Erima Community Welfare Association Inc v Wange [2021] PGNC 382; N9149 (17 September 2021)

N9149

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]
OS (JR) NO. 8 OF 2021 (IECMS)

BETWEEN:
ERIMA COMMUNITY WELFARE ASSOCIATION INC.
Plaintiff

AND:
SAM WANGE CHAIRMAN PNG LAND BOARD
First Defendant

AND:
ALA ANE ACTING REGISTRAR OF TITLES DEPARTMENT OF LANDS & PHYSICAL PLANNING
Second Defendant

AND:
HON JOHN ROSSO MINISTER FOR LANDS & PHYSICAL PLANNING
Third Defendant

AND:
BENJAMIN SAMSON SECRETARY FOR DEPARTMENT OF LANDS & PHYSICAL PLANNING
Fourth Defendant

AND:
INDEPENDENT STATE OF PAPUA NEW GUINEA
Fifth Defendant

AND:
ANDREW TUMU LIMITED
Sixth Defendant

Waigani: Miviri J
2021: 08^th, 15^th & 17^th September

PRACTICE & PROCEDURE – Judicial Review & Appeals – Order 16 Rule 3 Application for Leave for Judicial review – Grant of UDL over Land – Non-Compliance of Procedure Sections 103 -110 Land Act 1996 – No Proper Development Plans Requirements –Physical Planning Act 1989 – No Delay – Locus Standi – Arguable Case – Exhaustion of Internal Procedures – Material Insufficient – Leave Refused Judicial Review

Cases Cited:

NTN Pty Ltd v The Board of the PTC, PTC and Media Niugini [1987] PNGLR 70

Pipoi v Seravo, National Minister for Lands [2008] PGSC 7; SC909

Nobetau v Bougainville Executive Council [2019] PGNC 399; N8066

Kapal , The State v [1987] PNGLR 417

Moge, The State v [1995] PNGLR 246

Diro v Ombudsman Commission of PNG [1991] PNGLR 153

Avia Aihi v The State (No 1) [1981] PNGLR 81

Counsel:

R. Obora, for Plaintiff
H. White, for State

RULING

17^th September, 2021

1. MIVIRI, J: This is the ruling on the Plaintiff’s originating summons of the 05^th February 2021 seeking leave for judicial review pursuant to Order 16 Rule 3 of the National Court Rules, to review the decisions of the First and Second Defendants to grant Urban Development Lease (UDL) over the subject land described as Portion 3541, Granville (Erima) Moresby NCD and issue title on the 18^th November 2020 without following procedure prescribed by law under sections 103-110, Land Act 1996 and without having satisfied with proper development plan requirements under the Physical Planning Act 1989.
   
2. Section 106 of the Land Act 1996 sets out the way to tender for:

GRANT OF URBAN DEVELOPMENT LEASE OF GOVERNMENT LAND.

(1) A tender shall–

(a) Specify the amount offered; and

(b) Be accompanied by–

(i) A preliminary proposal for the subdivision; and

(ii) A preliminary sketch plan of the proposed subdivision; and

(iii) A preliminary proposal for the infrastructure; and

(iv) Evidence of the financial and other resources of the tenderer available for the subdivision.

(2) When considering tenders or applications for the grant of an urban development lease, the Land Board shall consist of five persons including–

(a) The Chairman or a Deputy Chairman; and

(b) The Surveyor General or his delegate; and

(c) The Chief Physical Planner or his delegate.

(3) A tender of an amount less than the reserve price is invalid and shall not be considered.

(4) The successful tenderer shall pay to the State the amount of his tender.

(5) The successful tenderer is entitled to an urban development lease of the land the subject of the tender, in accordance with the tender notice.

(6) The Minister is not bound to accept the highest or any tender.

(7) The grant of an urban development lease does not imply an approval of the preliminary proposals for the subdivision and infrastructure of the preliminary sketch plan of the proposed subdivision which are lodged with the tender in accordance with Subsection (1).

3. The allegation of the plaintiffs is that section 106 set out above was not followed in the way that the sixth defendant was accorded the subject land. In so pursuing, the plaintiff relies on the affidavit of one Felix Kelly filed of the 2^nd June 2021 who deposes that, he is the current chairman of the Plaintiff applicant. He is a long-time resident and occupant of the subject land described as portion 172 previously, but now as portion 3541, Granville (Erima) NCD. It was a vacant land unused waste land with no developments and improvements on it. On the 23^rd September 2014 the deponent and other occupants there registered the Plaintiff association incorporated with the Registrar of Companies. That is annexure “A” the certificate of incorporation of the Erima Community Welfare Association Incorporation Inc. 5-100631.
   
4. The purpose of which to have all occupants work together to improve the land and develop a residential housing project in line with the Governments Settlement upgrading and urbanization policy and programs. In 2015 the plaintiff and settlers organized and made cash contributions engaged surveyors, Physical Planners, Engineers, and lawyers to draw up the Development plans for the housing project. And that is annexure “B” to the affidavit. This was submitted to the National Capital District Commission Physical Planning Board. No response has been received since.
   
5. On the 15^th December 2015 a Gazettal No G814 published giving notice of rezoning of Portion 172 Granville Erima annexure “C” to the affidavit. The rezoning established three portions, 3541, 3602 and 3603. And 3541 was exempted from advertisement and went straight to tender. The sixth defendant was sole applicant and was granted it title issuing on 07^th July 2016, annexure “D” is that fact. This was challenged successfully in the National Court by the plaintiff and the Court holding that exemption from advertisement was null and void. And that the subject State Lease should be surrendered to the Registrar to be reissued. Annexure “G” and “H” are copies of the court order and the cancelled Title. It was further ordered that record be amended to incorporate and that the subject land be available for leasing. From which the land board was to convene and consider applicants that lodged and to grant a State Lease 30 days thereafter. The order is dated the 18^th September 2017 entered on the 21^st September 2017.
   
6. On the 04^th May 2018 letter annexure “L” was written to the Plaintiff subject was recommendation of Land Board Meeting No. 01/2018 Item No 160 Applicant 2. It was advised that should the application of the plaintiff be considered successful it would be advised of the same. If unsuccessful to forward appeal submission on the same to that official.
   
7. This evidence does not disclose what was lacking in the bid or tender made by the sixth defendant. In any case that is in the discretion of the defendants when the tender form or application is made to them. It is their record and not the plaintiff’s. It is not part of the evidence in the case of the plaintiff. So, it is not clear how the sixth (6) defendant lacks in the requirements called for by section 106 of the Act, and so sustaining the argument of the plaintiff. In the same way annexure “K” the tender form or application of the plaintiff does not state how much they are financing the tender if it is granted. It is simply put as, “To have the said portion 3541 incorporated in settlement upgrading program.” In itself it is a very vague proposition it does not make the proposal attainable. And to grant an UDL would be unreal given there is no financial offer up front to fund the UDL if it is granted. Developments on the land will be with funding. And the tender of the plaintiff is unsubstantiated and leaves alot to be desired.
   
8. He may have secured a Court ordered cancellation of the earlier UDL to the sixth (6) defendant because advertisement had not been accorded. Details of the Court order and compliance are set out in annexure “F, originating summons, “G” Court Order granting judicial review, “H” Cancellation of the subject UDL held by the sixth (6) defendant then, “I” advertisement of the subject land for leasing, “J” Addendum advising of the land Board Meeting 01/2018 additional items to be included by National Gazette G207 of the 26^th March 2018 the bidders to that subject land. Tender number 005/2018 are by the following, (1) Andrew Tumu Limited, (2) Erima Welfare Association Limited, (3) Tomake Holdings Limited, (4) Top town Lodge issued of the 09^th April 2018. The Gazette is of Tuesday 10^th March 2018. And in the case of the plaintiff annexure “K” Application or tender form for the subject land of the 25^th April 2018. Together with official receipt of the 25^th April 2018 in the sum of K2000 issued at Eda Tano Haus.
   
9. It is clear by this evidence that there is no title vested in the property to Erima Community Welfare Association Inc. Like any other bidding they will have to satisfy the requirements of the tender to be accorded with all others who have also lodged their tender for the subject land. They are not sitting tenants on a piece of land who have the right of first refuse. If they refuse the tender is placed on the open market for all. They must compete with all in the open market for that land. It is also not that after their incorporation they were accorded that piece of land for the five years now lapsed and therefore the bid anew.
   
10. They do not have rights in law to the subject land. Like any other they will tender for it. Adverse possession of State Land does not lead to title in law, because title is of the State, and the plaintiffs are not holders in law of title. They are adversely on that land. It does not flow that, that fact is in their favour in the grant of the subject land for UDL. It does not amount that the acquisition of land should be encouraged in this way. Squatting on the land with the hope to make that fact legal or to be accorded legality, allocation of title in law must stop. Or that one’s chances of acquisition are more favourable by that fact. It is allowing the law to be broken and legalising that act after the fact. That should not be allowed to be the case even in the face of support by Leaders as here, in the Member for Moresby Northeast Electorate Honourable John Kaupa. As Minister for Housing and Urbanization compliance of the land law in the acquisition of land must be the norm not without. His support will not fuel what is initially illegal squatting on the State Land. That is unlawful straight out and has no place in the law books and by the law. This Court will not condone that act. It will not add in favour of the case of the plaintiff.
    
11. It follows that the incorporation of the plaintiff into an Association does not accord it the land. It is not likened to a tenant at law in the purchase of a house currently renting from the National Housing Corporation that goes on sale. He, because of his occupancy has the first right to purchase the property. That is not the case here of the plaintiffs. They do not have any rights on the land. Exemption of advertisement set out in the National Court proceedings sets the procedure. But does not necessarily mean the subject land must be accorded to the plaintiff. Because their situation is not likened to Papua Club Inc v Nasaum Holdings Ltd [2005] PGSC 15; SC812 (2 December 2005).
    
12. The plaintiff’s supposed development plan annexure “B” does not have the surveyor or company discharged with such work independently confirming that it was indeed engaged by the Plaintiffs and carried out the subject plan. It is bearing the National Capital District Commission and would more likely be taken out of the records of that organization than worked on from the instructions of the Plaintiff. It is therefore of no value to the cause that the plaintiff seeks.
    
13. Urban Development Lease is not a fantasy but a reality that will see out development of land, uplifting upgrading the standard of the life of all citizens lawfully by the process of law, not by adverse possession by squatting. It is not backed by financial resources to materialize what is on the paper. The UDL is by the call of the section 106 which must include, (i) A preliminary proposal for the subdivision; and (ii) A preliminary sketch plan of the proposed subdivision; and (iii) A preliminary proposal for the infrastructure; and (iv) Evidence of the financial and other resources of the tenderer available for the subdivision. Once accorded the UDL the Developer State Lease holder will develop the land to the required conditions called there under. In that respect it is not just given out like sweets but the State sees its return in the development. That is the requirements that the Plaintiff must satisfy to qualify.
    
14. The proposals are not enough to secure there must be evidence of financial and other resources available for the subdivision. In the case of the plaintiff he does not demonstrate adequately to be favoured in grant. This is the key factor underlying as without money in the pocket of the plaintiff upfront evidence of, his tender will be not on the same par with the others upfront satisfying that fact. The State will earn from that fact for the public purse not without. So if the plaintiff is not on par, he will obviously not secure as was the case here. The process of law has been accorded its dues by the defendants not without.
    
15. In the requirements of leave, the plaintiff has not demonstrated that he has sufficient interest, or that he has locus standi within the meaning expounded in NTN Pty Ltd v The Board of the PTC, PTC and Media Niugini [1987] PNGLR 70 approved and followed in Pipoi v Seravo, National Minister for Lands [2008] PGSC 7; SC909 (10 April 2008), followed also in Nobetau v Bougainville Executive Council [2019] PGNC 399; N8066 (14 October 2019). Because firstly, he is not the title holder of the subject land. Secondly, he has not developed that land, nor has he expended any money in respect of that land. He does not have visible tangible interest properties on the subject land that will be extinguished as a result of grant to another, the sixth defendant. Like the latter he is competing to be accorded and he must display qualities that are envisaged by section 106 favourable to the land board in his favour. It is clear he has not been on par with the sixth defendant and therefore misses out. That is not illegal or unlawful even if the decision to accord is made in a short period as argued. There is no evidence of a tainted process of the Land Board here. It is not the same as when the National Court accorded in his favour because there was no advertisement. He has not demonstrated this ground to the required balance by the laws set out and this ground is not made out in his favour.
    
16. It follows that he has not demonstrated an arguable basis on the balance of preponderance to further his cause on this basis. Merely being a long-time resident is not the same as holding title at law. Adverse possession of land or squatting on State Land does not equal standing in law. Nor does it follow that there is arguable basis in favour of the plaintiff here. There is no evidence of the length of time lived on the land with evidence of that fact. There is no evidence of permanent developed structures that will be forfeited should the plaintiff miss out on the bid. Even then it does not follow that because a grant of UDL is made after the third day after advertisement; the procedure has not been followed and therefore is prima facie arguable in favour of the plaintiff.
    
17. Questions posed by the plaintiff do not make out his cause. He must provide the evidence that the Land Board did not sit in the grant of the UDL to the sixth Defendant. It is not the duty of the Court to find the answers in his case for him. He must point the answers by the evidence that he leads. He has not demonstrated an arguable cause to grant leave to review. The addendum is explicit in itself; it poses all who are bidding for the subject land. It is not favouring one or the other. It complies with section 106 and therefore sees no door contended opening for the Plaintiff. He does not satisfy this ground on the required balance of preponderance and it fails against him.
    
18. The application has been filed in time 05^th February 2021 but has not been moved until now 15^th September 2021. That is almost six (6) months. It would appear that there is no real sense of urgency to move the application. Because there if it is indeed a genuine cause of action plaintiff will show urgency to move. It is clear that it is not a genuine cause and that is clear from what is set out above. Hard work and evidence of which are derailed no cause by oneself will show determination and promptness to see out Justice. Here it is clear no real prejudice is suffered by the plaintiff hence the lax attitude to move the cause of action. He may have come within time to file but the time taken to move shows the non genuineness of the cause of action. His action reflects acceptance that he really has no cause of action in the matter prompting urgency in moving.
    
19. This is clear from the plaintiff not immediately resorting to file an appeal in accordance with section 62 Appeals of the Land Act. Which is in the following terms
    

62 APPEALS.

“(1) A person aggrieved by a decision of the Land Board may, not later than 28 days after notice is forwarded under Section 58(10), forward a notice of appeal to the Minister.

(2) An appeal shall be accompanied by a deposit of K500.00, which shall, subject to Subsection (3), be refunded when the appeal has been decided.

(3) If the Head of State, acting on advice, thinks that the appeal has been made on frivolous grounds, the Head of State, acting on advice, may reject the appeal and direct that the whole or any portion of the deposit shall be forfeited to the State.

(4) Subject to Subsection (5), the Head of State, acting on advice, shall determine an appeal under this section, and his decision is final.

(5) Where an appeal under this Section is upheld, the Head of State, acting on advice, may refer the matter back to the Land Board for re-hearing.”

20. That is internal procedure that the plaintiff has not exercised and come out to take leave for judicial review: Kapal, The State v [1987] PNGLR 417. He cannot come to judicial review without exhaustion of the internal process of an appeal. And his argument is that it is no fault of his in the way he has acted. Because he was not accorded the decision of the board except for advice annexure “L” to the affidavit of Felix Kelly that he will be asked to pay if his application or tender is successful. That has not occurred except the addendum published in the National Gazette of the 10^th March 2018 that the sixth Defendant had been granted the State Lease over portion 3541 in the Land Board Meeting of 1/2018 published 26^th March 2018.
    
21. In the same way he had taken the matter successfully to Court he did not resort in similar manner to lodging his appeal under section 62 of the Act when he saw the publication on the 26^th March 2018. That was the publication that should have prompted him as an applicant to the subject land to take up and file an appeal within 28 days there from, which presumably would have been within or by Thursday 03^rd May 2018 when he would have been within time to lodge an appeal by section 62 of the Act. He has not and has simply taken time to argue this matter after filing this leave application. He has slept over his rights to appeal. He discloses no good reason other than that he was not served the decision of the Land Board. But that decision was published dated 26^th March 2018. He was notified of the decision with the world and he simply did not exercise what section 62 accorded him. He did not exhaust internal process within the Land Act. It would be hard to open the door outside of that house by opening a door other than that which is affixed to that house. Because he would be denied as he has not laid out the path in law to access. Accordingly, this ground is not made out and he fails here. Because his argument when considered in total has no merit to advance him for leave: Moge, The State v [1995] PNGLR 246.
    
22. The aggregate is that this application for leave for judicial review has not been discharged for the reasons set out above to the required balance of preponderance in favour of the applicant/plaintiff. Because this is a situation by its facts and circumstances where, “The requirement for Leave is to enable the Courts to shift out at an early stage, applications which are trivial, vexatious or hopeless. This is to ensure that an application is only permitted to proceed to a substantive hearing inter parties if the Court can be satisfied there is an arguable case for review...” Diro v Ombudsman Commission of PNG [1991] PNGLR 153. He became aware of the decision published in favour of the sixth defendant he was not prompted to file an appeal within the 28 days by section 62. His application for leave is without merit in law on the facts relied and therefore is dismissed in its entirety forthwith with costs.
    
23. Because the plea by section 155 (4) of the Constitution is clear by the decision of Avia Aihi v The State (No 1) [1981] PNGLR 81. Time within which to appeal had lapsed but giving effect to it would have denied substantial justice upon the prisoner. The discretion by this provision was used to give leave outside so as to ensure appeal was heard and justice accorded. That is not the situation here because section 62 was discharged no fault of the defendants there was publication to the world including the Plaintiff. He slept over his rights and cannot come in similar way as Avia Aihi by section 155 (4) of the Constitution. He knew and saw the publication but did not exercise his rights as he did in the National Court prior successfully. His cause pleaded has no merit and is dismissed in total with Costs following to the defendants.
    
24. The formal orders of the Court are:
    
    • (i) The application for Leave for Judicial review is refused and dismissed forthwith.
    • (ii) The Plaintiff shall pay the costs of the defendants forthwith to be taxed if not agreed.

Orders Accordingly.

__________________________________________________________________

Raymond Obora Lawyers: Lawyer for the Plaintiffs

Office of the Solicitor General: Lawyer for the Defendants