Michael Wapi and Jensiana Wapi v Dr. Eric Kwa and Others

• Jurisdiction: Papua New Guinea
• Judge: Kandakasi DCJ
• Judgment Date: 23 November 2022
• Neutral Citation: N10362
• Citation: N10362, 2022-11-23
• Counsel: Mr. M. Wapi in Person, for the Plaintiffs,Ms. B. Kulumbu Shepherd, for the First to the Fourth Defendants
• Docket Number: OS (JR) No. 14 of 2021, OS (JR) No. 32 of 2021, OS (JR) No. 38 of 2021, OS(JR) No. 39 of 2021, OS (JR) No. 42 of 2021, OS (JR) No. 43 of 2021, OS (JR) No. 44 of 2021, OS (JR) No. 45 of 2021, OS (JR) No. 46 of 2021, OS (JR) No. 47 of 2021 & OS (JR) No. 49 of 2021
• Hearing Date: 21 June 2020,23 November 2022
• Court: National Court

N10362

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

OS (JR) No. 14 of 2021, OS (JR) No. 32 of 2021, OS (JR) No. 38 of 2021, OS(JR) No. 39 of 2021, OS (JR) No. 42 of 2021, OS (JR) No. 43 of 2021, OS (JR) No. 44 of 2021, OS (JR) No. 45 of 2021, OS (JR) No. 46 of 2021, OS (JR) No. 47 of 2021 & OS (JR) No. 49 of 2021

Michael Wapi and Jensiana Wapi

Plaintiffs

v.

Dr. Eric Kwa

Secretary for Justice & Attorney General, Nominal Defendant for the Governor General or Head of State

First Defendant

and

Honourable John Rosso, MP

Minister for Lands and Physical Planning

Second Defendant

and

Independent State of Papua New Guinea

Third Defendant

and

Benjamin Samson

Secretary, Department of Lands and Physical Planning

Fourth Defendant

Ala Ane

Acting Resgistrar of Titles, Department of Lands and Physical Planning

Fifth Defendant

and

Maria Pala

Sixth Defendant

Waigani: Kandakasi DCJ

2020: 21^st June

2022: 23^rd November

JUDICIAL REVIEW — Application for leave — application by an unsuccessful applicant for grant of State lease — decision by a statutory authority — no reasons given for decision — no prescription by statute for reasons to be given — main issue — whether decision reviewable — standing of the applicants — no conflict in relevant Supreme Court decisions — decision maker obliged to give reasons for decision — No reasons provided — presumption — good order, transparency and good administration require reasons to be given — Lands Act 1996 ss. 58 (9) and 62.

Facts

The plaintiffs are husband and wife who applied for grants of State Leases over certain vacant State Leases or land (State Land). They owned no State Land and were hoping to own one through the applications they lodged. They submitted detailed development plans and their means to achieve their plans. But for only one of the many applications of the plaintiffs, the National Land Board decided against each of the plaintiffs' application and granted the lands they applied for to other people, some of whom were already the owners of other State Land. No reasons were provided for the Land Board's decisions. Aggrieved by those decisions the plaintiffs appealed unsuccessfully to the Head of State acting on the advice of the National Executive Council (NEC) (Appeal Authority). That authority also provided no reasons for its decision.

In respect of the only application in which the plaintiffs succeeded, a competing applicant for the same State Land appealed to Appeal Authority. That appeal was determined against the plaintiffs and the land was given to the plaintiffs' competitor. Again, that was done without any reasons given for the decision.

Aggrieved by the said decisions, the plaintiffs filed for leave for judicial review. The State challenged the plaintiffs' application only on two grounds. These grounds were: (1) the plaintiffs' lack the relevant and necessary standing as unsuccessful applicants for State Lands; (2) they did not present an arguable case mainly because the decision makers were not obliged to provide any reason for their respective decision. In support of that argument, they cited the decision of the Supreme Court in Helifix Group of Companies Limited v. Papua New Guinea Land Board (2012) SC1150. The plaintiffs in response say they have the necessary standing and that the decision relied upon by the defendants is not good law and should not be followed and cited the decision in John Wanis Wek v. Sobol Trading Ltd & Ors (2016) SC1535. Hence the issues were one of standing of the plaintiffs and arguable case regarding the need to provide reasons for a public authority's decision.

Held:

1. The requirement in judicial review for applicants to demonstrate they have the necessary standing to bring the application is well settled and there is no conflict in the authorities. The courts have broadened the tests that must be met to determine if any applicant has any standing to even allow for persons not directly affected but interested in good administration, or a protection or an enforcement of a right or interest to come to the Court.

2. The plaintiffs are directly affected by the decisions the subject of the proceedings having applied in response to an advertisement for interested persons to be considered for the grant of certain State Land. They are unlike the appellant in Helifix Group of Companies Limited v. Papua New Guinea Land Board. They therefore have the necessary standing to bring their various applications.

3. On the question of arguable case, in particular the need to provided reasons for their decisions by public authorities, the law is also well settled. All decision makers are obliged to provide reasons for their decision. A failure to provide any reason renders the decision in question not a good decision and is therefore null and void.

4. In the present case, although there is no expressed provision requiring the National Lands Board and the Appeal Authority to give reasons for their decision, the preponderance of decisions of the Supreme and National Court's require as a matter of law, that reasons be given for transparency, better accountability, and sound public administration.

5. The failure by the National Lands Board and the Appeal Authority to give any reasons for their respective decisions at the time of arriving at their respective decisions renders all the decisions null and void.

6. The application for leave for judicial review of each of the decisions were therefore granted.

Cases Cited:

Papua New Guinean Cases

John Wanis Wek v. Sobol Trading Ltd & Ors (2016) SC1535.

Helifix Group of Companies Limited v. Papua New Guinea Land Board (2012) SC1150.

Leto Darius v. The Commissioner of Police (2001) N2046.

GR Logging Ltd v. David Dotaona (2018) SC1690.

John Wanis Wek v. Sobol Trading Ltd (2016) SC1535.

Jim Kas v. Sevua (2000) N2010.

Papua New Guinea Air Pilots Association v. The Director of Civil Aviation and the National Airline Commission trading as Air Niugini [1983] PNGLR 1.

NTN Pty Limited v. The Board of Post & Telecommunications Corporation [1987] PNGLR 70.

Arawe Logging Pty Ltd v. The State [1988–89] PNGLR 216.

National Capital District Interim Commission v. Crusoe Pty Ltd [1993] PNGLR 139.

Steamships Trading Limited v. Garamut Enterprises Ltd (2000) N1959.

Aquila Sampson v. NEC (2019) SC1880.

David Kabomyap Allolim v Biul Kirokim (2018) SC1735

Electoral Commission v Bernard Kaku (2019) SC1866.

Re Gegeyo v. Minister for Lands and Physical Planning [1987] PNGLR 331.

Pius Sankin, Jimmy Lingau and James Numbunda v Papua New Guinea Electricity Commission (2002) N2257.

Sir Arnold Amet v. Peter Charles Yama & Electoral Commission (2010) SC1064.

Ombudsman Commission v. Peter Yama (2004) SC 747.

Godfrey Niggints v. Henry Tokamv & 2 Ors [1993] PNGLR 66

Mission Asiki v. Manasupe Zurenuoc & Ors (2005) SC797.

Hon Ben Micah MP v. Rigo A Lua (2015) SC1445.

Overseas Cases

Inland Revenue Commissioners; ex parte National Federation of Self-Employed and Small Business Limited [1981] 2 WLR 722.

Australian Conservation Foundation Inc. v. Commonwealth of Australia (1980) 146 C.L.R. 493; 54 A.L.JR. 176.

Robinson v. The Western Australian Museum (1977) 138 C.L.R. 283.

Counsel:

Mr. M. Wapi in Person, for the Plaintiffs

Ms. B. Kulumbu Shepherd, for the First to the Fourth Defendants

M. Wapi: In person for the Plaintiffs

Solicitor General: Lawyers for the State

23^rd November, 2022

1. Kandakasi DCJ: These are various applications for leave for a review by Mr. Michael Wapi and his wife Mrs. Jensiana Wapi (the Wapis) of:

(a) decisions by the National Land Board (the Land Board) rejecting the plaintiffs' applications for grant of State Leases or Land (State Land) over several pieces of State Land;

(b) decisions purportedly made by the Head of State dismissing the appeals against the decisions rejecting the plaintiffs' applications; and

(c) a decision purportedly by the Head of State upholding an appeal against a decision by the Land Board recommending grant of a State Land to the plaintiffs by an Andro Holdings Limited.

2. These proceedings were dealt with together because the facts and issues presented in each case is similar.

Parties' claims

3. The Wapis advanced several grounds in their applications. One of the main ones is a claim that the decisions sought to be reviewed are flawed, erroneous and null and void because no reason has been provided. Another ground they claim is that the purported decisions on appeals were not the decision of the Appeal Authority, namely the Head of State acting on the advice of the National Executive Council (NEC) in accordance with the requirements of s. 62 of the Lands Act 1996.

4. The State does not take issue with most of the requirements for grant of leave for judicial review and the plaintiffs' arguments. The only issues it is taking is first, the Wapis' standing to bring these applications. This argument is based on the Wapis being mere applicants with no rights or interest vested in them to give them sufficient interest and, hence standing. Secondly, the State claims the Wapis have not presented an arguable case. This is premised on its claim that there is no obligation for the Land Board and the Appeal Authority to provide reasons for their respective decisions. A requirement to do so would be reading into the relevant provisions of the relevant applicable statute. The Wapis, argue to the contrary. In support of their arguments especially regarding their standing, they cited several Supreme Court decisions, including the decision in John Wanis Wek v. Sobol Trading Ltd & Ors (2016) SC1535 while the State cited the decision in Helifix Group of Companies Limited v. Papua New Guinea Land Board (2012) SC1150 which decisions appear to contradict each other. Consequentially, the State argues, there is a conflict in the Supreme Court decisions or authorities and I should follow the judgment they are relying upon.

Relevant issues to be determined

5. Given these...