N1459

PAPUA NEW GUINEA
[In the National Court of Justice]

O.S. NO. 57 OF 1994 (H)

BETWEEN:

WILLIAM WANDAKI
- Applicant -

AND:

MINISTER FOR LANDS
- First Respondent -

AND:

PILLA NINIGI
- Second Respondent -

MOUNT HAGEN: INJIA, J.
1996: JUNE 17TH, 28TH

Real property - State land lease - Land Board - Recommendation to Minister - Decision to disagree or reject recommendation and refer matter back to Land Board for re-hearing - Whether Minister under duty to give reasons and good reasons for decision - Land Act (Ch. No. 185), S. 12(2)(a), S. 33(b).

Real property -State land lease - Land Board - Recommendation to Minister -Appeal - Statutory time limit for appeal - Whether appeal lodged outside statutory time limit is invalid or competent - Whether Minister under duty to consider incompetent appeal - Land Act (Ch. No. 185), S. 11(1), (2).

Judicial review - Decision of Minister for Lands - Decision under Land Act (Ch. 185), S. 12(2)(a) to reject recommendation of Land Board and refer matter back to Land Board for re-hearing - Reasons for decision based on socio-political and economic government policy considerations - Whether reasons reviewable by Court - Land Act (Ch. No. 185), S. 8(1), (2); S. 9(3), (9); S. 11(1), (2); S. 12(1), (2); S. 33, National Court Rules, Order 16.

Cases Cited in the judgment:
Independent State of Papua New Guinea -v- Kapal [1987] PNGLR 417
Kekedo -v- Burns Philp [1988-89] PNGLR 122
Re Moge Eng & Kuipi Group - N 1306 (1985)

D.L. O'CONNOR for the Applicant
M. TAMUTAI for the Second Respondent
No appearance for the First Respondent

28TH JUNE 1996

INJIA, J. This is an application for Judicial Review under Order 16 of the National Court rules. Leave to seek judicial review was granted on 19/8/94. The Applicant seeks an order in the nature of certiorari to remove to this Court and quash a direction by the First Respondent (hereinafter referred to as "the Minister") made on 27 October 1992 "that Item No. 13 (The Land board Meeting No. 1879 awarding Allotment 8, Section 13, town of Mount Hagen to William Wandaki Kitipa) be referred back to the Western Highlands Land Board Meeting for re-hearing)". The Applicant seeks a further order that the Minister grant a State Lease of the subject land to the Applicant in accordance with the recommendation of the Land Board Meeting No. 1879.

The grounds relied upon as stated in the verified statement in support of application for leave for judicial review are:-

i.	That Pila K. Nininga took unfair advantage of his previous employment by Land Board to secure a grant of Government Lease for Allotment 8, Section 13, Town of Mount Hagen.

ii.	That the Minister of Lands referred the recommendation of the Land Board back to the Land Board without any appropriate reason.

iii.	That the Applicant had no opportunity to make submission to the Minister for Lands regarding the reasons for referral of the matter back to the Land Board.

iv.	That the reasons for referring the proceedings back to the Land Board were irrelevant to the procedure.

v.	That the order was contrary to natural justice.

At this hearing, the Applicant's Counsel did not argue ground (i) so I presume that that ground was abandoned. The remaining grounds relate to the Minister's reasons for the said decision.

Also at this hearing the Minister was not represented. As both parties agreed to proceed with the matter in the absence of the Minister or his legal representative, I granted leave accordingly. There is however the pertinent Lands Department file before me but because neither party relied on it, I will not use it. I will decide the case on the basis of affidavit evidence and submission made by the parties before me.

The history of the relevant circumstances giving rise to this application are not in dispute. Sometimes between 1987-1992, at National Land Board Meeting No. 1851, the National Land Board recommended to the Minister a Business (Commercial) lease in favour of the Second Respondent. The Second Respondent was one of seven (7) applicants including the Applicant. The Applicant appealed against the recommendation to the Minister (initially appealed to the National Executive Council which referred the appeal to the Minister). The appeal was successful and consequently, the matter was referred back to the Land Board for a re-hearing. At Land Board Meeting No. 1879, held on 29 May 1992, the National Land Board recommended to the Minister a Business (Commercial) lease over the land in favour of the present Applicant. The Applicant and the Second Respondent were the only applicants before the Land Board. On 27 October 1992, the Minister referred the matter back to the WHP Land Board Meeting for a re-hearing. In a decision document dated 27 October 1992 entitled "MINISTER FOR LANDS - CONSIDERATION OF LAND BOARD MINUTES of Meeting No. 1879 dated 29th May 1992", the Minister wrote: "Circumstances surrounding Hagen Office, the safety of staff and office, the item be referred back to Western Highlands Provincial Land Board Meeting". On 30 April 1993, the Secretary for Lands wrote to the Applicant and forwarded a copy of the Minister's decision letter and further elaborated on the reasons given by the Minister. It is this decision of 27 October 1992 which is the subject of judicial review in these proceedings.

The matter was re-heard by the WHP Land Board on 30 July 1993 and in its decision No. 1900, the Board recommended a lease in favour of the First Respondent. At this hearing, the Applicant, the Second Respondent, and Joseph Tepp and Thomas six were the only applicants for the subject land. On 20 September 1993, which is the date the appeal and K50.00 lodgment fee was actually received by the Department of Lands, the Applicant lodged an appeal against the decision to the Minister. This appeal was lodged under S. 11 of the Land Act (Ch. 185) ("the Act"). To this day, this appeal is still pending determination. On 7 March 1994, the Applicant instituted these proceedings for judicial review.

In this review, whilst the Applicant challenges the decision of the Minister as to the relevance, appropriateness or reasonableness of the reason given by the Minister to refer the matter back to the WHP Land Board for re-hearing, he does not take issue with the WHP Land Board decision No. 1900. The Applicant relies on the principles enunciated by Woods, J. in the Moge Enga & Kuipi Group N1306 (8 March 1995).

Mr Tamutai of Counsel for the Second Respondent submits that the application is an abuse of the process of the Court because the Applicant did not challenge the decision of the Minister but instead accepted the decision of the Minister and appeared before the WHP Land Board and when the WHP Land Board made a decision against him, he took issue in these proceedings not with the Land Board decision but the 

Minister's decision. Mr Tamutai also submits that because the Applicant's appeal to the Minister against the Provincial Land Board decision is still pending determination, it is an abuse of process of the Court for the Applicant to seek judicial review of the Minister's initial decision to refer the matter to the Provincial Land Board. He relies on the principles enunciated by the Supreme Court in the Independent State of Papua New Guinea -v- Kapal [1987] PNGLR 417 which were adopted and expounded upon by the Supreme Court in Kekedo -v- Burns Philp (PNG) Ltd and Others [1988-89] PNGLR 122.

It is necessary to first set out the relevant provisions of the Land Act which I will consider or apply namely, S. 8 (1), (2); S. 9 (3), (a); S. 11(1); S. 12(1), (2); and S. 33.

Sections 8(1) and (2) provides:

8. Functions of the Board

(1)	In addition to such other functions as are conferred on it by this Act, the Land Board shall consider and make a recommendation on any matter referred to it by the Minister.

(2)	The Land Board shall investigate all applications for grant of leases and all other matters that are remitted to it by the Minister for its consideration.

Section 9 provides from the meetings of the Land Board. Section 9 (3) and (9) provide:

(3) The meeting of the Land Board shall be held not less than seven days nor more than 42 days after the publication of the list referred to in Subsection (1), and the Board shall deal with applications and matters, hear any objections and report on the applications or matters within 14 days to the Minister.

(9) The Chairman shall forward notice of the Land Board's recommendations, other than a recommendation to which Subsection (7) applies, to every person who, in his opinion, is interested in an application or matter dealt with by the Board.

Section 11 (1), (2) provides in:

11. Appeals

(1)	A person aggrieved by a decision of the Land Board may, not later than 28 days after notice is forwarded under Section 9(9), forward a notice of appeal to the Minister.

(2)	An appeal shall be accompanied by a deposit of K50.00, which shall, subject to Subsection (3), be refunded when the appeal has been decided.

Section 12 (1), (2) provides:

12. Reference of reports to Minister.

(1)	A report or recommendation of the Land Board shall -

(a)	if no appeal is made under Section 11, at the expiration of the period referred to in Subsection (1) of that section; or

(b)	if any such appeal is made, after the appeal is determined, be referred to the Minister.

(2)	In addition to any other powers conferred by or under this Act, the Minister shall, if he disagrees with a report or recommendation of the Land Board, and may for any other reason -

(a)	refer any matter back to the Board for re-hearing, the taking of fresh evidence, the furnishing of a further or additional report, or otherwise; or

(b)	refer any matter to the National Executive Council.

Section 33 provides:

33. Consideration of applications.

The Land Board -

(a)	shall hear all applications for State leases; and

(b)	shall recommend to the Minister the persons (if any) to whom leases should be granted; and

(c)	may make such other recommendations to the Minister to the Minister in connexion with any such application as to the Board seem proper.

In this case, the decision appealed against and the decision for which judicial review is sought are different but the end result sought under both options is the same - that the Minister grant a State Lease to the Applicant. At the outset, I do not think the Applicant is wrong in law in pursuing both options at the same time: Kekedo -v- Burns Philp (PNG) Ltd, ante, p. 123. But there is a problem with the appeal option. There is no evidence to show when the Board notified the Applicant of its decision in Meeting No. 1900 as required by S. 9(9) but assuming that he was so notified on the date the decision was made (30/7/93), his appeal was late by about three (3) weeks. Therefore, the appeal was incompetent and it is a nullity. Was the Minister was under a legal duty to entertain the incompetent appeal? Clearly, he has no statutory power to consider an incompetent appeal or to validate an incompetent appeal. Therefore, the WHP Land Boards decision remains valid and effective unless it is quashed by this Court in the exercise of its judicial review jurisdiction.

The question to be asked in this review is whether the Minister acted ultra vires the Land Act, committed an error of law, committed a breach of natural justice, reached a decision which no reasonable Minister for Lands could have reached or abused his powers: Kekedo -v- Burns Philp, ante, p. 123.

In this review, the Applicant does not challenge the decision of the WHP Land Board whereas he challenges the Minister's decision to reject the National Land Board's recommendation made in favour of the Applicant and to refer the matter to the WHP Land Board for a re-hearing under S. 12(2)(a).

A recommendation to the Minister by the Land Board for a State Lease is made under S. 33 of the Act. The word "recommendation" used in S. 33(b) and the phrase "if he disagrees with a recommendation of the Land Board, and may for any other reason" used in S. 12(2)(a) implies that the Minister has the unfettered discretion to decide whether to accept or reject the recommendation of the Land Board. Is the Minister 

under a statutory duty to give reason(s) for his decision made under S. 12(2)(a)? On the face of s. 12(2)(a), he is under a duty to give a reason for his decision to refer the matter back to the Land Board for re-hearing, the reason being either that he disagrees with the Land Board's recommendation or for "any other reason". The categories of "reasons" for referring the matter back for re-hearing are unlimited. Is the Minister under a statutory duty to give good, appropriate or relevant reasons for his disagreement, etc.? On the face of S. 12(2)(a), clearly he is under no such duty, the rationale, it seems, being that the power the Minister exercises at this stage is an executive power which is permeated by a wide range of prevailing socio-political and economic government policy considerations. It is not for this Court or any other Courts to question the soundness or otherwise of his reasons based on public policy considerations.

The power or discretion the Minister exercises at this stage is exercised on his own volition as distinct from an appeal under S. 11. In an appeal, a party aggrieved by the decision of the Land Board seeks to invoke the exercise of the Minister's statutory power in his favour. There are competing interests involved which the Minister has to determine. I agree with Woods, J. in Re. Moge Enga & Kuipi Group, ante, that (at p. 5):-

"An appeal is a procedure of law which presupposes principles of justice. The person who considers an appeal must act judicially, not arbitrarily, this means he must act on good reasons, there must be good reasons presented to support an appeal and a person considering an appeal must indicate to the parties interested why he has acted the way he has and not secretly, his reasons should not be secret"

I do not accept the applicant's submission that the Minister is under a duty to act judicially or not arbitrarily and that he must act on good reasons whilst exercising his power under S. 12(2)(a).

In the present case, the Minister gave a reason for disagreeing with the recommendation of the National Land Board and referring the matter to the WHP Land Board for a re-hearing. He acted in compliance with S. 12(2)(a) by giving reasons for his decision. Whether the decision he gave was good, appropriate or sound is not a matter for review by this Court.

It cannot be said that the Minister acted arbitrarily or in breach of natural justice because he was under no statutory duty to afford an opportunity to the applicant to be heard before he made his decision. He acted in accordance with his powers under S. 12(2)(a). He reached a decision which he was entitled to reach in the circumstances. He did not abuse his powers in that he did not make a decision which determined the rights of parties but merely referred the matter to the WHP Land Board to re-hear the matter and make its own decision. He did not give any directions as to how the WHP Land Board should conduct the re-hearing - such directions which were calculated to favour the Second Respondent. The Applicant did not take issue with the Minister's decision either before the WHP Land Board or by way of judicial review. The Applicant must be taken to have accepted the Minister's decision and the reasons as being good and proper. The Applicant was not impeded in any way by the WHP Land Board or the Minister in the presentation of his case before the WHP Land Board. The Applicant stood at equal par with the other Applicants before the WHP Land Board. And when the WHP Land Board's decision did not favour him, he took issue with its decision.

In this review, he has challenged the Minister's decision giving jurisdiction to the WHP Land Board to re-hear the matter, which jurisdiction the Applicant accepted in the first place by appearing before the Board. The Court cannot conduct a review of the decision of the Minister which the Applicant has by his conduct accepted.

For these reasons, I am not satisfied that the grounds for review have been made out by the Applicant and I dismiss the application with costs to the Second Respondent.

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Lawyer for the Applicant: D.L. O'CONNOR
Lawyer for the 2nd Respondent: TAMUTAI Lawyers
Lawyer for the 1st Respondent: SOLICITOR GENERAL