Manus Provincial Government v Kokonas Indastri Koporeisen [2019] PGNC 400; N8067 (18 October 2019)

N8067

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS (JR) No. 95 of 2018

MANUS PROVINCIAL GOVERNMENT
Plaintiff

V
KOKONAS INDASTRI KOPOREISEN
First Defendant

And
P&G INVESTMENT LIMITED
Second Defendant

And
BENJAMIN SAMSON in his Capacity as REGISTRAR OF TITLES
Third Defendant

And
DEPARTMENT OF LANDS & PHYSICAL PLANNING
Fourth Defendant

And
INDEPENDENT STATE OF PAPUA NEW GUINEA
Fifth Defendant

Waigani: Miviri J
2019: 18^th October

PRACTISE & PROCEEDURE – Judicial Review & Appeals – Originating summons – Leave application – Evidence filed – applicant – no Standing – delay – No Arguable case – Alternatives not exhausted – grounds not made out balance of probabilities – leave refused – cost will follow the event.

Cases cited:

NTN PTY LTD v The Board of Post & Telecommunication Corporation & ors [1987] PNGLR 70
Lae Bottling Industries Ltd. v Lae Rental Homes Ltd [2011] PGSC 22; SC1120

Innovest Ltd v Pruaitch [2014] PGNC 288; N5949
Burns Philp (PNG) Ltd v. The Independent State of Papua New Guinea [1989] PGNC 24; N769
The State v. Philip Kapal [1987] PNGLR 417
Geno, Lawton and Mambu v The State [1993] PNGLR 22
Pipoi v Seravo, National Minister for Lands [2008] PGSC 7; SC909

Counsel:

E. Komia, for Applicant

R. Uware, for the Defendants

RULING

18^th October, 2019

1. MIVIRI, J: This is the Ruling of the Court on the Application for Leave that the Applicant has filed by way of Originating Summons dated the 25^th February 2019 seeking to challenge the decision of the Third, Fourth and Fifth Defendants on the 6^th November 1996 to transfer the state lease described as Volume 03, Folio 173, Allotment 9, Section 9, Lorengau, Manus Province to the second defendant under instrument dated the 16th March 1993.
   
2. He seeks certiorari to bring into court and quash the decision of the Third, Fourth and Fifth Defendants made on the 13^th June 1997 to issue replacement title of the State lease described as volume 3, folio 173, Allotment 9 Section 9, Lorengau Manus Province to the First Defendant. He also seeks a declaration that the title to the property described as volume 3 folio 173, Allotment 9 section 9 Lorengau Manus Province transferred to the first defendant on the 14^th July 2016 is null and void of no legal effect.
   
3. Further an affidavit verifying facts has been filed by the Plaintiff's Provincial Administrator Oka Peter Nungu, including an undertaking as to damages also by the Provincial Administrator. Both documents are dated the 25^th February 2019. A notice of application for leave to apply for Judicial Review has also being filed of the same date.
   
4. He relies in support on the Affidavit of Poruan Sapulai sworn 5^th October 2018 filed the 25^th February 2019. He is the former Local Level Government Manager but retrenched and lives at ward 4 Lorengau, Manus. Initially he was District Lands Officer with Provincial affairs administering state and traditional land. He also held the position of Local Land Court Registrar. His evidence is basically history of the use of that land and not necessarily evidence of title to that land. He does not add any value nor weight to the leave application.
   
5. Oka Peter Nungu’s affidavit is the next affidavit sworn 5^th October 2018 and filed the 25^th February 2019 annexure "A" is a copy of the title in respect of Portion 9 Milinch 9 Lorengau 0.1215 hectares Manus State Lease volume 3 Folio 173 granted the 16^th March 1993 between the administrator on the one part and the Copra Marketing Board Lessee on the other part. And that lease is granted under Section 43 than of the Land Ordinance 1922-1961 for 99 year from the 17^th day of September 1963 for purposes of business. The copra Marketing Board is not the same person as the Manus Provincial Government nor could it be analogous to the Manus Provincial Government.
   
6. What is highlighted by this affidavit does not shed light that the Manus Provincial Government was the owner of that land, or that they held the land in law and have been deprived of it by the decision that the defendants have made. What he contends is an administrative matter that can be attended to at his level as the provincial administrator and the defendants. Corrections or alteration to title have a process under the Land Registration Act and no doubt this can be resolved at that level not necessarily in a Judicial review proceeding. No evidence has been led that was followed unsuccessfully hence this proceeding. It is therefore not in the Applicant’s favour when there are other avenues to settle the matter other than judicial review.
   
7. The Affidavit of Chris Malai is also not evidence of title and does not take the case of the Plaintiff applicant any nearer to leave. Property Manager coming forward with title document by law would have a stronger stance than a history orator. His evidence does not add to the application sought any stronger. It would have been convincing to have a process mapped out to securing title and being rejected without hearing than to come and recount history. It would serve to show time and delay. There is no evidence here in that regard to advance the case of the applicant past the leave stage.
   
8. And this is very well put by counsel of the defendants that the Manus Provincial Government merely had an equitable interest that did not go over the balance to securing leave. Nor did it equate to a Standing prima facie in the matter as reflected in NTN PTY LTD v The Board of Post & Telecommunication Corporation & ors [1987] PNGLR 70. Or in Lae Bottling Industries Ltd. v Lae Rental Homes Ltd [2011] PGSC 22; SC1120 (2 September 2011) where there were substantial and exceptional circumstances shown to tilt the balance in their favour, they had done up substantial improvements worth over K300, 000. 00 for which they could not be shut out without being heard out.
   
9. In my view given all materials and the law this is nothing but a busybody intends on meddling in the affairs of another without just cause in law. If leave is allowed it would cause unnecessary hardship and litigations for the Defendants. There is really no material prima facie to sway leave in his favour. That is set out by his own evidence which lack any credible weight to convince as arguable in that sense of that word, Innovest Ltd v Pruaitch [2014] PGNC 288; N5949 (17 March 2014).
   
10. The totality is that continued vigilant supervision by the courts must be satisfied on the balance of probabilities that a wrong principle of law has eventuated. Or an abuse of power and authority has eventuated so much so that the applicant/plaintiff is left without any recourse to the law including the Constitution and any other law for the same. Or the decision is one which no reasonable tribunal would make given the circumstances here, Burns Philp (PNG) Ltd v. The Independent State of Papua New Guinea [1989] PGNC 24; N769 (3 November 1989); The State v. Phillip Kapal [1987] PNGLR 417. That unfortunately is not the case made out prima facie for the applicant/plaintiff. Which effect is that he has no locus standi settled to the required balance. He has not made out how he has been effected by the matter as in Geno, Lawton and Mambu v The State [1993] PGSC 8; [1993] PNGLR 22 (29 July 1993).
    
11. The five requirements for leave for Judicial Review must be satisfied on the required balance. Unfortunately for the Applicant he has fallen here also in time and delay. The subject land is not even in his name by the evidence that he has annexed to in court in support Pipoi v Seravo, National Minister for Lands [2008] PGSC 7; SC909 (10 April 2008).
    
12. This is an administrative matter not necessarily a leave matter for Judicial Review. It could be visited under the Land Registration Act not in a leave application. Which has not been exhausted there is no material before me or procedure entailed out by that Act consequently the application is without merit in all frontiers and falls.
    
13. Leave is refused given the reasons set out above. Plaintiff for the reasons set out above will pay the costs of the proceedings.

Orders Accordingly.

__________________________________________________________________

Boma Lawyers : Lawyer for the Plaintiff/Applicant

Office of the Solicitor General : Lawyer for the Defendant