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Limawo Holdings Ltd v Numapo [2015] PGNC 155; N5916 (20 August 2015)

N5916

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS (JR) NO 531 OF 2014

BETWEEN:

LIMAWO HOLDINGS LIMITED
First Plaintiff

AND:

EAST SEPIK PROVINCIAL GOVERNMENT
Second Plaintiff

AND:

JOHN NUMAPO, NICHOLAS MIROU & ALOIS JEREWAI AS COMMISSIONERS OF THE COMMISSION OF INQUIRY INTO SPECIAL AGRICULTURE & BUSINESS LEASES established on 21st July 2011 pursuant of SECTION 2 of the COMMISION OF INQUIRY ACT CHAPTER 31
First Defendant

AND:

HON. PETER O’NEILL as CHAIRMAN OF THE NATIONAL EXECUTIVE COUNCIL
Second Defendant

NATIONAL EXECUTIVE COUNCIL
Third Defendant

AND:

HON. DOUGLAS TOMURIESA, MINISTER FOR FOREST & CLIMATE CHANGES and as CHAIRMAN of the MINISTERIAL COMMITTEE REVIEWING SPECIAL AGRICULTURE & BUSINESS LEASES
Fourth Defendant

AND:

HON. BENNY ALLEN in his capacity as MINISTER FOR LANDS & PHYSICAL PLANNING
Fifth Defendant

AND:

ROMILY KILA-PAT in his capacity as SECRETARY FOR DEPARTMENT OF LANDS & PHYSICAL PLANING
Sixth Defendant

AND:

BENJAMIN SAMSON is his capacity as ACTING REGISTRAR OF TITLES
Seventh Defendant

AND:

INDEPENDENT STATE OF PAPUA NEW GUINEA
Eight Defendant

Wewak: Geita J
2015: 18th May; 20th August

JUDICIAL REVIEW – Judicial review under Order 16 Rule 5 (1) – National Court Rules. Grounds of review – Ultra Vires – Errors of Law – Apprehension of Bias - Denial of natural justice – Unreasonableness

JUDICIAL REVIEW – Statement filed under Order 16 Rule 3 (2) – Purpose of Statement – Seeking orders in the nature of certiorari – Commission of Inquiry into Special Agricultural and Business Leases Reports – National Executive Council decision

JUDICIAL REVIEW - Grounds on errors of law, apprehension of bias, and natural justice dismissed – Orders in the nature of certiorari granted on grounds of ultra vires and unreasonableness – With the exclusion of the rest of the 28 SABL’s, SABL Portion 144C is reinstated

Cases Cited:
Papua New Guinea Cases

Dopsie v Tetaga & Apeng (2009) N3722
John Mua Nilkare v The Ombudsman Commission, N1344 (1995)
Kekedo v Burns Philip (PNG) Ltd [1988-89] PNGLR 122
Kenehe v Jogioba [2008] PGNC 250; N4025 i>Kim Foon & Sons Sons Pty Ltd v Minister for Finance and Planning N1464 (1996)
Paul Saboko v Commissioner of Police (2006) N2975
SCR1 of [1990] PNGLR 441

Overseas cases

Associated Picture Houses v Wednesbury Corporation [1948]1 KB 223
Jessel M. R. in Re Levy, ex p. Walton [1881] UKLawRpCh 160; (1881) 17 Ch D. 746 at 751,
Leader v Duffy [1888] UKLawRpAC 29; (1888) 13 App. Cas. 294 at 301
Wallis v Smith (1982) 21 Ch. D. 243, at 257;
Warburton v. Loveland [1831] EngR 74; (1831) 2 Dow. & Cl. 480, at 489,

Publications:

Black’s Law Dictionary, Second Edition 1995
Review of Administrative Action, Law Book Company 1987, at p.22,
The Cambridge Advanced Learner’s Dictionary, Third Edition

Legislations:

Commission of Inquiry Act 1951
Interpretation Act No18 of 2009
National Court Rules

Counsel:-

C Raurela, for the Plaintiffs
J Yamboli, for East Sepik Provincial Government
R Saulep, for the Defendants

RULING

The application was argued before me early this year and I reserved my ruling which I now deliver.

20 August, 2015

1. GEITA J: This application for judicial review is made under Order 16 Rule 5(1) of the National Court Rules. The review originates from the findings and recommendation of the Commission of Inquiry into Special Agriculture and Business Lease’s two final reports and the National Executive Decision No. 318/2013 made during its special meeting 27/2013.

2. The Plaintiffs are seeking substantive reliefs in the following:

1. An order in the nature of certiorari to bring into this Court and to quash the findings and recommendations of the Commission of Inquiry into Special Agriculture and Business Leases contained in the purported Interim Report and the purported Final Report of the Chief Commissioner John Numapo dated 24 June 2013 and the purported Final Report of Commissioner Nicholas Mirou of 24 June 2013, herein the First Defendants;

2. An order in the nature of certiorari to bring into this Court and to quash the decision of the National Executive Council made on 11 September 2013 in its Decision No. 318/2013 in its Special Meeting No. 27/2013 in appointing a Ministerial Committee to be chaired by the Fourth Defendant and to review the findings and recommendations of the First Defendants;

3. An order in the nature of certiorari to bring into this Court and to quash the subsequent decisions and recommendations of the Fourth Defendant to the Third Defendant made on or about 05 May 2014 in recommending the cancelation of the Twenty-Nine (29) Special Agriculture and Business Leases;

4. An order in the nature of certiorari to bring into this Court and quash the decisions of the National Executive Council made in its Decision No. 187/2014 in its Meeting, No. 04/2014 conducted on or about May 2014 to cancel Twenty-Nine (29) Special Agriculture and Business Leases;

5. An Order in the nature of certiorari to bring into this Court and to quash the decision of the Sixth and Seventh Defendants made on 07 July 2014 demanding the surrender and the subsequent cancellation and deregistration of the Original Owners Copy of the Twenty-Nine (29) Special Agriculture and Business Lease Titles;

6. An Order that the findings, recommendations and the subsequent purported Interim Report of March 2013 and the purported Final Report of the First Defendants dated 24 June 2013 and 24 July 2013 are null and void ab initio and unenforceable by under law;

7. An Order that all Special Agriculture and Business Leases granted pursuant to the provisions of the Land Act 1996 and affected by the decisions of the Defendants referred to above be reinstated forthwith;

8. The Defendants shall pay the Plaintiffs costs of and incidental to these proceedings;

3. The grounds relied on in the Statement under Order 16 Ruler 3 (2) (a) and filed on 5 August 2004 are as follows:-

A. ULTRA VIRES:

(1) Whether or not the First Defendants acted ultra vires by preparing and compiling the Interim Report and the two (2) purported. Final Reports outside of the time period extended by the Prime Minister on 18 October 2011;

(2) Whether or not the Second, Third, Fourth, Fifth, Sixth and Seventh Defendants reliance on the findings and recommendations of the First Defendants culminating in, its various decisions was ultra vires the Commissions of Inquiry Act;

B. ERRORS OF LAW

(1) Whether or not the First Defendants committed errors of law by compiling and presenting an Interim Report and two (2) subsequent Final Reports by Commissioners Numapo and Mirou when the Commissions of Inquiry Act envisages one final-report;

(2) Whether or not the Second, Third, Fourth, Fifth, Sixth and Seventh Defendants committed errors of law by accepting and relying on the findings and recommendations of the First Defendants contained in the Interim Report and the purported Final Reports of Commissioners Numapo and Mirou;

C. APPREHENSION OF BIAS

Whether or not Commissioner Mirou was biased in his findings and recommendations regarding Portion 144C.

D. NATURAL JUSTICE

Whether or not the Plaintiffs were denied natural justice.

E. UNREASONABLENESS

(1) Whether or not the Second Defendants' decision to cancel 29 SABLs including Portion 144c were so unreasonable and absurd that no reasonable tribunal of fact placed in the position of the Defendants determining the issues would have reached such decisions;

4. The plaintiffs’ application was contested by the defendants in two broad heads in their application to dismiss the review proceedings. First is the legal capacity to represent the 28 SABL’s, relying on Order 4 Rule 5 sub rule (2) National Court Rules and their rebuttals to the main grounds.

Evidence:

5. The plaintiff’s evidence consists of these following affidavits:

1. Affidavit of Aaron Malijiwi filed on 13 August 2014;
   
2. Affidavit of John Yamboli filed on 13 August 2014;
   
3. Affidavit of Service of Tau Lao filed on 13 August 2014;
   
4. Affidavit of Michael Thomas Somare filed on 22 September 2014;
   
5. Affidavit in Response of Godfrey Raushem filed on 15 October 2014;
   
6. Affidavit of James Dawa filed on November 2014.
   

6. The defendants’ evidence consists of two affidavits of Commissioner Nicholas Mirou filed on 8th and 9th April 2015; Affidavit of Hon. Ano Pala filed on 13 October and Affidavit of Joe Wafewa filed on 22 October 2014.

Admissibility Issues:
(Ruling delivered on 18th May 2015

7. At the hearing of this application for judicial review, Mr Raurela objected to the tender of the affidavit deposed to by the Plaintiff’s witnesses Hon. Ano Pala filed on 13 October 2014. The basis for the objection is that the affidavits formed part of any earlier application seeking several orders for certiorari before His Honour Kirriwom J on 23 October 2014. No other reasons were advanced. Such application was dismissed with costs after arguments from both parties were received and ruling made on 18 May 2015 overruling the objection and the two affidavits admitted into evidence. My full reasons for the ruling have since been published.

Submissions on substantive application:

8. Counsel for both parties filed written submissions (original and supplementary) and made oral submissions. I have considered the evidence and the submissions.

9. At the outset I consider it necessary to find the meaning of the two words which has given rise to opposing interpretations or views from both parties in support of their respective arguments. I first look at the dictionary meaning of both words:-

What is Instrument?

10. According to Black’s Law Dictionary, Second Edition 1995, Instrument is “a written document; a formal or legal document in writing, such as a contract, will, bond or lease.”

11. The Cambridge Advanced Learner’s Dictionary, Third Edition describes Instrument as “a way of achieving or causing something-Formal.”

And what is Report?

12. A Report is described as” an official or formal statement of facts or proceedings. In practise. The formal statement in writing made to a court by a master in chan-cery, a clerk, or a referee, as a result of his inquiries into some matter referred to him by the court.” (Black’s Law Dictionary, Second Edition 1995)

13. A Report is described as “to give a description of something or information about it to someone.” (Verb). (The Cambridge Advanced Learner’s Dictionary, Third Edition)

14. It was said in the old English case of Warburton v. Loveland [1831] EngR 74; (1831) 2 Dow. & Cl. 480, at 489 that:

“Where the language of the Act is clear and explicit, we must give effect to it, whatever may be the consequences; for in that case the words of the statute speak the intention of the legislature.”

15. In another case it was stated by Jessel M. R. in Re Levy, ex p. Walton [1881] UKLawRpCh 160; (1881) 17 Ch D. 746 (at 751) that:

“The grammatical and ordinary sense of the words is to be adhered to, unless that would leave to some absurdity, or some repugnance or inconsistency with the rest of the instrument, in which case the grammatical or ordinary sense of the words may be modified, so as to avoid that absurdity and inconsistency, but no further.”

16. The learned Master of the Rolls in another case a year later, Wallis v Smith (1982) 21 Ch. D. 243, said (at 257):

“You may depart from the literal meaning of words, if reading the words literally leads to an absurdity”.

17. Finally Lord Halsbury in another old English case of Leader v Duffy [1888] UKLawRpAC 29; (1888) 13 App. Cas. 294 at 301 said:

“All these refinements and nice distinctions of words appear to me to be inconsistent with the modern view, which is I think in accordance with reason and common sense, that, whatever the instrument, it must receive a construction according to the plain words and sentences therein contained. But I agree that you must look at the whole instrument inasmuch as there may be inaccuracy and inconsistency; you must, if you can, ascertain what is the meaning of the instrument taken as a whole in order to give effect, if it be possible to do so, to the intention of the framer of it.”

18. I respectfully adopt these statements as pertinent to the task before this Court. The subject matter before me are the words instrument and reports in The Commissions of Inquiry Act 1951.

19. Read in their ordinary meaning and subject matter understood by its users or persons who are affected, it means a formal or legal document in writing ie; the instrument signed by Acting Prime Minister Sam Abal for something to be done. In order for that formal or legal document in writing to be promulgated it must first be gazetted in the government’s official paper the National Gazette. I see no ambiguity in the word National Gazette. That is and was the outcome envisaged by all parties affected and none other. The intentions of the framers of the COI was and is that such instrument to be signed by the Minister responsible and published in the National Gazette. Anything falling short of that is not legal and binding.

20. In my view the intentions of the framers under Section 2 Commission of Inquiry Act was and is that a written document from an appointing authority, in this case the Minister responsible must be published or gazetted to give meaning and become a lawful instrument. That written document is now referred to as the instrument within the meaning of Section 2.

Competency Issues:

21. Is also important to iron out any ambiguities that may arise as a result of defendants contention that the Plaintiffs in this matter have no standing to represent the rest of the 29 SABL’s. I need not look outside the Plaintiff’s statement to see if they have been authorised by the rest of the 28 SABL’s to represent them in this matter. Under National Court Rules O16 r 6(1), the applicant is restricted to the grounds of review set out in the statement filed under O16 r 3. In the case of John Mua Nilkare v The Ombudsman Commission, N1344 (1995) the learned authors views in the Review of Administrative Action, Law Book Company 1987, at p.22, was adopted and I quote:-

“The right person must apply for an appropriate remedy against the right person at the right time and the Court must be persuaded to grant the remedy.”

22. Clearly the plaintiffs in this judicial review cannot be said to be the right persons to seek remedy for others. There is no evidence before me to suggest that the Plaintiffs have been authorised by the rest of the 28 SABL’s to represent them. The defendants submit that Order 5 Rule 2 National Court Rules precludes the Plaintiffs from representing the rest of the 28 SABL’s. Order 4 Rule 5 of the National Court Rules reads as follows:

“Right to sue in person_

(1) Subject to Sub-rule (2), to Rule 6(1) and to Order 5 Rule 20(2) (disability), any person may proceed in the Court by a solicitor or in person.

(2) Except as provided by or under any Act, a corporation may not commence or carry on any proceedings otherwise than by a solicitor. (Emphasis mine)

23. It follows that in the absence of any direct or implied authorization from the rest of the 28 SABL’s to the Plaintiffs lawyers to represent them in this proceeding, they are all precluded from this judicial review. The reliefs sought by the plaintiffs are therefore restricted to SABL, State Lease Volume 15 Folio 52 Portion 144C, Milinch Tring Fourmil Wewak, East Sepik Province.

The grounds under which the reliefs are sought

24. Judicial review relief is a specialised remedy in public law which is available at common law. It is very much disrectionary. The process is usually jealously guarded by court from abuse etc.(Kekedo v Burns Philip (PNG) Ltd [1988-89] PNGLR 122).

Ground 1 - Ultra Vires:

25. Mr Raurela for the plaintiffs submits that the actions of the first defendants in submitting their reports to the third respondent out of time and the subsequent extensions of time by the Prime Minister was ultra vires. Furthermore all subsequent actions thereafter also ultra vires. The life of the two Executive appointments by two instruments commenced on 22 April 2011 and expired on 18 February 2012. I outline hereunder in tabular form for ease of reference.

26. Mr Saulep for the defendants submits that the use of the Executive powers for the extension was influenced by reasons of public interest and the prevailing circumstances at the time and that those powers used by the Prime Minister were not unreasonable and or oppressive. He further submitted that the gazettal of the new extension allowed by the Prime Minister in a letter dated 26 March 2013 was not mandatory as he was the minister responsible at the time. Adding that the COI Act was silent on the term “Instrument”. Might I state here at the outset that the principles on the nature and scope of judicial review of administrative actions of public authorities are established in many cases. Judicial review is about the process by which the decision is arrived at and not about the correctness of the decision. It follows that any justification on the use of Executive Powers by the Prime Minister advanced by Mr Saulep is flawed, however important or public policy reasons they may hold.

27. Mr Saulep submits that Section 2 (3) of the Act was silent on whether an interim report can be regarded as a report within the meaning of the section and cannot be viewed as hugely substantial warranting intervention by courts. He however fell short of assisting court with examples of what may be termed as substantial breaches. Notwithstanding this lack I am more inclined to accept defence views. The courts views have adequately been covered in its analysis of the words instrument and report above.

28. The appointment of Commission of Inquiries, the Commissioners and their terms of references including their remunerations are made by instruments under the Commissions of Inquiry Act 1951. It follows that any amendment including alterations and or extensions can only be made by subsequent instruments under Section 2 of the Act. I find support for this proportion in Section 3 of the Commission of Inquiry Act. The subject given rise to the Prime Minister’s ire in his letter was the unwillingness or inaction by “The Numapo Commission of Inquiry” to file its final report to the government. The Prime Minister failed to employ the provisions under Sections 2 & 3 of the Act to achieve his goals, however he elected otherwise.

29. It is generally stated that the most important rules for statutory interpretation are those suggested by common sense and this ordinary meaning may be controlled by the particular context. And the particular context here is the extension of time under the Commission of Inquiry Act: Whether the Prime Minister’s letter of 11 June 2013 is an appropriate instrument validating the extension of time.

30. Clearly the Prime Minister’s letter was not a legislative instrument nor was it in conformity with the letter and spirit of Sections 2 & 3 of The Commission of Inquiry Act. These are mandatory requirement contrary to the defendant’s contention that the Prime Minister as the Minister responsible has given his authority to extend and that will suffice. In other words the gazettal of the instrument was not necessary. This approach is misconceived and erroneous in my view. In the present case there was no instrument of the extension by one month in evidence and it was not even suggested that one was available.

31. Additionally I find support for this view under of Section 1 (1) Interpretation Act (Chapter 2) consolidated to No 18 of 2009: A "legislative instrument" includes—

(a) a regulation; and

(b) a statute made under an Act; and

(c) rules of court; and

(d) standing orders; and

(e) a by-law; and

(f) an order in council; and

(g) a proclamation; and

(h) an order; and

(i) a notice; and

(j) a determination; and

(k) a rule;

Again the Prime Minister’s letter of 11 June 2013 fails to find support under this Act hence is cannot be liberally accepted as an instrument.

32. In my view therefore The Prime Minister acted without actual authority or statutory power when he unilaterally extended the term of the “The Numapo Commission of Inquiry” by one month from 24 May 2013 – 24 June 2013. All activities transacted outside 21 March 2012 in my view amounts to an abuse or exercise of authority in access of statutory power, hence ultra vires. It follows that the Commission of Inquiry Reports presented to the Prime Minister individually or separately outside the statutory period including those extensions up to and including 24 June 2013 ultra vires.

Ground 2 - Errors of Law

33. Mr Raurela for the Plaintiffs submits that Commissioner Mirou’s report was not a Report per se but records of proceedings of the inquiry into the five SABL’s he was tasked to inquire into. Furthermore they contend that the first defendants committed errors of law by compiling and presenting three sets of reports to the government when the Commissions of Inquiry Act envisages one final-report.

34. Defence contention is that Commission of Inquiry Reports presented individually or severally by its Commissioners is consistent within the spirit of Section 14 and 15 of the Act and remains valid for all purposes.

35. Now continuing on from what I said earlier in respect of reports, the word is best read and interpreted in its plain meaning. Hence a report by the Commission under Section 15 COI Act, read in its plain ordinary meaning refers to the results of an inquiry and reasons for its conclusions. My view is that a report by the Commission or Commissioners, in this case three Commissioners, irrespective of whether they are presented as one final report or a series of them does not prove fatal so long as they meet the criterions of Section 15 i.e. giving results of its inquiry and giving reasons for its conclusion. To this end I see nothing wrong with the transcriptions relied on by Commissioner Mirou as his final report. The basic ingredients required under Section 15 COI are contained therein. I wish to reiterate here that a report is a report per se, however eloquent or otherwise they are formatted and presented. As long as those distinctive features described above in their ordinary dictionary meanings are present. I therefore rule that no errors of law were committed and dismiss this ground.

Ground 3 - Apprehension of Bias

36. Although there is some evidence from the plaintiff against Commissioner Nicholas Mirou seen in the company of representatives of the opposing landowners and non-government organisations during the conduct of the hearings and onsite inspection on 8 February 2012, those concerns have been iron out during public hearings with apologies and acceptance by all concerned. The landowners’ complaint for Commissioner Mirou to disqualify himself was motivated by the same reasons and resolved. In my view this dispels any suspicion or apprehension that may arise from Commissioner Mirou’s findings and recommendations. I dismiss this ground.

Ground 4 - Natural Justice

37. Mr Raurela submits that the plaintiffs were denied the opportunity to be heard on the decisions and recommendations by the defendants to cancel SABL Portion 144C, hence they were denied natural justice.

I have already determined this under apprehension of bias. In my view, this ground is misconceived and it is dismissed. There is no legal obligation on the part of the defendants to allow interested and or affected persons to be heard prior to the implementation of its deliberations save the National Parliament pursuant to Section 17 of The Commission of Inquiry Act. For this reason, I reject this ground.

Ground 5 - Unreasonableness

38. Mr. Raurela for the plaintiffs submits that prior to the blanket cancellations of the 29 SABL’s of which the Plaintiffs are also included, the Defendants ought to have enquired into or inspected their progress and viability individually. He has gone into great lengths to demonstrate to the court that the Plaintiffs project, Turubu Oil Palm Project was at an advanced stage of materialising and with more than K75, 519,565.00 already invested. I ask myself what then was the unreasonableness in the NEC decision to order the wholesale cancellation of all 29 SABL’s, including the Plaintiffs project on land Portion 144C, in light of ample undisputed evidence of its inception sanctioned by the National Government and the ESPG (2nd Plaintiff). This also includes its current management regime, progress and vast capital outlays.

39. The Defendants responses are contained in the affidavit filed by Commissioner Mirou on 8 April 2015 and Hon. Ano Pala filed on 13 October 2014. More so the Minister’s affidavit explaining reasons for Government intervention in SABL’s nationwide including Portion 144C. The tenor of Hon. Ano Pala’s affidavit is an attempt to introduce new evidence already put before another tribunal, not the subject of the grounds of review in this case.”The primary task of the Court is to review the decision on the record, made by the appeal body and determine whether the grounds of review are established by the plaintiff and the appropriate relief ought to be granted. The review court will not, should not and has no jurisdiction to go outside the scope of matters considered by the appellate body. ( Kenehe v Jogioba [2008] PGNC 250; N4025&#16er Injia DCJ as heas he was then. Having found support in this proportion I venture to say here that the Minister’s attempts to introduce new evidence in this review superfluous.