Eu v Rosso [2022] PGNC 519; N10039 (21 October 2022)

N10039

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

OS (JR) NO. 82 OF 2021

BETWEEN:

LINDA MAUTAIA EU

- Plaintiff-

AND:

JOHN ROSSO

In his capacity as the Minister for Lands and Physical Planning

-First Defendant-

AND:

NATIONAL CAPITAL DISTRICT COMMISSION

-Second Defendant-

AND:

BENJAMIN SAMSON

In his capacity as the Secretary for the Department of Lands & Physical Planning

-Third Defendant-

AND:

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

-Fourth Defendant-

Waigani: Tamade AJ

2022: 27^th June, 21^st October

JUDICIAL REVIEW – purchase of customary land – no evidence of payment by plaintiff – compulsory acquisition – notice to treat – Land Act 1996 – s 12 and s 13 – direct grant – relief lies in compensation – due process followed by State – Land Act – s 72 and s 14

Cases Cited

Port Services PNG Pty Ltd v Gioctau Tanabi and PNG Waterside Workers and Seamen's Union [1995] PNGLR 391
Yakasa v Piso [2014] PGSC 64; SC1330

Legislation:

Land Act 1996

Counsel:

Mr. Jonathan Holingu, for the Plaintiff
Mr. Kevin Kipongi, for the First, Third, and Fourth Defendants

21^st October, 2022

1. TAMADE AJ: This is a decision on the substantive hearing for judicial review in this matter.

2. The Plaintiff in these proceedings claims that she is the registered title holder in fee simple to a customary land described as Everwin Estate, Portion 4035C Milinch of Granville, Fourmil Moresby, National Capital District and registered as Volume 37 Folio 186. Annexure LM1 of the Plaintiff’s Affidavit filed on 8 June 2021 shows a Certificate of Title granted to Linda Mautaia Eu for the subject land granted under the Land (Tenure Conversion) Act 1963 on 26 April 2018.

3. The Plaintiff states in evidence that she has purchased this land from customary owners in the sum of K2 million. She then approached the Department of Lands and Physical Planning to have a State Lease issued over this land. The Plaintiff claims that the State then with the landowners entered into a Sale and Transfer of Land agreement in which gave effect to her arrangement to have a State Lease over the subject land. The Sale and Transfer of Land document as annexure LME2 in her Affidavit sworn on 8 June 2021 shows an agreement entered into on 8 November 2019 between John Saraga and others as customary landowners of the said land and the Independent State of Papua New Guinea. The consideration for the outright purchase of this land was in the sum of K2 million. Nowhere in this agreement is a reference to the Plaintiff. It is the Plaintiff’s assertion that she paid the sum of K2 million on behalf of the State to the landowners however there is no evidence of such a payment in the Plaintiff’s affidavit.

4. I find a discrepancy at the outset in the Plaintiff’s evidence that she had purchased this land from the customary landowners and that she was issued a Certificate of Title on 26 April 2018, a title under the Land (Tenure and Conversion) Act 1963 however on 8 November 2019, the customary landowners who were John Saraga, Homaka Saraga, Linda Sina and others signed a sale and transfer of land document with the State for the price of K2 million. The Plaintiff insists that she paid the sum of K2 million on behalf of the State when there is no evidence to support this fact. How could the landowners have sold the subject land to the State when she had a Certificate of Title over the subject land? If her claim is true, the landowners had no right to transfer the land when she was the title holder.

5. On 11 March 2021, the Plaintiff instructed her lawyer Mr. Holingu who then attended at the Department of Lands and Physical Planning to conduct a search on the subject land to ascertain the status of her application to the Land Board for a grant of a State Lease over the subject land. It then came to the attention of Mr. Holingu and his client that on 4 April 2019, the State had compulsorily acquired the subject land by Notice of Compulsory Acquisition under section 12(1) of the Land Act in the National Gazette.

6. The publication in the National Gazette No. G265 on 4 April 2019 was a Notice of Compulsory Acquisition under Section 12(1) made pursuant to section 13(6) of the Land Act that the land is acquired for public purpose for the following reasons as stated in the publication:

“the land is required for the purpose of Settlement to suburban program and the land is occupied by the settlers for a long time and any eviction will create social issues.”

7. After the State compulsorily acquired the subject land, on 20 January 2021, the First Defendant NCDC was granted a State Lease over the subject land with the description State Lease Portion 4035, Volume 95 Folio 138.

8. The Plaintiff is claiming therefore that the State failed to publish a Certificate as per section 13 (6) of the Land Act and that the Plaintiff was not given a Notice to Treat as per section 13 of the Land Act. The Plaintiff also takes issue with the Notice of Compulsory Acquisition and states that there is no special reason why section 13 of the Land Act did not apply. The Plaintiff is therefore claiming under the following grounds challenging the compulsory acquisition by the State over the subject land;

a) The Minister’s decision to grant the subject land to NCDC is ultra vires
as section 13 of the Land Act was not complied with, there was no
Certificate under section 13(6) of the Land Act and there was no “special
reason” provided for the compulsory acquisition.

b) Breach of natural justice- the Plaintiff claims that the Minister did not
serve on her a Notice to Treat under section 13(1) of the Land Act and
a Notice of Compulsory Acquisition under section 12 (1) of the Land
Act.

c) The Plaintiff, therefore, claims that as the Minister did not comply with
section 13(1) to (6) of the Lands Act, the subject’s decision to
compulsorily acquire the land is illegal.

d) The Plaintiff claims that the Minister’s decision was ultra vires his
powers as the grant to NCDC was made pursuant to section 72 of the
Land Act when her interest in the land was pursuant to section 12(1) of
the Land Act, it was not available for compulsory acquisition under
section 72 of the Land Act.

9. I now state herein the relevant provisions of the Land Act in relation to this matter. Section 12 of the Land Act is in the following terms:

12. COMPULSORY ACQUISITION.

(1) The Minister may, on behalf of the State–

(a) after the expiration of a period of two months after the service of a notice to treat, or of notices to treat under Section 13, in relation to any land; or
(b) at any time where, after diligent search and inquiry, he is satisfied that the owner of the land cannot be located; or
(c) at any time after he has given a certificate under Section 13(6) in relation to any land,

by notice in the National Gazette, declare that the land, other than any interest in respect of which a notice to treat has been withdrawn, or any chattel, is acquired by compulsory process under this Act for a public purpose specified in the notice.

(2) On the publication of a notice under Subsection (1), the land or chattel to which the notice applies is–

(a) vested in the State; and
(b) freed and discharged from all interests, trusts, restrictions, dedications, reservations, obligations, contracts, licenses, charges, and rates.

10. Section 13 of the Land Act is in the following terms:

13. NOTICE TO TREAT.

(1) The Minister shall not acquire land by compulsory process under this Act unless he has first caused to be served on each of the owners of the land, or such of them as can, after diligent inquiry, be ascertained, a notice inviting the person on whom the notice is served to treat with the Minister for the sale or surrender to the Minister, on behalf of the State, of his interest in the land.

(2) A person served with a notice to treat in respect of land shall, not later than two months after the service of the notice, provide the Minister with particulars of–

(a) the interest claimed by him in the land; and
(b) the amount for which he is agreeable to sell his interest in the land; and
(c) the name and address of any other person known to him to have an interest in the land and the nature of that interest.

(3) On receipt of the particulars referred to in Subsection (2), the Minister may–

(a) treat with the person providing the particulars for the acquisition of his interest by agreement; and
(b) notwithstanding anything in this Act, enter into an agreement with that person for the acquisition.

(4) The Minister may, by written notice to a person served with a notice to treat, withdraw the notice to treat.

(5) Where the owner of an interest in land, who has provided the particulars referred to in Subsection (2), suffers loss by reason of the notice to treat having been given and withdrawn, the State is liable to pay to him such compensation as is determined by agreement between the owner and the Minister or, in the absence of agreement, by action as determined by a court of competent jurisdiction.

(6) This Section does not apply in a case where the Minister certifies that there are special reasons why the Section should not apply.

11. In analysing the Notice of Compulsory Acquisition published in the National Gazette on 4 April 2019 as No. G265, the compulsory acquisition is made pursuant to section 13(6) of the Land Act and therefore the State was not obliged to give the Notice to Treat under section 13 of the Land Act to the Plaintiff. I am satisfied that in the same gazettal publication, there is a Notice pursuant to section 12(1) of the Land Act as Notice for Compulsory Acquisition over the subject land and that section 13(6) of the Land Act was complied with by the Minister Certifying in the gazettal notice that there are special reasons why section 13 should not apply as the public purposes as to section 12(1) of the Act is in relation to the purpose of settlement to the suburban program as is stated in the respective Notices.

12. The Plaintiff’s claims on the grounds of ultra vires, breach of natural justice, and illegality as to sections 12 and 13 of the Land Act are refused herein.

13. As to the ground that the Plaintiff’s interest in the land was under section 12(1) of the Land Act and therefore it was not available under section 72 of the Land Act to be made available to NCDC by the grant of a State Lease to NCDC, section 72 of the Land Act is in the following terms:

72. POWER OF MINISTER TO GRANT STATE LEASE DIRECT.

The Minister may grant, on application or otherwise–

(a) a lease over any land acquired under the Lands Acquisition (Development Purposes) Act (Chapter 192) (Repealed); and
(b) a lease over land which has been the subject of a declaration under Section 111; and
(c) a lease granted under Section 102; and
(d) a lease granted under Section 99,

without referring the matter to the Land Board.

14. I am of the view that any interest the Plaintiff may have on the subject land was extinguished by the compulsory acquisition by the State pursuant to section 12(1) and Section 13(6) of the Land Act. The State was therefore entitled to do a direct grant to NCDC pursuant to section 72 (a) which refers to land that was compulsorily acquired for a development purpose which the Repealed Lands Acquisition (Development Purposes) Act (Chapter 192) would have applied to.

15. The Plaintiff to my mind only has a right pursuant to section 14 of the Land Act to claim for compensation for the compulsory acquisition of the subject land. If indeed the Plaintiff has purchased the subject land from the landowners in the sum of K2 million, the Plaintiff has only a right as to compensation from the State.

16. The Court’s role in judicial review cases is not to substitute the administrative decision but to oversee the exercise of authority or power over State institutions as the Court said in Port Services PNG Pty Ltd v Gioctau Tanabi and PNG Waterside Workers and Seamen's Union^[1]:

“In judicial review, the court’s role is to supervise the exercise of jurisdiction of bodies of persons or tribunal empowered by law to determine the issues in a particular field.

It is not the role of the Courts to make the decisions for those bodies. In instances where the court finds that a body or tribunal has made an error in its determination of a matter or failed to follow the rules of natural justice or in some way exceeds its jurisdiction, it does not then proceed to make the decision for that tribunal, even if on the evidence before it, it may seem the answer is obvious. If there is an error, then that error does not give the court a jurisdiction to entertain the matter itself, it simply means that the matter must be referred back to the body or tribunal concerned to consider the matter again and make its determination lawfully.”

17. The substantive role of the Court is therefore to do justice in a case. In Yakasa v Piso^[2] the Supreme Court said this:

The rules of court are a handmaiden of justice, not its master.

61. The correct position was stated by French J (as the present Australian Chief Justice then was) in Bomanite Pty Ltd v Slatex Corp Australia Pty Ltd [1991] FCA 536; (1991) 32 FCR 379 at 391:

The substantive goal of this Court is to do justice between parties according to law. That objective is not to be compromised by undue rigidity in the application of the procedural requirements which are its handmaidens.

18. I, therefore, find no error in the decision of the State to compulsorily acquire the subject land. It follows that all the grounds for judicial review by the Plaintiff have not been made out and therefore these proceedings shall be dismissed forthwith.

19. The Court, therefore, makes the following orders:

1. These proceedings are dismissed in their entirety.
2. The Plaintiff shall meet the State’s costs of these proceedings to be taxed if not agreed.
   

Orders accordingly.

________________________________________________________________

Holingu Lawyers: Lawyers for the Plaintiff

Office of the Solicitor General: Lawyers for the First, Third and Fourth Defendants

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^[1] [1994] PGNC 157; [1995] PNGLR 391 (11 March 1994)
^[2] [2014] PGSC 64; SC1330 (26 February 2014)