Goroha Incorporated Land Group v Rosso [2024] PGNC 270; N10942 (2 August 2024)

N10942

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS(JR) NO. 97 OF 2022

BETWEEN:
GOROHA INCORPORATED LAND GROUP
-Plaintiff-

AND:
HONORABLE JOHN ROSSO, in his capacity as Minister for Lands and Physical Planning
-First Defendant-

AND:
BENJAMIN SAMSON in his capacity as Secretary for Lands & Physical Planning
-Second Defendant-

AND
DR. ALPHONSE GELU, in his capacity as Secretary for Department of Provincial and Local Level Government
-Third Defendant-

AND:
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
-Fourth Defendant-

Waigani: Dowa J
2024: 17^th May & 2^nd August

JUDICIAL REVIEW –application for the nullification of Lands Minister’s decision to grant special purpose lease to the third defendant- -whether Minister for Lands failed to comply with the statutory requirements under sections 49 and 52 Land Act 1996 in granting lease without first revoking CAO-Whether errors of law committed when granting special purpose lease under section 92 of the Act-whether there was breach of natural justice

Held:

A government department and its public servants forms part of state services under sections 188 and 195 of the Constitution and has legal capacity to be granted special purpose Lease under section 52 of the Land Act

Plaintiff failed to establish the grounds for review. Application dismissed with costs.

Cases Cited:

Kekedo v Burns Philip (PNG) Ltd [1988-1989] PNGLR 122
Vaki v Baki (2012) N4809
Enga Provincial Government v Yangukali & others (2022) N10178
Kilanda v Enga Provincial Government (2023) SC2405
Katumani ILG v Yawing & others (2020) N8481

Counsel:

O.Tiri, for the Plaintiff
R. Uware, for the Defendants

DECISION

2^nd August 2024

1. DOWA J: This is a ruling on an application for judicial review of the decision of the first Defendant made on 3^rd May 2021 which granted a 99-year Special Purpose Lease to the Department of Provincial and Local Level Government over land described as Portion 4196, Grandville, Port Moresby, NCD, contained in State Lease Volume 96 Folio 203.
   

Facts

2. The Plaintiff, Goroha Incorporated Land Group, is an incorporated land group representing the members of the Goroha clan of the Koari inlands of Sogeri mountains. The Plaintiff alleges that the Goroha clan is the original customary landowners of the land, the subject of these proceedings. The land particularly described as Portion 4196 is located within the vicinity of the Bautama Junction, Central Province and contains an area of 48.032 hectares.
   
3. The Land was acquired by the Colonial Administration in 1922, resulting in the dispersal of the original owners. Since 1942 and over time the clan members have moved back to the land after the land was left vacant without any improvements.
   
4. Beginning in 1976, a series of Certificates Authorising Occupancy (CAO) have been granted to various State Departments, particularly the third Defendant. The last of the CAO was granted to the third Defendant on 1st November 2017.On 19^th November 2019, the CAO was revoked by the Minister for Lands and Physical Planning. The third Defendant applied for the grant of a Special Purpose Lease. On 3^rd May 2021, a Special Purpose Lease was granted after the PNG Land Board recommended for the grant to the State through the Department of Provincial and Local Level Government, the third Defendant.
   
5. Aggrieved, the Plaintiff seeks review of the decision for the grant of the Special Purpose Lease made 3^rd May 2021. The Plaintiff is also seeking declaratory and other consequential orders in the substantive Notice of Motion for judicial review filed 6^th March 2023.
   

Documents and Evidence

6. The Plaintiff relies on the following documents:
   
   1. Originating Summons filed 14^th September 2022
   2. Notice of Motion filed 6^th March 2023
   100. Statement of Facts under Order 16 Rule 4 NCR
   4. Affidavit of Victor Nuana sworn 8^th and filed 14^th September 2022.
   5. Affidavit in Reply of Hon. Manaka Bore sworn 27^th September and filed 3^rd October 2023.
      
7. The Plaintiff’s evidence was presented by Manaka Bore, the Chairman and Victor Nuana, the Deputy Chairman of the Plaintiff land group respectively. This is the summary of their evidence. The Plaintiff is a registered customary landowning group. The members of the Goroha ILG come from Goroha clan from the Koiari inlands in the Ogorogo village beyond Sirinum Dam, Sogeri Mountains. They depose the Goroha clan is the original customary landowners of the subject land, Portion 4196, Granville. The land was acquired by the Colonial Administration in 1922 for a consideration of just five British pounds. The people were displaced. However, over the years the people returned to the land after the land remained unimproved. They have only recently incorporated the land group to participate in the business opportunities with the use of their customary lands as they are in close proximity to Port Moresby CBD. In a recent meeting of 3^rd July 2021, the members of the Plaintiff land group resolved to take back the subject land and use it for their own developmental purposes. They made an application for the grant of Urban Development Lease, though belatedly.
   
8. However, the landowners were surprised to learn that the Defendants have dealt with the land without regard and consideration for the interests, proprietary and possessory rights of the customary landowners represented by the Plaintiff. They learnt that a Special Purpose Lease was granted to the Department of Provincial and Local Level Government by the Department of Lands and Physical Planning. The deponents learnt further that prior to the grant of the Lease, there were existing Certificates Authorizing Occupancy (CAO). The first CAO was granted on 22^nd February 1991 to Department of Home Affairs and Youth. It was revoked. A new CAO was granted on 1^st January 1996 to Department of Provincial and Village Services for the Koari people through the Koari Development Authority (KDA). KDA has since ceased to function. The Plaintiff is not aware whether the 1996 CAO was ever revoked at the time of the grant of the lease.
   
9. Meanwhile, the Plaintiff has not received any favourable responses to the request for the return of the land in a form of Urban Development Lease for the customary landowners to meaningfully participate in the urban development and business undertakings in Port Moresby.
   
10. The Plaintiff alleges that the decision by the Defendants to grant a Special Purpose Lease to the third Defendant is unreasonable and in breach of natural justice as the Plaintiff was not made aware of the PNG Land Board decision which made a recommendation to the first Defendant for the grant.
    
11. In response to the evidence filed for the Defendants that the third Defendant was the holder of a CAO before the grant of the Lease, the Plaintiff maintains that it was not aware of a recent CAO granted to the third Defendant. The Plaintiff alleges that the Lease was granted contrary to section 52 of the Land Act. Finally, the Plaintiff alleges that the Special Purpose Lease is defective as it was granted under Section 92 of the Land Act rather than section 100 of the Act.
    

Defendants’ Evidence

12. In response, the Defendants rely on the following Affidavits:
    
    1. Affidavit of Joseph Warus sworn and filed 6^th September 2023
    2. Affidavit of Philip LEO sworn and filed 16^th May 2024
       
13. This is the summary of the Defendant’s evidence. The Department of Provincial and Local Level Government and its public servants form part of the state services of the Independent State of Papua New Guinea under Sections 188 and 195 of the Constitution. The subject land, Portion 4196, was acquired by the State prior to independence by the Colonial Administration. The land, Portion 4196, was previously held by the third Defendant under a Certificate Authorizing Occupancy issued on 1^st November 2017. The third Defendant requested the Department of Lands and Physical Planning to revoke the CAO and in its stead grant a Special Purpose Lease. This request was made in accordance with Section 49 of the Land Act. On 14^th November 2019 the Certificate Authorizing Reservation of Occupancy was revoked. The third Defendant then applied for a Special Purpose Lease. The PNG Land Board in its Meeting No 3/ 2019 recommended the grant of a Special Purpose Lease to the third Defendant. The lease was eventually issued on 3^rd May 2021.
    
14. The Defendants maintain that the procedural requirements under the Land Act were met. In that the CAO was revoked before the grant of the lease. That the lease was a Special Purpose Lease granted to the Independent State of Papua New Guinea through its agent, the third defendant for a housing project. Although the Title states, the lease was issued under section 92 of the Land Act, it is issued under section 100 for a Special Purpose Lease. The insertion of section 92 was an error, as it is clear from the context, description and purpose of the Lease.
    

Grounds of Review

15. The grounds for review pleaded in the Statement filed pursuant to Order 16 Rule 3 (2) of the National Court Rules are:

1. The first Defendant’s decision was an abuse of power in that the Special Purpose Lease was granted without first revoking the existing Certificate Authorizing Occupancy (CAO).
   
2. Errors of law in granting a Lease for Special Purpose; i) under Section 92 of the Land Act instead of Section 100 of the Land Act and ii) to a nonlegal entity.
   

100. The decision was made in breach of natural justice when the Defendants failed to consider the Plaintiff’s proprietary and possessory rights as customary landowners in the subject land.
     

Issues

16. The main issues raised for consideration from the grounds of review are:
    
    1. Whether the first Defendant abused his powers by granting a Special Purpose Lease over the subject land without first revoking the existing Certificate Authorizing Occupancy (CAO).
       

b) Whether the Defendants committed errors of law in granting a Lease for Special Purpose; i) under Section 92 of the Land Act instead of Section 100 of the Land Act and ii) to a nonlegal entity.

100. Whether the decision was made in breach of natural justice in failing to consider the Plaintiff’s proprietary and possessory rights as customary landowners in the subject land.
     

Law on Judicial Review

17. The relevant law for judicial review is Order 16 of National Court Rules. Order 16 Rule 1 of the National Court Rules caters for cases appropriate for application for judicial review and provides in this manner:
    
    • (1) An application for an order in the nature of mandamus, prohibition, certiorari or quo warranto shall be made by way of an application for judicial review in accordance with this Order.
      
    • (2) An application for a declaration or an injunction may be made by way of an application for judicial review, and on such an application the court may grant the declaration or injunction claimed if it considers that, having regard to:
      
      • (a) the nature of the matters in respect to which relief may be granted by way of an order of mandamus, prohibition or certiorari; and
        
      • (b) the nature of the persons and bodies against whom relief may be granted by way of such an order; and
        
      • (c) all the circumstances of the case,
        

it would be just and convenient for the declaration or injunction to be granted on an application for judicial review.”

18. In Kekedo v Burns Philip (PNG) Ltd [1988-1989] PNGLR 122, the Supreme Court stated that:

“The circumstances under which judicial review may be available are where the decision-making authority exceeds its powers, commits an error of law, commits a breach of natural justice, reaches a decision which no reasonable tribunal could have reached or abuses its powers”.

19. The Supreme Court in that case further stated that:

“The purpose of judicial review is not to examine the reasoning of the subordinate authority with the view to substituting its own opinion. Judicial review is concerned not with the decision but with the decision-making process.

20. In the case Vaki v Baki (2012) N4809, His Honour Kirriwom J said:

“The circumstances under which Judicial Review is available are where the decision- making authority:

(a) Lacks power to make the decision;

(b) Exceeds or abuses its power;

(c) Commits an error of law;

(d) Breaches the principles of natural justice;

(e) Arrives at a decision which no reasonable tribunal would have reached;

(f) Takes into account irrelevant considerations in its decision-making process;

(g) Failed to take into account relevant considerations in its decision-making process."

Consideration of the issues

a) Whether the first Defendant abused his powers by granting a Special Purpose Lease over the subject land without first revoking the existing Certificate Authorizing Occupancy (CAO).

21. Ms. Tiri, counsel for the Plaintiff, submits that the first Defendant abused his powers when he granted a Special Purpose Lease to the third Defendant while there was in existence a CAO, thus contravening Sections 49 and 52 of the Land Act.

22. Mr. Uware, counsel for the Defendants, submits that the last CAO held by the third Defendant was revoked before the grant of the Special purpose Lease, and that the Lease was properly granted to the State through its agent, the third Defendant in accordance with sections 49 and 52 of the Land Act.

23. Sections 49 and 52 of the Land Act are relevant and are set out below:

“PART V. – RESERVATION OF LAND.

49. RESERVATION FROM LEASE OR FURTHER LEASE.

The Minister may, by notice in the National Gazette, reserve from lease or further lease–

(a) Government land; or

(b) land that is the subject of a State lease,

that he considers is or may be required for a purpose specified in the notice.

......

52. SPECIAL PURPOSES LEASE TO BE GRANTED OVER RESERVED LAND.

Where Government land is reserved from lease, the land shall not be granted on application or tender, and a special purposes lease over the land shall be issued and registered in the name of the Independent State of Papua New Guinea.”

24. Reading Sections 49 and 52 together, the Minister for Lands may reserve Government or State land for public purpose. Once land is reserved, it cannot be leased on tender or application to others except for the grant of a Special Purpose Lease to the State.
    
25. The National Court in the case Enga Provincial Government v Yangukali & others (2022) N10178, Kangwia J, construed sections 49 and 52 of the Act in the following terms:
    

62. From that provision a CAO holds land in reserve for a future purpose. In the present case the CAO issued to the Plaintiff was specified for a purpose being staff residences. There is no provision in the Land Act under which a CAO can be granted or identifies what a CAO is. In the absence of any statutory provision, it is my strong view that the purpose specified in the CAO is derived from s 49 (b). The purpose specified under the CAO in the present case was for residential. Therefore, the CAO was a creature of s 49 of the Land Act. There is no other way statutory or otherwise to safely determine where the CAO emerged from and what its attributes are.

63. By that position, it augurs well with s 52 that application and tenders for leases do not apply to land under a CAO. In the present case the land on s 8 allotment 1 was reserved for public purpose pursuant to s 49 and was not available for lease. The only way a lease could have been available was after complying with the mandatory requirements of s 52 by converting reserve land to a Special Purpose Lease under the name of the Independent State of Papua New Guinea. That did not happen here.

64. On the issue of whether the CAO was lawfully revoked the law is settled. It is appropriately stated in the case of Huafolo v Tadabe [2021] N8956 that where a CAO granted is revoked or cancelled without notice or consent of the governmental body concerned, the revocation or cancellation is void ab initio.

26. On appeal to the Supreme Court, in Kilanda v Enga Provincial Government (2023) SC2405, the Supreme Court in affirming the views of the trial judge stated the following:
    

“14. At this juncture, we affirm the view taken by the trial judge that a CAO is a Statutory Instrument conferring special kind of interest in State land issued by the Minister for Lands by publication in the National Gazette to governmental bodies for public purposes. It is created and protected by section 49 of the Land Act. It is not a State Lease and is reserved from lease.

15. Section 52 of the Land Act provides that where land is reserved, no lease shall be granted either on application or tender except for a Special Purposes Lease to be issued and registered in the name of the State. The CAO ceases when the holder of the CAO relinquishes its interest in the land to the State or is otherwise revoked by the Minister responsible for Land matters. In the latter case, there is a statutory duty (section 122 of the Land Act) on the part of the Minister to give notice of the proposed action to the authorised occupant. The authorised occupant is thus accorded the opportunity to show cause.”

27. In the present case, the evidence shows the third Defendant had a CAO, granted on 1^st November 2017. The CAO was granted to the third Defendant for reservation of the land for Special Purposes. The third Defendant relinquished its rights under the CAO and requested for the grant of a Special Purpose Lease. The CAO was then revoked on 14^th November 2019 by Notice in the National Gazette as per the request of the third Defendant. On 27^th November 2019, a recommendation was made by PNG Land Board for the grant of a Special Purpose Lease to the third Defendant. A Special Purpose Lease was then granted to the Independent State of Papua New Guinea (Department of Provincial and Local Level Government) on 3^rd May 2021 in accordance with section 52 of the Land Act.
    
28. It is also important to note that the decision to recommend the grant of lease was made by PNG Land Board on 27^th November 2019. That decision is not challenged. It is open to argument that the Plaintiff may have challenged the wrong decision. Be that as it may, the issue remains is whether there is abuse of power in the decision-making process.
    
29. After assessing the evidence, I find, contrary to the contention by the Plaintiff, sections 49 and 52 of the Act were complied with by the Defendants. There is evidence that all due process under the Land Act were followed prior to the grant of the Lease. There is no evidence of abuse of power by the first Defendant. This ground for review is not established.
    
    2. Errors of law in granting a Lease for Special Purpose; i) under Section 92 of the Land Act instead of Section 100 of the Land Act and ii) to a nonlegal entity.
       
30. Ms Tiri, counsel for the Plaintiff, submits that the first Defendant committed errors of law when he granted the Lease on two fronts. First, the Special Purpose Lease was granted under section 92 of the Land Act and not 100, being the correct provision. Second, the lease was granted to the third Defendant, a nonlegal entity.
    
31. The Defendants submit that although the Title states, the lease was issued under section 92 of the Land Act, it is issued under section 100 for a Special Purpose Lease. The insertion of section 92 was an error.
    
32. State Leases granted under Section 92 of the Act are for business and residential purposes while special purpose leases are granted under Section 100 of the Act. In the present case, the lease was for a special purpose but inscribed on the lease as being issued under section 92.
    
33. I have studied the text of the State Lease (the Title Document) issued on 3^rd May 2021 and note the following details: The State Lease is:
    
    1. Granted to the lessee, Independent State of Papua New Guinea (Department of Provincial & Local Level Government Affairs)
    2. Issued under section 92 of the Land Act.
    100. For 99 years
    4. For a Special Purpose
    5. For improvements being Buildings for special purposes
    6. Restrictions on sale, leasing without improvements
       
34. The above details clearly show the lease is a Special Purpose Lease. The evidence shows the third Defendant applied for a Special Purpose Lease under Section 100 of the Act to use the land for a Housing Scheme for the Department of Provincial and Local Level Government Affairs. The PNG Land Board recommended a grant of a Special Purpose Lease under Section 100. I accept the Defendant’s argument that the inscription of Section 92 on the lease is an error as the lease was a Special Purpose Lease which was clearly meant to be issued under Section 100 of the Land Act. The context, purpose and circumstances leading up to the grant of the lease clearly indicate the application and grant was for a Special Purpose Lease. The mistake in the inscription can be administratively ratified.
    
35. I now turn to the second contention that the lease was granted to a non-legal entity. In my view, the Plaintiff’s arguments should fail. The lease is granted to the Independent State of Papua New Guinea as allowed by section 52 of the Land Act. The Independent State of Papua New Guinea is a sovereign Nation and a legal entity established under Section 1 of the Constitution of Papua New Guinea. The lease was granted to the State through the state agent, the Department of Provincial and Local Level Government Affairs. Under Sections 188 and 195 of the Constitution, the Department of Provincial & Local Level Government Affairs and its public servants form part of the State services of the Independent State of Papua New Guinea. The State is therefore entitled to hold the Special Purpose Lease through the third defendant for carrying out its administrative functions and state services on behalf of the State.
    
36. For the foregoing reasons, I find this ground of review not proved.
    
    100. Whether the decision was made in breach of natural justice in failing to consider the Plaintiff’s proprietary and possessory rights as customary landowners in the subject land.
         
37. The third ground for review relates to breach of natural justice. The Plaintiff alleges that the Lease was granted in breach of natural justice. The Plaintiff alleges that the Goroha clan has substantial interest in the subject land as the original customary landowners. They are currently occupying the land. It has shown interest and made requests for the return of the land which it claims was cheaply acquired by the colonial administration and being left idle over the last 100 years. Despite this it was not given an opportunity to be bid for the property. The Plaintiff alleges that the lease was granted without it being made aware, amounting to breach of natural justice.
    
38. The common law doctrine of natural justice denotes a procedural requirement to act fairly. It is enshrined in the Constitution in Section 59 which reads:
    

“59. Principles of natural justice.

(1) Subject to this Constitution and to any statute, the principles of natural justice are the rules of the underlying law known by that name developed for control of judicial and administrative proceedings.
(2) The minimum requirement of natural justice is the duty to act fairly and, in principle, to be seen to act fairly.”

39. It is not disputed that the land was acquired by the Colonial Administration in 1922. It is State land for all intents and purposes. Once land is alienated from the original customary landowners, it remains state land. The Defendants have no legal obligation to notify the Plaintiff representing the original landowners of how the Defendants intend to deal with Government land.
    
40. The Plaintiff’s contention that the land was paid a meagre five British pounds, that the land has been left idle for 100 years, that the land is now occupied by the original landowners and their request for the return of the land to meaningfully participate in the business and commercial activities in Port Moresby, though significant, falls short when compared with the legal and proprietary rights of the Defendants. The Plaintiff’s perceived rights have not progressed to a level of actionable interests recognized by law.
    
41. For these reasons, I find there is no evidence of breach of natural justice and this ground is rejected.
    
42. Finally, for the reasons given and based on the findings, I am not persuaded that that the decision of the first Defendant is unreasonable. I will therefore dismiss the Plaintiff’s substantive application for judicial review.
    

General Observation

43. Although the Plaintiff has failed in its application for judicial review, the arguments advanced concerning its interest in the land are significant and worthy of consideration. If the Plaintiff wishes to challenge the proprietary rights of the Defendants over the alienated land for the reasons advanced, there are other ways of pursing their actions.
    
44. That said, it is important to note that this Court does not have jurisdiction to delve into customary land disputes involving alienated land. In the case Katumani ILG v Yawing & others (2020) N8481, the Court stated the law at paragraph 28:
    

“28...It is trite law that both the district and National Courts have no jurisdiction to deal with disputes over customary land. Such disputes can be dealt with in the first instance by following the procedures and processes in the Land Dispute Settlement Act. Where a title is issued over customary land as in the present, case a disputing party can mount a case with the Land Titles Commission pursuant to Land Titles Commission Act. The Supreme Court in Kimas v Oala (2015) PGSC69, SC1475 said at paragraphs 6 and 7 of its Judgment and I quote:

“6. It is settled law that the National Court has no jurisdiction to hear and determine disputes concerning ownership by custom of any land, including a dispute as to whether any land is or is not customary land. Such disputes fall within the exclusive jurisdiction of the Land Titles Commission under section 15(determination of Disputes) of the Land Titles Commission Act, which states:

The Commission has, subject to this Act, exclusive jurisdiction to hear and determine all disputes concerning and claims to the ownership by custom of, or the right by custom to use, any land, water or reef, including a dispute as to whether any land is or is not customary land and may make all such preliminary inquiries and investigations as it deems necessary for the purpose of hearing and determining the disputes and claims.

7. Section 15 has been given full effect by the courts over many years. As soon as it becomes apparent that a case involves a dispute about whether a land is or is not a customary land, the court should divest itself of jurisdiction. Such disputes fall within the exclusive domain of the Land Titles Commission.”

45. The Plaintiff can consider these options under the recently enacted Land Commission Act 2022 in furthering its interests.
    

Costs

46. The Defendants ask for costs. It is a discretionary matter. Since the Defendants have successfully defended the proceedings, they are entitled to costs, which I shall order in their favour.
    

Orders

47. The Court orders that:

1.The Plaintiff’s application for judicial review is dismissed

2. The Plaintiff shall pay the costs of the proceedings.

3. Time be abridged.

Lane Lawyers: Lawyers for the Plaintiff

Solicitor General: Lawyers for the Defendants