Kandi v Wange [2021] PGNC 52; N8795 (15 April 2021)

N8795

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]
OS (JR) NO. 314 OF 2016

BETWEEN:
LAIAS PAUL KANDI
Plaintiff

AND:
SAM WANGE in his capacity as the Chairman of the LAND BOARD OF PAPUA NEW GUINEA
First Defendant

AND:
HON BENNY ALLAN, Minister for DEPARTMENT OF LANDS AND PHYSICAL PLANNING
Second Defendant

AND:
JACK BAKUS Acting Surveyor General
Third Defendant

AND:
LUTHER SIPISON, Acting Secretary for the DEPARTMENT OF LANDS AND PHYSICAL PLANNING
Fourth Defendant
Plaintiff

AND:
STEVEN BUNE
Fifth Defendant

AND:
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Sixth Defendant

Waigani: Miviri J
2020: 14^th October 27^th November

PRACTICE & PROCEDURE – Judicial Review & appeals – Substantive Notice of Motion – Grant of UDL – Procedure in grant of UDL – Certiorari – declaration – Grounds raised not made out – Judicial Review refused – Equity demands equity –Subject portion excision ordered – Section 155 (4) Order 12 Rule 1 NCR – cost follow event.

Cases Cited:

Asiki v Zurenuoc, Provincial Administrator [2005] PGSC 27; SC797.

Helifix Group of Companies Ltd v Papua New Guinea Land Board [2012] PGSC 10; SC1150

Kekedo v Burns Philip [1988-89] PNGLR 122
Wahune v Barton [2017] PGSC 40; SC1636

Counsel:

S. Phannaphen, for plaintiff
I Mugugia, for First, Second, Third, Fourth & Sixth Defendants
L. Tilto, for Fifth Defendant

RULING

15^th April, 2021

1. MIVIRI, J: This is the ruling on the substantive notice of motion of the plaintiff seeking certiorari to bring into court and quash the first defendant’s decision made on the 02^nd April 2015 purporting to grant an Urban Development Lease (UDL) to the fifth defendant over land described as Portion 2981, Milinch Granville, Formil Moresby NCD situated at Gerehu Stage 3B, published in the National Gazette G155 of the 23^rd March 2016. An UDL is for five years, section 108 of the Land Act, and given the lapse could have lapsed unless renewed and maintained.
   
2. He seeks certiorari further on subsequent decision on appeal made by the second defendant on or about 14^th March 2016 which purported to dismiss the Plaintiff’s appeal against the First defendant’s decision published in the National Gazette G155 dated 23^rd March 2016.
   
3. He further seeks declaration that the first defendant erred in law in failing to comply with sections 67 and 105 of the Land Act 1996 in purporting to grant an Urban Development Lease “UDL” to the fifth defendant over the land described as Portion 2981, Milinch Granville, Fourmil Moresby NCD situated at Gerehu Stage 3B.
   
4. He further seeks declaration that the decision of the First defendant made the 02^nd April 2015 purporting to grant an UDL to the fifth defendant over the land described as Portion 2981, Milinch Granville, Fourmil Moresby NCD situated at Gerehu Stage 3B is a nullity, void and of no legal effect in that the first defendant failed to comply with sections 67 and 105 of the Land Act 1996.
   
5. And further a declaration that the subsequent decision on appeal made by the second defendant on the 23^rd March 2016 to dismiss the plaintiff’s appeal against the first defendant’s decision of the 02^nd April 2015 is a nullity, void and of no legal effect in that the second defendant failed to remedy the first defendant’s breach of section 67 and 105 of the Land Act 1996 and further exacerbated the breach of Sections 42, 52, 54, 57, 58, 59, 62 and 64 respectively of the Physical Planning Act 1989 and sections 67 and 105 of the Land Act 1996.
   
6. Further a declaration that the land comprising all of the land covered by the Physical planning area specified as Part Portion 1571, Hohola (Gerehu) NCD- Zone 098 approved pursuant to section 71 of the Physical Planning Act 1989 by the NCD- Physical Planning Board on 11^th December 2006 and published in the National Gazette No. G303 dated the 18^th May 2016 was designated to the Plaintiff on the 24^th March 2015 by the NCD-Physical Planning Board, thereby not being available for other purposes.
   
7. Further declaration that the decision of the First Defendant made the 02^nd April 2016 purportedly to grant an UDL to the fifth defendant over land described as Portion 2891, which included a piece of land developed by the plaintiff with approval from the National Capital District Physical Planning Board, is so unreasonable in Wednesbury sense.
   
8. And further declaration that the decision of the Second defendant made on the 23^rd March 2016 purportedly to uphold the decision of the First Defendant and dismiss the appeal of the Plaintiff in the circumstances where the first defendant failed to comply with sections 67 and 105 of the Land Act 1996, and the fifth defendant failed to comply with sections 42, 52, 54, 57, 58, 59, 62 and 64 respectively of the Physical Planning Act 1989 is so unreasonable in the Wednesbury sense.
   
9. And consequential orders that the First, Second, Third and Fourth Defendants shall take all the necessary steps required under the Land Act 1996 to ensure that the Plaintiff is issued the appropriate Certificate of Title to the piece of land approved for development purposes pursuant to section 71 of the Physical Planning Act 1989 by the NCD- Physical Planning Board on the 11^th December 2006 in its Meeting No. 1/2006 and, designated to the Plaintiff on the 24^th March 2015.
   
10. The First, Second and Third Defendants pay the plaintiff’s costs of an incidental to these proceedings, personally and severely in equal portions on a solicitor client basis. And any other orders in the discretion of the court given the facts.
    
11. The pleadings drive the cause of action and is run within the parameters of the pleadings and not otherwise: Wahune v Barton [2017] PGSC 40; SC1636 (10 November 2017). Arguments derive their source from the pleadings if it is not so framed it has no substance and does not advance the cause of the litigant/plaintiff. In this proceeding, I set out the relevant pleading in full above. That is the source that must tie with the evidence to see out the remedies. It is also derived from relevant law that spell out the remedies of the cause of action. In the case of judicial review, it is an equitable and discretionary remedy: Asiki v Zurenuoc, Provincial Administrator [2005] PGSC 27; SC797. It is not the decision that is challenged but the decision-making process: Kekedo v Burns Philip (PNG) Ltd [1988-89] PNGLR 122.
    
12. Here the preliminary of Leave for judicial review was granted on the 12^th July 2016. What the plaintiff is seeking is review of the First Defendant’s decision of the 2^nd April 2015 which was published in the National Gazette G393 dated 16^th June 2015, purportedly to grant an UDL to the fifth Defendant over a portion of vacant State Land Portion 2981, which purportedly included part of the land that is fully developed by the Plaintiff. And this includes the subsequent decision on appeal made by the second defendant on 14^th March 2016 to purportedly dismiss the Plaintiff’s Appeal against the first defendant’s decision of 2^nd April 2015.
    
13. To pursue his cause the plaintiff relies on (10) ten affidavits, affidavit of the plaintiff applicant Laias Paul Kandi filed 08^th August 2016, secondly filed 20^th February 2017, thirdly filed the 31^st March 2017, affidavit of one Jason Cappo filed the 15^th September 2017, affidavit of Andrea B. Yauieb filed 03^rd October 2018, affidavit of Michael Korema filed 14^th December 2018, Matrus Pondo filed 14^th December 2018, and Tom Nauma also filed the 14^th December 2018 and 25^th March 2019.
    
14. The law relied on coming out of the pleadings set out by the plaintiff in pursuing his cause is the Land Act 1996 section 67 which reads:
    

“STATE LEASES NOT TO BE INCONSISTENT WITH ZONING, PHYSICAL PLANNING, ETC.

A State lease shall not be granted for a purpose that would be in contravention of zoning requirements under the Physical Planning Act 1989, any other law relating to physical planning, or any law relating to the use, construction or occupation of buildings or land.”

The second provision relied on also of the Land Act is section 105 CONDITIONS PRECEDENT TO LAND BEING ADVERTISED FOR SUBDIVISION.

Before land is offered for lease under this Division, the Chief Physical Planner or his delegate, shall–

(a) certify–

(i) that the land is–

(A) within a physical planning area; and

(B) properly zoned; and

(C) suitable for subdivision; and

(D) suitable for release; and

(ii) after consultation with the relevant authorities, that the State will not incur undue expense in the provision of electricity, water and other services to the proposed subdivision; and

(b) provide–

(i) a plan showing the location of the land; and
(ii) an assessment of the subdivision potential of the land; and

(c) specify–

(i) the development conditions that will apply to the lease; and
(ii) the conditions that will apply in respect of the infrastructure and zoning when part or the whole of the land subject to the lease is subsequently surrendered.”

15. The language of section 67 is State Lease not to be granted in contravention of zoning requirements under the Physical Planning Act 1989. The definition of a State Lease under the Land Act section 2 is “State lease” means a lease from the State granted under or continued in force by this Act; and in the case of an Urban Development Lease (UDL) is a state Lease granted under section 104 of that Act. So, State Lease is a blanket definition but is set apart by division 10 section 104 for our purposes here, which is specific to UDL. In my view it follows that the empowering provisions of an UDL are by that division and here section 104 because its creation is by that section.
    
16. Out of the 10 affidavits pursued by the plaintiff relevantly evidence at the fore front in his cause is his own affidavit of the 05^th August 2016. That affidavit speaks of the way that he took to try to get title to the subject portion adjacent to his property section 529 Allotment 68 Gerehu Stage 3B NCD. Because there was soil erosion, he undertook developments to secure and to ensure he was titled in law to it. There are various correspondences to this effect between himself and the relevant offices and authorities. There appears to be process followed eventually to the allocation of the subject land as UDL to the fifth defendant, including his unsuccessful appeal, and confirmation of the fifth defendant as the holder of the subject UDL.
    
17. From that evidence there is nothing against the law against the fifth defendants conduct. And this fact becomes clear from consideration of the third defendant’s affidavit of the 11^th April 2018 that takes account based on the affidavit of the 03^rd March 2017 by Tiri Wanga, Secretary for the Department of Lands and Physical Planning. He wrote annexure “A” of his affidavit addressed to the fifth defendant in view of the matters raised on the 13^th November 2017 which was the position of the Department of Lands Physical Planning in respect of the State Land and in particular with relevance to the proceedings. The subject of UDL portion 2981 and the present proceedings OS (JR) 314 of 2016. What is agreed to by both the Department Secretary and the Surveyor General is that an excision be made to the land the subject of the UDL, so that part of the land developed and occupied by the plaintiff is excised and registered in his name. It is 0.4241 hectares abutting his house. Portion 2981 is 3.02 hectares.
    
18. The Secretary does not raise any irregularities raised in the UDL granted to the fifth defendant. He specifically addresses that there were two separate pieces of land, Portion 1571 and Portion 2891 which was created in 2012 and so there was no need for the fifth defendant to make application for subdivision particularly of Portion 1571. He applied for Portion 2891 after it was advertised and was granted successfully after due process. In this regard he attaches annexure “C” Minutes of the Papua New Guinea Land Board Meeting No. 01/2015. And states that the plaintiff was not an applicant to the advertisement of the subject portion. But agrees that the plaintiff’s house is on land which was formally part of Portion 1571 and Portion 2981 was created from a sub-division of Portion 1571. That the plaintiff is not seeking title but interest in the land within portion 1571 simply to build a retaining wall to prevent erosion.
    
19. This is common ground but the Acting Surveyor General by the letter of the 13^th November 2017 annexure “A” raises that there was no site inspection of the subject land so as to see that it was not available because it was not vacant for the purposes of an UDL. Approval was given to the citizen to make improvements and develop certain parts of the subject land. And that there was failure to consult the National Capital District Physical Planning Board and the NCDC Regulatory Division. It would have been revealed there that the subject land was not available and vacant for the UDL.
    
20. There was failure to give proper notice or insufficient notice to the public in particular the citizens who had genuine and legitimate interest over the subject land as sitting tenants. A proper notice given to the Public in the manner and form required by Law through a transparent tender process as opposed to a secretive publication would have enabled all genuine and legitimate developers to bid in the tender process of the subject land.
    
21. The combined effect of all this evidence draws a parallel that there both the plaintiff and the fifth defendant are entitled to their land. What is sought is the excision so as to preclude the portion where the plaintiff has made improvements to stop soil erosion to his property. Whilst that piece of the land 0.4241 hectares abutting his house. And is 3.02 hectares into Portion 2981.
    
22. And in this regard, it is relevant also to consider that the affidavits relied on by the State of Tiri Wanga, Chris Manda are forthright with the relevant law. In my view both lay out consistency with Division 10 Section 104 & 106 of Land Act. Both deal with the grant of UDL over land in physical planning areas suitable for subdivision. And grant of UDL lease of Government land. And in the case of appeals Section 62 Land Act. Tiri Wanga’s affidavit of 3^rd March 2018 annexure “F”and “G” sets out clearly that it is the head of State who makes the ultimate decision and not the Minister. Because he only recommends and it is the decision of the head of State who considers and makes the ultimate decision. Here the Plaintiff was never an applicant in the grant of the UDL and it is clear by the confirmation of the decision to allocate to the fifth defendant when his appeal was dismissed.
    
23. The overall play of the evidence is that judicial review has not been made out as pleaded. What is clear though is that the UDL has overlapped into the land of the plaintiff. And the particulars are set out 0.4241 hectares abutting his house. And is 3.02 hectares into Portion 2981. This will be administratively settled with the excision to be made to the land the subject of the UDL, so that part of the land developed and occupied by the plaintiff is excised and registered in his name. This is not the sort of matter that falls into judicial review but equity demands that equity be done here: Helifix Group of Companies Ltd v Papua New Guinea Land Board [2012] PGSC 10; SC1150 (24 January 2012).
    
24. It is proper therefore in the exercise of the inherent powers of the court under section 155 (4) of the Constitution and Order 12 Rule 1 to make orders that excision be made to the land the subject of the UDL, so that part of the land developed and occupied by the plaintiff is excised and registered in his name. And the particulars are set out 0.4241 hectares abutting his house and 3.02 hectares into Portion 2981. Taking account of the forces of nature and the lapse in time, parties are granted liberty to ascertain exact measurements by hectares and to excise accordingly.
    
25. The formal orders of the court are:
    
    • (i) Judicial review is not made out as pleaded and fails.
    • (ii) By section 155 (4) of the Constitution and Order 12 Rule 1 excision is ordered of 0.4241 hectares abutting the house of the Plaintiff and 3.02 hectares into Portion 2981.
    • (iii) Parties are granted liberty to ascertain these measurements in hectare to so excise.
    • (iv) And the excised land registered in the name of the plaintiff.
    • (v) Cost will follow the event.
      

Orders Accordingly.

__________________________________________________________________

M.S. Wagambie Lawyers : Lawyer for the Plaintiff/Applicant

Kari Bune Lawyers : Lawyer for the fifth Defendant

Office of Solicitor General : Lawyer for first, Second, Third, Fourth, & Sixth Defendants