N3917

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS NO 1038 OF 2005

LOUIS MEDAING ON BEHALF
OF HIMSELF AND MEMBERS OF THE TONG AND OGEG CLAN
First Plaintiff

MEBU CLAN BY ITS REPRESENTATIVE
Second Plaintiff

SIBIAG 2 CLAN BY ITS REPRESENTATIVE
Third Plaintiff

SIBIAG GUGU CLAN BY ITS REPRESENTATIVE
Fourth Plaintiff

BALENG CLAN BY ITS REPRESENTATIVE
Fifth Plaintiff

V

MINISTER FOR LANDS & PHYSICAL PLANNING
First Defendant

REGISTRAR OF TITLES
Second Defendant

GANGLAU LANDOWNER COMPANY LTD
Third Defendant

PATRICK NASA, SPECIAL LAND TITLES COMMISSIONER
Fourth Defendant

Madang: Cannings J
2009: 29 September,
2010: 19 February

JUDICIAL REVIEW – review of decision of Minister to grant State Lease over land that was the subject of a dispute under the Land Dispute Settlements Act – Minister's decision also subject to judicial review in separate proceedings that have been concluded – whether prior orders of National Court prevent the National Court from determining subsequent application for judicial review.

The first plaintiff applied for judicial review of the decision of the Minister for Lands and Physical Planning to grant a State Lease to the third defendant on the ground that the land covered by the State Lease was the subject of a dispute between different clans and groups as to customary ownership of the land, which was being determined by a Commissioner appointed under the Land Disputes Settlement Act and the Land Titles Commission Act. The defendants sought to have the application for judicial review dismissed on the ground that the issues raised and the relief sought by the first plaintiff had already been addressed by the National Court in separate judicial review proceedings.

Held:

(1)	The previous National Court proceedings were commenced by a different party and did not address the ground of review relied on by the first plaintiff and did not result in the relief sought by the first plaintiff. The principles of issue estoppel and res judicata therefore did not prevent the Court in the present proceedings from determining the application for judicial review.

(2)	The fact that the land was the subject of dispute and that a Special Land Titles Commissioner had been appointed was a relevant consideration that the Minister failed to take into account when deciding to grant the State Lease.

(3)	The Minister's decision was affected by error of law and must be quashed.

(4)	It was appropriate to also make consequential orders including declaring that the State Lease is null and void and ordering the Registrar of Titles to amend the Register of State Leases to reflect the orders of the Court.

Cases cited

Papua New Guinea Cases

Dale Christopher Smith v Minister for Lands (2009) SC973
Isaac Lupari v Sir Michael Somare (2008) N3476
Mark Ekepa v William Gaupe (2004) N2694
Paul Saboko v Commissioner of Police (2006) N2975
Ramu Nickel Limited v Temu & Ors (2007) N3116

Overseas Cases

Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223

Counsel

B Meten, for the first plaintiff
Y Wadau, for the second plaintiff
G Odu, for the first, second and fourth defendants
T M Ilaisa, for the third defendant

19 February, 2010 

1. CANNINGS J: This case is about part of the land on which the Ramu Nickel Project in Madang Province is being carried out. The land is in the Basamuk area and is described formally as Portions 109 and 110, Milinch Pommern, Fourmil Madang. It is 85.17 hectares in area. The first plaintiff, Louis Medaing, representing the Tong and Ogeg Clan, is applying for judicial review of the decision of the first defendant, the Minister for Lands & Physical Planning, of or about 18 June 2004, to grant a State Lease (an agricultural lease) over Portions 109 and 110 to the third defendant, Ganglau Landowner Company Ltd (Ganglau).

2. The ground of review on which Mr Medaing relies is that Portions 109 and 110 were at the time the State Lease was granted the subject of a dispute between his clan and other clans and groups including Ganglau as to customary ownership of the land. The dispute was being determined by a Special Land Titles Commissioner, the fourth defendant, Patrick Nasa, appointed under the Land Disputes Settlement Act and the Land Titles Commission Act. Mr Medaing argues that it was not open to the Minister to grant a State Lease to anyone over the land when the question of customary ownership was still being determined.

3. The defendants argue that the application for judicial review should be summarily dismissed. They say that the issues raised and the relief sought by Mr Medaing have already been addressed by the National Court in separate judicial review proceedings.

4. Leave for judicial review in this case was granted on 25 November 2005. Designation of the parties is as per the directions of Batari J of 17 June 2009.

5. The issues are:

1	Should the judicial review be summarily dismissed?

2	If not, did the Minister err in law by granting the State Lease to Ganglau?

3	What declarations or orders should the Court make?

1	SHOULD THE JUDICIAL REVIEW BE SUMMARILY DISMISSED?

6. Mr Ilaisa, for Ganglau, and Mr Odu, for the other defendants, submit that the issues raised by Mr Medaing have already been determined by the National Court decision of Lay J in Ramu Nickel Limited v Temu & Ors (2007) N3116. That case, they submit, was a judicial review of the same decision of the Minister – to grant a State Lease to Ganglau over Portions 109 and 110 – and resulted, in effect, in the Minister's decision and the State Lease being quashed. It would be a futile exercise, they submit, to hear Mr Medaing's application for judicial review as there is nothing before the Court on which to make a decision.

7. I do not accept that submission. It is correct that the case before Lay J related to the same decision of the Minister. However, the decision being reviewed was actually the decision of the Land Board to recommend to the Minister that Ganglau be granted an agricultural lease over Portions 109 and 110. It was not the Minister's decision to grant the lease that was directly reviewed. Furthermore, the ground of judicial review was different, as was the relief granted.

8. The ground on which Ramu Nickel Ltd succeeded was that the Land Board erred in law by disregarding (a) the mining tenements relating to the land that had in 2000 been granted to Ramu Nickel Ltd and (b) the fact that the land had in 2002 been compulsorily acquired by the State under Section 12 of the Land Act for mining purposes. Lay J held that in those circumstances it was not open to the State, through the recommendation of the Land Board, to grant an agricultural lease over the land to Ganglau. The question of whether the Land Board or the Minister erred by not taking into account that the land was the subject of a dispute between customary landowners was not addressed.

9. As to the relief granted, his Honour noted that it was not in evidence whether the State Lease had actually been granted. He therefore confined the order of the Court to quashing the recommendation of the Land Board.

10. The principles of issue estoppel and res judicata, which I think are the best ways of describing the defendants' submissions, do not apply here (see Mark Ekepa v William Gaupe (2004) N2694). I am not prohibited from determining Mr Medaing's application for judicial review. It would be inappropriate to summarily dismiss it and I decline to do so.

2	DID THE MINISTER ERR IN LAW BY GRANTING THE STATE LEASE TO GANGLAU LANDOWNER COMPANY LTD?

11. It is not disputed that at the time the State Lease was granted the land was the subject of a dispute between Mr Medaing's clan and other clans and groups including Ganglau as to customary ownership of the land. The dispute was being determined by a Special Land Titles Commissioner, the fourth defendant, Patrick Nasa, appointed pursuant to a declaration by the Governor-General made on 21 December 2001 under Section 4 of the Land Disputes Settlement Act and the Land Titles Commission Act. Mr Medaing argues that it was not open to the Minister to grant a State Lease to anyone over the land when the question of customary ownership was still being determined. The defendants made no effective response to the submission and I uphold it as being correct in law.

12. The Minister's decision to grant the lease to Ganglau was wrong in law as the Minister (and the Land Board, on whose recommendation he acted) failed to take a relevant consideration – the ongoing proceedings before the Special Land Titles Commission – into account. Further (although the grounds of review did not expressly plead this point) the Minister's decision can be regarded as unreasonable under the principles laid down in the classic case of Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223. The decision was so unreasonable or absurd, having regard to all the circumstances, that no reasonable decision-maker in the position of the Minister would have made the decision (Paul Saboko v Commissioner of Police (2006) N2975).

13. Mr Medaing's ground of review is therefore upheld.

3	WHAT DECLARATIONS OR ORDERS SHOULD THE COURT MAKE?

14. It is now time to consider the consequences of the finding that the Minister erred in law when granting the lease to Ganglau.

15. In any judicial review the court's determination of the review proceeds in two stages: (a) determining whether the plaintiff has proven one or more grounds of review and if he has (b) deciding as a matter of discretion what remedy, if any, should be granted (Dale Christopher Smith v Minister for Lands (2009) SC973; Isaac Lupari v Sir Michael Somare (2008) N3476).

16. The Minister's error was significant. It makes a mockery of establishment of a Special Land Titles Commission for the Minister for Lands to grant a State Lease over some of the land that is in dispute to one of the disputing parties while the Special Land Titles Commission is conducting its lawful proceeding. The irregularity is enhanced when it is considered that mining tenements had been granted over the same land before the lease was granted to Ganglau.

17. The Minister's decision was seriously flawed and I am satisfied that it must be quashed. Unlike in the Ramu Nickel case before Lay J, there is evidence in the present case that the lease was actually granted, on 18 June 2004, to Ganglau. It must be declared null and void. Consequential orders will be made to ensure that that declaration is given effect.

COSTS

18. This case has been defended by all four defendants and they will pay Mr Medaing's costs. The second plaintiff, Mebu Clan, took an ambivalent position in these proceedings and I will order that they and other plaintiffs (who were not represented) bear their own costs.

ORDER

(1)	The application for judicial review is granted.

(2)	The decision of the Minister for Lands of or about 18 June 2004 to grant a State Lease over Portions 109 and 110, Milinch Pommern, Fourmil Madang, Madang Province to Ganglau Landowner Company Ltd is declared null and void and is quashed.

(3)	The State Lease granted over Portions 109 and 110, Milinch Pommern, Fourmil Madang, Madang Province to Ganglau Landowner Company Ltd is declared null and void and is quashed.

(4)	The Secretary for Lands and the Registrar of Titles shall within 21 days amend all records of the State under their control to reflect the orders of the Court, including amending the Register of State Leases.

(5)	Costs of these proceedings shall be paid by the defendants to the first plaintiff on a party-party basis, to be taxed if not agreed.

(6)	Other parties will bear their own costs.

(7)	Time for entry of the order is abridged to the date of settlement by the Registrar which shall take place forthwith.

Judgment accordingly.
____________________________

Narokobi Lawyers: Lawyers for the First Plaintiff
Young Wadau Lawyers: Lawyers for the Second Plaintiff
Solicitor-General: Lawyer for the First, Second & Fourth Defendant
Thomas More Ilaisa Lawyers: Lawyers for the Third Defendant