Emani v Assemblies of God Boroko Association Inc [2020] PGSC 4; SC1914 (14 February 2020)

SC1914

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SC REV. NO 88 OF 2019

IN THE MATTER OF AN APPLICATION FOR LEAVE TO REVIEW PURSUANT TO CONSTITUTION SECTION 155(2)(B) BY DANIEL EMANI BY HIMSELF AND TWO THOUSAND FIVE HUNDRED SEVENTY (2,570) INDIVIDUAL SETTLERS OF SECTION 389, ALLOTMENTS 3 & 4, HOHOLA, (GARDEN HILLS) NCD AS APPLICANTS

BETWEEN
DANIEL EMANI &TWO THOUSAND FIVE HUNDRED SEVENTY (2,570) ORS
Applicants

AND
ASSEMBLIES OF GOD BOROKO ASSOCIATION INC
First Respondent

AND
THADDEUS KAMBANEI
Second Respondent

AND
BENJAMIN SAMSON, REGISTRAR OF TITLES,
DEPARTMENT OF LANDS & PHYSICIAL PLANNING
Third Respondent

AND
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Fourth Respondent

Waigani: Makail J
2020: 12^th & 14^th February

SUPREME COURT – PRACTICE & PROCEDURE – Application for leave to review – Leave sought to review grant of State lease – Title to land – Lack of – No reviewable grounds established – Leave application dismissed – Constitution – Section 155(2)(b)

Cases Cited:

Herman Gawi v. PNG Ready Mix Concrete [1981] PNGLR 396

Counsel:

Mr. R. Obora, for Applicant
Mr. C. Jaminen, for First and Second Respondents
Mr. E.Bua, for Third and Fourth Respondents

RULING

14^th February, 2020

1. MAKAIL, J: The applicants through their lead applicant Mr Daniel Emani seek leave of this Court to review the decision of the National Court of 20^thSeptember 2019 which refused their application for leave for judicial review having lost their right to appeal when the forty-day-time-limitation expired on 31^st October 2019. Leave is being sought pursuant to the inherent powers of the Supreme Court under Section 155(2)(b) of the Constitution. An application for stay was also filed but adjourned pending the determination of this application. The first and second respondents opposed the application for leave while the third and fourth respondents took a neutral position.
2. It is common ground that the National Court refused leave on the grounds that the applicants lacked standing, no arguable case and there was undue delay. Leave had been sought on 19^th September 2019 to review a grant and registration of title of a State lease in the form of a Mission lease to the first respondent by the third and fourth respondents on 4^th November 2003. The State lease comprised of a piece of land located at Garden Hills in Port Moresby where the applicants had been occupying for 30 years.

3. The finding that the applicants lacked standing was based on the applicants’ lack of title to the land as opposed to the first respondent whose title was granted way back in November 2003. This finding also led to a further finding that the prospect of success at the substantive review was remotely slim and conclusion that no arguable case was made out. The lack of title and inability of the applicants to show an interest superior to the one by the first respondent over a long and uninterrupted period of time has resulted in undue delay which defeated their entitlement to a remedy for possession and quiet enjoyment.

4. In the present application, the applicants argue that they can and will show to the full Court that the primary judge of the National Court failed to appreciate their claim of being long-time occupants of the land with substantial improvements ranging from residential to commercial trade store businesses on it and that the respondents through their inaction or inactivity have acquiesced their occupation thereby giving them an equitable interest which should be recognised as establishing sufficient interest and therefore, giving standing to them to bring the application for leave for judicial review.

5. They say that their continued uninterrupted occupation of the land should have been sufficient for the primary judge to find for them on the question of standing, instead he went beyond the perimeters of the leave application to consider the merits of the application for judicial review when he found that the applicants did not apply for the land by following due process set out in the Land Act including giving of a consideration (payment) in exchange for the land.

6. They argue that if the primary judge did a preliminary assessment of the case, he would have found that they had an arguable case because as long-time occupants, they had an equitable interest in the land while there is a serious question in relation to the validity of the first respondent’s title where first, according to the Investment Promotion Authority records, there was no record of the first respondent being registered as an Association at the time of the grant of State lease. Second, the first respondent being an Association other than a Christian Denomination Mission was not eligible to a grant of a Mission lease. Significantly, they have mobilised and formed an Association to work with the National Housing Corporation under its self-help ownership scheme to secure the land for them.

7. As to why they had not been able to file an appeal within the statutory period of 40 days, they explain that as the lead plaintiff/applicant and spokesman of the group, Mr Emani was away in his village in Okapa District of Eastern Highlands Province on two occasions for funeral and burial of his parents when the appeal period expired.

8. However, all these arguments by the applicants do not detract from the undeniable fact that they have no title to the land as opposed to the first respondent. At the highest, they are entitled to a reasonable notice prior to eviction as was done in the case of Herman Gawi v. PNG Ready Mix Concrete[1981] PNGLR 396. It was held one year was reasonable time for occupants of more than 10 years with substantial improvements to vacate. This is the remedy open to the applicants to claim.

9. Without a title, the applicants had run a huge risk in occupying the land and acted to their own detriment. It cannot be emphasised enough that land such as the one under consideration is State/Government land and unless one is granted a title in a form of a State Lease, the entry and occupation of the land will be illegal. A Court of law will not uphold an illegal act. The applicants have not come to Court with clean hands. They had every opportunity to apply for a grant of State lease prior to 2003 but they did not. They gave no evidence why they had not done that but it would appear that because the relevant government agencies had not objected to their continued occupation, they took it that all was well until the first and second respondents turned up.

10. It is quite late and a belated attempt by the applicants to mobilise through their Association to work with the National Housing Corporation under the self-help ownership scheme to secure the land for them when the question of title/proprietorship had long since been settled by the grant of State lease and registration of title to the first respondent in November 2003. It would follow that a consideration of an explanation for the failure to appeal within time will be unnecessary and the belated attempt by the applicants to secure the land for themselves will not change the position they are in and application will be dismissed as failing to establish reviewable grounds.

11. The application for leave to review is dismissed with costs to the first and second respondents. As the third and fourth respondents took a neutral position, they shall bear their own costs of the application. As to the application for stay, it will not be necessary to consider it.

Ruling and orders accordingly.
_______________________________________________________________
Raymond Obora Lawyers: Lawyers for Applicants
Jaminen & Partners Lawyers: Lawyers for First & Second Respondents
Solicitor General: Lawyers for Third & Fourth Respondents