Hela Investment Ltd v Gware [2023] PGNC 243; N10388 (28 June 2023)

N10388

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS (JR) NO. 58 OF 2023

HELA INVESTMENT LIMITED
Plaintiff

V
GEORGE GWARE CHAIRMAN OF PAPUA NEW GUINEA LAND BOARD
First Defendant

AND
PAPUA NEW GUINEA LAND BOARD
Second Defendant

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

AND
ALA ANE REGISTRAR OF TITLES
Fourth Defendant

AND
DEPARTMENT OF LANDS & PHYSICAL PLANNING
Fifth Defendant

AND
HON. JOHN ROSSO, MP MINISTER FOR LANDS & PHYSICAL PLANNING
Sixth Defendant

AND
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Seventh Defendant

Waigani: Miviri J
2023: 27^th & 28^th June

PRACTICE & PROCEDURE – Judicial Review & Appeals – Order 16 Rule 3 Application for Leave for Judicial review – Whether there was Completion of Hearing of Land Board On Application of Plaintiff – Tender Applied Pending No Determination – Dispute Over “Gadisa Igah For Hela Investment Ltd” Particulars Application Form By Plaintiff – Section 71 Land Act – Arguable Case – Locus Standi – Internal Process – No Delay – Application Without Merit – Leave Refused – Cost follows the Event.

Cases Cited:

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

Asakusa v Kumbakor, Minster for Housing [2008] PGNC 39; N3303

Innovest Ltd v Pruaitch [2014] PGNC 288; N5949

Kimas v Boera Development Corporation Ltd [2012] PGSC 8; SC1172

Somare, Re [1981] PNGLR 265

Counsel:
T. Jugari, for the Plaintiff
M. J. Narokobi, for the Defendants

RULING

28^th June, 2023

1. MIVIRI, J: This is the ruling on the Plaintiff’s originating summons of the 12^th June 2023 filed the 14^th June 2023 pursuant to Order 16 Rule 3 of the National Court Rules seeking leave to apply for Judicial review of the decision of the first and second Defendant made of the 09^th June 2023 in refusing to accept, consider and hear the plaintiff’s application for a business(Commercial)Lease over the subject land, Allotment 33 Section 2 Granville, National Capital District during the PNG Land Board Meeting No. 010/23, Item No. 239. Which decision was verbally communicated to the Plaintiff by the First and Second Defendants.
   
2. The Plaintiff is incorporated under the Companies Act 1977 as named set out above. The Postal address is P. O. Box 7440, Boroko, National Capital District. It is the Investment arm of the Hela Provincial Government primarily aimed to engaging in property development and exploration of business opportunities on behalf of the People of Hela Province. By the originating summons it seeks leave because on the 23^rd February 2023 the Department of Lands and Physical Planning published tender Notice 010 in the National Gazette Notice 111 inviting interested applicants for a business or commercial lease over the subject land.
   
3. The plaintiff responded by lodging an application on the 10^th March 2023, annexure “GA1” affidavit sworn 12^th June 2023 filed 14^th June 2023 of Chief Executive Officer of the Plaintiff, one Gadisa Igah who inscribed on annexure “GA2” the relevant form as, Gadisa Igah for Hela Investment Ltd” in section A (1) of the Application or tender form. Which was acknowledged by the First and Second defendants on the 05^th May 2023. And the First Defendant sent a letter annexure “GA3” dated 05^th May 2023. It was addressed to Gadisa Iga for Hela Investment Limited 71405108, P. O. Box 7440, Boroko, NCD. It was subjected Papua New Guinea Land Board Meeting No. 01/2023 Item No. 239 Applicant No.12.
   
4. And on that day 09^th June 2023, the plaintiff was called into the conference room of the Department of Lands & Physical Planning at 1.30pm that day. It never got around to a full hearing because, “Mr Gware, the Chairman of the Land Board, initiated the conversation by enquiring whether I was presenting the application on my own behalf or on behalf of Hela Investment Ltd (HIL). In response I clarified that I was there to present the application on behalf of HIL. Mr Gware then raised an issue with the name of the applicant as written on the application form, which stated “Gadisa Igah for Hela Investment Ltd.” He argued that this name format was in error and explained that the title would be awarded to a successful bidder, who must either be an individual or an entity.
   
5. Seeking to address Mr Gware’s concerns, I explained that as CEO of Hela Investment Ltd, I was present to present the application and pointed out that the content of the submitted documents clearly indicated that HIL was the entity on record. Furthermore, I highlighted that if our bid was successful, the title would be registered under HIL.
   
6. Despite my efforts to clarify the matter, Mr Gware and the other members of the Land Board refused to entertain my arguments and insisted that I leave the boardroom. Consequently, I complied with their request and departed from the board room at approximately 3.00pm.
   
7. The conversation between myself and the land Board members revealed a disagreement regarding the interpretation of the name on the application form. While I maintained that the application represented Hela Investment Ltd, Mr Gware and the Land Board appeared to have a different understanding, which is the reason the land Board refused to hear our application.
   
8. The land Board’s justification for disqualification was solely based on the alleged incorrect format of the names used in our application form. This unforeseen technicality deprived the plaintiff of the opportunity to present and argue our application before the PNG Land Board, while other applications for the same land were given the chance to be heard.
   
9. It is disheartening that the Land Board did not notify us about the discrepancies in the names prior to the presentation day. Had we been made aware of this issue, we would have promptly taken the necessary steps to rectify it and ensure compliance with the required format. We firmly believe that, as a matter of basic courtesy and fairness, we should have been given an opportunity to rectify any errors before being disqualified from the bidding process.
   
10. The matter regarding the use of different names in the applications was unexpectedly raised during the presentation stage. Contrary to the Land Board’s prior acceptance of our application, it was at this point that we were informed of the alleged incorrect name format. The Land Board’s decision to disqualify our bids and presentations based solely on this name format discrepancy caught us by surprise, as we had not been previously alerted to any issues or provided an opportunity to correct the alleged error.
    
11. We are confident that a fair and impartial assessment of the situation will reveal the oversight on the part of the Land Board and the undue hardship caused to us.
    
12. On the other hand, if the land Board hearing, which had already commenced proceeds to award the land to a successful bidder, it is important to note that the plaintiff, who did not participate as an applicant during the land Board hearing, may not possess the legal standing to challenge the decision of the Land Board regarding the allocation of the land.”
    
13. This evidence in my view from the plaintiff is self-serving, it shows that the matter was administratively pointed out to the plaintiff to comply so that the form was in order for its consideration. It is not wrong for the Land Board to point out administratively as to the form initiating to be in order for its consideration and appropriate decision in the application made. In so doing it is not the same as determining the application by its merits and making the applicant plaintiff unsuccessful in the application. What has been pointed out is necessary to expedite the application. It is incumbent on the applicant to correct to be heard in the application. The applicant can correct and pursue his application for the consideration determination of it by the Board. The view maintained by the plaintiff does not establish the contention that the Land Board will no longer deal with the application. Because the law is very clear under section 71 of the Land Act, that the Land Board shall consider all applications for State Leases. The plaintiff’s application has met out the formalities prescribed by sections 58 (1) (a) (b) which is acknowledged by the plaintiff at paragraph 6 confirming “GA3” letter under hand of the first defendant, details of which are set out in paragraph 7 of the affidavit. And with “GA4” it will be considered but for the issues raised by or against the form.
    
14. The effect of this fact is that the application is there before the Land Board, as there is no independent confirmation of the affidavit sworn by the plaintiff’s witness Jayson Mandawi, that the Land Board has dealt with that application in the way contended. Unless and until there is evidence from the land Board by its own records, in the same way it has produced the annexures referred to in the affidavit above, that it has dealt with the application of the plaintiff in the way argued, this matter is really driving a vehicle without the driver. The word of the plaintiff who has an interest in the favourable outcome of the proceedings cannot be taken at face value without independent verification that the land Board has indeed, dealt with that application in the way he contends.
    
15. Because Leave for Judicial review has been granted where the plaintiff points to the process and procedure that have been followed to arrive at a decision: Kekedo v Burns Philp (PNG) Ltd [1988-89] PNGLR 122 followed in Asakusa v Kumbakor, Minster for Housing [2008] PGNC 39; N3303 (10 April 2008). Here the evidence that the plaintiff has filed of witness Jayson Mandawi shows that the process has begun. And the defendants have complied with the process. And there is no decision that they have made in respect of the application of the plaintiff pertaining to that land. The application is still pending before the Land Board as there is nothing official from it depicting that it has decided regarding it in anyway evidenced by its own records. It is not even verified by the minutes of the Board that the decision has been taken in the way contended by the plaintiff.
    
16. The decision taken must be properly pleaded: Innovest Ltd v Pruaitch [2014] PGNC 288; N5949 (17 March 2014). Here the pleading is insufficient to show that a decision has been taken by the land board. There is no evidence of that decision except the argument of the plaintiff by his own witness’s affidavit not independently verified, annexure of the subject decision. And in this regard if a decision was made section 62 Appeals has not been exhausted so that it is not open to come into court having exhausted internal process in resolving the matter Kimas v Boera Development Corporation Ltd [2012] PGSC 8; SC1172 (12 March 2012).
    
17. The words of section “62. APPEALS is material, the plaintiff cannot be a person who is aggrieved by the decision of the Land Board. Because there is no decision at all in the pleading independently verified. An application has been made for the tender of the subject land, but no decision has been made awarding or denying the plaintiff that land. There is no room for section 62 to come in given.
    
18. It means the plaintiff applicant does not demonstrate that he has sufficient interest: Somare, Re [1981] PNGLR 265. His application filed has not been determined by the Land Board. There is no evidence of that determination or consideration granting or denying. But his application has been pointed in the way it is pleaded to be changed. That is not the same as determining the application he has made for that parcel of land. It will be determined and remains to be determined.
    
19. The aggregate is that this application for leave does not satisfy that a decision has been made. Which decision has arguable basis not followed process of law under section 71 of the Land Act. It has not been determined, but it has been receipted and is on the record of the land Board who will determine and give a record of its determination on it. There is no decision upon which leave is open either by the fact that arguable basis is demonstrated. Or that the plaintiff has standing or locus standie. The application is without merit and will be refused with costs in favour of the defendants following the event.
    
20. The formal orders of the Court are:
    
    • (i) The application for leave for Judicial review is refused.
      
    • (ii) Costs will follow the event forthwith.

Orders Accordingly.

__________________________________________________________________

Stout Lawyers: Lawyers for the Plaintiff

Office of Solicitor General: Lawyers for the Defendants