a) of the Land Registration Act. The granting and registration of the Lease were ineffective at law and should not be allowed to stand and the court granted consequential relief to reflect that conclusion.

Cases cited

The following cases are cited in the judgment:

Application of Moge Enga [1995] PNGLR 31

Bougainville Copper Foundation v Minister for Trade and Industry [1988-89] PNGLR 110

Dale Christopher Smith v Minister for Lands (2009) SC973

Elizabeth Kanari v Augustine Wiakar (2009) N3589

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

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

Koitachi Ltd v Walter Schnaubelt (2007) SC870

Lae Rental Homes Ltd v Viviso Seravo (2003) N2483

Mision Asiki v Manasupe Zurenuoc (2005) SC797

Mudge v Secretary for Lands [1985] PNGLR 387

NCDIC v Crusoe Pty Ltd [1993] PNGLR 139

Ramu Nickel Ltd v Temu (2007) N3252

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

The Papua Club Inc v Nusaum Holdings Ltd (No 2) (2004) N2603

Timothy Alex Aipa v Benjamin Samson, Deputy Registrar of Titles (2012) N4777

West New Britain Provincial Government v Pepi S Kimas, Secretary for Lands and Physical Planning (2009) N3834

William Wandaki v Minister for Lands [1996] PNGLR 116

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

Counsel

A Kanu, for the plaintiff

E N Suelip, for the seventh defendant

29 November, 2012

1. CANNINGS J: This is a ruling on an application for judicial review by the plaintiff Kapiura Trading Ltd (“Kapiura”).

2. In 2006 Kapiura responded to a notice in the National Gazette advertising a block of government land in Kimbe, described as Section 10, Allotment 33, as available for lease. Its application, amongst others, was considered by the Land Board at its meeting at Kimbe in October 2006, which recommended to the fourth defendant the Minister for Lands and Physical Planning that the lease be granted to it. One of the unsuccessful applicants, the seventh defendant Hamamas Trading Ltd (“Hamamas”), lodged an appeal with the Minister under Section 62 of the Land Act 1996 against the decision of the Land Board to recommend the grant of the State Lease to Kapiura. The appeal was upheld by the authority given the power by Section 62(4) to determine such appeals: “the Head of State, acting on advice”, which in practical terms means the Governor-General acting with and in accordance with the advice of the National Executive Council. Notice that the appeal had been upheld and that the lease would be granted to the appellant, Hamamas, was published in the National Gazette on 6 March 2008. The Minister granted a 99-year State Lease to Hamamas on 20 March 2008.

3. Kapiura applied for judicial review of the decisions to uphold the appeal and to grant the State Lease to Hamamas on 11 grounds (set out in paragraphs 10(a) to (k) of its statement under Order 16, Rule 3(2)(a) of the National Court Rules). However, the grounds are repetitious and one (set out in paragraph 3(k)) has not been pursued, and I consider that they can be boiled down to three:

(1) error of law constituted by failure of the third defendant the Secretary for Lands and Physical Planning to notify Kapiura and publish in the National Gazette...