Yambaki Surveys Ltd v Nambawan Super Ltd (2020) SC1901

• Jurisdiction: Papua New Guinea
• Judge: Salika CJ, Polume-Kiele & Shepherd JJ
• Judgment Date: 23 January 2020
• Court: Supreme Court
• Docket Number: SCA No 68 of 2019
• Judgement Number: SC1901

Full Title: SCA No 68 of 2019; Yambaki Surveys Ltd v Nambawan Super Ltd (2020) SC1901

Supreme Court: Salika CJ, Polume-Kiele & Shepherd JJ

Judgment Delivered: 23 January 2020

SC1901

PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE]

SCA NO. 68 OF 2019

BETWEEN

YAMBAKI SURVEYS LIMITED

Appellant

AND

NAMBAWAN SUPER LIMITED
Respondent

Waigani: Salika CJ, Polume-Kiele & Shepherd JJ

2019: 18th December

2020: 23rd January

PRACTICE AND PROCEDURE– Objection to competency – Supreme Court Rules 2012; Order 7 Rules 9(c) and 10 – Objections must raise issues concerning the jurisdiction of the Court or the validity of the appeal.

Cases Cited:

Wahgi Savings & Loan Society Ltd v Bank of South Pacific Ltd (1980) SC185

Yakham & The National v. Merriam & Merriam (1997) SC533

PNG Forest Authority v. Securimax Ltd (2003) SC717

Turia McKay v Nelson (2008) SC949

Talibe Hegele v Tony Kila (2011) SC 1124

Coca Cola Amatil (PNG) v. Kennedy (2012) SC1221

Michael Kuman & Ors v. Digicel (PNG) Ltd (2013)SC1232

James Marape v. Peter O’Neill (2016) SC1486

Lucas Dekena v Nick Kuman (2018) SC1715

James Lovika v Carl Mapo as Commander of PNG Defence Force & The State (2019) SC1895

Independent State of Papua New Guinea v Peter Gaian & 82 Ors - SCA No 28 of 2018 (18 November 2019) (unreported)

Counsel:

Mr. A. Waira, for the Appellant

Mr. I. Molloy with Mr. I.R. Shepherd, for the Respondent

JUDGMENT

23rd January, 2020

1. BY THE COURT: Before us on 18th December 2019 was the respondent’s notice of objection to competency of the appeal. The objections as pleaded seek to dismiss the appeal pursuant to Order 7 Rule 15 of the Supreme Court Rules 2012 and for abuse of the court’s process on the basis that the grounds of appeal offend Order 7 Rules 9 and 10 of the Supreme Court Rules and section 14(1)(c) of the Supreme Court Act.

Facts

2. The appeal concerns State leasehold land situated at 9-Mile, National Capital District described as Portion 2158, which originally formed part of Portion 1216. The respondent purchased Portion 1216 in 1990 and its State lease expired in 1995.

3. In 1992 Portion 1216 was subdivided into Portions 2157, 2158 and 2159. Portion 2156 is another area of State leasehold land which was also acquired by the respondent, title for which was derived from what was formerly known as Portion 881. This appeal relates only to the title situation for Portion 2158.

4. At some point in 1995 the respondent applied for the renewal of its leases over Portions 2156, 2157, 2158 and 2159. The Department of Lands and Physical Planning (DLPP) failed to issue State leases over Portion 2156, 2157 and 2158. Aggrieved by this failure on the part of the DLPP, the respondent filed proceedings OS (JR) No. 519 of 2014 seeking mandamus and orders to exempt those properties under Section 69(2) of the Land Act 1996 from advertisement for application or tender. On 2 November 2015 the National Court ordered by consent that the Secretary for the DLPP recommend to the Minister to exempt Portions 2156, 2157 and 2158 from advertisement and to take steps to refer the respondent’s application for issuance of State leases over Portions 2156, 2157 and 2158 to the Land Board for consideration. The fact that the Minister duly issued a notice of exemption from advertisement in respect of Portions 2156, 2157 and 2158 in early 2016 (first exemption notice) is not in dispute, although a copy of that notice is not contained in the Amended Appeal Book (Amended AB). Given the orders of the Court in OS (JR) No. 519 of 2014, the Land Board met and on 14 March 2016 the respondent was granted State leases over Portions 2156 and 2157. However a State lease over Portion 2158 was not granted to the respondent. The Land Board informed the respondent that it could not consider the respondent’s application for Portion 2158 as a State lease for that property had already been issued to an entity named Nipo Investment Ltd (Nipo) in June 2014. Nipo is the company which had engaged the abovenamed appellant to survey the land and prepare development plans for Portion 2158.

5. The respondent then commenced proceedings OS (JR) No. 358 of 2016, seeking orders to quash the grant of the State lease over Portion 2158 in favour of Nipo. On 30 May 2017 the National Court constituted by Nablu J ordered the Secretary of the DLPP to comply with the consent orders made in OS (JR) No. 519 of 2014 with respect to Portion 2158. This resulted in a second exemption notice being issued by the Minister on 19 June 2018. That notice is contained at page 177 of the Amended AB (second exemption notice). This meant that Portion 2158 was, for the second time, exempt from advertisement and it is the respondent’s position that its application for grant of a State lease over Portion 2158 should have been the sole application to come back before the Land Board for its consideration.

6. During the course of submissions in the present objection to competency hearing, counsel for the appellant was asked by the Court if there had been any appeal against the National Court’s decision of Nablu J in OS (JR) No. 358 of 2016. Counsel for the appellant informed the Court that there had been an appeal by Nipo but that the appeal had been dismissed on competency grounds.

7. On 4 September 2018 by notice published in National Gazette G569 the Chairman of the Land Board listed items for Land Board Meeting 04/2018 which included item 23, an application for a State lease over Portion 2158. The gazettal notice, which is set out at page 147 of the Amended AB stated that there were three applicants for grant of title to Portion 2158; the appellant, the respondent and Nipo.

8. The gazettal notice prompted the respondent to commence National Court proceeding OS No. 633 of 2018 whereby the respondent sought orders that it was entitled to be the sole applicant for the State lease over Portion 2158 and that its application be the only application before the Land Board for consideration in respect of Portion 2158.

9. In a separate proceeding, OS No. 673 of 2018, the appellant and Nipo contended that the respondent’s lease over Portion 1216 had expired and that therefore the State lease of Portion 1216, which had included Portion 2158, had reverted to the State. The appellant and Nipo argued in that proceeding that the second exemption notice made by the Minister under Section 69(2)(c) of the Land Act 1996 allowed them, along with the respondent, to apply for the new State lease for Portion 2158.

10. As proceedings OS No. 633 of 2018 and OS No. 673 of 2018 related to the same Portion 2158, the two cases were consolidated and heard together by Makail J.

11. On 24 April 2019 his Honour ruled in OS No. 633 of 2018 and OS No. 673 of 2018 (consolidated) to the effect that the Ministerial exemptions from advertisement of Portion 2158 made under section 69(2)(c) of the Land Act 1996 meant that the respondent was lawfully entitled to be considered by the Land Board as the sole applicant for Portion 2158 to the exclusion of all other applicants. His Honour also noted that whether the respondent’s application was to be granted a State lease for Portion 2158 was a matter for the Land Board.

12. The appeal before this Court is in relation to the decision of the National Court in consolidated proceedings OS No. 633 of 2018 and OS No. 673 of 2018 which was delivered by Makail J (the primary judge) on 24 April 2019. The appellant, Nipo and members of the Land Board were the defendants involved in OS No. 633 of 2018. The appellant and Nipo were the plaintiffs in OS No. 673 of 2018. Nipo is not an appellant in this appeal.

13. A certified copy of the subject order of the primary judge made on 24 April 2019 as extracted on 20 May 2019 is contained at pages 254 to 257 of the Amended AB.

14. This appeal was commenced by the appellant pursuant to s.14(1)(b) of the Supreme Court Act Chapter 37 alleging errors of mixed law and fact by the primary judge. As no errors of fact alone are pleaded in the notice of appeal, it is the appellant’s position that no leave to appeal was required or sought under section 14(1)(c) of the Supreme Court Act. We accept that position.

The Appeal

15. The appellant has raised 7 grounds of appeal. These are reproduced below as pleaded, without editorial correction:

“4.1 His Honor erred in law and in fact in finding that the Respondent is entitled to be considered as the only applicant for portion 2158, Milinch: Granville, Fourmil: Moresby, National Capital District pursuant to the exemption notice granted on the 19th June 2018 under section 69(2)(c ) of the Land Act 1996 when the Respondent did not have a title and exemption notice was granted without proper legal basis and by error of law and the Court granted the orders by error of law.

4.2 His Honour erred in law and in fact in finding that the respondent is entitled to be considered as the only applicant for portion 2158, Granville: Fourmil: Port Moresby, National Capital District pursuant to the exemption notice granted under section 69(2)(c ) of the Land Act 1996 when the exemption notice did not use the words of the provision to describe why the...