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Tolopa v TST Development Ltd [2024] PGSC 56; SC2588 (15 May 2024)

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCREV NO. 15 OF 2022

BETWEEN:
OSWALD TOLOPA in his capacity as the Acting Secretary for Department of Lands and Physical Planning
First Applicant

AND:
THE HONOURABLE JUSTIN TKATCHENKO
as the Minister for Lands and Physical Planning
Second Applicant

AND:
GLOBAL CUSTOMS & FORWARDING LTD
Third Applicant

AND:
TST DEVELOPMENT LTD
Respondent

Waigani: Gavara-Nanu J, Hartshorn J & Kangwia J
2024: 26^th March, 15^th May

PRACTICE & PROCEDURE – Application for review – Constitution; s. 155 (2) (b) - Lease – Forfeiture – Notice to show cause – Corporation – Proper mode of service of a notice to show cause on a corporation – Land Act, 1996; ss. 122, 123, 124 & 169 – Companies Act, 1997; ss. 431 & 432 – Exercise of discretion by the Minister to forfeit – Whether proper in the circumstances.

Cases Cited:
Noko No. 96 Ltd. v. Puka Temu (2013) N7932

Counsel:
S. Sasingin, for the First and Second Applicants
R. Obora, for the Third Applicant
D. Kints, for the Respondent

15^th May 2024

GAVARA-NANU J: This is an application made pursuant to s. 155 (2) (b) of the Constitution by the applicants seeking review of the decision of the primary judge given on 10th May, 2022 in proceeding titled - CIA No.104 of 2018 between the respondent and the applicants.
The decision of the primary judge was on an appeal by the respondent against the forfeiture by the second applicant of its lease over the property described as Allotment 22, Section 250 Hohola, National Capital District, contained in State Lease Volume 82, Folio 202.
The primary judge in his decision allowed the appeal and quashed the forfeiture of the respondent’s lease and ordered the Registrar of Titles and the Secretary for Lands to restore the respondent’s lease.
The reason for the decision by the primary judge was that the notice to show cause (notice) served on the respondent ought to have been served on either the postal address or the registered office of the respondent in accordance with the requirements of s. 432 of the Companies Act 1997, after finding that the applicants failed to show that the address on which the notice was served was the postal address of the respondent, last known to the Head of the Department of Lands as required under s. 169 (3) of the Lands Act 1996. The other reason for the decision was the finding that the property was improved at the time of the forfeiture, which meant the respondent had complied with the improvement covenants of the lease.
The applicants have raised two grounds of review which can be summarized as follows: -

(i) The primary judge erred in law in holding that the mode of service of the notice to show cause on the respondent under s. 122 of the Land Act, was that prescribed under s. 432 of the Companies Act, when instead the mode of service ought to have been that prescribed under s. 169 (1) and (3) of the Land Act.

(ii) The primary judge erred in mixed law and fact in finding that the forfeiture notice issued under s. 122 (2) of the Land Act had no merit or basis because the land was developed by the respondent when it was not.

The respondent was granted a Special Purpose Lease over the property on 18th October, 1994 through a transfer of the lease for a term of 99 years.
On 9th October, 2018, by a notice in the National Gazette the lease was forfeited by the second applicant for failure by the respondent to comply with the improvement covenants and for failing to show cause to a notice issued under s. 122 (2) of the Land Act.
The respondent argued that the failure to show cause was because the notice was sent to a wrong address.
It is not disputed that the notice was sent to P.O Box 5445, Boroko, National Capital District, but the court below held that it was not the proper address of service for the respondent, as it was not the respondent’s registered office or the postal address as required under s. 432 of the Companies Act.
The applicants argued that P.O Box 5445, Boroko, National Capital District was the correct address of service because that was the last known postal address of the respondent by the Head of the Department of Lands. The applicants argued that this was the postal address the respondent used in its purported contract of sale of the property, which was lodged with the Department of Lands. The Head of the Department of Lands also used this postal address to communicate with the respondent in a letter dated 26th May, 2017 advising the respondent that the Transfer Instrument it had lodged for the Ministerial Approval for the purported sale of the property had been refused.
It is also not disputed that the property remained unimproved until about 2013. Under the improvement covenants of the lease, the respondent was required to improve the property to the value of K20,000.00 within 3 years of the grant of the lease. The respondent failed to comply with this requirement. It appears from the material before the Court, the third applicant started occupying the property in 2013 or soon thereafter by a mutual arrangement with the respondent. Hence the inspection report made on the property dated 9th October, 2015, indicating that the property was unimproved but was already improved at the time of the inspection. There is evidence that the improvements on the property were made by the third applicant before the inspection of the property.

Reasons for decision

The determinative issue is whether the service of the notice to show cause on the respondent by a registered mail on the respondent’s postal address constituted a proper and valid service. This issue turns on proper interpretations of ss. 122 and 169 (3) of the Land Act, and ss. 431 and 432 of the Companies Act, which are pertinent to the issue of service of the notice. It is convenient that these provisions be reproduced for easy reference. Firstly, s. 122 of the Land Act, provides as follows: -

122. FORFEITURE OF STATE LEASE.

(1) The Minister may, by notice in the National Gazette, forfeit a State lease -

(a) if rent on the lease remains due and unpaid for a period of six months; or
(b) if fees are not paid in accordance with this Act; or
(c) if the amount payable in respect of improvements is not paid in accordance with this Act; or
(d) if -

(i) a covenant or condition of the lease; or
(ii) a provision of this Act relating to the lease; or
(iii) a requirement of a notice under Section 91 relating to the lease,

is not complied with; or
(e) if the granting of the lease has been obtained, in the opinion of the Minister, wholly or partly as a result of statements that were, to the knowledge of the lessee, false or misleading.

(2) Before forfeiting a State lease under Subsection (1), the Minister -

(a) shall serve notice on the lessee calling on him to show cause, within a period specified in the notice, why the lease should not be forfeited on the ground or grounds specified in the notice; and
(b) may, whether or not cause has been shown in accordance with a notice under Paragraph (a), serve on the lessee a notice requiring him, within a period specified in the notice, to comply with the covenants or conditions of the lease or the provisions of this Act.

(3) The Minister shall not forfeit a lease under this section unless -

(a) the lessee has failed to comply with a notice under Subsection (2)(a) or (b); or
(b) the lessee has failed to show good cause why the lease should not be forfeited.

(4) Copies of a notice of forfeiture and a notice under Subsection (2)(a) or (b) shall be served on all persons who, to the knowledge of the Departmental Head, have or claim to have a right, title, estate or interest in, to or in relation to the land, or such of them as can with reasonable diligence be ascertained and found.

(5) No acceptance of rent by the State waives a right to forfeit a lease under this Act.

(6) For the purposes of this section the grant of an application for a State lease shall be deemed to be the grant of the lease.
13. This provision initiates the process of a forfeiture of a lease by the Minister for Lands (the Minister). It is convenient to make some observations on how this provision should be applied and enforced. Under s. 122 (1), the Minister has discretion whether to forfeit a lease or not. The grounds upon which the Minister may exercise this power are stated in s. 122 (1) (a), (b), (c), (d) and (e). The discretionary power of the Minister in this regard is reflected clearly by the word “may” in the opening words of the Sub-section.

It is important to note that the exercise of discretion by the Minister under Sub-section (1) relates to the decision to forfeit a lease by a notice in the National Gazette. Such decision in essence is to terminate a lease through forfeiture by a notice in the National Gazette. But for a lease to be properly and validly forfeited under this process, the laws governing and regulating the forfeiture process must be fully complied with.
Once, the Minister decides to forfeit a lease pursuant to s. 122 (1) , it then becomes mandatory under s, 122 (2) (a) for the Minister through his delegate to serve a notice on the lessee “calling” on the lessee to show cause “within the period specified in the notice”, why the lease should not be forfeited on the ground or grounds specified in the notice. Those grounds should be those stated under s. 122 (1) (a), (b), (c), (d) and (e).
It is important to note that even after service of a notice on the lessee under s.122(2) (a); s. 122 (2) (b) provides that whether the lessee has shown cause or not, the Minister may still decide against forfeiting the lease by serving a notice on the lessee requiring him, within the period specified in the notice, to comply with the conditions of the lease and other relevant provisions of the Land Act. The conditions should be given in the notice.
Section 122 (3) notably imposes a caveat on the Minister from forfeiting a lease, unless the lessee has failed to comply with the notice issued under s. 122 (2) (a) or (b) or has failed to show good cause why the lease should not be forfeited.
The upshot of this is where a lessee fails either to comply with the notice under s. 122 (2) (a) or (b) or to show good cause why the lease should not be forfeited under s. 122 (3) (a) and (b), the requirements under s. 169 of the Land Act, regarding service of the notice on the lessee must be complied with.
Section 169 of the Land Act, provides as follows: -

169. SERVICES OF NOTICES, ETC.

(1) Subject to this section, where, under this Act, a claim, notice or thing is required or permitted to be given to or served on a person (other than a corporation), the claim, notice or thing may be given or served personally or by registered post to his postal address last known to the Departmental Head.

(2) Where–

(a) in the opinion of the Departmental Head, it is impracticable to serve a person in accordance with Subsection (1); or

(b) the Departmental Head has cause to believe that that person is dead,

it is a sufficient service if a copy of the claim, notice or thing–

(c) is published in three consecutive issues of a newspaper that is distributed regularly throughout the country; and

(d) is forwarded by pre-paid post to the Local-level Government (if any)–

(i) in whose area the land the subject of the notice is situated; or

(ii) in whose area the person to be served last, to the knowledge of the Departmental Head, resided; and

(e) is placed in a conspicuous place on the land the subject of the notice.

(3) Where under this Act, a claim, notice or thing is required or permitted to be given to or served on a corporation, the claim, notice or thing may be given or served by registered post to the postal address of the corporation last known to the Departmental Head.

20. Section 169 (1) and (2) deal with service of a notice on a person. Sub-section (3) on the other hand deals with service of a notice on a corporation. It can be seen from Sub-sections (1) and (2) that the mode of service on a person is elaborate and detailed. Not the mode of service on a corporation under Sub-section (3). I canvass this point further later in my judgment.

21. Given that the issue raised here for determination relates to the mode of service on a corporation, I do not intend to dwell too much on the mode of service on a person.

22. Section 169 (3) provides that service on a corporation may be given or served by a registered post to the corporation to the postal address of the corporation last known to the Departmental Head of Lands and Physical Planning. This mode of service is made discretionary by the word “may” in this Sub-section. As it can be seen, there is only one prescribed mode of service on a corporation under this Sub-section. The postal address of the corporation upon which notice is served must be by a registered mail and must be on “the postal address of the corporation last known to the Departmental Head”. In this case, counsel for the applicants strongly argued that the postal address to which service was effected was the postal address of the respondent last known by the Departmental Head, therefore service was proper and valid.

23. The primary judge was not persuaded by the counsel for the applicants with this argument. Thus, the learned primary judge after considering ss. 431 and 432 of the Companies Act, held that the proper and correct mode of service was that prescribed under s. 432 of the Companies Act.

24. His Honour found that this is clear when the two sections were read together. Section 431 provides as follows: -

SERVICE OF DOCUMENTS ON COMPANIES IN LEGAL PROCEEDINGS.

(1) Notwithstanding the provisions of any other Act, a document, including a writ, summons, notice, or order in any legal proceedings may be served on a company as follows:–

(a) by delivery to a person named as a director or the secretary of the company on the register;

(b) by delivery to an employee of the company at the company’s head office or principal place of business;

(c) by leaving it at the company’s registered office or address for service;

(d) by posting it to the company’s registered office, or address for service, or postal address;

(e) by serving it in accordance with any directions as to service given by the court having jurisdiction in the proceedings;

(f) in accordance with an agreement made with the company.

(2) The methods of service specified in Subsection (1) are the only methods by which a document in legal proceedings may be served on a company in the country.

25. Section 432 provides as follows: -

SERVICE OF OTHER DOCUMENTS ON COMPANIES.

Notwithstanding the provisions of any other Act, a document, other than a document in any legal proceedings, may be served on a company as follows:–

(a) by any of the methods set out in Section 431(1)(a), (b), (c), (d) or (f);

(b) by sending it by any means, including a facsimile machine, telex, computer or other electronic device, that provides that document, or a copy of that document, to that person in a permanent form or image, including an electronic or magnetic form or image.

26. Both ss. 431 and 432 relate to service of documents on a corporation, the only difference between the two sections is, s. 431 relates to service of documents relating to a legal proceeding, whereas s. 432 relates to service of documents “other than” documents relating to a legal proceeding. Notably, s. 432 also adopts the modes of service prescribed under s. 431 (1) (a), (b), (c), (d) and (f). These provisions prescribe elaborate and detailed modes of service. The modes of service prescribed under ss.431 and 432 are also made discretionary by the word “may” in both sections. What appears to be the basis of the primary judge’s finding was the opening words in s. 432 viz; – “Notwithstanding the provisions of any other Act...” . (My underlining).

27. It is also relevant to note that under ss. 123 and 124 of the Land Act, the Minister has power to revoke a forfeiture of a lease if revocation under s. 122 was made by a mistake. If this happened, the Departmental Head pursuant to s. 123 may by a notice in the National Gazette revoke the notice of forfeiture. Once the forfeiture of the notice is Gazetted, it is mandatory to treat the revoked lease as valid and as effectual as if it had not been forfeited. Section 123 provides as follows: -

123. REVOCATION OF FORFEITURE.

(1) Where a State lease (hereafter called "the revoked lease") has been forfeited under Section 122 by mistake, and provided that a notice under Section 75 has not been published in the National Gazette in respect of another applicant, the Departmental Head may, by notice published in the National Gazette, revoke the notice of forfeiture.

(2) Where the Departmental Head publishes a notice under Subsection (1), the revoked lease shall be treated as valid and as effectual as if the forfeiture had not occurred.

28. Then under s. 124 the Minister also has discretion to call on the lessee in a notice to show cause within the period stated in such notice why a non-compliance fees should not be imposed, for failure to comply with the notice. And if the lessee failed to show good cause, the Minister may by a written notice served on the lessee impose a non-compliance fee not exceeding K100.00 per month for each month for which the non-compliance had continued. If a non-compliance fee is not paid within the period given in the notice, then the Minister may forfeit the lease.

29. Section 124 provides as follows: -

Division 2. - Fee instead of Forfeiture.

124. FEE INSTEAD OF FORFEITURE.

(1) If a term, covenant or condition of a State lease is not complied with, the Minister may, in his discretion, instead of taking action under Section 122, serve notice on the lessee calling on him to show cause, within a period specified in the notice, why a non-compliance fee should not be imposed under this section.

(2) If the lessee fails, within the period specified in the notice under Subsection (1), to show good cause why the non-compliance fee should not be imposed, the Minister may, by written notice served on the lessee, impose a non-compliance fee not exceeding K100.00 per month for each month for which the non-compliance has continued or continues.

(3) If a non-compliance fee imposed under this section is not paid within the time limited for the purpose in the notice under Subsection (2), the Minister may, by notice in the National Gazette, forfeit the lease without regard to any formalities or requirements of this Act preliminary to the forfeiture of a State lease, or otherwise.

(4) No acceptance of rent by the State waives a right to impose a non-compliance fee or forfeit a lease under this section.

(5) For the purposes of this section a grant of an application for a State lease shall be deemed to be the grant of the lease.

30. The applicants relied heavily on my decision in Noko No. 96 Ltd v. Puka Temu (2013) N7932, in which I expressed a view that for the purposes of a proper and a valid service of a notice on a corporation, ss. 431 and 432 of the Companies Act, were irrelevant. I make following observations about that case. The decision was based on the material before the Court. In that case, it was clearly established that the postal address to which the notice to show cause was sent was the postal address of the offending corporation last known by the Departmental Head or the Secretary for Lands. The issues relating to service of a notice on a corporation, however were not fully argued before me as they have been in this case.

31. Therefore, having had the benefit of full arguments by counsel on the issue and having regard to the views expressed by my brother Hartshorn J, I do respectfully agree that the mode of service provided under s. 432 are relevant and applicable besides those prescribed under s. 169 (3) of the Land Act. The critical word in both provisions is “may” which clearly grants discretion regarding the mode of service that may be preferred on a corporation. The relevance of the mode of service prescribed under s. 432 of the Companies Act, as noted above is based on the opening words of the section, viz; “Notwithstanding the provisions of any other Act” and “a document, other than a document in any legal proceedings”. Plainly the word “document” must in this regard include a notice to show cause issued under s. 122 of the Land Act. (My underlining).

32. I have found that the modes of service prescribed under s. 432 of the Companies Act, apply to service of a notice on a corporation because it provides an elaborate mode of service, not so in s. 169 (3) of the Land Act. The modes of service prescribed under s. 432 of the Companies Act, ensure that a corporation is properly and duly served with a notice before its lease can be forfeited. Thus, s. 432 in that way supplements the single mode of service prescribed under s. 169 (3) of the Land Act.

33. I have also discussed in some detail the requirements of ss. 123 and 124 of the Land Act, to demonstrate that the scheme of these provisions and their clear legislative intent is to protect the interests of the lessee who is a valid title holder and a duly registered proprietor of the property. A further clear legislative intent under these provisions is also to give opportunity to the lessee to redeem the lease even where the lessee has failed to comply with the conditions of the lease. When one looks at the modes of service on an individual under s. 169 (1) and (2) of the Land Act, and s. 431 of the Companies Act, they are very elaborate and detailed. The aim firstly, is to ensure that the lessee who holds a valid title is properly put on notice and is made fully aware that the Minister had decided to forfeit the lease, and secondly; to give the lessee an opportunity to take appropriate remedial measures to redeem the lease from being forfeited.

34. Having said the above, in my respectful view when it comes to service of a notice on a corporation, the mode of service prescribed under s. 169 (3) of the Land Act, which is the governing legislation regulating the forfeiture of a lease should take precedence over the modes of service prescribed under s. 432 of the Companies Act. It should only be where the modes of service prescribed under s. 169 (3) are found to be inadequate, that the modes of service prescribed under s. 432 of the Companies Act should be invoked.

35. The rationale behind this view is that the primary issue regarding the decision by the Minister to forfeit a lease arises under the Land Act, which is the governing legislation. Therefore, the only factor that should take the issue of service out of the processes prescribed under the Land Act, as I stated earlier is where the mode of service under s. 169 (3) of the Land Act is found wanting and is inadequate for effecting a proper and valid service of a notice on the corporation.

36. The issue now is whether the service of the notice on the respondent by the applicants under s. 169 (3) constituted a proper and valid service. Having considered the material before the Court and the relevant laws, I am of the respectful view that the service was proper and valid. I find that the service fully complied with the requirements under s. 169 (3) of the Land Act. The requirements that had to be complied with were these. First, the notice had to be given or served on the respondent. Second, if service was by post, then it had to be by a registered mail. Third, the registered mail had to be sent to the postal address of the respondent. Fourth, the postal address to which the registered mail was sent had to be the postal address of the respondent last known to the Head of the Department of Lands and Physical Planning. The evidence clearly shows that all these requirements were satisfied by the applicants. In those circumstances, there was no need for the applicants to consider the modes of service under s. 432 of the Companies Act.

37. The evidence shows that the postal address to which the notice was sent was given by the respondent in a contract of sale of the subject property between the respondent and a purchaser. The contract was lodged with the Head of the Department of Land and Physical Planning, with a Transfer Instrument for approval by the Minister. Thus, using that same postal address, the Acting Secretary (Head) for the Department of Lands and Physical Planning wrote to the respondent advising that the Ministerial Approval for the Transfer Instrument it had lodged had been refused. That advice resulted in the contract being rescinded.

38. There is also evidence that the National Capital District Commission had sent outstanding utility rates for the property to the respondent on the same postal address.

39. In the circumstance, I have no doubt the respondent used the same postal address to do business, such as the contract of sale.

40. By using the postal address on the contract of sale, I also have no doubt the respondent expected the Department of Lands and Physical Planning to use and rely on it to communicate with it, especially regarding the Transfer Instrument which it had lodged for Ministerial Approval.

41. In the circumstances, I find that the applicants were entitled to effect service of the notice on the respondent on the same postal address.

42. Regarding the forfeiture of the lease for non-compliance with its improvement covenants, in my view the forfeiture was improper and unfair to the respondent. The reason is, the property was already improved at the time the inspection of the property was carried out by the applicants.

43. There is evidence that the property remained unimproved for a long time and the improvements were not made by the respondent. Whilst that may have been the case, such period of non-compliance was due to the applicants’ failure to be vigilant regarding their duty to enforce compliance against the respondent when those improvements were due under the terms of the lease. In those circumstances, the applicants did not have ‘clean hands’ in forfeiting the lease.

44. In my respectful opinion, given such circumstances, even if the property had remained unimproved up to the time of the inspection of the property, the proper and fair thing for the applicants to do in the face of such non-compliance, including possible outstanding lease rentals was to exercise the powers given under s. 122 (2) (b) or s. 124 of the Land Act, and give the respondent opportunity to take remedial measures to redeem the lease such as imposing fees for such non-compliance. That of course was not the case here because the property had already been improved, the effect of which was there was compliance with the improvement covenants of the lease. In that regard, it did not make any difference whether the improvements were made by the respondent or someone else. The fact was the improvement covenants of the lease were complied with.

45. Thus, whilst the respondent may be said to have failed to show cause regarding the notice, the purpose for which the notice was issued was met by the improvements already made to the property. The upshot was, there really was no proper and legal basis for the lease to be forfeited. Thus, the exercise of discretion by the Minister to forfeit the lease in those circumstances was wrong and improper.

47. Consequently, I would dismiss the application for review with costs to the respondent on party/party basis.

48. Orders accordingly.

49. HARTSHORN J: This is a decision on a contested application for review pursuant to s. 155(2)(b) Constitution of a decision of the National Court which quashed the decision of the second applicant to forfeit the State lease held by the respondent for a certain property.

50. Leave to review was granted on 14^th November 2022.

The grounds for review are that the primary judge fell into error:
1. in deciding that the place for service of the notice to show cause issued pursuant to s. 122 Land Act 1996 is the place for service provided under s. 431 and s. 432 Companies Act 1997 when it should have been the place for service provided under s. 169(1) and (3) Land

Act 1996; and

in deciding that the forfeiture notice issued by the applicant pursuant to s.122(2) Land Act 1996 had no merit or basis because the land was developed by the respondent when it was not.

Section 169 Land Act and Sections 431 and 432 Companies Act

Land Act

169. SERVICES OF NOTICES, ETC.

(1) Subject to this section, where, under this Act, a claim, notice or thing is required or permitted to be given to or served on a person (other than a corporation), the claim, notice or thing may be given or served personally or by registered post to his postal address last known to the Departmental Head.
(2) Where–
(a) in the opinion of the Departmental Head, it is impracticable to serve a person in accordance with Subsection (1); or
(b) the Departmental Head has cause to believe that that person is dead, it is a sufficient service if a copy of the claim, notice or thing–
(c) is published in three consecutive issues of a newspaper that is distributed regularly throughout the country; and
(d) is forwarded by pre-paid post to the Local-level Government (if any) –
(i) in whose area the land the subject of the notice is situated; or
(ii) in whose area the person to be served last, to the knowledge of the Departmental Head, resided; and

(e) is placed in a conspicuous place on the land the subject of the notice.

Companies Act

431. SERVICE OF DOCUMENTS ON COMPANIES IN LEGAL PROCEEDINGS.

(1) Notwithstanding the provisions of any other Act, a document, including a writ, summons, notice, or order in any legal proceedings may be served on a company as follows:–

(a) by delivery to a person named as a director or the secretary of the company on the register;
(b) by delivery to an employee of the company at the company’s head office or principal place of business;
(c) by leaving it at the company’s registered office or address for service;
(d) by posting it to the company’s registered office, or address for service, or postal address;
(e) by serving it in accordance with any directions as to service given by the court having jurisdiction in the proceedings;
(f) in accordance with an agreement made with the company.

(2) The methods of service specified in Subsection (1) are the only methods by which a document in legal proceedings may be served on a company in the country.

432. SERVICE OF OTHER DOCUMENTS ON COMPANIES.

Notwithstanding the provisions of any other Act, a document, other than a document in any legal proceedings, may be served on a company as follows:– (a) by any of the methods set out in Section 431(1)(a), (b), (c), (d) or (f);

Consideration

The primary judge said in his judgment at [16]:

“Section 431 Companies Act read together with section 432 thereof provides that delivery of notices to the Company must be at the Company’s registered office or address of service”; and at [18]:
“Having regard to section 431 read together with section 432 Companies Act 1997, I am satisfied that the notices to show cause prescribed by section 122 Land Act were not sent to the appellant’s registered office or address of service.”

The applicants submit that the primary judge fell into error in finding that the address for service to which the notice to show cause should have been sent was the address provided for in s. 431 and s. 432 Companies Act and not s.169 Land Act. Reliance is placed upon the judgment of Noko No 96 Ltd v. Puka Temu (2013) N7932 in which it was stated that the provisions of the Companies Act relating to service of documents issued under the Land Act are irrelevant and s. 169 Land Act, in the enabling legislation, provides the appropriate and proper mode of service of documents.
The respondent submits that the primary judge did not fall into error as alleged in this ground as the second and third applicants did not produce any documentary evidence to show that the postal address to which the notice to show cause was sent was the respondents address registered with the Department of Lands and Physical Planning. In the absence of such evidence the primary judge enquired of counsel whether notice to show cause was in accordance with s. 431 and 432 Companies Act 1997. It was conceded that the notice to show cause was not served in accordance with the Companies Act 1997.
From a reading of the transcript of the hearing in the National Court, the primary judge considered whether s. 431 and s. 432 Companies Act had to be complied with, after counsel for the first and second applicants did not produce any documentary evidence to show that the postal address to which the notice to show cause was sent was the respondent’s address registered with the Department of Lands and Physical Planning, thus not providing sufficient evidence that service under s. 169(3) Land Act had been properly effected. In the absence of such evidence, the primary judge looked to s. 431 and s. 432 Companies Act to ascertain whether service upon a company had been properly affected pursuant to relevant legislation.
In interpreting sections 431 and 432 Companies Act, both sections use the word “may” in their first sentence to describe service on a company. The use of “may” denotes a possible and not a mandatory service. This use of “may” is recognised, in my view, by the inclusion of s. 431(2) Companies Act. Section 431(2) in effect, makes the stated methods of service referred to in s. 431(1) mandatory for documents in legal proceedings served on a company in the country.
Significantly, there is no equivalent subsection of s. 431(2) in s. 432. The word “may” in s. 432 has in effect, not had its meaning qualified as the meaning of “may” has been qualified in s. 431 by s. 431(2).
Consequently, pursuant to s. 432, service of a document on a company other than a document in any legal proceedings, may include the methods referred to in s. 432(a). Further, because of the words “Notwithstanding the provisions of any other Act” in s. 432 and the non-mandatory meaning of “may” in s. 432, where another Act of Parliament provides for the service of a document upon a company other than a document in any legal proceeding, the methods of service referred to in s. 432 Companies Act are in addition to the methods of service prescribed in another Act, such as s. 169(3) Land Act 1996.
To the extent that this interpretation of s. 431 and s. 432 Companies Act and s. 169(3) Land Act conflicts with the interpretation in the judgment in Noko No. 96 Ltd v. Puka Temu (supra), relied on by the applicants, I respectfully disagree with the interpretation in Noko No. 96 Ltd v. Puka Temu (supra).
Given the above, I am satisfied that the primary judge did not fall into error in considering whether s. 432 Companies Act had been complied with as the methods of service prescribed therein are in addition to the methods prescribed in s. 169(3) Land Act and not instead of.

Forfeiture Notice

61. As to the second ground of review, I respectfully agree with and adopt the comments of my brother Justice Gavara Nanu.

62. For the above reasons, this application for review should be dismissed with costs to be paid by the applicants to the respondent on party/party basis.

63. KANGWIA J: The applicants were granted leave on 14 November 2022 to apply for review of the decision by the National Court. The National Court quashed the decision of the Minister for Lands and Physical Planning which forfeited the state lease held by the Respondent on land situated at Allotment 22 Section 250 and contained in the State lease volume 82 Folio 202. The forfeiture was on a purported failure to comply with improvement covenants and a failure to show cause why the lease should not be forfeited.

64. applicants rely on two grounds and submit that the decision of the National Court of 10 May 2022 should be quashed.

the first ground the applicants say that the Trial Judge erred in Law when it determined that the place for service of the notice to show cause issued pursuant to section 122 of the Land Act 1996 is the place for service provided under section 431 and 432 of the Companies Act 1997 when it ought to be the place for service provided under section 169 (1) (3) of the Land Act 1996.
Counsels for the Applicants in unison submit that the Land Act is the enabling legislation for all land matters and the requirement for service of notices to show cause was properly served on the Respondent to its address last known to the Department of Lands. They submit that even though it was not raised in submissions at trial, s 169 of the Land Act applied for service of notices and not s341 & 342 of the Companies Act. They rely on the case of Noko No 96 Limited v Puka Temu, the Minister for Lands and Physical Planning & Ors (2013) N7932 as supporting their proposition.
In the Noko case the Court held that ...” the provisions of the Companies Act relating to service of documents and notices are irrelevant.

The appropriate and proper mode of service of notices and documents is that prescribed by s 169 of the Land Act being the enabling legislation”.

On behalf of the Respondents Mr. Kint argues to the contrary and submits that the trial judge did not err when he determined that s 432 of the Companies Act was not complied with. The notice to show cause was not served on the registered address of the company and the applicants did not produce any documentary evidence to show that the postal address they posted the notices to show cause was the respondents address registered with the Department of Lands and Physical Planning.
This ground raises a question of law hence it is instructive to restate the provisions in contention being s 122, s 169 of the Land Act and s 431 and 432 of the Companies Act.

Section 122 of the Land Act states:

FORFEITURE OF STATE LEASE.

(1) The Minister may, by notice in the National Gazette, forfeit a State lease–

(a) if rent on the lease remains due and unpaid for a period of six months; or

(b) if fees are not paid in accordance with this Act; or

(c) if the amount payable in respect of improvements is not paid in accordance with this Act; or

(d) if–

(i) a covenant or condition of the lease; or

(ii) a provision of this Act relating to the lease; or

(iii) a requirement of a notice under Section 91 relating to the lease,

is not complied with; or

(e) if the granting of the lease has been obtained, in the opinion of the Minister, wholly or partly as a result of statements that were, to the knowledge of the lessee, false or misleading.

(2) Before forfeiting a State lease under Subsection (1), the Minister–

(b) may, whether or not cause has been shown in accordance with a notice under Paragraph (a), serve on the lessee a notice requiring him, within a period specified in the notice, to comply with the covenants or conditions of the lease or the provisions of this Act.

(3) The Minister shall not forfeit a lease under this Section unless–

(a) the lessee has failed to comply with a notice under Subsection (2)(a) or (b); or

(b) the lessee has failed to show good cause why the lease should not be forfeited.

70. Section 169 of the Land Act states.

SERVICES OF NOTICES, ETC.