Pugulabe v Allan [2021] PGNC 92; N8757 (10 February 2021)

N8757

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]
OS (JR) NO. 150 OF 2016

BETWEEN:
PHILIP PUGULABE
Plaintiff

AND:
BENNY ALLAN MINISTER FOR LANDS & PHYSICAL PLANNING
First Defendant

AND:
JACK BAKIS THE REGIONAL SURVEYOR DEPARTMENT OF LANDS & PHYSICAL PLANNING
Second Defendant

AND:
LUTHER SIPISON ACTING SECRETARY DEPARTMENT OF LANDS & PHYSICAL PLANNING
Third Defendant

AND:
PNG HOMES & OFFICE SERVICES LIMITED
Fourth Defendant

AND:
THE ACTING REGISTRAR OF TITLES LAND & PHYSICAL PLANNING
Fifth Defendant

AND:
THE STATE
Sixth Defendant

Waigani: Miviri J
2020: 11^th November

PRACTICE & PROCEDURE – Judicial Review & appeals – Substantive Judicial Review – Order 16 Rule 5 NCR –notice of motion –Statement in support –affidavit verifying facts – Affidavit in support for Judicial Review – Notice of Application for leave to apply for Judicial Review – Plaintiff Not Registered Proprietor – Locus Standi – Fourth Defendant Registered Proprietor – No procedural ultra Vires – No substantive ultra Vires – Material insufficient – Certiorari not made out – Declaration not made out– Dismissal of cause of Action– cost follow event.

Cases Cited:

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

Innovest Ltd v Pruaitch [2014] PGNC 288; N5949

Kalem v Yumi Yet Trading [2016] PGNC 278; N6458

Koitachi Ltd v Zhang [2007] PGSC 11; SC870

Nilkare v Ombudsman Commission [1995] PGNC 29; N1344

Pipoi v Seravo, National Minister for Lands [2001] PGNC 97; N2120
Counsel:

G. Kaore, for Plaintiff
No appearance for Defendants

RULING

10^th February, 2021

1. MIVIRI, J: This is the ruling on the plaintiff’s notice of motion of the 06^th June 2016 to remove into Court by certiorari and quash the grant of title to the Fourth defendant pursuant to Order 16 Rule 1 of the National Court Rules.
   
2. Further declaration that the initial conversion of section 356 Allotment 2 portion 2662 and 2663 was in breach of section 25 of the Land Act.
   
3. An order that the Action of Lands and Physical Planning creating allotment 40 to make way for the extension of the Road without the knowledge and involvement of the Plaintiff converting and describing the said property section 356 Allotment 40 was in breach of section 87 (1) and (2) of the Physical Planning Act which make the latest description illegal.
   
4. A declaration that the action of the Second Defendant was in breach of the principle of Natural Justice both in the previous grant and the subsequent dealings over the land.
   
5. An order declaring that the State Lease granted to the fourth Defendant by the Second Defendant now described as Section 356 Allotment 38-39 Hohola Rainbow is illegal null and void and of no effect including the previous grant portion 2662 and 2663.
   
6. An order to the fourth defendant to surrender the title to the first defendant to cancel the grant to the fourth defendant forthwith.
   
7. An order reverting the current land back to its original description described as Section 356 Allotment 2.
   
8. An order recognizing the gazettal notice advertising the land to the Plaintiff under a close tender dated 14^th June 2007.
   
9. At the outset, this matter has been outstanding since the 06^th June 2016 especially a judicial review matter where time is of the essence by order 16.
   
10. The plaintiff has filed an affidavit pages 132 to 141 in the Review Book (RB) dated the 28^th August 2018. Relevantly for the purposes of the determination here, it does not contain evidence that the Plaintiff was the holder of a registered State Lease over the subject land. What is stated is, “This was the first ever proceedings that, I ever filed before the National Court to challenge the Legality of the title given to the fourth defendant when the defendants knew very well that, I was interested in the property and my name was published in the National Gazette to purchase the property in 2010 in a close tender, when the whole of the property was still known as part Allotment 2 Section 356 Hohola (Gerehu).”
    
11. A number of observations at the outset must be made in respect of this evidence. It is the first time that the plaintiff is challenging the legality of the title held by the fourth defendant. This accepts the current position that the fourth defendant is holding onto a purported title to the subject land. For the plaintiff, the assertion is that he is interested in the property and that his name was published in the National Gazette to purchase that property. This is out of the ordinary in the way that properties are sold and bought. The matter is contractual and therefore between the parties and not the world at large, privity of contract here an allegation of sale advertised in the Gazette is out of the ordinary. It is not backed by evidence as to the gazettal number and what was advertised there and then. It is in this respect self- serving and does not further the cause of the plaintiff.
    
12. The Statement pursuant to Order 16 rule 3 (2) served with the Notice of Motion pursuant to Order 16 Rule 6 details that the Plaintiff was a self employed businessman and aggrieved party after the Land Board made its decision in the board meeting No. 01 of 2011 defying a written request of Chairman NCDC Physical Planning. That the plaintiff was the original person who entered the property described as part Section 356 allotment 2 as a licensee pursuant to section 125 of the Land Act since the 09^th March 2006 to build small medium covenant houses under the Urban Development plan as the subject land was zoned for that purpose. This is not the same as a person who is the registered proprietor of the subject land. Even the licence professed does not extend and is not on the same footing as a registered proprietor and the affidavit of the 17^th March 2016 filed the 22^nd March 2016 does not extend the cause of the plaintiff as he prays.
    
13. And the action is for Judicial Review originating from 21^st March 2016. It is against the decisions of the First and Second defendants. It was moved in court on the 11^th November 2020 four years has lapsed since. No doubt life has moved given and it would be very well for the plaintiff to bring material to show that despite that fact has done equity and so must be done equity to. Especially where it is to do with procedure as opposed to substance. Judicial review is concerned with the process rather than what is the substance: Asiki v Zurenuoc Provincial Administrator [2005] PGSC 27; SC797 (28 October 2005. That is the law which has been followed and applied by this court in Innovest Ltd v Pruaitch [2014] PGNC 288; N5949 (17 March 2014).
    
14. There is no evidence to show the contention that the plaintiff makes. There is no material in the affidavit that he relies on set out above that procedure was not followed to end as it did. There is no evidence of the allegation that the plaintiff raises against the defendants of conspiracy to commit fraud: Kalem v Yumi Yet Trading [2016] PGNC 278; N6458 (9 September 2016) is in applicable given the facts of the plaintiff’s cause. He has not produced evidence that there was fraud and conspiracy to defeat the process of law by the Land Act Sections 69, 104, 105 & 106 – Grant of State Lease – Urban Development Lease. The procedures are an open procedure and not confined to an individual. Nor are they tied by special preferences or treatment. Each case is determined on its own facts. He did not draw favour in the bid. It does not mean there is biasness and nepotism or fraud, Koitachi Ltd v Zhang [2007] PGSC 11; SC870 (11 September 2007), is to point in this regard the evidence does not substantiate the allegation raised. Which is a very serious allegation. He has alleged but has not proved by the material that he has led. He drew it upon the defendants and has not substantiated to the required balance in his favour. It will not be held in his favour in his plea.
    
15. The Land Board is a public board and its decision are not tailored to favour or give special preferences. All before it applying are not analogous to Nilkare v Ombudsman Commission [1995] PGNC 29; N1344 (4 August 1995). In the case of the plaintiff he is not even the registered proprietor of the subject property who has been unjustly unlawfully deprived as in Pipoi v Seravo, National Minister for Lands [2001] PGNC 97; N2120 (1 June 2001). That is not the case for the plaintiff by the evidence and the law. There is no merit either apparent or identifiable in his favour. He simply has not discharged to the balance of preponderance.
    
16. Certiorari is not made out and is refused forthwith. It follows too that declaration is not made out as pleaded and is dismissed forthwith. There is no illegality nor error in law in the process and procedure. Substantive ultra vires has not been made out given all set out above. In particular section 87 (1) and (2) of the Physical Planning Act has not been breached, there is no evidence to this effect. The State Lease granted to the fourth Defendant by the Second Defendant now described as Section 356 Allotment 38-39 Hohola Rainbow is neither illegal nor null and void including the previous grant portion 2662 and 2663. There is compliance of the law and the plea of the plaintiff here also fails. The aggregate is that his action is dismissed forthwith with costs following the event.
    
17. The formal orders of the court are;
    
    • (1) The application for Judicial Review is refused in its entirety as pleaded and is dismissed forthwith.
      
    • (2) Certiorari is not made out and dismissed.
      
    • (3) Declaration is not made out and dismissed.
      
    • (4) Costs will follow the event forthwith.
      

Orders Accordingly.

__________________________________________________________________

George Kaore Lawyers: Lawyer for the Plaintiff/Applicant

Office of the Solicitor General: Lawyer for Defendants