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Hides Joint Venture Ltd v Gware [2023] PGNC 244; N10389 (28 June 2023)

N10389

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS (JR) NO. 59 OF 2023

HIDES JOINT VENTURE LIMITED
Plaintiff

V
GEORGE GWARE CHAIRMAN OF PAPUA NEW GUINEA LAND BOARD
First Defendant

AND
PAPUA NEW GUINEA LAND BOARD
Second Defendant

AND
BENJAMIN SAMSON SECRETARY DEPARTMENT OF LANDS & PHYSICAL PLANNING
Third Defendant

AND
ALA ANE REGISTRAR OF TITLES
Fourth Defendant

AND
DEPARTMENT OF LANDS & PHYSICAL PLANNING
Fifth Defendant

AND
HON. JOHN ROSSO, MP MINISTER FOR LANDS & PHYSICAL PLANNING
Sixth Defendant

AND
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Seventh Defendant

Waigani: Miviri J
2023: 27^th & 28^th June

PRACTICE & PROCEDURE – Judicial Review & Appeals – Order 16 Rule 3 Application for Leave for Judicial review – Whether there was Completion of Hearing of Land Board on Application of Plaintiff – Tender Applied Pending No Determination – Dispute Over “AJA Hariki For Hides Joint Venture Ltd” Particulars Application Form By Plaintiff – Section 71 Land Act – Arguable Case – Locus Standi – Internal Process – No Delay – Application Without Merit – Leave Refused – Cost follows the Event.

Cases Cited:

Kekedo v Burns Philp (PNG) Ltd [1988-89] PNGLR 122

Asakusa v Kumbakor, Minster for Housing [2008] PGNC 39; N3303

Innovest Ltd v Pruaitch [2014] PGNC 288; N5949

Kimas v Boera Development Corporation Ltd [2012] PGSC 8; SC1172

Somare, Re [1981] PNGLR 265

Counsel:

T. Jugari, for the Plaintiff
M. J. Narokobi, for the Defendants

RULING

28^th June, 2023

1. MIVIRI, J: This is the ruling on the Plaintiff’s originating summons of the 12^th June 2023 filed the 14^th June 2023 pursuant to Order 16 Rule 3 of the National Court Rules seeking leave to apply for Judicial review of the decision of the first and second Defendant made of the 09^th June 2023 in refusing to accept, consider and hear the plaintiff’s application for an Urban Development Lease over the Land portion 3555, Milinch Granville, Fourmil Port Moresby, National Capital District during the Land Board Meeting No. 010/23, item No. 245. Which decision was verbally communicated to the Plaintiff by the First and Second Defendants.
   
2. It is the contention of the plaintiff Hides Joint Venture (HJV) of P. O. Box 780, Waterfront National Capital District, a company duly incorporated under the Companies Act 1977, that on the 23^rd February 2023 the Department of Lands and Physical Planning published the tender No. 015/2023 in Gazette Notice No. 111 seeking interested applicants to apply for an Urban Development Lease over the subject land. The plaintiff complied to that notice on the 16^th March 2023 by its Manager Aja Hariki who submitted an application relating, with the words, “Aja Hariki for Hides Joint Venture Ltd”.
   
3. The plaintiff details this out in the affidavit relied on of its Public Relations Officer one Jayson Mandawi sworn of the 12^th June 2023, filed the 14^th June 2023. Materially that affidavit states annexure “JM1” that the plaintiff is a company incorporated under the Companies Act. “JM2” is tender Notice No. 015/2023 published in the National Gazette No. G111 of the 23^rd February 2023. And in response the plaintiff applied “JM3” its application dated 16^th March 2023. And the First and second Defendants acknowledged the application of the Plaintiff by letter dated 05^th May 2023, annexure “JM4”. The application was called up to be heard on the 09^th June 2023. Initially it was set for the 07^th June 2023 but did not eventuate then.
   
4. And on that day 09^th June 2023, the plaintiff was called into the conference room of the Department of Lands & Physical Planning at 1.30pm that day. It never got around to a full hearing because, “there was a fundamental disagreement between myself and the Land Board members regarding the interpretation of the name stated on the application form. While I firmly asserted that the application clearly represented Hides Joint Venture Ltd, the Land Board held a different understanding or perception. This difference in interpretation ultimately led to their decision to refuse hearing our application. Despite my attempts to clarify and provide supporting evidence, the Land Board remained steadfast in their position, resulting in a frustrating impasse. It was disheartening to witness this lack of alignment and understanding, as it hindered our ability to effectively present our case and have our application duly considered.
   
5. The land Board’s justification for disqualification was solely based on the alleged incorrect format of the names used in our application form. This unforeseen technicality deprived the plaintiff of the opportunity to present and argue our application before the PNG Land Board, while other applications for the same land were given the chance to be heard.
   
6. It is deeply disappointing that the land Board failed to notify us about the name format discrepancies prior to the presentation day. Had we been promptly informed, we would have taken immediate action to rectify any perceived errors and ensure strict compliance with the required format. It is only reasonable to expect that, as a matter of basic courtesy and fairness, we should have been given the chance to rectify any issues before being disqualified from the bidding process.
   
7. The matter regarding the use of different names in the applications was unexpectedly raised during the presentation stage. Contrary to the Land Board’s prior acceptance of our application, it was at this point that we were informed of the alleged incorrect name format. The Land Board’s decision to disqualify our bids and presentations based solely on this name format discrepancy caught us by surprise, as we had not been previously alerted to any issues or provided an opportunity to correct the alleged error.
   
8. We firmly believe that a fair and impartial assessment of the situation will reveal the land Board’s oversight in handling our case and the undue hardship imposed upon us as a result. It is evident that our qualification was unwarranted and unjust, especially considering the lack of prior notification and the inability to rectify the alleged error.
   
9. However, it is important to note that if the Land Board proceeds to award the Land to another bidder during the ongoing hearing, the plaintiff, having been disqualified and unable to participate as an applicant, may encounter legal constraints in challenging the Land Board’s decision regarding the land allocation.”
   
10. This evidence in my view from the plaintiff is self-serving, it shows that the matter was administratively pointed out to the plaintiff to comply so that the form was in order for its consideration. That is not the same of determining the application by its merits and making the applicant/plaintiff unsuccessful in the application. What has been pointed out can be corrected for the person who is applying for the consideration determination of the application by the Board. It is a view maintained by the plaintiff which does not establish the contention that the Land Board will no longer deal with the application. Because the law is very clear under section 71 of the Land Act, that the Land Board shall consider all applications for State Leases. The plaintiff’s application has met out the formalities prescribed by sections 58 (1) (a) (b) which is acknowledged by the plaintiff at paragraph 6 confirming “JM4” letter under hand of the first defendant, details of which are set out in paragraph 7 of the affidavit. And with “JM5” it will be considered but for the issues raised by or against the form.
    
11. The effect of this fact is that the application is there before the Land Board, as there is no independent confirmation of the affidavit sworn by the plaintiff’s witness Jayson Mandawi, that the Land Board has dealt with that application in the way contended. Unless and until there is evidence from the land Board by its own records, in the same way it has produced the annexures referred to in the affidavit above, that it has dealt with the application of the plaintiff in the way argued, this matter is really driving a vehicle without the driver. The word of the plaintiff who has an interest in the favourable outcome of the proceedings cannot be taken at face value without independent verification that the land Board has indeed, dealt with that application in the way he contends.
    
12. Leave for Judicial review has been granted where the plaintiff points to the process and procedure that have been followed to arrive at a decision: Kekedo v Burns Philp (PNG) Ltd [1988-89] PNGLR 122 followed in Asakusa v Kumbakor, Minster for Housing [2008] PGNC 39; N3303 (10 April 2008). Here the evidence that the plaintiff has filed of witness Jayson Mandawi shows that the process has begun. And the defendants have complied with the process. And there is no decision that they have made in respect of the application of the plaintiff pertaining to that land. The application is still pending before the Land Board as there is nothing official from it depicting that it has made a decision regarding it in anyway evidenced by its own records. It is not even verified by the minutes of the Board that the decision has been taken in the way contended by the plaintiff.
    
13. The decision taken must be properly pleaded: Innovest Ltd v Pruaitch [2014] PGNC 288; N5949 (17 March 2014). Here the pleading is insufficient to show that a decision has been taken by the land board. There is no evidence of that decision except the argument of the plaintiff by his own witness’ affidavit not independently verified, annexure of the subject decision. And in this regard if a decision was made section 62 Appeals has not been exhausted so that it is not open to come into court having exhausted internal process in resolving the matter: Kimas v Boera Development Corporation Ltd [2012] PGSC 8; SC1172 (12 March 2012)
    
14. The words of section “62. APPEALS do not come into play until a decision has been taken by the Land Board. Here there is no evidence of any decision by the Land Board in any way or form. Therefore, the plaintiff cannot be a person who is aggrieved by the decision of the Land Board. Because there is no decision at all in the pleading independently verified. An application has been made for the tender of the subject land, but no decision has been made awarding or denying the plaintiff that land. There is no room for section 62 to come in given.
    
15. It means the plaintiff/applicant does not demonstrate that he has sufficient interest: Somare, Re [1981] PNGLR 265. His application filed has not been determined by the Land Board. There is no evidence of that determination or consideration granting or denying. But his application has been pointed in the way it is pleaded to be changed. That is not the same as determining the application he has made for that parcel of land. It will be determined and remains to be determined.
    
16. The aggregate is that this application for leave does not satisfy that a decision has been made. Which decision has arguable not followed process of law under section 71 of the Land Act. It has not been determined, but it has been receipted and is on the record of the Land Board who will determine and give a record of its determination on it. There is no decision upon which leave is open either by the fact that arguable basis is demonstrated. Or that the plaintiff has standing or locus standi. The application is without merit and will be refused with costs in favour of the defendants following the event.
    
17. The formal orders of the Court are:
    
    • (i) The application for leave for Judicial review is refused.
      
    • (ii) Costs will follow the Event forthwith.

Orders Accordingly.

__________________________________________________________________

Stout Lawyers: Lawyers for the Plaintiff

Office of Solicitor General: Lawyers for the Defendants