Lucky Manoka and Bootless View Estate Limited v Pepi Kimas, Secretary for Lands and Physical Planning and Hon Dr Puka Temu MP, Minister for Lands & Physical Planning and the Independent State of Papua New Guinea and Amazon Realty Limited (2019) N8126

• Jurisdiction: Papua New Guinea
• Judge: Gavara – Nanu, J
• Judgment Date: 22 November 2019
• Court: National Court
• Citation: (2019) N8126
• Docket Number: OS (JR) No 409 of 2007
• Year: 2019
• Judgement Number: N8126

Full Title: OS (JR) No 409 of 2007; Lucky Manoka and Bootless View Estate Limited v Pepi Kimas, Secretary for Lands and Physical Planning and Hon Dr Puka Temu MP, Minister for Lands & Physical Planning and the Independent State of Papua New Guinea and Amazon Realty Limited (2019) N8126

National Court: Gavara – Nanu, J

Judgment Delivered: 22 November 2019

N8126

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

OS (JR) No. 409 OF 2007

BETWEEN:

LUCKY MANOKA

First Plaintiff

AND:

BOOTLESS VIEW ESTATE LIMITED

Second Plaintiff

AND:

PEPI KIMAS, SECRETARY FOR LANDS AND PHYSICAL PLANNING

First Defendant

AND:

HON. DR. PUKA TEMU MP, MINISTER FOR LANDS & PHYSICAL PLANNING

Second Defendant

AND:

INDEPENDENT STATE OF PAPUA NEW GUINEA

Third Defendant

AND:

AMAZON REALTY LIMITED

Fourth Defendant

Waigani: Gavara – Nanu, J

2018: 9th May

2019: 22nd November

PRACTICE & PROCEDURE – Leases – Land Board – Decisions and recommendations – Land Act, 1996; ss. 62 and 63 – Appeals – Minister for Lands and Physical Planning – Powers of the Minister – Exercise of power.

PRACTICE & PROCEDURE – Minister for Lands and Physical Planning – Power to advice Head of State – Land Act, 1996; s. 62 (3), (4) and (5) -Exercise of power by the Head of State – Decisions of the Head of State.

PRACTICE & PROCEDURE – Appeals – Decisions – Remittance of issues – Land Board – Re-hearing – Issues for re-hearing – Evidence – Grounds – Power of Land Board – Land Act, 1996; s. 63 (2) (a).

Cases Cited:

Papua New Guinea Cases

Jubilee Hambru v. Michael Baur & Ors (2007) N3193

Martin Maso v. Romily Kila Pat, Secretary for Department of Lands & Physical Planning & Ors (2016) N6550

NCDC v. Crusoe Pty Ltd [1993] PNGLR 139

Raho Namo v. Enai (re Hitau) [1971-72] PNGLR 58

Raumai No. 18 Limited v. Country Motors Limited & Ors (2018) N7952

Overseas cases cited:

Associated Provincial Picture House v. Wednesbury Corporation [1974] 2 All ER 680

Counsel:

S. Ketan, for the Plaintiffs

B. Kulumbu, for the First, Second and Third Defendants

R. Mann-rai, for the Fourth Defendant

22nd November, 2019

1. GAVARA-NANU J: In early February 2005, the plaintiffs wanted to lease a parcel of land within the Port Moresby city area to develop. This led to initial discussions with the relevant officers of the Department of Lands and Physical Planning (Department of Lands) to seek their assistance in identifying a suitable land. Consequently, a parcel of land known as Portion 878, Milinch Granville, Fourmil, Port Moresby, National Capital District (the land) was identified.

2. On 4 March, 2005, the plaintiffs submitted an application to the Land Board for an urban development lease (UDL) for the land.

3. Around June, 2005, the plaintiffs became aware that the land was advertised as vacant in a National Gazette No. 86, dated 9 June, 2005. When the plaintiffs enquired with the relevant Land Allocation Officer in the Department of Lands, namely, Mr Dominic Awamo, they were advised that the land was not for an UDL. As a result, the plaintiffs' initial application for an UDL was given back to them.

4. Mr Awamo advised the plaintiffs that there should not be any problems if they submitted another application for the land. On the basis of Mr Awamo's advice, the plaintiffs around July, 2005, submitted another application to the Land Board for the land.

5. In early September, 2005, the plaintiffs received a letter from one Peter Timothy of the Land Board dated 30 August, 2005 informing them of the Land Board meeting scheduled for 27 to 29 September, 2005, regarding the land and advised them to attend the meeting.

6. In October, 2005, the plaintiffs were advised by the said Peter Timothy in a letter dated 13 October, 2005, that their application was successful and that after the appeal period of 28 days, the lease would be issued in the name of the second plaintiff.

7. After the expiration of 28 days the plaintiffs enquired about the lease. They were told that there were appeals against the Land Board’s recommendation, which favoured the second plaintiff.

8. The plaintiffs were never advised of the outcome of those appeals. But about January, 2006, the plaintiffs received another letter from the said Peter Timothy dated 9 January, 2006, advising them to attend another Land Board meeting regarding the land, scheduled for 18 and 19 January, 2006.

9. After the second meeting of the Land Board, the plaintiffs received a letter from the said Peter Timothy dated 10 February, 2006, advising them that their second application was successful, and the lease would be issued in the second plaintiff’s name after the expiration of the 28 day appeal period.

10. After 28 days, the plaintiffs enquired with the Land Board about the lease. They were told that there were appeals against the Land Board’s recommendation which favoured the second plaintiff. They were told that the matter had been referred to the Legal Division of the Department of Lands for legal advice.

11. On 13 April, 2006, the plaintiffs were told that the then Secretary for the Department of Lands, Mr Pepi Kimas had made a submission to the then Minister for Lands, Honourable Dr Puka Temu, recommending that the decision of the Land Board be revoked, and the lease be issued to the second successful applicant for the land, namely Amazon Realty Ltd, which is the fourth defendant in this proceeding and one of those that appealed against the Land Board recommendation.

12. As a result, on 27 March, 2006, the Head of State upon advice of the Minister for Lands issued a lease in favour of Amazon Realty Ltd for the land.

13. On 27 April, 2006, the plaintiffs wrote to the Minister for Lands expressing their concern about the manner in which a lease was issued to the fourth defendant. The plaintiffs questioned the Minister about the reasons for issuing the lease to the fourth defendant after the second plaintiff was twice recommended by the Land Board for the lease. The plaintiffs also questioned the Minister about the reasons behind the advice given to him by the Secretary for Lands that the lease be issued to the fourth defendant.

14. On 10 May, 2006, the plaintiffs wrote to the Secretary for Lands raising same concerns they earlier raised with the Minister, and questioned the integrity of the process he followed in advising the Minister to issue a lease to the fourth defendant.

15. There were no immediate responses from both the Minister and the Secretary for Lands.

16. Thereafter, on three occasions the plaintiffs approached the Deputy Secretary for Lands, namely, Mr Tony Luben and raised the same concerns they earlier raised with the Minister and the Secretary for Lands. Mr Luben assured them that their concerns would be referred to the Legal Division of the Department of Lands, for legal advice. However, in spite of the assurances by the Deputy Secretary for Lands, the plaintiffs did not receive any response either from the Deputy Secretary for Lands or the Legal Division of the Department regarding their concerns.

17. On 31 July, 2006, the plaintiffs wrote again to the Minister for Lands outlining their grievances, and asked that their grievances be properly addressed. Again, they did not receive any response from the Minister.

18. On 22 August, 2006, the Secretary for Lands wrote to the plaintiffs and advised them that their concerns were referred to the Legal Division of the Department for legal advice. The plaintiffs never heard from the Legal Division of the Department of Lands.

19. There is evidence that the plaintiffs later consulted a number of officers of the Department of Lands with the view that they would eventually address their grievances. One of the officers was the Registrar of Titles; those officers told them that proper procedures were not followed by the Department when issuing the lease to the fourth defendant. They also told them that there were suspicions about the manner in which the lease was issued to the fourth defendant, including the speed at which it was issued.

20. There is evidence that the plaintiffs also filed a caveat but they later found to their surprise that the caveat was never registered.

21. Sections 62 and 63 which is in PART III of the Land Act 1996, set out the procedure for appeals from the decisions of the Land Board. The sections read:

PART VIII—APPEALS AND REPORTS

62 Appeals

(1) A person aggrieved by a decision of the Land Board may, not later than 28 days after notice is forwarded under Section 58(10), forward a notice of appeal to the Minister.

(2) An appeal shall be accompanied by a prescribed fee.

(3) If the Head of State, acting on the advice of the Minister, thinks that the appeal has been made on frivolous grounds, the Head of State, acting on the advice of the Minister, may reject the appeal.

(4) Subject to Subsection (5), the Head of State, acting on the advice of the Minister, shall determine an appeal under this section, and his decision is final.

(5) Where an appeal under this section is upheld, the Head of State, acting on the advice of the Minister, may refer the matter back to the Land Board for re-hearing.

63 Reference or reports to Minister

(1) A report or recommendation of the Land Board...