Sulawei Ltd v Sipison [2017] PGNC 19; N6640 (10 February 2017)

N6640
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS (JR) NO.236 OF 2016

BETWEEN
SULAWEI LIMITED
Plaintiff

AND

LUTHER SIPISON as ACTING SECRETARY, DEPARTMENT OF LANDS & PHYSICAL PLANNING
First Defendant

AND

SAM, WANGE, PNG LAND BOARD CHAIRMAN
Second Defendant

AND

PNG LAND BOARD
Third Defendant

AND

HON. BENNY ALLEN, MINISTER OF LANDS & PHYSICAL PLANNING
Fourth Defendant

AND

THE INDEPENDENT STATE OF APPUA NEW GUINEA
Fifth Defendant

Waigani: Makail, J

2017: 8^th& 10^th February

JUDICIAL REVIEW – Review of Land Board decision – Exemption of State lease from being advertised – Exemption granted by Minister – Land Board recommended State lease be re-advertised and interested applicants to apply for State lease – No substantive decision made by Land Board on successful applicant– Right to apply for State lease intact – No denial of natural justice – Application for judicial review premature and dismissed – Land Act – Sections 57, 58, 69& 71

Cases cited:

Application of Roteps Pty Ltd [1991] PNGLR 387

Counsel:
Mr.J. Simbala, for Plaintiff
Mr.E. Bua, for Defendants

JUDGEMENT

10^th February, 2017

1. MAKAIL J: The Plaintiff in this case relies on an exemption notice issued by the then Minister for Lands and Physical Planning Hon. Viviso Seravo on 19^th August 1998 to exempt a piece of land known as State Lease, Portions 2019 and 2020 formerly known as Portion 1600 (“the land”) from being advertised pursuant to Section 69 of the Land Act.

2. More than ten years later the Second and Third Defendants (“Land Board”) recommended that the State lease be “re-advertised” and interested applicants be allowed to apply. That decision was made in 2008. However, it is unclear from the evidence as to the exact date of decision although a notice published in the National Gazette as No. G175 shows that the Land Boards’ decision was published on 25^th September 2008.

3. As a result the land was “re-advertised” and five other applicants applied for it. The Plaintiff was not listed in the list of applicants published in the National Gazette No. G212 of 13^th November 2008 apparently because it was not aware of the decision to re-advertise the land. When it did, it protested. In a subsequent list published in the National Gazette No. G551 dated 5^thDecember 2013, it was included while one of the earlier listed applicants, ATK & Associates was dropped.

4. Aggrieved by the Land Board’s decision, it appealed to the Fourth Defendant (“Minister”).

5. On 29^th July 2015 it received notice from the First Defendant of the Minister’s decision that the appeal was dismissed, the decision of the Land Board confirmed and that the land be re-advertised.

6. In support of the grounds of review, amongst other things, the Plaintiff submitted that the Land Board did not have discretion to over-rule or revoke the exemption granted by Minister Seravo. It strongly argued that the power to revoke the exemption is conferred on the Minister as the decision-maker who granted exemption. This power must be exercised by him alone. Reliance was placed on the case of Application of Roteps Pty Ltd [1991] PNGLR 387 for this submission.

7. The Land Board acted beyond its powers when it recommended to the Minister to “re-advertise” the land and allowed other applicants to apply for it. As a result, it was not the sole applicant at the Land Board. It also alleged that it was denied natural justice when the Land Board did not hear it before deciding to re-advertise the land for leasing.

8. But it was conceded by the Plaintiff, and in my view, quite correctly that while it is the beneficiary of the exemption consequently, should have been the sole applicant at the Land Board, it did not automatically follow that it would be recommended to the Minister for the grant of the State lease.

9. The Defendants argued that pursuant to sections 57 and 71 of the Land Act, the Land Board did have discretion to make that decision because it must hear “all applications for State leases” and this included exempted State leases/land, as in this case.

10. Secondly, that the land was re-advertised because according to the First Defendant at para. 5 of his affidavit filed on 30^th September 2016 the Plaintiff failed to list the matter at the Land Board within a reasonable time. According to the Defendants’ standing practice a reasonable time of five years is given for applicants to list their matters at the Land Board. In this case the Plaintiff did nothing for over ten years and this prompted the Land Board to recommend that the land be re-advertised and other applicants be allowed to apply.

11. The Defendants, in my view, quite correctly abandoned the argument that the exemption was void as it did not comply with the requirement under section 69 (2) (d) of the Land Act after conceding that it was not the reason the Land Board gave for not recommending to the Minister to grant the State lease to the Plaintiff and that the land be “re-advertised”.

12. On the face of it the Plaintiff has a strong case. The exemption by the Minister back in 1998 should have allowed it to be the sole applicant at the Land Board and it was not for the latter to reverse that decision under the guise of having the duty to “consider all applications for grant of leases which have been investigated and referred to it by the Department” or “hear all applications for State leases” under Sections57 and 71 of the Land Act respectively.

13. However, I am of the view that the issue is not one of whether the Minister’s power to grant an exemption is irrevocable but one of what is the nature of the act which the Plaintiff states is wrong and contrary to natural justice. That is the issue.

14. As Woods J considered in the Roteps case (supra) at 387 in the context of a revocation by the Minister of an exemption of State lease from being advertised:

“It is a discretion to make it easier for the applicant to apply for a lease of some land. It is not as if the applicant has actually received notification that he has been granted a lease, he has been given no interest in land. All the applicant has received was an advice that the Minister would agree that the passage of the application would be smoothed. It is quite clear that the applicant's application still has to proceed through the normal process of being assessed by the Lands Department and going before the Land Board and then finally being approved by the Minister, there was thus a long way to go before the applicant would actually have any land if one presupposed he was successful all through.”

15. I find that the exemption by the Minister is part of the decision-making process by which the Minister may grant a State lease on the land. For under Section 58 of the Land Act one of the functions of the Land Board is to consider applications for State leases and recommend to the Minister to grant to the successful applicant.

16. Further, the Roteps case (supra) did not decide whether the Minister had power to revoke an exemption notice issued by him. Rather it held that the issue was whether the exemption was reviewable and further held that it was not.

17. The Plaintiff’s application for a grant of a State lease is yet to be processed by the Land Board under Section 58 (supra). And as correctly conceded by the Plaintiff, the State lease may be exempted from being advertised but it does not automatically follow that it will be recommended the grant of the State lease by the Land Board. It is up to the Land Board to decide and report to the Minister.

18. In other words, there is no substantive decision made by the Land Board as to who should be recommended to the Minister to be granted the State lease on this piece of land. Unfortunately for the Plaintiff, it had to wait this long and the Defendants can be criticised for this and the way they have handled this case as if a decision is made, it will have been more than ten years since the exemption by the Minister. But a decision has to be made on the applications before the Land Board for there to be a substantive decision which can be reviewed by the Court.

19. The assertion that the Land Board allowed other applicants to apply for the land contrary to the exemption notice is of no consequence at this stage because at the end of the day, the Land Board has yet to make a decision. That assertion also contradicts the Plaintiff’s own admission that regardless of being granted an exemption, ultimately the Land Board must decide whether to recommend it as the successful applicant.

20. Thus, according to Sections 57 and 58 of the Land Act, the Plaintiff’s right to apply for the State lease is intact and its claim of being denied natural justice is misconceived. It will be given the opportunity to present its application when the Land Board convenes. The Land Board will consider it along with the applications of the four applicants. It will recommend the successful applicant to the Minister for the grant of the State lease: section 58 (9).

21. If the Plaintiff is unsuccessful, that is when it can seek judicial review of the decision of the Land Board and/or Minister. It will be open to it to bring the issue of exemption as a ground of review to challenge the Land Board and/ or Minister’s decision.

22. I find the application for judicial review is based on what Woods J described in Roteps case (supra) at 388 as a “ministerial discretion” rather than a substantive decision. The Plaintiff has been given no interest in land or refused an interest in land. The application is indeed premature and must be dismissed with costs, to be taxed, if not agreed.
Judgment and orders accordingly,
____________________________________________
Harvey Nii Lawyers: Lawyers for Plaintiff
Solicitor-General : Lawyers for Defendants