Yumi Yet Shop Ltd v Tkatchenko [2023] PGSC 166; SC2517 (19 December 2023)

SC2517

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCM NO 11 OF 2023

YUMI YET SHOP LIMITED
Appellant

V

JUSTIN TKATCHENKO,
MINISTER FOR LANDS AND PHYSICAL PLANNING
First Respondent

BENJAMIN SAMSON, SECRETARY,
DEPARTMENT OF LANDS AND PHYSICAL PLANNING
Second Respondent

DR ERIC KWA, ATTORNEY-GENERAL
Third Respondent

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Fourth Respondent

MOALE GABUNA
PEACE AND GOOD ORDER COMMUNITY ASSOCIATION
Fifth Respondent

Waigani: Cannings J, Frank J, Kaumi J
2023: 27^th November, 19^th December

JUDICIAL REVIEW – appeal under Land Act against recommendation of Land Board regarding grant of State Lease – judicial review of decision on appeal – abuse of process.

The appellant appealed against the decision of the National Court to refuse its application for judicial review of a decision regarding a portion of land in the National Capital District. The decision, which the appellant contends was made by the Minister for Lands and Physical Planning (first respondent) and the Secretary of the Department of Lands and Physical Planning (second respondent), was to uphold an appeal under the Land Act by the fifth respondent against a recommendation of the Land Board that a State Lease be granted over that portion of land to a company of a similar name to the appellant, and to refer the matter back to the Land Board for rehearing. The National Court refused the application for judicial review on the ground that it was an abuse of process. The appellant argued that the trial judge erred in law and fact by: (1) failing to uphold the grounds of judicial review that there was no decision on the appeal by the Head of State and that the Minister and Secretary had made an unreasonable decision in breach of the principles of natural justice and taking irrelevant considerations into account; (2) finding that the primary shareholder and director of the appellant had acted fraudulently; (3) finding that the appellant had, in becoming plaintiff in the National Court proceedings, incorrectly replaced a company closely related to it; and (4) relying on affidavits that were not formally admitted into evidence in the proceedings.

Held:

(1) There was insufficient evidence to support the contention that the decision to refer the matter back to the Land Board was made by the Minister and/or the Secretary. The decision was made by the Head of State by the Governor-General and notice of it was published by the Secretary in the National Gazette. The trial judge did not err in rejecting the contention that the decision was unreasonable or made contrary to the principles of natural justice.

(2) This was a judicial review and while exercising discretion whether to grant judicial review the trial judge was entitled to form a view on the credibility of the evidence and whether the primary shareholder and director of the appellant had acted fraudulently. The trial judge did not have to insist on fraud being pleaded or proven according to any criminal or civil standard. There was sufficient evidence to support that view.

(3) The trial judge was rightly concerned that the appellant was not the company affected by the decision to refer the matter back to the Land Board. There was no error in law in finding that the switch of parties was indicative of an abuse of process.

(4) The failure to insist on formal admission into evidence of affidavits referred to in the judgment of the court was a procedural irregularity, falling short of being an error of law. The trial proceeded without any objection by the parties including the appellant as to the procedure adopted. There was ample material before the court on which the opinion could reasonably be formed that the judicial review proceedings were an abuse of process.

(5) The trial judge was not shown to have committed any error of fact or law. The appeal was dismissed.

Cases Cited
The following case is cited in the judgment:
Yumi Yet Shop Ltd v Minister for Lands and Physical Planning (2023) N10452

Counsel
F So, for the Appellant
E Bua, for the First to Fourth Respondents
J Simbala, for the Fifth Respondent

19th December 2023

1. BY THE COURT: The appellant, Yumi Yet Shop Ltd, appeals against the judgment of the National Court constituted by Justice Miviri to refuse its application for judicial review of a decision regarding a portion of land at Gerehu in the National Capital District.

2. The decision, which the appellant contends was made by the Minister for Lands and Physical Planning (first respondent) and the Secretary of the Department of Lands and Physical Planning (second respondent), was to uphold an appeal under the Land Act by Moale Gabuna Peace and Good Order Community Association (fifth respondent) against a recommendation of the Land Board to the Minister that a State Lease be granted over portion 2699, to a company closely related to the appellant, Yumi Yet Trading Ltd, and to refer the matter back to the Land Board for rehearing.

3. The decision the subject of the application for judicial review was published in National Gazette No G731 of 2 November 2020 in the following terms:

Land Act 1996

APPEAL SUBMISSIONS AGAINST PNG LAND BOARD RECOMMENDATIONS

I, Benjamin Samson, Secretary of the Department of Lands and Physical Planning, by virtue of the powers conferred in me and all powers enabling, hereby under section 74 of the Land Act 1996, publish the decision of the Head of State made under section 62 of the Act on the following matters listed in the Schedule attached hereto which were the subject of various appeals against the Land Board’s recommendations:

No	Allotment/ Portion	Section/ Milinch	Town	Province	Land Board meeting No	Successful applicant	Appellant	Head of State decision
33	2699	Granville	Moresby	NCD	5/2018	Yumi Yet Trading Ltd	1 Moale Gabuna Peace & Good Order Community Association Inc 2 Owimi Investment Ltd	Appeal upheld and referred back for rehearing

NATIONAL COURT DECISION

4. The trial judge dismissed the application for judicial review as an abuse of process. His Honour found that there was evidence that the appellant’s primary director and shareholder, Eke Lama, had fraudulently attempted to demonstrate to the court that there had been a settlement reached between the appellant and the fifth respondent.

5. His Honour also considered that the plaintiff in the National Court, now the appellant, Yumi Yet Shop Ltd, was not the same company that had the Land Board recommendation in its favour, Yumi Yet Trading Ltd. His Honour found that the only company that had an interest capable of supporting the application for judicial review was Yumi Yet Trading Ltd.

6. His Honour ruled that Yumi Yet Shop Ltd had no interest in the judicial review, which therefore had no proper basis in law, giving rise to an abuse of process (Yumi Yet Shop Ltd v Minister for Lands and Physical Planning (2023) N10452).

GROUNDS OF APPEAL

7. The appellant initially raised 11 grounds of appeal but some overlap and have with the assistance of counsel been reduced for the purpose of hearing the appeal, to four. It is argued that the trial judge erred in law and fact by:

(1) failing to uphold the grounds of judicial review that there was no decision on the appeal by the Head of State and that the Minister and Secretary made an unreasonable decision in breach of the principles of natural justice and taking irrelevant considerations into account;

(2) finding that the primary shareholder and director of the appellant had acted fraudulently;

(3) finding that the appellant had, in becoming plaintiff in the National Court proceedings, incorrectly replaced a company closely related to it; and

(4) relying on affidavits that were not formally admitted into evidence in the proceedings.

(1) FAILING TO UPHOLD THE GROUNDS OF JUDICIAL REVIEW

8. Most of the grounds of judicial review in the National Court centred on the argument that the decision on the appeal against the Land Board recommendation in favour of Yumi Yet Trading Ltd was made, not by the Head of State (as required by s 62 of the Land Act) but by the Minister and/or by the Secretary of the Department of Lands and Physical Planning.

9. In our view, that argument is flawed. The notice published in National Gazette No G731 of 2020 is notice by the Secretary of a decision by the Head of State under s 62 of the Land Act. The notice cannot be read any other way.

10. There was insufficient evidence to support the contention that the decision to refer the matter back to the Land Board was made by the Minister and/or the Secretary. The decision was made on behalf of the Head of State by the Governor-General and notice of it was published by the Secretary in the National Gazette.

11. The trial judge did not err in rejecting the contention that the decision was unreasonable or made contrary to the principles of natural justice. The first ground of appeal is dismissed.

(2) FINDING THAT THE PRIMARY SHAREHOLDER AND DIRECTOR OF THE APPELLANT HAD ACTED FRAUDULENTLY

12. This was a judicial review and while exercising discretion whether to grant judicial review the trial judge was entitled to form a view on the credibility of the evidence and whether the primary shareholder and director of the appellant had acted fraudulently.

13. The trial judge did not have to insist on fraud being pleaded or proven according to any criminal or civil standard before forming a view that fraud was established.

14. The view formed as to fraud was based on sufficient evidence and on reasonable grounds. We find no error of fact or law by the trial judge. Ground 2 is dismissed.

(3) FINDING THAT THE APPELLANT INCORRECTLY REPLACED A COMPANY CLOSELY RELATED TO IT

15. The appellant maintains that the recommendation of the Land Board was made in favour of Yumi Yet Trading Ltd by mistake. The application for a State Lease had been made by Yumi Yet Shop Ltd. The error was the Land Board’s, not the appellant’s. There was evidence of this in the National Court and the explanation provided by the appellant was reasonable and should have been accepted by the trial judge.

16. We do not agree. It may well be the case that the recommendation of the Land Board should have been in favour of Yumi Yet Shop Ltd. But it wasn’t. The recommendation was that a State Lease be granted to Yumi Yet Trading Ltd. The appeal was against that recommendation and the appeal was determined by referring the matter back to the Land Board.

17. In view of the confusion as to which company, Yumi Yet Trading Ltd or Yumi Yet Shop Ltd, had applied for the State Lease and had a recommendation in its favour, that would appear to have been a sensible and proper way in which to determine the appeal.

18. The trial judge was, in our view, rightly concerned that the appellant was not the company affected by the decision to refer the matter back to the Land Board. His Honour did not err in law or fact in finding that the switch of parties was indicative of an abuse of process. Ground 3 is dismissed.

(4) RELYING ON AFFIDAVITS NOT ADMITTED INTO EVIDENCE

19. The appellant claims that the trial judge failed to insist on formal admission into evidence of affidavits before referring to them in his judgment and basing his findings as to fraud and abuse of process on those affidavits.

20. We consider that to the extent that his Honour did not insist on formally admitting affidavits in evidence, this was a procedural irregularity, falling short of being an error of law. The trial proceeded without any objection by the parties including the appellant as to the procedure adopted. There was ample material before the court on which the opinion could reasonably be formed that the judicial review proceedings were an abuse of process. We dismiss ground 4.

CONCLUSION

21. We are not persuaded that the trial judge made any error of fact or law. None of the grounds of appeal succeed. The appeal must be dismissed with costs.

ORDER

(1) The appeal is dismissed.

(2) The order of the National Court in OS(JR) 6 of 2021 of 20 April 2023 is affirmed.

(3) The appellant shall pay the fifth respondent’s costs of the appeal on a party-party basis, which shall, if not agreed, be taxed.

_______________________________________________________________
Ketan Lawyers: Lawyers for the Appellants
Solicitor-General: Lawyers for the First to Fourth Respondents
Vijay & Co Lawyers: Lawyers for the Fifth Respondent