Papua New Guinea Forest Authority v Sukiri Investment Ltd [2021] PGNC 66; N8820 (14 May 2021)

N8820

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]
OS (IECMS) (JR) NO. 74 OF 2020

PAPUA NEW GUINEA FOREST AUTHORITY
Plaintiff

V
SUKIRI INVESTMENT LIMITED
First Defendant

AND
BENJAMIN SAMSON SECRETARY DEPARTMENT OF LANDS & PHYSICAL PLANNING
Second Defendant

AND
SAM WANGE CHAIRMAN NATIONAL LAND BOARD DEPARTMENT OF LANDS & PHYSICAL PLANNING
Third Defendant

AND
INDEPENDENT STATE OF PAPUA NEW GUINEA
Fourth Defendant

Waigani: Miviri J
2021: 05^th & 19^th February, 17^th March, 14^th May

PRACTICE & PROCEDURE – Judicial Review & appeals – Originating summons – Leave application – Locus Standi – Delay – Not Party to Initial Court Proceedings – Right to be Heard – Vacant Possession for – Arguable case – Substantial Injustice if Leave denied – Breach S 53 Constitution – application for leave Granted – cost follow event.

Cases Cited:

Aihi v The State (No 2) [1982] PNGLR 44

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

Pruaitch v Manek [2019] PGSC 123; SC1884

Ready Mixed Concrete Pty Ltd v The State, Samana and Kiamba [1981] PNGLR 396

Counsel:

T.Dalid, for Plaintiff
J. Aku, for first Defendant
K. Kipongi, for Second, Third and Fourth Defendants

RULING

14^th May 2021

1. MIVIRI, J: This is the ruling on the originating summons of the plaintiff filed the 21^st November 2020 for leave for judicial review against a decision of the Second and Third Defendant that on the 19^th October 2010, Mr. Pepi Kimas Delegate of the Minister for Lands and Physical Planning granted an exemption to the First Defendant from advertising the tender of Portion 08, Folio 2020, Section 19, Montoro Street, Lae, Morobe Province in breach of Section 69 (2) of the Land Act 1996.
   
2. And further the decision of the Third defendant also of the 19^th October 2010 through its meeting No. 03/2011 granting the Land described as Portion 08, Folio 2020, Section 19, Montoro Street, Lae, Morobe Province to the First Defendant by letter dated 14^th November 2011 was contrary to section 38 (2) (a) (b) (c) of the Land Registration Act as the Government Departments and Authority in the occupation of the said Land never surrendered their State Lease.
   
3. And further that the second defendant’s decision to issue a Notice under section 75 and 76 of the Land Act 1996 informing the plaintiff that he was the successful applicant for tender of the Land Portion 08, Folio 2020, Section 19, Montoro Street, Lae, Morobe Province which was published in the National Gazette of the 20^th January 2012 was null and void and in breach of section 69 (1) of the Land Act 1996.
   
4. And further that the First defendant’s decision to issue a notice to quit under section 145 of the Land Act 1996 over the subject land Portion 08, Folio 2020, Section 19, Montoro Street, Lae, Morobe Province was ultra vires and void.
   
5. And further the Plaintiff prays that and seeks leave to review the decision of the First and Second Defendant made through the National Lands Board where on the 20^th January 2012 State Lease Portion 08, folio 2020, section 19, Montoro Street, Lae, Morobe Province was issued the First Defendant through the meeting number 03/2011 on the basis that it was vacant land with no persons or entities occupying, using or having developed it thus it was available as vacant land for leasing to the First Defendant. Because it was vacant it was exempted from advertisement.
   
6. Notably from the Affidavit verifying facts dated the 21^st November 2020 filed by one Tunou Sabuin Managing Director of the Plaintiff annexure “T” is Ex Parte Court Order dated 05^th April 2017 in WS No. 703 of 2013 between Sukiri Investment Limited v Joel Luma Secretary Department of Works and Department of Works and Vicky Puipui as National Archivist National Library & Archives and National Archives and Library. It means one side only was in court to culminate in the order denoting that term. And it did not include the applicant because they were not parties to that proceeding.
   
7. Annexure “V1” is advice by the Police Legal officer to the ACP Northern Command Lae Divisional Police Headquarters subject a National Court Order in WS 703 of 2013 set out above for vacation of the property described as Volume 19 Folio 2020 Lot 08 Section 19 Lae Morobe Province. Also, annexure with the same reference is a letter under hand of Manase & Co Lawyers Lae dated the 21^st August 2019 of the securing of a court order entitling vacant possession to the Plaintiff in WS No. 703 of 2013. And the subject order is annexure “V2”. It is dated the 20^th August 2019 and entered 23^rd August 2019. It reads, “The Court hereby Orders that:-
   
   1. Pursuant to Order 10 Rule 9A (15) (2) (b) & (c) of the National Court Listing Rules 2005 and term 2 of the self-executing Court Orders of the 20^th June 2019, the defence of the Defendants filled on 07^th April 2015 is struck out and summary Judgement is entered for the Plaintiff.
   2. Vacant Possession for the Land described as Volume 19 Folio 2020 Lot 08 Section 19 Lae Morobe Province be given to the Plaintiff by the Defendants their Officers, employees, servants, agents, and associates and whosoever occupying the land.
   3. The defendants be evicted from the land described as Volume 19 Folio 2020, Lot 08 Section 19, Lae Morobe Province.
   4. The defendants, their officers, employees, servants, agents, and associates and whosoever occupying the land described as Volume 19 Folio 2020, lot 08 Section 19 Lae Morobe Province immediately deliver up vacant possession of the Land.
   5. The defendants, their officers, employees, servants, agents, and associates and whosoever occupying the land described as Volume 19 Folio 2020, lot 08 Section 19, Lae Morobe Province break down their buildings, fixtures and offices and remove all their belongings & properties and give vacant possession of the Land to the Plaintiff within 21 days from the date of service of these orders.
   6. The defendants their officers, employees, servants, agents, and associates and whosoever are permanently restraint from trespassing on the land described as Volume 19 Folio 2020, lot 08, Section 19, Lae Morobe Province.
   7. The Defendants their officers, employees, servants, agents, and associates and whosoever are permanently restraint from threatening, intimidating or otherwise harassing the Plaintiff, its employees, agents, and servants from the land described as Volume 19 Folio 2020, Lot 08, Section 19, Lae Morobe Province.
      
8. These were the orders emanating from the sittings of that matter conducted by Deputy Chief Justice Kandakasi. It would appear that the orders were made earlier and were not complied with, hence their self-executing mode when time given lapsed. This is the very same piece of land the subject of this leave application now before me. It would seem that there was no proper and professional discharge effected in the way that the matter was attended to. Because as set out by order one, Order 10 Rule 9A (15) (2) (b) & (c) of the listing Rules is in the following, “Summary Disposal. (2) The Court may summarily dispose of a matter in the following situations: (a) for want of prosecution since filing the proceedings or since the last activity on the file; or (b) for a failure to appear at any of the listing or directions hearing by a party or his lawyer; or”
   
9. It is clear by this rule that there had to be material demonstrated that despite being listed, or directed to, there was inactivity on the file on the part of the defendants so much so that there were self-executing orders that were made previous which were not honoured, or carried out, hence the self-execution leading to the summary disposal for want of prosecution. It had to be demonstrated such that the balance was tilted in favour of no other measure other than summary disposal of the matter as was done here, that the defence of the defendants filed 07^th April 2015 was struck out and summary judgement was entered for the Plaintiff. Here no doubt it had to be a very clear case to so act.
   
10. And even if it were there was still avenue open to the defendants to appeal and to seek redress from there in the normal way. It would appear that was not done. What is clear from this proceeding is that the applicant Papua New Guinea Forest Authority is not a party to that proceedings, and therefore its position in the matter would not have been of a party to that proceedings. Its voice and discontentment were not aired so that it amounted to abuse here to resurrect the matter. Its position would not be the same observed in Pruaitch v Manek [2019] PGSC 123; SC1884 (6 December 2019) where it would amount to abuse of process for litigant who has selected one mode of proceedings and failed to prosecute same cause of action hence amounting to abuse of process.
    
11. Here is leave application for judicial review internal process administratively within the department of lands evidenced by the Affidavit verifying facts dated the 21^st November 2020, filed by one Tunou Sabuin Managing Director of the Plaintiff has been channelled, but no effective remedy administratively hence this application. It would be consistent with Kekedo v Burns Philp (PNG) Ltd [1988] PGSC 19; [1988-89] PNGLR 122 (13 April 1989). And strictly confining to WS No. 703 of 2013 between Sukiri Investment Limited v Joel Luma Secretary Department of Works and Department of Works and Vicky Puipui as National Archivist National Library & Archives and National Archives and Library as seen this matter already by law would deny equity.
    
12. This is fundamentally evident from the affidavit dated 26^th November 2020, in support filed by Absalom Haiyo of the Papua New Guinea Forestry Authority. Who is an acting Inspection Supervisor Momase in the employ of that authority, currently resident at section 19 lot 8 Montoro Street where the Papua New Guinea Forestry Authority has two permanent houses, and of which he has occupancy of one since 2006 after joining the Forestry with his family and children. And like Forestry the Department of Education Libraries and National Archives is also located there. He never saw the court order of the 20^th August 2019 in the proceedings WS 703 of 2013. And the National Forestry Authority was never a part to the proceedings. “Even then, our interests were effected and we rallied behind the Department of Works & Supply and the Department of Education and National Archives and Library to be witnesses when the matter was heading towards trial. That was when an amended defence was filled on 09^th March 2018 raising allegations of Fraud in the issuance of title in favour of the plaintiff who is now the first defendant in the within proceedings. The matter was set down for trial never proceeded but summary judgement entered instead, thus the order for vacant possession to the land in favour of the First Defendant.” And he annexures as “A” “B” “C” the Writ of summons that was filed on the 04^th July 2013, the amended defence filed 09^th March 2018 and a true copy of the Court order of the 20^th August 2019.
    
13. It is not clear as to why the amended defence was filed 09^th of March 2018 and left in abeyance, even in the light of the fact that the applicant had staff employed with families on the land subject of the proceedings. Because that is almost 5 years after the writ was filed. And the lawyer on record from the cover slip is Faith Barton-Keene Acting Solicitor General, Department of Justice & Attorney General, 7^th Floor, Sir Buri Kidu Haus, P. O. Box 591, Waigani, National Capital District with also the Lae Branch office address also imprinted.
    
14. What is clear is that Papua New Guinea Forest Authority never got a hearing, that it was resident and occupied the subject land for over 35 years, and it had worked on that land to see out its functions to serve the Independent State of Papua New Guinea. And that it was on the subject land even at the time these proceedings were on and even before doing what it was set up to do for the Country. There were Papua New Guineans who lived on that property for over 35 years and who were moved and evicted without voice especially from the applicant/plaintiff. There were issues of the Constitution in particular section 53 Protection from unjust deprivation of property and rights to basic human needs such as housing and shelter as observed in Ready Mixed Concrete Pty Ltd v The State, Samana and Kiamba [1981] PGNC 91; [1981] PNGLR 396 (13 October 1981) at heart. And to give effect to the rule of law would have denied the Papua New Guinea Forest Authority the right to be heard why it should be evicted. Equity demanded that equity be done as compliance to the law would deny equity, because both were limbs of the same body Justice right and left and had to be parrel one with the other.
    
15. There is locus Standi discharged because the applicant is directly affected as evidenced by the material set out above. There are very good reasons for the delay in bringing this cause of action also from the material set out above. Delay is inordinate but substantial miscarriage of justice has not occurred, rather that would be the case evident for the applicant if leave is denied. Because there are issues pleaded and set out above in the originating summons that must be properly determined in a full judicial review hearing. They outweigh and give effect to the Constitution section 53 Unjust deprivation of Property. Particularly as to why land that was occupied by three Government Departments and who continued even 35 years on to be evicted as they conducted State and Government business on that land. With their equipment and livelihood still on that land to be evicted as if they were not citizens of this Country.
    
16. The defendant is one person alone and the duties that are called upon of the three Government and State Departments and the Applicant serve almost 8 million people. It must be recognized that the State entities Departments of the State the People of Papua New Guinea should not be treated as second class in their own land now independent for 46 years. Land which serves the People of this Country dwelt on by State Departments must be protected for the services due to its people from this Departments and Authorities of the State. Here there are serious issues arguable of and at law as to why the land was put through a process that landed with it in the hands of a private corporate individual who has voiced discontentment over lives and property over self.
    
17. It is not justice by the Constitution which incorporates equity as an integral part of the laws of the land. It would as in Aihi v The State (No 2) [1982] PNGLR 44 (26 February 1982) be facilitated here to see that leave is accorded to set right an inherent and apparent abuse of the law and equity. Particularly considering that exemption for advertisement on a land that was occupied by Government Departments drawing years back could be uprooted without any notice to those Departments. Especially in the light of the fact that there was no forward planning for those Departments effected, either to resettle elsewhere at a different location already set for them to be accommodated, to continue to do what they did for the Government. If it indeed there was a sale by one of the Government Departments there are no paperwork to evidence to relocate all on that land. It is as if all fell into a blind hole with no hand hold to climb back and out.
    
18. The aggregate is leave has been made out on the grounds set out above and the application is with merit. Serious and fundamental injustice would befall if leave were not granted to see out what is evident by the pleading set out above. Accordingly leave is granted to the applicant for Judicial review.
    
19. The applicant will file and serve the substantive notice of motion within the next 14 days as of today which is Monday the 31^st May 2021.
    
20. The matter will return for Directions on Monday the 07^th June 2021.
    
21. The orders of the court are;
    
    • (1) Leave is granted.
    • (2) The applicant will file and serve the substantive notice of motion within the next 14 days as of today which is Monday the 31^st May 2021.
    • (3) The matter will return for directions Monday 07^th June 2021 at 9.30am.
    • (4) Costs follow the event forthwith.

Orders Accordingly.

__________________________________________________________________

National Forest Authority : Lawyer for the Plaintiff/Applicant

Office of the Solicitor General : Lawyer for Defendants