Eu v Rosso [2023] PGSC 63; SC2401 (2 June 2023)

SC2401

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCM NO. 34 OF 2022

BETWEEN
LINDA MAUTAIA EU
Appellant

AND
JOHN ROSSO in his capacity as the Minister for Lands and Physical Planning
First Respondent

AND
NATIONAL CAPITAL DISTRICT COMMISSION
Second Respondent

AND
BENJAMIN SAMSON in his capacity as the Secretary for Department of Lands and Physical Planning
Third Respondent

AND
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Fourth Respondent

Waigani: Salika CJ, Makail & Murray, JJ
2023: 31^st May & 2^nd June

SUPREME COURT APPEAL – Appeal from dismissal of judicial review proceedings – Exercise of statutory power – Power to compulsory acquire land – Land compulsorily acquired for public purpose – Settlement for settlers – Whether land compulsorily acquired for settlement of settlers constitutes “special reasons” – Protection from unjust deprivation of property – Constitution – Section 53 – Land Act, 1996 – Section 13(6)

CATCH PHRASE – “Special reasons” – Construction of phrase “special reasons” – Restrictive meaning preferred – Public policy consideration – Scarcity of land available for leasing and use – Land Act, 1996 – Section 13(6)

Facts

The appellant was a sole proprietor of an interest in fee simple of a piece of land known as Everwin Estate, being Portion 4035C, Milinch of Granville, Fourmil Moresby, NCD. In November of 2019, she approached the Department of Lands and Physical Planning (DLPP) and with its help, she started the process to have a State Lease Title issued over the said land. Whilst that was in progress, the then Minister for Lands and Physical Planning without first giving her a notice to treat as required under Section 13 (1) of the Land Act, 1996, (the Act) published a notice in the National Gazette, Gazettal Notice No. G265, dated 4^th April 2019, stating that on behalf of the State, he has pursuant to Section 13 (6) and Section 12 (1) of the Land Act, acquired the land by compulsory process, for a public purpose, that being “...........Settlement to suburban program and the land is occupied by the settlers for long time and any eviction will create social issues.” Aggrieved, the appellant commenced an application for judicial review to have the National Court review the exercise of the Minister’s powers under Sections 12 and 13 of the Act to acquire the land by compulsory process. The National Court dismissed the application for judicial review. This is the appeal from that decision.

The appeal raised 12 grounds. From those grounds, with the concession of the respondents, only one main issue emerged for our determination and that was: Whether the purpose of settlement to suburban program to cater for the settlers on the said land to avoid social issues which may result from an eviction exercise is a “special reason” under Section 13 (6) of the Act to enable a waiver of the other requirement under Sections 12 and 13 of the Act for Compulsory Acquisition.

Held:

1. Given the word “special”, a restrictive meaning is preferred when defining what the phrase “special reasons” means in Section 13(6) of the Land Act.
   
2. The reason that the land was acquired to settle settlers or for the settlement of settlers is neither for public interest nor of public benefit and does not constitute a special reason for the exercise of power by the Minister under Section 13(6) of the Land Act.
   
3. The Minister acted ultra vires the power conferred on him under Section 13(6) of the Land Act.
   
4. The appeal is upheld; the decision of the National Court is quashed, and appropriate orders were made pursuant to Section 16 of the Supreme Court Act.
   

Cases Cited:
Dale Christopher Smith v. The Minister for Lands, The State & NCD Water & Sewerage Limited t/a Eda Ranu (2022) SC2326
John Koima & Jomar Trading Limited v. Romily Kilapat Secretary for Lands and Physical Planning & The State (2014) N5568

Counsel:
Mr. M. Adadikam with Mr. A. Adjop, for Appellant
Mr. K. Kipongi, for First, Third & Fourth Respondents
Ms. D. Herald, for Second Respondent

JUDGMENT

02^nd June, 2023

1. BY THE COURT: This appeal rises and falls on the threshold issue of whether the reason given by the then Minister for Lands and Physical Planning The Honourable Justin Tkatchenko (“Minister”) to compulsorily acquire a piece of land known as Everwin Estate, being Portion 4035C, Milinch of Granville, Fourmil Moresby, NCD, constitutes “special reasons” under Section 13(6) of the Land Act, 1996.
2. All the other issues taken up by the appellant in the appeal in relation to whether the trial judge in the National Court correctly applied the principles of judicial review, failed to find that a direct grant of a Special Purpose Lease to the second respondent was illegal, null and void and breach of the statutory process of acquisition of land by compulsory process including failure to give a notice to treat to the appellant under Sections 2 and 12 of the Land Act, are secondary.

Brief Facts

3. The uncontested facts are set out in the various affidavits filed by the appellant in the National Court proceedings and the Statement pursuant to Order 16, rule 3 of the National Court Rules (“NCR”). The land in issue, the subject of the appeal is described as Everwin Estate being Portion 4035C Milinch of Granville Fourmil Moresby, National Capital District registered within the State Lease description Volume 37 Folio 186 (“Land”).

4. The appellant is the sole proprietor of an interest in fee simple of the land. She acquired the land from the customary owners of the land, paid a sum of K200,000.00 to them, completed the process under the Land Tenure Conversion Act, 1963 for conversion of customary land and obtained a Certificate of Title on 26^th April 2018.

5. The appellant then intended to obtain a State Lease title over the land through the process of customary acquisition by the State under the Land Act. The sum of K200,000.00 she had paid to the customary landowners was to be the consideration for the acquisition of the land by the State. The arrangement was that the State will acquire the land and lease to the appellant as the purchaser of the land from the customary landowners.

6. On 8^th November 2019 the customary landowners signed a Sale and Transfer Instrument with the State for acquisition of the land. On 11^th November 2019 the appellant applied to the third respondent for a grant of State Lease title to her over the land.

7. It took longer than usual for the Land Board to determine the appellant’s application and on 11^th March 2021 a search of the file at the office of the third respondent revealed that on 20^th January 2021 the Minister had granted a State Lease title to the second respondent with new description being Portion 4035 with State Lease Volume 95 Folio 138 (“New State Lease”). The new State Lease was for Special Purpose under Section 72 of the Land Act.

8. Another interesting discovery was that two years earlier, on 4^th April 2019 the Minister had published a Notice of Compulsory acquisition in the National Gazette over the land under Section 12(1) of the Land Act. Of significance is the reason for the notice of compulsory acquisition. It states:

“the land is required for the purpose of Settlement to suburban program and the land is occupied by the settlers for long time and any eviction will create social issues.” (Bold print added).

9. In addition, there was no publication of a certificate under Section 13(6) of the Land Act. Finally, there was no notice to treat served on the appellant to give her an opportunity to treat with the Minister on the value of the land for the State to compensate her.

Exercise of Power – Acquisition of land by compulsory process

10. There is no question that the Minister is conferred power to acquire land by compulsory process on behalf of the State. The compulsory acquisition process is set out in Sections 12 and 13 of the Land Act. Amongst others, it includes the Minister giving the owners of the land, a notice to treat. The process may be “dispensed with” or “waived” if there are “special reasons” under Section 13(6) of the Land Act. As the Supreme Court observed in Dale Christopher Smith v. The Minister for Lands, The State & NCD Water & Sewerage Limited t/a Eda Ranu (2022) SC2326 at [13]:

“Land can be compulsorily acquired only in accordance with section 12(1) and (2) of the Act. Relevantly this requires the Minister on behalf of the State to commence the compulsory acquisition process by service of a notice to treat or notices to treat under section 13 or after giving a certificate under section 13(6). Under that latter section the Minister must specify the special reason why the section 13 notices to treat process does not apply.”

Construction of phrase “Special Reasons”

11. The threshold question then is whether the reason given by the Minister that the land was acquired by compulsory process, “............ for the purpose of Settlement to suburban program and the land is occupied by the settlers for long time and any eviction will create social issues” constitute a special reason for the exercise of power by the Minister under Section 13(6).

12. The appellant’s counsel contends that to settle settlers or for the settlement of settlers being the reason to acquire the appellant’s land is not a special reason because it is not for public interest or benefit. It was the case then that the Minister acted ultra vires the power conferred on him by Section 13(6) of the Land Act to acquire the land on behalf of the State.

13. Counsel for the first, third and fourth respondents concedes that this reason is not a special reason while counsel for the second respondent at first did not concede but attempted to explain that the phrase “special reasons” is quite broad and was the reason for the Minister to adopt to put forward the reason he gave to compulsorily acquire the appellant’s land. When pressed further, she abandoned the submissions.

14. Section 13(6) states:

“This Section does not apply in a case where the Minister certifies that there are special reasons why the Section should not apply.”

15. The term “special reasons” used in Section 13(6) is not defined in the Land Act, or elsewhere, and it is open to different interpretations. However, we consider that given the word “special”, a restrictive meaning is preferred when defining what the phrase “special reasons” means in Section 13(6). Where the Minister acquires land on behalf of the State, it must be for public purpose or benefit. Any reason other than for public purpose or benefit may draw criticism that the land was acquired for personal, business, or political reasons.
16. In contrast, we note that in Dale Christopher Smith (supra), the Minister’s reason to acquire the land by compulsory process was to construct necessary facilities for extension and improvement of equipment for water supply from the existing water treatment plant on the hilltop of Mt Eriama outside the city of Port Moresby. The Supreme Court also noted that as the city was facing water-cuts and in dire need of regular water supply, the acquisition of the land was critical to the construction of the water supply facilities.

17. In another case, it was considered that acquiring the plaintiff’s land by compulsory process to construct a flyover at Erima to Waigani in Port Moresby was in the interest of the public and of public benefit as opposed to the plaintiff’s private and business interests which may be compensated in monetary terms. The flyover would serve as a road, and an alternative route for the public and road-users and also to ease traffic congestion at Erima Round-about. Relevantly, it would serve as road access to accommodation and sporting venues for more than 4,000 athletes who will be attending the 2015 Pacific Games held in Port Moresby at the material time: John Koima & Jomar Trading Limited v. Romily Kilapat Secretary for Lands and Physical Planning & The State (2014) N5568.

Public Policy Consideration

18. On a public policy consideration, it is fair to observe that generally, because of the increase in population growth in urban centres in the country, State land is also becoming increasingly scarce and scarcity of available State land for leasing and use must be weighed against random and unplanned allocation of State land. This in turn puts a strain on the management and allocation of State land by the first, third and fourth respondents. Given this, and drawing from past experiences in the reported cases of Dale Christopher Smith (supra) and John Koima (supra), we list some of the types of cases that may constitute “special reasons”:

1. Construction of a road,
2. Construction of a hospital or aid post/clinic,
3. Construction of a school,
4. Construction of a market,
5. Construction of an airport,
6. Construction of a wharf, and
7. Construction of a Court house.
   

19. This list is by no means exhaustive, but it will depend on the nature and purpose of the acquisition of land to determine whether there are “special reasons” for the Minister to exercise his power under Section 13(6).

20. Rephrasing the threshold question, will the settlement of settlers on the appellant’s land benefit the public or for the public good? We answer the question in the negative. We find the reason that the land was acquired to settle settlers or for the settlement of settlers is neither in the public’s interest nor for public benefit and does not constitute a special reason for the exercise of power by the Minister under Section 13(6). We uphold the submissions of counsel for the appellant that the Minister acted ultra vires the power conferred on him under Section 13(6) of the Land Act. We conclude that the whole process of acquisition of the appellant’s land by compulsory process is tainted with illegality, null and void. It must be attended to by an appropriate order from this Court.

Appellant’s Application for State Lease
21. Finally, we note that Section 53 of the Constitution gives the appellant protection from unjust deprivation of property, that is, interest in the land. Where an Organic Law or an Act of Parliament provides that the property may be compulsorily taken such as Sections 12 and 13 of the Land Act, no interest in or right over the property may be compulsorily acquired unless the property is required for public purpose. In this case, it will be observed that as a consequence of an illegal acquisition of the appellant’s land by the Minister on behalf of the State and subsequent grant of a Special Purpose Lease to the second respondent, the appellant has completely missed out on her plans to apply for a State Lease from the PNG Land Board and develop the land.

22. Based on the uncontested evidence, we are satisfied that the appellant had satisfied and completed the majority of the statutory requirements for acquiring the land. At the time of the purported compulsory acquisition of the land, she was the registered proprietor of an interest in fee simple of the land. We are further satisfied that the appellant’s constitutional guaranteed right from protection from unjust deprivation of property under Section 53 of the Constitution has been violated.

23. We are further satisfied that the process must be completed to restore her interest in the land. In addition, the grant of a Special Purpose Lease to the second respondent is tainted by the illegality established on the acquisition of the land by the Minister on behalf of the State. As a consequence, it is illegal, null and void.

24. Invoking our powers under Section 16 of the Supreme Court Act, we make appropriate orders for the first, third and fourth respondents to facilitate and ensure that the process for acquiring a State Lease by the appellant is completed and to have the Special Purpose Lease granted to the second respondent, revoked and cancelled.

Order

25. The formal terms of the final order are:

1. The appeal is upheld.
   
2. The whole of the Judgment of the National Court given on 21^st October 2022 in OS (JR) No 82 of 2021 is quashed.
   
3. The appellant’s application for judicial review is granted and order in the nature of certiorari is made to bring into this Honourable Court and quash the following decisions of the respondents:
   

(a) An Order in the nature of declaration that the compulsory acquisition of the piece or parcel of land described as Everwin Estate being Portion 4035C Milinch of Granville Fourmil Moresby, National Capital District is ultra vires to law, is illegal, null and void ab initio.

(b) An Order in the nature of declaration that the fourth respondent did not compulsorily acquire Everwin Estate being Portion 4035C Milinch of Granville Fourmil Moresby, National Capital District through the compulsory acquisition process under the Land Act, 1996.

(c) An Order in the nature of certiorari to bring into this Honourable Court and quash the State Lease Title granted to the second respondent over the land described as Everwin Estate being Portion 4035C Milinch of Granville Fourmil Moresby, National Capital District, within the State Lease Volume 95 Folio 138.

(d) A further Order in the nature of certiorari to bring into this Honourable Court and quash the Certificate pursuant to Section 13(6) of the Land Act, 1996 published in the National Gazette on 4^th April 2019, both concerning the purported compulsory acquisition of the land Portion 4035C known as Everwin Estate.

4. An Order pursuant to Section 155(4) of the Constitution directing the Registrar of Titles to revoke and cancel the State Lease title of the second respondent described as Volume 95 Folio 138 over Everwin Estate forthwith.
   
5. An Order pursuant to Section 155(4) of the Constitution directing the third respondent to immediately list the appellant’s application for State Lease over Everwin Estate before the PNG Land Board in its next sitting for deliberation and grant of title forthwith.
   
6. The respondents shall pay the appellant’s costs of the National Court proceedings and the costs of the appeal, to be taxed, if not agreed.
   
7. Time for entry of this order be abridged to the time for settlement which shall take place forthwith.

________________________________________________________________
Holingu Lawyers: Lawyers for Appellant
Solicitor General: Lawyers for First, Third & Fourth Respondents
NCD Legal: Lawyers for Second Respondent