Wanga v Independent State of Papua New Guinea [2023] PGNC 415; N10379 (22 June 2023)

N10379

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS (APP) NO. 02 OF 2023 (IECMS)

IN THE MATTER OF AN APPLICATION BY KONE DEVELOPMENT LIMITED
Plaintiff

V
TIRI WANGA DELEGATE FOR MINISTER FOR LANDS AND PHYSICAL PLANNING
First Defendant

AND
INDEPENDENT STATE OF PAPUA NEW GUINEA
Second Defendant

Waigani: Miviri J
2023: 21^st June

PRACTICE & PROCEDURE – Judicial Review & appeals – Originating Summons – Leave Application for Extension to Lodge Appeal Section 142 (2) Land Act – Discretionary – Forfeiture Notice Not Served – Rental Notices Served Same Address – Time Lapse to File – No Fault of Applicant Late – Rules Means to End – Extension of Time to Lodge Appeal granted – Cost in the Cause.

Cases cited:
Jaro Investment Ltd v Ane [2022] PGSC 5; SC2192
Innovest ltd v Pruaitch [2014] PGNC 288; N5949
Kekedo v Burns Philp Ltd [1988-89] PNGLR 122
Takori v Yagari [2007] PGSC 48; SC905
Kiuk (trading as Nikiuma Lawyers) v Iduhu [2021] PGSC 56; SC2128

Counsel:
A. Manase with E. Paul, for Applicant
No appearance for State

RULING

22^nd June 2023

1. MIVIRI, J: This is the Ruling on the Applicant’s originating summons filed of the 16^th May 2023 seeking leave to file an appeal pursuant to section 142 (2) of the Land Act pursuant to Order 18 Rule 12 (1) of the National Court Rules. The application is ex parte.
   
2. By the same there is no prejudice to hear it as it is made, because the applicant is an interested party directly affected by the actions complained to the subject matter of the appeal intended, State Lease Volume 38, Folio 9524, Section 62 Allotment 2, (2 mile) Boroko, Port Moresby, National Capital District where he is present resident now. It has been forfeited by the decision of the then Secretary for Lands, the First Defendant by that decision in the National Gazette G295 of 2017.
   
3. Particularly because the applicant purchased the subject land off the previous proprietor, a John Nunisa in 2008 which is evidenced by the transfer in the affidavit filed by Hidajat Hanafi sworn of the 15^th May 2023 filed of the 16^th May 2023. He is the Managing Director of Kone Development Limited. Which Company is registered under the Companies Act operating a retail business here in Port Moresby. And the subject property was bought for K150, 000.00 from one John Nunisa the previous owner. The transfer is registered annexure “A” in the affidavit of the said Hidajat Hanafi. It is a residence lease granted the applicant as No. S.50375 Transfer to Kone Development Limited produced on 10^th December 2008 at 9.10am entered 11^th December 2008. The applicant has substantial interest in it as the registered proprietor then.
   
4. There are photographs depicting the subject land and property from annexures “B”, physical planning annexure “C”, annexure “D” land tax paid from 18^th Jan. 1994 to 28^th April 2018. There is also allegation of Fraud that is set out by annexure “E” which must in all fairness be determined to arrive at what the law calls. Annexure “K2” and “L” depict forfeiture that was made without hearing accorded the applicant. He was not even given notice to air as to the stance taken by the defendants. It is on par with recent Supreme Court decision of Jaro Investment Ltd v Ane [2022] PGSC 5; SC2192 (28 January 2022) notice must be given, summons served by the public servant the defendants, and then if there is no response, application made in court at the initiative of the defendants served on the title holder after which forfeiture can be lawfully made. Here prima facie that is open to the applicant. It is an arguable basis that must be allowed to be exercised, because what is intended is to examine the process rather than the substance: Innovest ltd v Pruaitch [2014] PGNC 288; N5949 (17 March 2014).

5. It would fall within Kekedo v Burns Philp Ltd [1988-89] PNGLR 122 the subject of judicial review was clearly the exercise by a government official of a power under legislation namely the cancellation of a work permit. It is an appeal intended under section 142 (2) of the Land Act airing section 122 of that Act. But the principles would be the same. And here the case Jaro Investment Ltd (supra) sets light on the cause of the applicant that must be examined by leave to extent time to file an appeal against the forfeiture. It is his dwelling and property and must in law be examined if indeed it was proper to be forfeited as did the Defendants.

6. I am in this regard minded that no litigant should be driven off the seat of Judgement summarily but proper regard to all to come to that decision: Takori v Yagari [2007] PGSC 48; SC905 (28 February 2007). The discretion must be properly exercised given. Rules in this regard are a means to an end. Justice must not be denied by recourse to the rules. But must serve the substantial justice warranted by the merits of the case as is here.

7. And in my view, there is reasonable explanation posed the applicant set out above by his affidavit filed. There is no real prejudice due the defendants apparent or identifiable in any manner or form: Kiuk (trading as Nikiuma Lawyers) v Iduhu [2021] PGSC 56; SC2128 (5 July 2021). The discretion is exercised given the facts circumstances and the law above to serve Justice. To rule otherwise would be to deny Justice apparent arguable. Consequently, the application is granted as applied pursuant to the terms of the originating summons filed pursuant to Order 18 Rule 12 (1) of the Rules of Court.

8. The formal orders of the Court are:

(i) Pursuant to Order 18 Rule 12 (1) of the National Court Rules, Leave for Extension to lodge an appeal within 14 days pursuant to section 142 (2) of the Land Act is granted the applicant.

(ii) Costs will follow the event in the cause.

Orders Accordingly.
__________________________________________________________________
Manase & Co Lawyers: Lawyer for the Plaintiff/Applicant