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Agonia v Ofoi [2019] PGNC 401; N8068 (17 October 2019)

N8068

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS (JR) No. 415 of 2019

NIGEL AGONIA
Plaintiff

V
JOHN OFOI, KAMERA KUME, MAINO VIROBO, ROBERT DOKO, RENEE WEKINA, PETER TSIAMALILI JUNIOR, FATHER CASPER MORONG, OSWALD TOLOPA, VINCENT PYATI & JULIUS WAGIRAU as members of the NATIONAL PHYSICAL PLANNING BOARD
First Defendant

And
OSWALD TALOPA in his capacity as ACTING SECRETARY FOR DEPARTMENT OF LANDS & PHYSICAL PLANNING
Second Respondent

And
BENJAMIN SAMSON in his Capacity as REGISTRAR OF TITLES
Third Respondent

And
JUSTIN TKATCHENKO as MINISTER FOR LANDS & PHYSICAL PLANNING
Fourth Respondent

And
INDEPENDENT STATE OF PAPUA NEW GUINEA
Fifth Respondent

And
LOSA AGONIA, RUEL AGONIA, DOLLY AGONIA, ELSIE AGONIA, GILES AGONIA, JASON AGONIA, ROBERTA AGONIA, DENZIL AGONIA JUNIOR, HAROLD AGONIA & ROGER AGONIA
Sixth Respondent

Waigani: Miviri J
2019: 15^th October

PRACTISE & PROCEEDURE – Judicial Review & Appeals – Originating summons – Leave application – Standing – delay – Arguable case – Alternative remedies – grounds not made on the balance of probabilities – leave refused – cost will follow the event.

Cases cited:

NTN PTY LTD v The Board of Post & Telecommunication Corporation & ors [1987] PNGLR 70.

Geno, Lawton and Mambu v The State [1993] PNGLR 22
Lae Bottling Industries Ltd. v Lae Rental Homes Ltd [2011] PGSC 22; SC1120

Counsel:

L. David, for Applicant

R. Uware, for the Defendant

RULING

17^th October, 2019

1. MIVIRI, J: This is the Ruling of the court on the Amended Originating Summons dated the 25^th September 2019 by the Applicant.
   
2. He is seeking Leave for Judicial Review of the decision of the Land Board made on the 9^th July 2018 granting planning permission for the subdivision of the land described Portion 613, Milinch of Granville Fourmil of Moresby, Central Province, being the land contained in State Lease Volume 20 Folio 30 into four parcels of land.
   
3. Plaintiff is the sole surviving son of Jack Michael Agonia the holder of the special Agricultural lease Portion 613 Milinch of Granville, fourmil of Moresby, Central Province described as State lease volume 20 folio 30. Jack Michael Agonia died on 13^th August 1975. The plaintiff has paid the annual land rent when it becomes due. On the 9^th June 2017 the National Court issued Letters of administration appointing the Public Curator as the personal representative of Jack Michael Agonia. Following this the land was transmitted to the Public Curator. Then to the Plaintiff and the sixth defendants as tenants in common in equal shares on the 14^th August 2017.
   
4. Plaintiff discovered that the Sixth Defendant had applied for planning permission to subdivide the land into four parcels on the 22^nd December 2018 and the decision to grant planning permission made by the National Physical Planning Board on the 9^th July 2018 at their meeting No. 02/2018.
   
5. According to the Notice of Acceptance Plaintiff had until 7^th March 2019 to endorse it and return it duly endorsed to the Secretary of Lands and Physical Planning accepting the terms and conditions of the proposed lease for the land Portion 2822, Milinch of Granville, fourmil of Moresby, Tubusereia, Central Province failure will result in the extinguishing of any rights granted.
   
6. Plaintiff was not aware that the Sixth Defendant applied for planning permission under Section 77 of the Physical Planning Act 1989 to subdivide the land described as Portion 613 Milinch of Granville, fourmil of Moresby, Central Province into four land parcels until 5^th March 2019.
   
7. Plaintiff was not aware of the decisions made by the First, Second, Third, Fourth and Fifth Defendants until he received documents from the Sixth Defendant on the 5^th March 2019 and following a search of the Register of Titles on 8^th March 2019. He successfully placed caveats on each Portion 2823, 2824, 2825 Milinch of Granville, fourmil of Moresby, Central Province. On the 27^th May 2019 upon obtaining a copy of each of the State Leases portion 2823, 2824, 2825 Milinch of Granville, fourmil of Moresby, Central Province he noted that the Sixth Defendant transferred each of the properties on 27^th March 2019 without his consent or authorization.
   
8. Primarily amongst others the Applicant seeks certiorari to remove into court and quash the decision of the Four Defendants jointly and severely made the 9^th July 2018 and the 12th February 2019 granting planning permission for the subdivision of the land described Portion 613, Milinch of Granville Fourmil of Moresby, Central Province, being the land contained in State Lease Volume 20 Folio 30 into four parcels of land.
   
9. He also seeks similar orders against the Fourth Defendant for the decision of the 12^th February 2019 issuing State lease over the land described as contained in State Lease Volume 2 Folio 30 Portion 2822, 2823, 2824, 2825, Milinch of Granville Fourmil of Moresby, Tubusereia, Central Province being the land contained in State Lease Volume 92 Folio 27, 28, 29.
   
10. And mandamus against the Second, Third and Fourth Defendants for the decision of the 12^th February 2019 issuing State lease over the land described as contained in State Lease Volume 2 Folio 30 Portion 2822, 2823, 2824, 2825 Milinch of Granville Fourmil of Moresby, Tubusereia, Central Province being the land contained in State Lease Volume 92 Folio 27, 28, 29, issued to the Plaintiff and the Sixth Defendants be cancelled forthwith.
    
11. This application does not have assistance from the State counsel. The State has no position in respect of the application for leave. Consequently, the only material before the court is of the Applicant and not the Defendants. Given the court will consider the material and determine the Application on its own merits.
    
12. It is clear that the Applicant is affected by the decision that has been taken by the Land Board the First Defendant. He has standing or direct interest in it as tenant in common with the Sixth Defendant who has not consulted him in the process leading up to eventual decision now contended against. He has a right to be heard as to what happens to the land by the fact that he is a tenant in common with the sixth defendant. Has has standing and satisfies this ground NTN PTY LTD v The Board of Post & Telecommunication Corporation & ors [1987] PNGLR 70.
    
13. He has an arguable case he was not heard in the subdivision that took place nor was he a party to it and therefore the outcome is challenged in law. He has an arguable case on that basis. He ought to have been heard as he contended which was not accorded. This ground is made out and succeeds. There ought to be a nexus with the decision maker and the Plaintiff who is affected by that decision, Geno, Lawton and Mambu v The State [1993] PGSC 8; [1993] PNGLR 22 (29 July 1993).
    
14. There is no delay by the facts set out in the preliminary to this Application. The Plaintiff became aware of the decision on the 5^th March 2019. The decision to grant planning permission was made on the 9^th July 2018. That is a year running but the Plaintiff became aware of it on 5^th March 2019. He has explained why, and the reasons are credible with the material that he has deposed to coupled with the fact that it is the only explanation and I am bound by that evidence upon which I make this ruling pursuant. I am fortified that Time is management and should not deny the seat of Judgment, but it must be substantial or exceptional interests that are forfeited to give effect to time. From all the material and the views set out above there is nothing substantial or exceptional demonstrated given to deny grant, Lae Bottling Industries Ltd. v Lae Rental Homes Ltd [2011] PGSC 22; SC1120 (2 September 2011). The facts circumstances here is not grievous as to refuse leave. Accordingly, he has reasonably satisfied that there is no delay and this ground is made out in his favour.
    
15. In all the circumstances leave is granted for Judicial Review as applied. Consequential to this will be the following orders;
    
16. Plaintiff/Applicant will file the substantial Notice of Motion on the review and serve on the Defendants within 14 days.
    
17. The Parties are granted leave to file and serve any affidavits that they may seek to rely on within 21 days.
    
18. The Plaintiff is to serve a draft statement of agreed and disputed facts and legal issues and the draft index within 10 days thereafter.
    
19. The Defendants are to comment and respond within 10 days.
    
20. The Plaintiff is to settle file and served the Statement of agreed and disputed facts and the legal issues within 10 days.
    
21. The Plaintiff is to settle file and serve the duly certified Review Book within 10 days thereafter.
    
22. The matter will return to court on Tuesday the 12^th of November 2019 at 9.30 for directions.
    
23. Costs are in the cause.
    
24. The time for entry of these orders is abridged to the time of the settlement by the Registrar which shall take place forthwith.

Orders Accordingly.

__________________________________________________________________

Pacific Legal Group : Lawyer for the Plaintiff Applicant

Office of the Solicitor General : Lawyer for the Defendant