Appeal by Constantinou against Forfeiture by The State of a Government Lease, Re [1977] PGNC 7; [1977] PNGLR 1 (14 January 1977)

1977

Papua New Guinea Law Reports - 1977

[1977] PNGLR 1 - Re S121 Land Act 1973; Appeal by Maria Theresa Constantinou against Forfeiture by The State of a Government Lease 

[1977] PNGLR 1

N75

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

IN THE MATTER OF S. 121 OF THE LAND ACT 1963 (AS AMENDED) AND IN THE MATTER OF A PROPOSED APPEAL BY MARIA THERESA CONSTANTINOU

Waigani

Williams J

7 December 1976

14 January 1977

APPEAL - Time for lodging appeal - Extension of time for lodging appeal - Forfeiture of a Government lease under s. 54 of the Land Act 1963 - Application under s. 121 of the Land Act 1963 for extension of time within which to appeal against forfeiture - Application for extension of time made outside time limited for appeal - Application refused - Land Act 1963 s. 121(2)[i]¹.

Section 54 of the Land Act 1963, provides that a Government lease may be forfeited by notice in the National Gazette on grounds therein specified. Section 121(1) of the Act then provides a right of appeal to the National Court against the forfeiture, and s. 121(2) provides as follows:—

“An appeal under the last preceding subsection shall be made within 28 days after the matter complained of or within such further time as the National Court for any special reason allows.”

Held

An application for extension of time within which to appeal against forfeiture under the Land Act 1963 cannot be made outside the time limited for appeal under s. 121(2) of the Act.

Application for Extension of Time

This was an application for an extension of time within which to appeal against a Government decision to forfeit a Government lease, made pursuant to s. 54 of the Land Act 1963.

Counsel

M. J. Wright, for the applicant.

P. M. Lavender, for the respondent.

Cur. adv. vult.

14 January 1977

WILLIAMS J: This is an application for an extension of time within which to appeal against a Government decision to forfeit a lease granted by the Government for alleged non-compliance with a building covenant contained in the lease.

Under s. 54 of the Land Act 1963, as amended, a Government lease may be forfeited by notice in the Gazette on the ground (amongst others) that a covenant of the lease has not been complied with.

However, s. 121(1) of the Act provides a right of appeal to the National Court against the forfeiture. Sub-section (2) provides as follows:

“An appeal under the last preceding sub-section shall be made within 28 days after the matter complained of or within such further time as the National Court for any special reason allows.”

Notice of the forfeiture of the lease the subject of this application was published in National Gazette No. G80 dated 30th September, 1976. Notice of this fact was given to the applicant by letter dated 6th October, 1976. The notice of motion initiating this application was filed on 22nd November, 1976. Thus this application was made after the expiration of the period of twenty-eight days limited by s. 121(2) of the Act.

Counsel for the State opposes this application on two grounds. First, it is said that upon the proper construction of s. 121(2) there is no power in the Court to extend the time for appeal when an application for extension is made after the expiration of the twenty-eight day period. Put in another way the Court can only entertain an application for extension made during the currency of the twenty-eight day period. Secondly, it is submitted that in any event no “special reason” within the meaning of the sub-section has been made out.

In the course of argument before me several cases were cited in relation to the first objection raised. I do not think that much assistance is to be derived from them as the decisions therein turned upon particular rules of court and statutory provisions different from the provision with which this case is concerned. It seems to me that I have to consider the terms of the sub-section in the context of the Act as a whole and endeavour to ascertain the legislative intention underlying the sub-section.

Assistance is, I think, to be gained from the provisions of sub-sections (3) and (4). The former provides that where an appeal is made under sub-section (1) “the matter complained of” (which I take in the present case to be the act of forfeiture) has no effect until the National Court has decided the appeal and where no further appeal is made to the Supreme Court the period prescribed for making that appeal has expired or where an appeal to the Supreme Court is made the Supreme Court has decided the appeal and in the meantime the lessee may continue lawfully to occupy the land and to exercise his rights and shall be liable to fulfil his obligations under the lease. Sub-section (4) provides that where an appeal is made the decision of the National Court or the Supreme Court as the case may be shall be deemed to operate from the date of the matter complained of.

It seems plain enough that the scheme of the legislative provisions to which I have referred is that a person aggrieved by forfeiture action may appeal and that pending the hearing and determination of his appeal the rights and responsibilities of the parties to the lease remain unaltered. The decision of the appeal court has effect from the date of the original forfeiture action. In other words an aggrieved lessee can, by duly invoking the appeal procedure, maintain the status quo pending a judicial review of the administrative decision to forfeit the lease.

However, in the present case no appeal was brought within the time limited by sub-s. (2) nor, within that time, was any application made for extension of that time. It appears to me that upon the expiration of the appeal period the forfeiture action became effective and the rights of the lessee under the lease lost. In my view it would be contrary to the general scheme of s. 121 that a lessee having allowed the forfeiture action to become conclusive by not keeping the matter alive by resort to the appeal procedures within the time limited be permitted to re-open the question by obtaining an extension of time for appealing after the appeal period has expired. Under sub-s. (4) the decision of the appeal court relates back to the time of the forfeiture action. It seems to me incongruous that there be a judicial review of an administrative act which has already become effective through effluxion of time.

It is to be observed that s. 121(2) contains no words similar to those contained in O. XC r. 6 of the National Court Rules to the effect that time may be enlarged notwithstanding the expiration of the time originally prescribed. To read by implication words of this nature into s. 121(2) would be productive of much uncertainty as to the legal relations between the parties to the lease during the interval between the expiry date of the prescribed appeal period and the date upon which an application for an extension of time is actually made, a situation which, in my opinion, was not contemplated by the legislature.

For the foregoing reasons I uphold the preliminary point raised by counsel for the State and refuse the application for extension of time.

Application for extension of time refused.

Solicitors for the applicant: Craig Kirke & Wright.

Solicitor for the respondent: B. W. Kidu, State Solicitor.

R>

[i]Infra p. 2.