University of Papua New Guinea v John Ofoi

• Jurisdiction: Papua New Guinea
• Judge: Nablu, J
• Judgment Date: 26 April 2016
• Citation: (2016) N6303
• Court: National Court
• Year: 2016
• Judgement Number: N6303

Full : OS. (JR) No 177 of 2013; The University of Papua New Guinea v John Ofoi Acting Secretary for Lands and Physical Planning and Honourable Benny Allen Minister for Lands and Physical Planning and Henry Wasa Registrar of Titles and the Independent State of Papua New Guinea and Emma Baratai & Stanley Baratai (2016) N6303

National Court: Nablu, J

Judgment Delivered: 26 April 2016

N6303

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

OS. (JR) NO. 177 of 2013

BETWEEN:

THE UNIVERSITY OF PAPUA NEW GUINEA

Plaintiff

AND:

JOHN OFOI

Acting Secretary for Lands and Physical Planning

First Defendant

AND:

HONOURABLE BENNY ALLEN

Minister for Lands and Physical Planning

Second Defendant

AND:

HENRY WASA Registrar of Titles

Third Defendant

AND:

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

Fourth Defendant

AND:

EMMA BARATAI & STANLEY BARATAI

Fifth Defendant

Waigani: Nablu, J

2015: 20 March

2016: 26 April

JUDICIAL REVIEW – Forfeiture of State Lease – Land Act ss 122 & 169 – Service of Notice to Show Cause – Mandatory requirement of the Land Act – Service of Corporations under Land Act – Failure to serve Notice to Show Cause – Forfeiture of State Lease quashed – Subsequent registration of the land title to a third party null and void – Title reinstated – Judicial Review granted.

LAW OF EVIDENCE – Judicial review proceedings by way of Affidavit evidence – National Court Rules, Order 16 Rule 13(11)(2) - Hearsay evidence must be rejected – Direct and credible evidence of service must be produced – Hearsay evidence of Secretary of the Department of Lands & Physical Planning not admissible to prove proper service of the Notice to Show Cause.

Cases Cited:

Beecraft No. 20 Ltd v. Minister for Lands (2001) N2125

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

Dale Christopher Smith v. Minister for Lands (2009) SC 973

Dent v. Kavali [1981] PNGLR 488

Davis v. Pitzz [1988-89] PNGLR 143

Emas Estate Development Pty Ltd v. Mea & The State [1993] PNGLR 215

John Mur v. Les Kewa (2010) N4016

Koitachi Ltd v. Walter Schnaubelt (2007) SC 870

Mision Asiki v. Manasupe Zurenouc (2005) SC 797

NCDC v. Crusoe Pty Ltd [1993] PNGLR 139

PNG Deep Sea Fishing Ltd v. Luke Critten & Others (2010) SC1126

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

Yakananda Business Group Inc. v. Minister for Lands and Physical Planning (2001) N2159

Counsel:

D Kamen, for the Plaintiff

M Mai for the First, Second, Third and Fourth Defendants

E Hampaleke, for the Fifth Defendant

26thApril, 2016

1. NABLU, J: The University of Papua New Guinea seeks to review the decision of the Minister for Lands and Physical Planning to forfeit the State Lease for land described as Section 41 Allotment 44, Hohola, National Capital District on the 8thofAugust 2006. The plaintiff also seeks to review various other decisions which stemmed from the decision to forfeit the State Lease. The other decisions subject of review; is the decision to exempt the subject land from public advertisement on 24th November 2005 and the subsequent grant of the State Lease to the fifth defendant on 26th of May 2008.

2. The University of Papua New Guinea was the registered proprietor of the State Lease for the land described as Allotment 44 Section 41, Hohola, prior to the forfeiture on 8 August 2006.

4. The plaintiff seeks various declaratory orders and a writ of certiorari to quash the decision of the Minister to forfeit the State Lease and the decision to exempt the land from advertisement pursuant to section 69(2) of the Land Act 1996, amongst other decisions.

5. The plaintiff also seeks a writ of mandamus to restore the plaintiff as the registered proprietor of the land. They also seek to permanently restrain the defendants from interfering with the plaintiff’s right to quite enjoyment and possession of the property and costs of the proceedings.

6. The plaintiff raised eight (8) grounds of review according to the Statement pursuant to Order 16 of the National Court Rules. The way the grounds of review were pleaded made it difficult for the Court to clearly ascertain the grounds of review. I have attempted to succinctly categorize them under the following main headings for ease of reference.

7. The plaintiff’s main ground of review is that the defendants committed serious errors of law. The particulars of the errors of law are as follows. The plaintiff argued that the Secretary for Lands & Physical Planning committed an error of law and breached the mandatory statutory process stipulated under sections 122(2), (3) and (4) of the Land Act in failing to give the mandatory notice to show cause. The Minister for Lands and Physical Planning through his delegate erred in law when he exempted the State Lease from advertisement on 24th November 2005 contrary to the provisions of the Land Act.

8. The second ground of review flows from the first ground, in particular, the plaintiff argued that they were denied natural justice and procedural fairness when the Minister made the decision to forfeit the State Lease.

9. The third ground of review is that, the defendants improperly exercised their powers under the Land Act and therefore abused their powers. In particular the Minister’s decision to exempt the portion of the land from being advertised and preference given to the fifth defendants, constituted an improper exercise of power and in doing so abused his powers.

10. The fourth ground the plaintiff raised was that the decision was unreasonable within the meaning of the Wednesbury principles.

11. According to the Statement pursuant to Order 16 of the National Court Rules, parties agreed on the following legal issues for determination. I have set them out as follows;

1. Whether a Notice of Show cause was issued?

2. If the Notice to Show cause was issued, was it served on the Plaintiff as required by Section 122(2) (a) of the Land Act?

3. Whether the exercise of discretion as conferred by Section 122 (2)(b) of the Land Act in forfeiting the State Lease as an abuse of power when the Plaintiff was not given notice to comply with the conditions within any specified time?

4. Whether a forfeiture notice was issued?

5. If so whether the forfeiture Notice was served on the Plaintiff?

6. Whether principles of natural justice and procedural fairness were observed when the decision for forfeiture was made?

7. Was the exemption Notice issued in compliance with the Land Act?

8. If the mandatory requirements under the Land Act have not been complied with; whether the defendants’ decision and conduct was illegal or amounted to statutory fraud?

12. I am of the view that a number of these issues are repetitious and irrelevant. The pertinent legal issues before this Court for determination are as follows:

(i) Whether the defendants complied with the mandatory process stipulated in section 122(2) (a) of the Land Act, to serve the plaintiff with a Notice to Show Cause?

(ii) If the answer to the first question is in the negative, then the plaintiff has made out that ground of review. However, if the answer is in the affirmative, then the next question posed is whether the defendants complied with the mandatory process stipulated in section 122(2) (b) of the Land Act to issue and serve the Forfeiture Notice?

13. Another ancillary issue to be determined if the answer to the first question is in the affirmative, is whether the Minister complied with the statutory provisions in the Land Act when he decided to exempt the land from advertisement?

14. If it is found that the mandatory process under Section 122 of the Land Act was complied with, it is still open for the Court to determine whether the decisions were unreasonable within the Wednesbury principles of unreasonableness or whether the defendants exercised their statutory powers improperly and abused their powers.

The Law

15. There are two pertinent steps in the process of determining judicial review applications. Firstly, the Court must be satisfied that the plaintiff has proven one or more of its grounds of review. Secondly, if the plaintiff has proven one or more of its grounds of review, then the court has the discretion to determine what is the appropriate remedy or relief to be granted (Mision Asiki v. Manasupe Zurenuoc (2005) SC 797; Dale Christopher Smith v. Minister for Lands (2009) SC 973).

16. The question of the validity of forfeiture of State Leases pursuant to the Land Act has been the subject of a number of decisions of the Supreme Court and this Court. The main legal principle applicable is that, the State can lawfully forfeit a State Lease if the mandatory process under Section 122 of the Land Act is complied with. It is trite law that the State has the ultimate power to forfeit a State Lease where the registered proprietor has either failed to comply with the mandatory requirement to pay land rental fees or failed to comply with the land covenants specified in the State Lease. The exercise of this ultimate power of forfeiture can only be validly exercised upon...