National Spiritual Assembly of the Baha'is of Papua New Guinea Incorporated v Rosso [2023] PGSC 91; SC2431 (2 August 2023)

SC2431

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCM NO 24 OF 2022

NATIONAL SPIRITUAL ASSEMBLY OF THE BAHA’IS
OF PAPUA NEW GUINEA INCORPORATED
Appellant

V

JOHN ROSSO, MINISTER FOR LANDS & PHYSICAL PLANNING
First Respondent

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Second Respondent

Waigani: Cannings J, Dingake J, Numapo J
2023: 25^th July, 2^nd August

LAND – compulsory acquisition by the State – Land Act Division III.5 (acquisition by compulsory process) – whether Minister lawfully issued certificate under s 13(6) as to special reasons why s 13 (notice to treat) procedures do not apply.

JUDICIAL REVIEW – whether National Court erred in refusing judicial review of the decision of the Minister to issue a certificate under Land Act, s 13(6) re compulsory acquisition of land the subject of a State Lease.

The Minister for Lands and Physical Planning (first respondent) published an instrument in the National Gazette certifying that under s 13(6) of the Land Act 1996, 0.57 hectares of the appellant’s land was “acquired through compulsory acquisition for Government’s State purposes”. The appellant applied in the National Court for judicial review of the decision to compulsorily acquire its land, on two principal grounds: first, that s 13(6) did not authorise the compulsory acquisition of land, but only authorised the Minister to certify that there are special reasons why s 13 (notice to treat) should not apply to the compulsory acquisition, and the statement that the land was acquired for “Government’s State purposes” was vague, inadequate and failed to meet the requirements of s 13(6); secondly, that the compulsory acquisition of its land was a proscribed act within the meaning of s 41(1)(a), (b) and (c) of the Constitution. The appellant sought certiorari to quash the decision to compulsorily acquire its land and declarations that the compulsory acquisition was void ab initio and of no legal effect and that the appellant’s land remained of the same size, and that the decision to compulsorily acquire its land was a proscribed act within the meaning of s 41(1)(a), (b) and (c) of the Constitution. The National Court refused the application for judicial review, holding that the Minister had adequately stated the purpose for which the land was acquired, which purpose was well known to the appellant, and the circumstances of the case did not meet the harsh and oppressive test under s 41 of the Constitution. The appellant appealed to the Supreme Court on the grounds that the trial judge erred by (a) misconstruing s 13(6) of the Land Act and finding that “special reasons” had been adequately stated; and (b) not properly addressing the appellant’s grounds of review based on s 41 of the Constitution.

Held:

(1) Section 13(6) of the Land Act authorises the Minister to certify that there are special reasons why s 13 (notice to treat) should not apply to a compulsory acquisition of land. The special reasons must be stated with particularity, to demonstrate that the land is genuinely required for public purpose or benefit.

(2) Section 13, including s 13(6), does not authorise the compulsory acquisition of land. A decision to compulsorily acquire land is made under s 12 (compulsory acquisition) of the Act.

(3) The Minister’s certificate was flawed as it purported to certify under s 13(6) that the appellant’s land “is acquired through compulsory acquisition” and did not state with sufficient particularity the public purpose or benefit for which the land was acquired.

(4) The trial judge erred in law by not upholding the grounds of judicial review that pointed to the obvious flaws in the instrument.

(5) Section 41(1) of the Constitution proscribes seven types of acts, and the proposition that an administrative decision is a proscribed act is a proper ground of judicial review.

(6) The appellant clearly pleaded in the National Court that the decision to compulsorily acquire its land was a proscribed act within the meaning of s 41(1)(a), (b) and (c) of the Constitution.

(7) The trial judge erred in law by not specifically addressing the grounds of judicial review under s 41(1)(a), (b) and (c) of the Constitution.

(8) The appeal was allowed and the decision of the National Court was quashed and the Supreme Court invoked its power under s 16 (decision etc on appeal) of the Supreme Court Act to give such judgment as ought to have been given in the first instance: judicial review was granted in the terms sought in the National Court.

Cases Cited

The following cases are cited in the judgment:
Eu v Rosso (2023) SC2401
Koima v Secretary for Lands and Physical Planning (2014) N5568
Morobe Provincial Government v Kameku [2012] 1 PNGLR 41
National Spiritual Assembly of the Baha’is of Papua New Guinea Inc v Minister for Lands and Physical Planning & The State (2022) N9761
NCDIC v Crusoe Pty Ltd [1993] PNGLR 139
Ramu Nickel Limited v Dr Puka Temu MP (2007) N3116
Smith v Minister for Lands and Physical Planning (2009) SC973
Smith v Minister for Lands (2023) SC2326; [2022] PGSC 123

Counsel
G J Sheppard & P Tabuchi, for the Appellant

2^nd August, 2023

1. BY THE COURT: The National Spiritual Assembly of the Baha’is of Papua New Guinea Inc (appellant) appeals against refusal by the National Court of its application for judicial review of the decision of the Minister for Lands and Physical Planning (first respondent) to compulsorily acquire 0.57 hectares of its land at Waigani, National Capital District held under a State Lease.

2. The Minister’s decision was conveyed by an instrument published in National Gazette No G476 of 15 July 2021 in the following terms:

Land Act No 45 of 1996

CERTIFICATION UNDER SECTION 13(6)

I, HON JOHN ROSSO, DPS, MP, Minister for Lands and Physical Planning, by virtue of the power conferred in me under Section 13(6) of the Land Act No 45 of 1996 and all other powers me enabling hereby certify that the land specified and referred to in the Schedule hereunder is acquired through Compulsory Acquisition for Government’s State purposes.

____________

SCHEDULE

All that land known as Portion 4686, Milinch Granville, Fourmil Moresby, National Capital District containing a total area of 0.570 hectares more or less shown on the Miscellaneous Survey Plan Catalogue Number: 49/2262 in the Department of Lands & Physical Plannings File: 04116/4686.

Dated this 8^th day of July, 2021.

Hon J Rosso, DPS, MP

Minister for Lands and Physical Planning

3. The appellant applied in the National Court for judicial review of the decision to compulsorily acquire its land, on two principal grounds:

• first, that s 13(6) of the Land Act did not authorise the compulsory acquisition of its land, but only authorised the Minister to certify that there are special reasons why s 13 (notice to treat) should not apply to the compulsory acquisition, and the statement that the land was acquired for “Government’s State purposes” was vague, inadequate and failed to meet the requirements of s 13(6);
  
• secondly, that the compulsory acquisition of its land was a proscribed act within the meaning of s 41(1)(a), (b) and (c) of the Constitution.
  

4. The appellant sought certiorari to quash the decision to compulsorily acquire its land and declarations that the compulsory acquisition was void ab initio and of no legal effect and that its land remained of the same size, and that the decision to compulsorily acquire its land was a proscribed act within the meaning of s 41(1)(a), (b) and (c) of the Constitution.

5. The National Court refused the application for judicial review, holding that the Minister had adequately stated the purpose for which the land was acquired, which purpose was well known to the appellant, and the circumstances of the case did not meet the harsh and oppressive test under s41 of the Constitution (National Spiritual Assembly of the Baha’is of Papua New Guinea Inc v Minister for Lands and Physical Planning & The State (2022) N9761).

GROUNDS OF APPEAL

6. The appellant appeals to the Supreme Court on grounds that the trial judge erred by:

• first, misconstruing s 13(6) of the Land Act and finding that “special reasons” had been adequately stated; and
  
• secondly, not properly addressing the appellant’s grounds of review based on s 41 of the Constitution.
  

NON-APPEARANCE BY RESPONDENTS

7. The respondents – the Minister and the State – made no appearance in the appeal. It is evident from the record of the National Court proceedings that they also made no appearance in the National Court. This is odd, to say the least, but it has had little bearing on the appeal, which has been determined on its merits.

1. DID THE TRIAL JUDGE MISCONSTRUE SECTION 13(6) OF THE LAND ACT?
   

8. We consider, with respect, that the trial judge did misconstrue s 13(6), which is evident from her Honour’s failure to uphold the arguments of the appellant in its grounds of review that the instrument published in the National Gazette was flawed.

9. To appreciate why it was flawed we set out ss 12 (compulsory acquisition) and 13 (notice to treat) of the Land Act.

10. Section 12 states:

(1) The Minister may, on behalf of the State—

(a) after the expiration of a period of two months after the service of a notice to treat, or of notices to treat under Section 13, in relation to any land; or

(b) at any time where, after diligent search and inquiry, he is satisfied that the owner of the land cannot be located; or

(c) at any time after he has given a certificate under Section 13(6) in relation to any land,

by notice in the National Gazette, declare that the land, other than any interest in respect of which a notice to treat has been withdrawn, or any chattel, is acquired by compulsory process under this Act for a public purpose specified in the notice.

(2) On the publication of a notice under Subsection (1), the land or chattel to which the notice applies is—

(a) vested in the State; and

(b) freed and discharged from all interests, trusts, restrictions, dedications, reservations, obligations, contracts, licences, charges and rates.

11. Section 13 states:

(1) The Minister shall not acquire land by compulsory process under this Act unless he has first caused to be served on each of the owners of the land, or such of them as can, after diligent inquiry, be ascertained, a notice inviting the person on whom the notice is served to treat with the Minister for the sale or surrender to the Minister, on behalf of the State, of his interest in the land.

(2) A person served with a notice to treat in respect of land shall, not later than two months after the service of the notice, provide the Minister with particulars of—

(a) the interest claimed by him in the land; and

(b) the amount for which he is agreeable to sell his interest in the land; and

(c) the name and address of any other person known to him to have an interest in the land and the nature of that interest.

(3) On receipt of the particulars referred to in Subsection (2), the Minister may—

(a) treat with the person providing the particulars for the acquisition of his interest by agreement; and

(b) notwithstanding anything in this Act, enter into an agreement with that person for the acquisition.

(4) The Minister may, by written notice to a person served with a notice to treat, withdraw the notice to treat.

(5) Where the owner of an interest in land, who has provided the particulars referred to in Subsection (2), suffers loss by reason of the notice to treat having been given and withdrawn, the State is liable to pay to him such compensation as is determined by agreement between the owner and the Minister or, in the absence of agreement, by action as determined by a court of competent jurisdiction.

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

12. It will be observed that land cannot be compulsorily acquired under s13, including s 13(6), of the Land Act. Land is compulsorily acquired under s 12 of the Act. It can be done as pointed out by the Supreme Court in Smith v Minister for Lands and Physical Planning (2009) SC973 in one of three ways:

• the Minister gives a notice to treat to the owner of the land and a period of two months lapses after service of the notice (ss 12(1)(a) and 13(1) to 13(5));
  
• the owner of the land cannot be located (s 12(1)(b));
  
• the Minister certifies that there are special reasons why the notice to treat provisions of s 13 should not apply (ss 12(1)(c) and 13(6)).
  

13. The power of compulsory acquisition is exercised under s 12(1) of the Land Act by notice in the National Gazette declaring that the land is acquired by compulsory process under the Act “for a public purpose specified in the notice”.

14. The purpose of compulsory acquisition of the land must be for genuine public purposes or benefit. The power of the Minister under s 13(6) to exempt land from the notice to treat procedure in other parts of s 13, can only be exercised for “special reasons”, which must relate to advancement of the “public purpose” for which the land is to be compulsorily acquired (Smith v Minister for Lands (2023) SC2326).

15. When certifying the “special reasons” the notice to treat procedure in other parts of s 13 should not apply, the Minister must be specific as to the public purpose for which the land is to be compulsorily acquired, eg construction of a road, hospital or aid post, school, market, airport, wharf, courthouse (Eu v Rosso (2023) SC2401, NCDIC v Crusoe Pty Ltd [1993] PNGLR 139, Ramu Nickel Limited v Dr Puka Temu MP (2007) N3116, Koima v Secretary for Lands and Physical Planning (2014) N5568).

16. Once land is compulsorily acquired, it is vested in the State and freed and discharged from all interests (s 12(2)). The interest of every person in that land is converted into a right to compensation (s 14).

17. The notice published by the Minister in this case offended against the Land Act in two fundamental ways:

• first, it purported to rely on s 13(6) as a source of power to compulsorily acquire the land, when s 13(6) does not authorise the compulsory acquisition of land. It simply allows the Minister to certify that the notice to treat procedure in other parts of s 13 do not apply, subject to the requirement that the Minister must certify that there are “special reasons” why that is so; and
  
• secondly, its statement that the land was being acquired for “Government’s State purposes” was vague and inadequate, as it failed to specify the public purpose for which the land was to be acquired.
  

18. The trial judge, with respect, erred in law by not being alert to the obvious flaws in the instrument published in the National Gazette. The flaws were exposed in the Order 16 rule 3(2)(a) statement filed by the appellant in support of its judicial review application and in submissions of counsel in the National Court proceedings. The Minister’s decision that the appellant’s land was compulsorily acquired was clearly ultra vires the Land Act. We uphold the grounds of appeal which highlighted the error of law that occurred.

2. DID THE TRIAL JUDGE FAIL TO PROPERLY ADDRESS THE GROUNDS OF REVIEW BASED ON SECTION 41 OF THE CONSTITUTION?
   

19. The second category of grounds of review relied on by the appellant in the National Court was that the compulsory acquisition of its land was a proscribed act within the meaning of s 41(1) of the Constitution, in that it was:

• harsh and oppressive (s 41(1)(a);
• not warranted by or was disproportionate to the requirements of the particular circumstances of the case (s 41(1)(b); or
• not, in the particular circumstances, reasonably justifiable in a democratic society having a proper regard for the rights and dignity of mankind (s 41(1)(c).
  

20. In dealing with those grounds of review the trial judge set out s 41 in full. It states:

(1) Notwithstanding anything to the contrary in any other provision of any law, any act that is done under a valid law but in the particular case—

(a) is harsh or oppressive; or

(b) is not warranted by, or is disproportionate to, the requirements of the particular circumstances or of the particular case; or

(c) is otherwise not, in the particular circumstances, reasonably justifiable in a democratic society having a proper regard for the rights and dignity of mankind,

is an unlawful act.

(2) The burden of showing that Subsection (1)(a), (b) or (c) applies in respect of an act is on the party alleging it, and may be discharged on the balance of probabilities.

(3) Nothing in this section affects the operation of any other law under which an act may be held to be unlawful or invalid.

21. As the Supreme Court pointed out in Morobe Provincial Government v Kameku ([2012] 1 PNGLR 41), s 41 proscribes (ie prohibits) and gives protection against seven sorts of acts. Even if done under a valid law and notwithstanding anything to the contrary in any law, an act is unlawful if it is, in the particular case:

• harsh; or
• oppressive; or
• not warranted by the requirements of the particular circumstances; or
• disproportionate to the requirements of the particular circumstances; or
• not warranted by the requirements of the particular case; or
• disproportionate to the requirements of the particular case; or
• otherwise not, in the particular circumstances, reasonably justifiable in a democratic society having a proper regard for the rights and dignity of mankind.
  

22. The trial judge rejected the grounds of review based on s 41, stating:

23 In this case, the Plaintiff [appellant] has been informed and allowed to communicate with the State from August 2020 to July 2021 when the Minister made the decision as published in the National Gazette. The Minister had approached the Plaintiff together with the Prime Minister of the intention of the State to acquire the land as it is situated to my mind strategically opposite the Parliament House and it would draw attention to both the National Parliament and the Unity Pillar in the National Interest to unify the people of this country. Be that those were the intentions of the government of the day, the Minister did not outrightly compulsorily acquire the land without notice to the Plaintiff which it had the legal right to do, it offered to approach the Plaintiff in a diplomatic manner and corresponded with the Plaintiff however the Plaintiff was waiting for direction from their leadership in Israel when the State advised that due to the urgency of the matter, the Minister had exercised its mandate under section 13(6) of the Land Act.

24 The Plaintiff states that it had not received compensation for the compulsory acquisition however under section 13(6) of the Land Act, the Plaintiff is entitled to pursue compensation as against the State for the compulsory acquisition of it’s land as it’s right to the land is now converted into a right as to compensation under Part IV of the Land Act.

25 I refuse to accept the ground of review that the compulsory acquisition by the Minister of the Plaintiff’s land is harsh and oppressive pursuant to section 41 of the Constitution as the circumstances of this case do not meet the harsh and oppressive test to my mind. The Plaintiff has been given due notice and has been allowed to be in dialogue with the State. The Plaintiff still has a recourse in compensation.

23. We uphold the appellant’s argument that her Honour did not give adequate reasons for concluding that the compulsory acquisition of the appellant’s land did not meet the “harsh and oppressive test”. Her Honour did not state what that test was. Nor did she address the question of whether the compulsory acquisition of the appellant’s land was a proscribed act for other reasons advanced by the appellant under ss 41(1)(b) and (c) of the Constitution.

24. We uphold the grounds of appeal which highlighted the errors of law regarding the learned trial judge’s treatment of the grounds of review concerning s 41 in the National Court.

WHAT ORDERS SHOULD THIS COURT MAKE?

25. Through the notice of motion by which this appeal was instituted, the appellant seeks not only orders that the appeal be allowed and that the whole of the judgment and orders of the National Court be quashed, but in addition that its application for judicial review be granted and that the orders sought before the National Court be granted. The appellant is therefore submitting that the power of the Supreme Court under s 16(c) of the Supreme Court Act be invoked.

26. Section 16 (decision etc on appeal) states:

On the hearing of an appeal, the Supreme Court shall inquire into the matter and may—

(a) adjourn the hearing from time to time; or

(b) affirm, reverse or modify the judgment; or

(c) give such judgment as ought to have been given in the first instance; or

(d) remit the case in whole or in part for further hearing; or

(e) order a new trial.

27. Stepping into the shoes of the National Court is not something the Supreme Court does as a matter of course, when upholding an appeal. However, the power to do so is clearly available, and we consider that in the circumstances of this case, it is appropriate to do so. The application for judicial review should have been granted in the National Court, especially because of the fundamental flaws in the instrument published in the National Gazette by the Minister. Furthermore, the respondents have provided no good reason for not granting the relief that was sought in the National Court. The respondents have not even appeared to defend the appeal in the Supreme Court; and they made no appearance in the National Court.

28. We will invoke s 16(c) of the Supreme Court Act and give the judgment that ought to have been given in the first instance. Costs will follow the event.

ORDER

1. The appeal is allowed.
   
2. The whole of the judgment and orders of the National Court of 15 July 2022 in OS (JR) No 116 of 2021 is quashed.
   
3. Pursuant to s 16(c) of the Supreme Court Act the appellant’s application for judicial review is granted and accordingly:
   
   • (a) certiorari is granted to bring into Court and quash in its entirety the decision of the first respondent made 8 July 2021 and published in National Gazette No G476 of 15 July 2021 to compulsorily acquire 0.57 hectares of the appellant’s land;
     
   • (b) it is declared that the compulsory acquisition of Portion 4686, Milinch Granville, Fourmil Moresby, National Capital District containing a total area of 0.57 hectares more or less shown on the miscellaneous survey plan catalogue number 49/2262 in the Department of Lands and Physical Planning file 04116/4686 is void ab initio and of no legal effect;
     
   • (c) it is declared that the appellant’s land described as Portion 2352 Milinch Granville, Fourmil Moresby, National Capital District containing an area of 3.688 hectares under a State Lease for 99 years granted on 18 May 1995 remains the same size of 3.688 hectares;
     
   • (d) it is declared that the decision of the first respondent made 8 July 2021 and published in National Gazette No G476 of 15 July 2021 to compulsorily acquire 0.57 hectares of the appellant’s land is a proscribed act within the meaning of s 41(1)(a), (b) and (c) of the Constitution.
     
4. The respondents shall pay the costs of the appeal to the appellant on a party-party basis, which shall, if not agreed, be taxed.

_____________________________________________________________
Young & Williams Lawyers: Lawyers for the Appellant