N9613
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CIA(APP) NO. 104 OF 2018

BETWEEN:
TST DEVELOPMENT LIMITED
Appellant

AND:
GLOBAL CUSTOMS & FORWARDING LIMITED
First Respondent

AND:
THE HONOURABLE JUSTIN TKATCHENKO as the
Minister for Lands & Physical Planning
Second Respondent

AND:
OSWALD TOLOPA in his capacity as the Acting Secretary for Department of Lands & Physical Planning
Third Respondent

Waigani:   Dingake J
2022: 7th & 10th February, 11th & 21st March, 11th April

JUDICIAL REVIEW -	Forfeiture of State Lease – Land Act 122 – Service of Notice to Show Cause on wrong address – effect thereof

Case Cited:

University of Papua New Guinea v John Ofoi (2016) N6303

Counsel:

Mr. Donald Kints, for the Appellant
Mr. Gibson Anis, for the First Respondent
Ms. Bathsheba Kulumbu, for the Second & Third Respondents

11th April, 2022

1.	DINGAKE J:	This is an Appeal against the decision of the Second Respondent to forfeit the Appellant’s title to a State Lease described as Allotment 22, Section 250, Hohola, National Capital District.

2.	On a consideration of the totality of the evidentiary material before me, it would seem that the said property was forfeited on two (2) main grounds, namely, that the Appellant had failed to develop the property as required by the development covenant of the lease and that the Appellant failed to respond to the Notice to Show Cause issued by the Second and Third Respondents.

3.	The thrust of the Appellant’s position is that the Second and Third Respondents were not entitled to forfeit the said property because, it was developed at the time the forfeiture was effected. With respect to failure to show cause, the Appellant contends that the Second and Third Respondents sent the notice to the wrong address, and that as a result it does not constitute proper notice.

4.	The evidence also shows that the Appellant became aware of the notice outside the required one (1) month period and responded to it but was informed that the land had already been forfeited.

5.	It is common cause that the original title to the above piece of land charged hands on many occasions and the Appellant eventually assumed title in 1994.

6.	In 2013, the Appellant entered into a Contract of Sale with the First Respondent, but the said sale was not approved by the Minister.

7.	It is a matter of record that the Second and Third Respondents before triggering the forfeiture process, on or about the 9th of October, 2015, carried out a physical inspection of the land, in question, for purposes of verifying whether the said land was developed as required by the lease covenant. The physical inspection showed that the land was developed (see pages 313 – 314 of the Appeal Book).

8.	The above notwithstanding, the Second and Third Respondents argue that the development was not done by the Appellant. The Appellant also filed evidence in the form of an evaluation report that showed that the land was developed.

9.	With respect to the address at which the Second and Third Respondents sent notices to show cause, the Second and Third Respondents concede that the notices were not sent to the Company’s registered address as required by the Company’s Act, but to an address they say was furnished to them by the Appellant. 

10.	The Notice to Show Cause dated 19th of October, 2017, was posted to P. O. Box 5445, Boroko, National Capital District. This is despite the fact that the Appellant’s address as per the records from the Investment Promotion Authority (IPA) is P. O. Box 2306, Boroko, National Capital District. 

11.	The Second and Third Respondents issued notices referred to above by post, including the one in which they place reliance on dated the 19th of February, 2017 (see pages 325 – 326 of the Appeal Book).

12.	The Appellant denies authorizing the use of any other address for purposes of serving any notices upon it, other than its registered address, being P. O. Box 2306, Boroko, National Capital District.

13.	For its part the First Respondent agrees substantially with the submissions of the Second and Third Respondents that the piece of land in question was properly forfeited and that as a matter of fact it is the First Respondent who developed the land.

The Law

14.	The law on forfeiture of land is set out in Section 122 of the Land Act of 1996. It is not necessary to reproduce its provisions, save to say it permits land that is not developed to be forfeited, subject to notices prescribed by Section 122 (2) being given to the lessee.

15.	It is trite law that procedures prescribed by Section 122 are mandatory and that failure to comply with the prescribed provisions under Section 122 of the Land Act 1996, would render the forfeiture illegal. (University of Papua New Guinea v John Ofoi (2016) N6303).

16.	Section 431 of the Companies Act read together with Section 432, thereof provides that delivery of notices to the Company must be at the Company’s registered office or address of service.

Findings of Fact
17.	Based on the evidence, I find that at the time of the forfeiture the land was developed. With respect to the Notice to Show Cause, I find that the notices to show cause were sent to the wrong address being P. O. Box 5445, Boroko, National Capital District.

18.	Having regard to Section 431, read together with Section 432 of the Companies Act 1997, I am satisfied that the notices to show cause prescribed by Section 122 of the Land Act, were not sent to the Appellant’s registered office or address of service.

19.	The net effect of my findings of fact and the legal prescriptions referred to above, means in effect, that the forfeiture of the land in question was unlawful, and I so find.

20.	Having regard to the conclusion, I have reached on this matter, it is not necessary to consider or discuss the other grounds relied upon by the Appellant to set aside the forfeiture decision of the Second Respondent.

21.	In the result, it is ordered as follows:
a)	The appeal is allowed.
b)	A declaration that forfeiture by the Second Respondent in respect of all the land situated at Allotment 22 Section 250, Hohola, Port Moresby, National Capital District, contained in State Lease Volume 82 Folio 202, published in the National Gazette on Tuesday, 9th October, 2017, be revoked or quashed.
c)	An order directing the Registrar of Titles and Secretary, Department of Lands and Physical Planning to rectify and maintain their records on the Registrar of Lands to reflect the Appellant as the registered lessee of the Property within seven (7) days of this Order and notify the Appellant through writing.
d)	The Appellant’s costs of the proceeding shall be paid by the Respondents on a party to party scale.
_______________________________________________________________
Jema Lawyers: Lawyers for the Appellant
Gibson Anis Lawyers: Lawyers for the First Respondent
Office of the Solicitor General:  Lawyers for the Respondents