Talukdar Enterprise Ltd v Tolopa [2021] PGNC 537; N9343 (1 December 2021)

N9343

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]
OS (JR) NO. 671 OF 2018

TALUKDAR ENTERPRISE LIMITED
Plaintiff

V
OSWALD TOLOPA ACTING SECRETARY FOR LANDS & PHYSICAL PLANNING
First Defendant

AND:
HON. JUSTIN TKACHENKO MP MINISTER FOR LANDS & PHYSICAL PLANNING
Second Defendant

AND:
BENJAMIN SAMSON ACTING REGISTRAR OF TITLES
Third Defendant

AND:
THE INDEPENDENT STATE OF PAPUA NEW GUINEA.
Fourth Defendant

AND:
NETWORK CONSTRUCTIONS LIMITED.
Fifth Defendant

Waigani: Miviri J
2021: 19^th, 30^th November, 1^st December

PRACTICE & PROCEDURE – Judicial Review & Appeals – Order 16 Rule 5 Application for Judicial review – Decision of Second & Third Defendants – Grant of State Lease Fifth Defendant – Ultra Vires Section 62 Land Act 1996 –Error of Law Section 62 Land Act – Denial of Natural Justice – Procedural Fairness – Unreasonableness Wednesbury Sense – Section 62 Land Act Appeals Procedures – Balance Not Discharged – Judicial Review refused – Cost follow the Event.

Cases Cited:
Papua New Guinea Cases

Wandaki v Minister for Lands [1996] PGNC 71; N1459
Application of Evangelical Lutheran Church of Papua New Guinea by Evangelical Lutheran Church of Papua New Guinea Superannuation Fund [1995] PNGLR 276.
Pinpar Developer Pty Ltd v TL Timber Development Pty Ltd [2006] PGNC 66; N3075
Townsend v Oika [1981] PNGLR 12
Nambawan Super Ltd v Kimas [2013] PGNC 23; N5062.
In re Placer Holdings Pty Ltd and the Land Act [1982] PNGLR 326
Aihi v The State (No 1) [1981] PNGLR 81
Appeal by Constantinou against Forfeiture by The State of a Government Lease, Re [1977] PNGLR 1
Papua Club Inc v Nasaum Holdings Ltd [2004] PGNC 178; N2603
Koitachi Ltd v Zhang [2007] PGSC 11; SC870
Kapiura Trading Ltd v Bullen [2012] PGNC 256; N4903
Asiki v Zurenuoc, Provincial Administrator [2005] PGSC 27; SC797

District Land Court, Kimbe; Ex Parte Nuli, The State v [1981] PNGLR 192

Kekedo v Burns Philip (PNG) Limited [1988-89] PNGLR 122

Overseas Cases

Associated Provincial Picture Houses Limited v Wednesbury Corporations [1947] CA 1KB 223.

Counsel:

D. Kamen, for Plaintiff
S. Gor, for Fifth Defendant

RULING

1^st December, 2021

1. MIVIRI, J: This is the ruling on the Plaintiff’s notice of motion filed of the 22^nd October 2018 challenging the decision of the Second and third Defendants of the 14^th June 2018 to grant the State Lease Volume 90 Folio 176 over Allotment 5 Section 385, Hohola (Gerehu), National Capital District, to the Fifth Defendant, RB pages 131-133.
   
2. The Statement under Order 16 Rule 3 (2) (a) of the National Court Rules filed of the 1^st October 2018 the following are the grounds raised to challenge the decision of the Fifth Defendant of the 14^th June 2018 (RB 7-11):
   
   • (a) That the second and third defendants in making the decision of the 14^th June 2018 acted Ultra Vires, and beyond the powers conferred on them under section 62 of the Land Act 1996 (Land Act);
     
   • (b) That there was error of Law by the second and third Defendants in making that decision of the 14^th June 2018 in applying section 62 of the Land Act;
     
   • (c) That the Second and Third Defendants in the decision of the 14^th June 2018 denied the Plaintiff natural Justice and procedural fairness; and
     
   • (d) That the Second and Third Defendants in the decision of the 14^th June 2018 acted unreasonably within the Wednesbury sense.
     
3. Relevantly the facts are that the property subject of the proceedings is Allotment 5 Section 385 Hohola (Gerehu), National Capital District. It was advertised initially as available for tender in the National Gazette G387 notice of the 11^th October 2012 tender 47/2012. There were five applicants who applied and in its meeting No. 03/2013 item No 298 the Land Board recommended Great Land Investment as successful applicant.
   
4. The plaintiff and the fifth Defendant were aggrieved by that decision and appealed to the Minister for Lands & Physical Planning. These were heard and upheld and the matter was referred back to the Land Board for rehearing. It was published in the National Gazette G330 of the 19^th May 2015. And following by National Gazette G80 of the 24^th February 2016 item 121, three applicants shortlisted were as follows:
   
   • (i) Great Land Investment Limited;
   • (ii) Talukdar Enterprise Limited (the Plaintiff); and
   • (iii) Network Constructions Limited (the fifth Defendant).
     
5. The Land Board reheard it at its meeting 02/2016 which recommended item 121 that the lease was granted to the fifth Defendant. It was conveyed to him by letter dated the 18^th April 2016 by the Land Board. To which the plaintiff was aggrieved and around 17^th May 2016 he purportedly paid the sum of K500 to the Department of Lands as deposit for an appeal against that decision. And he lodged his appeal by letter dated 09^th May 2016 with the Minister around 18^th May 2016. The Land Board published its decision in the National Gazette G421 of the 1^st July 2016. After which on the 05^th July 2016 it sent a letter with a lease acceptance form to the fifth Defendant. And he was required to execute together with the annual rent payment, the lease acceptance preparation fee, before or by the 05^th August 2016. The fifth defendant executed on the 08^th July 2016. And paid the annual required rent and lease preparation fee of K 5, 141. 10 on the 1^st August 2016.
   
6. On the 28^th September 2016 notice was published in the National Gazette G715 by the Acting Secretary of the Department of Lands that the Land Board decision was the subject of an appeal. And by a publication in the Post Courier of the 17^th May 2018 it showed that the Plaintiff’s appeal against the decision of the Land Board was successful. But there was no corresponding notice in the National Gazette. And after some lengthy delay, the Minister and the Registrar on the 14^th June 2018 issued State Lease Volume 90 Folio 176 over Allotment 5 Section 385, Hohola (Gerehu), National Capital District to the Fifth Defendant which was after numerous follow ups by the fifth defendant.
   
7. The plaintiff was granted leave for Judicial Review on the 16^th October 2018. And this is the substantive notice of motion pursuant of the 22^nd October 2018, challenging the decision of the Second and Third Defendants of the 14^th June 2018 to grant the State Lease Volume 90 Folio 176 over Allotment 5 Section 385, Hohola (Gerehu), National Capital District, to the Fifth Defendant.
   
8. The relevant law applicable is section 62 Appeals of the Land Act which is under Part V111 Appeals of the land Act. It is as follows:
   

“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.”

9. Section 63 Reference or reports to Minister: (1) A report or recommendation of the Land Board shall–

(a) if no appeal is made under Section 62, at the expiration of the period referred to in Subsection (1) of that section; or
(b) if any such appeal is made, after the appeal is determined,

be referred to the Minister.

(2) In addition to any other powers conferred by or under this Act, the Minister shall, if he disagrees with a report or recommendation of the Land Board, and may for any other reason–

(a) refer any matter back to the Board for re-hearing, the taking of fresh evidence, the furnishing of a further or additional report, or otherwise; or
(b) refer any matter to the National Executive Council.

(3) The decision of the Head of State, acting on advice, on a matter referred to the National Executive Council under Subsection (2)(b), is final.

10. Section 62 (1) is specific that the appeal by a person aggrieved to the Minister is no later than 28 days. And if the appeal is lodged outside of the 28 days the applicant is barred from instituting because it is incompetent and is a nullity: Wandaki v Minister for Lands [1996] PGNC 71; N1459 (28 June 1996).
    
11. Here the Land Board decision was conveyed to the Plaintiff in a letter dated 18^th April 2016. Mr Jackson Amaiu for the plaintiff in his affidavit filed of the 1^st October 2018 admits that as of the 18^th April 2016 plaintiff was aware of the Land Board decision. Pages 18 & 31 RB. Plaintiff as an aggrieved person had 28 days in which to lodge an appeal. His last day to have done that had lapsed on the 16^th May 2016. Which is confirmed that the plaintiff did lodge on the 18^th May 2016, RB pages 18 & 34 to 36. This is confirmed by Mr Amaiu annexing a receipt purporting to be payment on the deposit of K500.00 made on the 17^th May 2016, RB page 34. This is one day after the 16^th May 2016. A letter dated 09^th May 2016 is also attached by Mr Amaiu from Talukdar Enterprices Limited which is stamped with the stamp of the Department of Lands showing that it was received by the executive Officer of the Land Board on the 18^th May 2016 which is two (2) days after the 16^th May 2016, RB pages 35 & 36.
    
12. Mr Amaiu in the supplementary affidavit filed as of the 19^th November 2016 at paragraphs 12 to 16 states that the Lands Department office was closed, and hence he was not able to lodge the appeal within the time allowed, RB pages 252 – 253. And in yet another supplementary affidavit of the 25^th February 2020, Mr Amaiu states that the offices of Department of Lands were closed from the 09^th to 13^th May 2016 when he attended to lodge the appeal, RB 343 to 347. He does not produce any other evidence such as public notices displayed at the Department of Lands offices informing the general Public of the Closure of that offices, or even letters from that Department itself to the Plaintiff, or the general Public informing them that the Statutory Appeal Period had been extended to accommodate the closure of the offices there. There are no other evidence or affidavit to assert this fact by the plaintiff. Particularly in the light of the fact that this is a large Government Departmental office in the capital city of the Country without evidence that it was closed on that day or week for business.
    
13. The converse being that the plaintiff was an Applicant with commercial and financial resources and easy access to court and legal services in Port Moresby, but gives no cogent explanation for delay, even of two days to comply with a Statutory prescribed Appeal period: Application of Evangelical Lutheran Church of Papua New Guinea by Evangelical Lutheran Church of Papua New Guinea Superannuation Fund [1995] PNGLR 276. It does in view establish no basis for the corrigendum. Because the dictate of section 62 is definite and concise and interpretation here derails the plaintiff, rather than hold fast. Because there is no appeal on the record and holding to deviate against the fifth defendants’ cause. The argument on procedural fairness and natural justice is without merit in view.
    
14. Jackson Amaiu is the Director and shareholder of the Plaintiff Company. He has an interest in the favourable outcome to the cause that is sought out by the Plaintiff. To save that the appeal was lodged within the minimum Statutory Period of 28 days. That he has not failed to being in time with that period. His problem is that this is a Government Department who provides services to the Public at large. And as is the case here doing so to accommodate the dictate of legislation, here the appeal period by the Lands Act section 62. No doubt it would issue notices of the Closure of the office, and why it is closed for that period. Even paid advertisement in the local print media the newspapers. There is no evidence of this fact despite the fact that this is a National Government Departmental Office. Even specifically there is no evidence in the same from the office of the Executive Officer of the Land Board deposing to this fundamental fact in the case of the plaintiff. It would benefit the cause sought by the Plaintiff. It is objectively viewed so as to deduce whether the plaintiff was within time and these facts would sum that position. It is no different even in a logging situation: Pinpar Developer Pty Ltd v TL Timber Development Pty Ltd [2006] PGNC 66; N3075 (9 August 2006), or in a criminal trial, Townsend v Oika [1981] PNGLR 12. There must and ought to be corroborative evidence independent of the complainant confirming the assertions made. Here the evidence of Jackson Amaiu the Director and shareholder of the Plaintiff Company will not suffice that the office of the Department of Lands was closed for the relevant period. Because requirements of Statutory provisions where mandatory in that they must be adhered to: Nambawan Super Ltd v Kimas [2013] PGNC 23; N5062 (27 February 2013), because failure to adhere will defeat even before the first leg is lifted to move that cause as is the case here.
    
15. What is clear is that payment was received of K500 as appeal fee on the 17^th May 2016 at Eda Tano haus. That is a Tuesday, Monday is 16^th May 2016. Even from that office of the Cashier there is no evidence confirming if indeed it was closed Monday 16^th May 2016. Or for that matter the previous week of 09^th to 13^th May 2016 which was a working week from Monday to Friday. Clearly that would have been the period if indeed this is a genuine appeal filed within the statutory appeal period of 28 days there and then. But there is no evidence to this effect at all. It is very important and underlying fundamental fact that the appeal of the plaintiff, fails or stands, yet he has not sought out an explanation to this important fact. Wondai’s case (supra) is very clear and concise, no honouring the time period of 28 days, no appeal on the records by the appellant. Which is where this cause of action is going if there is no evidence to the contrary discharging.
    
16. Because any right-thinking reasonable person given would have asked for evidence from the Department of Lands, in particular the executive officer of the Land Board, to justify that they were within time to file the appeal, except for the conduct of that office not opening maintaining the office open for their cause. It wasn’t their fault that they were late in filing the appeal. Unfortunately for the plaintiff that is not the status of his evidence in his cause to get an appeal into court within time allowed by law. Dictates of the law are meant to be obeyed and should be obeyed, failure to adhere leaves no sympathy for those who offend forfeiture denial of appeal lodgement: In re Placer Holdings Pty Ltd and the Land Act [1982] PNGLR 326. The 28 days had lapsed to lodge an appeal as is the case here. The applicant sought leave of the Court to lodge its appeal out of time as was like here in a similar situation. The court held that the power to grant leave is discretionary one. There were no special reasons or exceptional cause demonstrated for the delay. There was no merit shown in the ground intended, or arguable basis prima facie to allow past the point lapsed. The onus of satisfying was on the applicant to discharge. And such was within the scope of section 155 (4) as was the case in Aihi v The State (No 1) [1981] PNGLR 81.
    
17. This is not that situation that an application has been made in the National Court for leave to come out from a barred Statutory Limitation period, 28 days here. That was after the lapse as was the case here and an application for leave to open even after the 28-day period and for leave to be accorded to do so to file an appeal out of time as is the case here, a failure to adhere to section 62 of the Land Act. It is the same even in forfeiture of State Leases. The period is 28 days after the decision to appeal, if that is not adhered, not even leave can be obtained without justifying: Appeal by Constantinou against Forfeiture by The State of a Government Lease, Re [1977] PNGLR 1.
    
18. Even on that level the evidence relied on by the Plaintiff leaves a lot to be desired of the case he is pushing. Particularly if gauged on the converse with the affidavit evidence of Engelbert Wappi Acting Operations Manager of the fifth Defendant company Network Constructions Limited at page 321 of the Review Book document number 45 filed of the 04^th November 2021. He deposes the completion of a K 2.7 million warehouse and attaches annexure “A” Certificate of Completion of the Project at section 385 Allotment 05 Hohola (Gerehu) issued by the Contractor, FVC Investments Limited, engaged to do the said development works of the building of the warehouse on that land.
    
19. Further Annexure “B” true copy of the certificate of compliance issued by the PNG Power Limited in regard to the electrical works and installations to and on the subject property; Annexure “C” true copy of the official receipt dated the 24^th May 2019 issued by the Government of Papua New Guinea through the Department of Lands and Physical Planning evidencing payment of the outstanding land rental of the sum of ten thousand Kina (K10, 000.00) to that department, and annexure “ D” true copy of the invoice and request for payment dated the 10^th May 2019 issued by the Department of Lands & Physical Planning to the fifth defendant to pay the outstanding land rental aforesaid stated and upon which basis the ten thousand (K10, 000.00) was paid off.
    
20. This evidence would cause immense prejudice for the case of the fifth Defendant if the Plaintiff was allowed to come in after the statutory period allowed. The law in the Land Act in this particular aspect when a time limitation was implanted was to cater for the like as is here. It would stop prejudice and damage to those who had fulfilled the requirements of the law to attain. The law is not built on sand but on stone and must in likeness be observed without laxity in its application. It would open the flood gates to such an important resource land, that must be managed efficiently for the betterment, the development of the Country. Which is that it is not the colour or creed, race, or religion of a company, but compliance of the law that is paramount. So, if the company is a foreign company but has complied with the laws of the land, there is no reason to open the door to it, and to do business with it. Breaches incumbent upon authorities of Government, the Investment Promotion Authority are in the prerogative of that Institution, not a barrier to the development of the Country, because that authority encourages within the bounds of law, not discourage because they are a foreign company. And the treatment of all equal in the eyes of the law. The fifth defendant is not an exception, the Plaintiff has not pointed to adverse evidence that would succumb the submission. In a way Plaintiff has an axe to grind against the fifth defendant which has no independent credible source to verify to sustain his cause. He adds by his assertion to the case of the fifth defendant and lowers his own balance in the overall sphere here.
    
21. Because when the plaintiff alleges fraud against the attaining of the Lease by the fifth defendant, he must not only allege but must implement with the evidence to sustain the allegation. As Fraud must be proved beyond the civil balance but not beyond the criminal to vitiate the title. There must be actual fraud demonstrated not constructive fraud, “unless it can be shown that the title was acquired through fraud or through seriously and grossly irregular means,” Papua Club Inc v Nasaum Holdings Ltd [2004] PGNC 178; N2603 (3 September 2004), affirmed in Koitachi Ltd v Zhang [2007] PGSC 11; SC870 (11 September 2007). That is not the status and extent of the evidence relied by the Plaintiff to sustain. It is a bare allegation without any evidence backing. What it does is tilt the balance in favour of the case for the fifth defendant. Reliance on Kapiura Trading Ltd v Bullen [2012] PGNC 256; N4903 (29 November 2012) reinforces the cause of the fifth defendant rather than the plaintiff. The balance in law and fact is not in favour of the plaintiffs cause of action. He has not sustained to the required balance for judgment to fall in his favour. Reliance on accordingly, this notice of motion is dismissed in its entirety, because the second and third defendants in making the decision of the 14^th June 2018 did not act ultra vires, nor did they act beyond the powers conferred on them by section 62 of the Land Act 1996. They heeded and gave adherence to it which is not the same for the plaintiff clear by all set out above.
    
22. Further there is no error of law committed by the Second and Third Defendants in making that decision of the 14^th June 2018 in the application of section 62 of the Land Act in the way that the plaintiff has contended.
    
23. And further the Second and Third Defendants in making the decision of the 14^th June 2018 did not deny the Plaintiff natural justice and procedural fairness. He has his own discretion to blame, he chose to avoid the time limitation under section 62 all credence to his wisdom in Port Moresby, a city accessible to all manner of life, including the office of the Department responsible Lands & Physical Planning with law offices to back his cause, and the Courts to bring justice were due. He remained lax and it will not be cured without the independent verification to open. In that regard the Second and Third Defendants have not acted unreasonably so that it is in the same sphere and likeness observed in Associated Provincial Picture houses Limited v Wednesbury Corporations [1947] CA 1KB 223.
    
24. What he has done is that firstly he has not secured Judicial review, and secondly, he has not secured the remedy flowing Asiki v Zurenuoc, Provincial Administrator [2005] PGSC 27; SC797 (28 October 2005). The balance is always upon he who alleges not the contrary, and he has not discharged to that of preponderance. Certiorari comes when the procedure in law has been abused, derailed by error of law, and when there is ultra vires: District Land Court, Kimbe; Ex Parte Nuli, The State v [1981] PNGLR 192. It is not the substance but the procedure which stands accounted in judicial review: Kekedo v Burns Philip (PNG) Limited [1988-89] PNGLR 122. And particularly so “where the decision-making authority exceeds its powers, commits an error of law, commits a breach of natural justice, reaches a decision which no reasonable tribunal could have reached or abuses its powers.” The evidence does not establish the facts necessary to entail in favour of the Plaintiff. Accordingly, this application is dismissed in its entirety with costs to follow the event on a party party basis if not agreed to be taxed.
    
25. The formal orders of the Court are;
    
    • (i) The application for judicial review is refused and dismissed forthwith.
      
    • (ii) The Plaintiff shall pay the costs of the defendants on a party party basis forthwith to be taxed if not agreed.

Orders Accordingly.

__________________________________________________________________

Kamen Lawyers : Lawyer for the Plaintiffs

Fiocco & Nutley Lawyers: Lawyer for the Defendants