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National Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
OS (JR) No. 27 OF 2020
BETWEEN
MARGARET RASAKA YUKU
Plaintiff
AND:
LUKOM TRADING LIMITED
First Defendant
AND:
HON. BENNY ALLAN MP – Minister for Lands & Physical Planning
Second Defendant
AND:
THE INDEPENDENT STATE OF PAPUE NEW GUINEA
Third Defendant
AND:
THE NATIONAL HOUSING CORPORATION
Fourth Defendant
Waigani : Numapo J
2020: 14th August
PRACTICE AND PROCEDURE –Interlocutory Application - Leave for Judicial Review (O16 r 3 NCR) – Sufficient interest - Transfer of lease without tenant’s knowledge - Prima facie Arguable case– Equitable Interest -No undue delay - Leave granted.
Cases Cited:
Papua New Guinea Cases
Leto Darius v Commissioner of Police [2001] 147, N2046;
Kombati v Singin [2004] PGNC 85; N2691;
Louis Medaing & Ors v Lima Mulung & Ors [2010] N4001
OS No. 668 of 2016 (CC2) – Ezra Kwako v Thomas Nen
Dawidi v Jacob [2001] PGNC 130; N2083.
Steamships Trading Company Ltd v Minister for Lands and PhysicalPlanning [2000] PGNC 11; N1959
Ken Mondiai & Ors v Wawoi Guavi Timber Company Ltd (2007) SC886
Asakusa v Kumbakor, Minister for Housing [2008] PGNC 39; N3303.
NTN Limited v The Board of the Post and Telecommunication Corporation and Others [1987] PNGLR 70
Geno v The State [1993] PNGLR 22.
Pora v Leadership Tribunal [1997] PNGLR 1
David v Zurenuoc [2007] N3146
Independent State of Papua New Guinea v Philip Kapal [1987] PNGLR 417
Irene Davis v Karipe Pitzz &The State [1988-89] PNGLR 143
Overseas Cases
Inland Revenue Commissioners v National Federation of Self-Employed and Small Businesses Ltd [1981] UKHL 2; [1982] AC 617
Counsel:
Mr. L. Tangua, for the Plaintiff
Mr. K. Kipongi, for the Second, Third and Fourth Defendants
No Appearance of the First Defendant
RULING
14th August, 2020
1. NUMAPO J: This is a ruling on an application for leave for judicial review pursuant to Order 16 Rule 1 & 3 (O 16 r 1 & 3) of the National Court Rules (NCR). The requirement of r 3 sub-rule (3) have been duly complied with by giving notice of the application to the Attorney-General, by service on him of sealed copies of the Originating Summons, Notice of Motion, and Statement in Support pursuant to O 16 r 3 (2) (a) and the Verifying Affidavit in accordance with r 3 (2) (b). The second, third and fourth defendants were represented by Counsel on the application, though such application are usually made ex parte – r 3 (2)NCR.
2. The Plaintiff seeks leave to review the decision of the Second Defendant dated 17th August 2015 to grant a state lease over a property described as Section 04 Allotment 29, located at Bomana (9 Mile) NCD (“the property”) to the First Defendant.
3. The property was an undeveloped and unregistered State land managed by the Fourth Defendant (NHC). The Plaintiff applied for and was given the property on a rental basis. One of the requirements under the term of the rental lease is to make improvements on the land. The Plaintiff built a three-bedroom house including other developments on the property valued around K250, 000.00.
4. In June of 2012, Luke Komean the owner of the First Defendant approached the Plaintiff and her husband and asked to sub-lease a small part of the property for him to build a canteen. An agreement was reached between the Plaintiff and the First Defendant whereby the First Defendant will build and operate a canteen and a small bakery business ‘rent free’ for 5 years and after that leaves the canteen to the Plaintiff and move out. In consideration for that, Luke Komean on behalf of the First Defendant gave K40, 000.00 to the Plaintiff for allowing him to sub-lease a portion of the property.
5. The First Defendant applied for and was granted a 99 years State lease over the property by the Department of Lands & Physical Planning (DLPP) without the knowledge of the sitting tenant. The Fourth Defendant was not aware of the State lease and has not granted its approval or make any recommendation for the granting of the lease.
6. The principles of law governing the grant of leave for judicial review is well settled in this jurisdiction. Applicant seeking leave for judicial review pursuant to O16, r 3 of the NCR must satisfy the Court:
(i) that he has the locus standi in that he has sufficient interest in the matter to which the application relates;
(ii) that the decision sought to be reviewed is that of a public body or authority;
(iii) that there is an arguable case on its merits;
(iv) that all administrative or other remedies have been fully exhausted; and
(v) that there has been no undue delay in bringing the application.
7. The above five (5) grounds are the checklist of the minimum requirements (emphasis mine) the Court must be satisfied with before it exercises its discretion whether or not to grant leave for a judicial review. Kandakasi J (as he then was) summarized well these requirements in Leto Darius v Commissioner of Police [2001] 147. See also: N2046; Kombati v Singin [2004] PGNC 85;N2691; and Louis Medaing & Ors v Lima Mulung & Ors [2010] N4001.
8. The powers of the National Court to grant reliefs sought in judicial review is found in Section 155 of the Constitution. The reliefs available are commonly known as prerogative writs in the nature of mandamus, prohibition, certiorari and quo warranto.
9. Counsel for the Plaintiff raised three (3) grounds seeking leave for review as follows:
10. The Plaintiff/Applicant entered into a valid Tenancy Agreement with the Fourth Defendant over a property described as Section 04 Allotment 29, located at Bomana (9 Mile) NCD. She built a three-bedroom medium covenant residential house and also done some improvements on the land which was originally an undeveloped land. The lease was then transferred to a third party without the Plaintiff’s knowledge whilst the tenancy agreement was still current.
11. So does the Plaintiff have a sufficient interest in the matter to be granted leave for judicial review?
12. The question relating to sufficient interest and locus standi varies from case to case and is often answered by examining the nature of the decision and the context in which it was made. In Steamships Trading Company Ltd v Minister for Lands and Physical Planning [2000] PGNC 11; N1959, his Honour Sheehan J held that; “.....it is essentially a mixed question of fact and law, a matter of fact and the degree of relationship between the plaintiff and the subject matter of his or her complaint....”See also: See Dawidi v Jacob [2001] PGNC 130; N2083.
13. The requirements of sufficient interest is broad in its application and not restrictive. So long as the Applicant is able to show that he has some relationship or connection with the subject matter and that his relationship or interest in the subject matter is so affected by a decision of a public body that in itself, is sufficient ground to seek review. In Ken Mondiai & Ors v Wawoi Guavi Timber Company Ltd (2007) SC886 the Supreme Court held that;
“On application for leave the Court must be satisfied that the applicants has sufficient interests in the subject matter of the application...Sufficient interest might be demonstrated by interests of property, legal or financial nature but can include community, environmental, cultural interest and areas of special expertise.”
14. In the present case, it does seem to me that the Plaintiff has an interest in the property in that; firstly,the Plaintiff has the current valid tenancy agreement with the Fourth Defendant and, secondly, for the improvements made on the property. Plaintiff expended her own money, time and resources to improve what was originally the unimproved land. The decisions of the Second and Thirds Defendants to grant the lease to the First Defendant affected her interest. She might not have a legal title per se to the property but she does have an equitable interest.
15. In that regard, she has the locus standi to bring proceedings pursuant to O 16 r 3 (1) and (5) of the NCR.
16. I am satisfied therefore, that the Plaintiff has a sufficient interest in the subject property and has made a strong case in favour of granting leave pursuant to O 16 rr 2, 3 and 5 NCR.
17. With respect to arguable case the onus is on the Applicant to demonstrate to the Court that she has an arguable case on merits to be given leave. The Court must be satisfied that the Applicant has an arguable case in that there are serious, substantive and fundamental issues of law to be tried. These must be shown in the grounds for review contained in the statement in support that must be properly and sufficiently pleaded to raise arguable issues of law. See: Asakusa v Kumbakor, Minister for Housing(supra).See also: NTN Limited v The Board of the Post and Telecommunication Corporation and Others [1987] PNGLR 70; and Geno v The State [1993] PNGLR 22. See also: Pora v Leadership Tribunal [1997] PNGLR 1.
18. The leading authority on arguable case is found in Inland Revenue Commissioners v National Federation of Self-Employed and Small Businesses Ltd [1981] UKHL 2; [1982] AC 617; Lord Diplock sets out the principles on arguable case and said at p.644 that; “If on a quick perusal of the material then available, the Court (at the leave application stage) thinks that it discloses what might on further consideration turn out to be an arguable case in favour of granting to the applicant the relief claimed, it ought, in the exercise of a judicial discretion, to give leave to apply for the relief. The discretion that the Court is exercising at this stage is not the same as that which it is called upon to exercise when all evidence is in and the matter has been fully argued at the hearing of the application.”
19. In the present case the Plaintiff is alleging constructive or equitable fraud in the granting of the State lease to the First Defendant by the Second and Third Defendants under section 33 (1) of the Land Registration Act.
20. Plaintiff argued that the First Defendant was not an incorporated business entity at the time it applied for and obtained the State lease over the property under its trading name. Hence, the whole process pertaining to the transfer of the lease was flawed, irregular and unlawful.
21. Secondly, that such an application for grant of State lease should be only made on the approval and recommendation of the Fourth Defendant who was the Landlord at the material time. No such approval was obtained from the Fourth Defendant.
22. Thirdly, that the Plaintiff has never transferred the lease (as sitting tenant) to the First Defendant to enable the First Defendant to apply for and be granted a State lease.
23. Finally, the Plaintiff has an equitable interest on the land(re: the improvements) and has not transfer or sold that interest to anyone including the First Defendant for a fair and just compensation.
24. It is obvious that the Plaintiff has not been consulted nor was she aware of any transactions relating to the granting of the State lease. Plaintiff might not have a legal title per se to the property but she does have an equitable interest for the improvements made and furthermore, that she still enjoys a current valid tenancy agreement with the Fourth Defendant which has not been discharged or terminated at the time the transfer was effected.
25. Based on the above, I am satisfied that the materials placed before me discloses an arguable case on merits in favour of granting leave to the Plaintiff/Applicant.
26. Order 16 r 4 (2) prescribed four (4) months as the proximate period within which an application for judicial review must be filed. In the present case, the Plaintiff became aware of the existence of a State lease in late December of 2017 and early January of 2018. The proceeding was filed on 15 July 2020. There was a delay of 2 years and 2 months.
27. Mr Tangua for the Plaintiff however, submitted that the 4 months’ time limit is not mandatory and the court has the discretion to determine whether or not to grant leave even if the application is filed out of time. The Applicant must give reasonable and satisfactory explanations for the delay. Counsel cited number of case laws on point. The one that stands out, for purposes of this current proceedings, is that of David v Zurenuoc [2007] N3146 where the Court granted leave even though there was a delay of 8 months, stating that; “The four (4) months period under O.16 r.4 (2) is not mandatory. The Court has a discretion in determining whether or not to grant the relief sought. Each case to be considered on its own merits. A number of variables must be considered....””
28. In Irene Davis v Karipe Pitzz &The State [1988-89] PNGLR 143, plaintiff applied to review a decision of the Minister for Lands to forfeit a State lease. There was delay of almost 2 years and 3 months. Court nonetheless overlooked the delay and granted leave and afterwards granted the actual review application because of the serious issues involved and the arguable nature of the case.
29. The reasons for the delay according to Mr Tangua is that the dispute over the subject property was mediated and successfully resolved in which the First Defendant agreed to transfer the title to the Plaintiff by 31 December 2018. The First Defendant however, defaulted on that agreement and failed to transfer the title by the due date. Further mediations were held after 31 December 2018 in which the First Defendant again undertook to transfer the title and asked for more time to do so but never did anything up to this day.
30. The Plaintiff then reported the matter to the Police and Luke Komean the owner of the First Defendant was arrested and charged with ommitting fraud. This process took quite sometimes and when the matter finally went to court the District Court struck it out as it considered it as a civil matter. Plaintiff had to wait for all these processes to be completed, hence the delay. Plaintiff sought further legal advice and filed proceeding WS 123 of 2020 on 18 February 2020 disputing the validity of the State lease held by the First Defendant.
31. Based on the evidence before me, I am satisfied that the Plaintiff has provided a reasonable and satisfactory explanation regarding the delay and is therefore, entitled to leave for review.
32. Furthermore, if leave is granted it will not prejudiced or disadvantaged anyone or cause any hardship and there will be changes to the circumstances surrounding the property in terms of its ownership and improvements. The status quo will be preserved until the substantive determination.
33. I didn’t consider it necessary to discuss the other two grounds for review as I am satisfied that sufficient grounds have been made out to be granted leave.
RULING
34. All in all, I am satisfied that the Plaintiff has made out a prima facie case to the satisfaction of the Court to be granted leave pursuant to O 16 r 3 NCR and accordingly, I grant leave to the Plaintiff/Applicant.
ORDER
35. Having granted the Plaintiff/Applicant leave for judicial review pursuant to O 16r 3, the Plaintiff is now directed to do the following forthwith:
(i) File a Notice of Motion for Substantive Review pursuant to O 16 r 5 sub-rule (2);
(ii) File Supporting Evidence;
(iii) File Affidavits verifying the facts to be relied on; and
(iv) File any Disputed Facts.
36. Matter is returnable on the 08th September 2020 for direction hearings.
Orders accordingly
Tangua Lawyers: Lawyer for the Applicant
Solicitor General: Lawyer for the Second & Third Defendants
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