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Yumi Yet Shop Ltd v Thatchenko [2023] PGNC 287; N10452 (21 April 2023)

N10452

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]


OS (JR) NO. 06 OF 2021


YUMI YET SHOP LIMITED
Plaintiff


V


JUSTIN THATCHENKO MINISTER FOR LANDS & PHYSICAL PLANNING
First Defendant


AND
BENJAMIN SAMSON SECRETARY FOR DEPARTMENT OF LANDS & PHYSICAL PLANNING
Second Defendant


AND
DR ERIC KWA ATTORNEY GENERAL
Third Defendant


AND
INDEPENDENT STATE OF PAPUA NEW GUINEA

Fourth Defendant
AND
MOALE GABUNA PEACE & GOOD ORDER COMMUNITY ASSOCIATION INC. (5-4992)
Fifth Defendant


Waigani: Miviri J
2023: 20th & 21st April


PRACTICE & PROCEDURE – Originating Summons – Notice of Motion for Judicial Review – First Defendant’s Decision Upholding Appeal – Section 62 Land Act 1996 Appeals – Competency of – No Locus Standi – Section 16 Companies Act – Legal Personality of Company – Leave for Judicial Review Granted Yumi Yet Trading Limited – Not Registered Company – Injunctive Orders Granted Yumi Yet Trading Limited – Dismissal of Proceedings – No Merit In Proceedings – Abuse of Court Process – Discharge of Injunctive Orders – Sufficient Evidence – Balance Discharged – Proceedings Dismissed Cost Follow Event.


Cases Cited:


Asiki v Zurenuoc, Provincial Administrator [2005] PGSC 27; SC797
Attorney General v Hamidian-Rad [1999] PNGLR 278
Kekedo v Burns Philp (PNG) Ltd [1988-89] PNGLR 122
Pruaitch v Manek [2019] PGSC 123; SC1884
Wabia v BP Exploration Operating Co Ltd [1998] PNGLR 8


Counsel:


F. So, for Plaintiff
J. Bakaman, for State Defendants
J. Siki, Jerry Siki Lawyers
J. Simbala, for the Fifth Defendant


RULING


21st April 2023


  1. MIVIRI, J: This is the decision on the substantive notice of motion of the plaintiff of the 07th September 2021, seeking an order that the decision of the first Defendant to refer the matter of Portion 2699 Granville, Moresby, National Capital District back to the Land Board for rehearing as published by the second defendant in the National Gazette No. G731, dated 2nd November be judicially reviewed.

  1. Secondly an order in the nature of a certiorari that the decision of the First Defendant to uphold the Moale Gabuna Peace & Good Order Community Association Inc. Appeal and referral of the matter back to the PNG Land Board for rehearing as published in the National Gazette No 731 of 02nd November 2020 over portion 2699, Granville, Port Moresby, National Capital District be brought into Court and quashed.
  2. Thirdly an order in the nature of a mandamus be granted directing the Second Defendant to issue a lease Acceptance Form to the Plaintiff for an Urban Development Lease over Portion 2699, Granville, Port Moresby, National Capital District from the PNG Land Board’s agenda.
  3. And fourthly an order in the nature of a mandamus be granted directing the Second defendant to issue a lease over portion 2699, Granville, Port Moresby pursuant to the PNG Land Board Decision in meeting No 5 of 2018 as conveyed to the Plaintiff by the Chairman of the PNG Land Board in his letter dated the 14th November 2018.
  4. Any other orders as discretion by the Court and abridgement of time to the date of settlement by the Registrar which shall take place forthwith.
  5. The plaintiff in moving relies on the following affidavits witnesses as the evidentiary basis for the discharge of the requirements in law to discharge the balance in favour of the reliefs that he seeks. Affidavits of Eke Lama sworn of the 09th January 2021, Affidavits of Cecilia Tenge, Tony Bidae, and Robert Tari all of the 04th January 2021. Affidavit of Terence Soweni and Bill Toroaso both of the 09th January 2021. Affidavits of both Eke Lama and Cecilia Tenge of 26th January 2022.
  6. And in the case of the fifth defendant, he relied on the affidavits of Tony Kalem filed of the 18th November 2021, in particular paragraphs 4 to 7 of that affidavit. And also, the additional facts set out in the affidavit of Benjamin Samson of the 08th November 2021, in particular paragraphs 4 to 14. And further the affidavit of Terence Soweni of the 22nd January 2021, in particular paragraphs 4 to 10.
  7. Both evidence for and against set out the following facts, that the Plaintiff filed this proceedings over a dispute over a parcel of land described as Portion 2699, Milinch Granville, Fourmil Moresby, National Capital District, located at Gerehu Stage 2, National Capital District which is depicted on the Registered Survey Catalogue Plan No 49/2774. And a true copy of that document is marked as annexure BS1 in the affidavit of Benjamin Samson of the 08th November 2021. And it was first listed before the PNG Land Board Meeting No. 05/2010 as item No. 261 where Yumi Yet Shop limited was the sole applicant who was eventually issued the registered title State Lease volume 54, Folio 002 on the 29th May 2013.
  8. But that decision of the Minister to award the subject land to Yumi Yet Shop limited was reviewed by the National Court in the proceedings instituted by Moale Gabuna Peace and Good Order Community Association Inc. And in this proceedings the National Court ruled in favour of the former. The following orders were issued in that proceeding, the land board’s decision was ruled null and void because the subject land was not properly advertised following due process set out by the land Act. And the title to Yumi Yet Trading Limited be cancelled. And the land be publicly advertised. Which was complied by the Registrar of titles. And the subject land was advertised on the 26th July 2018 in the National Gazette No. G482 for leasing through public tender number 027/2018.
  9. In response there were 8 applicants who paid their application fees and lodged in their applications. Yumi Yet Trading Limited and Moale Gabuna Peace and Good Order Community Association Inc were amongst the 8 applicants. And the subject land was listed as item 141 in the PNG Land Board Meeting number 05/2018. It deliberated on the matter on the 14th November 2018 and recommended to the Minister for the Lands to be awarded to Yumi Yet Trading Limited. And notice pursuant was served on Yumi Yet Trading Limited. Which aggrieved Moale Gabuna Peace and Good Order Community Association Inc appealing the recommendation and decision of the PNG Land Board on the 10th December 2018 to the Minister for Lands and Physical Planning who deliberated on it upholding their appeal referring it back to the PNG Land Board for rehearing. And that decision was endorsed by the Governor General and gazetted in the National Gazette G731/2020 on the 02nd November 2020. Which was conveyed to the Moale Gabuna Peace and Good Order Community Association Inc.
  10. One important fact that comes out from the evidence of Benjamin Samson Secretary Department of Lands & Physical Planning in his affidavit of the 08th November 2021 is, “In regard to the plaintiff’s claim that there was an agreement between the two parties namely, Yumi Yet Trading Limited and Moale Gabuna Peace and Good Order Community Association Inc (MGPGOCA) to withdraw MGPGOCA’s appeal is a claim that the Lands File record does not clearly establish. Any withdrawal of appeal has to be filed by the Chairman of the MGPGOCA attesting to the fact that there is in fact an agreement to withdraw appeal between the plaintiff and MGPGOCA and that letter has been communicated to DLPP. In the absence of that, such claim shall not sustain.”
  11. This fact is drawn out as a lie against Mr Eke Lama in the affidavits of Zebedee Pang sworn of the 22nd April 2022 filed the 28th April 2022. He denies vehemently, “Whilst the Association’s appeal was pending before the Minister, Mr Eke Lama, either by himself or through his servants and agents unlawfully and fraudulently forged a letter, dated 24th April 2020, bearing the signatures of the executive members of the Association including me. A true copy of the letter is annexure “A” to his affidavit. The content of the letter stated the following untrue and misleading facts;- (a)the association and Mr Eke Lama (the Managing Director of Yumi Yet Shop) met on 26th July 2019; (b) the parties agreed in principle that Mr Eke Lama would give 2.7 hectares of land to the Association; and (c) the Association agreed to withdraw its appeal.
  12. I hereby categorically deny and state on record that there was NO such meeting between the Association and Mr Eke Lama on 26th July 2019 as alleged or any other dates prior to or thereafter. If that was so (which I deny), there is no evidence of a resolution or formal agreement executed between the parties to that effect. As a founding executive member of the Association, I NEVER agreed to withdraw our appeal in consideration for the “free gift” of 2.7 hectares of land as alleged. Why would I blindly compromise the interests of the Association which has been formed to protect and advance our common interests (its members interests) in the land against the very person who has been persistently nagging us over so many years? It makes no logical sense. Finally, I hereby categorically deny and state on record that I NEVER signed the purported letter of 24th April 2020. I did not sign it, so are other executive members of the Association. It was certainly NOT issued by the Association Executives. As a matter of fact this letter was independently examined and found to be fraudulent by Police forensic officer (handwriting expert). Mr Eke Lama is now facing criminal charges in relation to this letter.”
  13. This is the same evidence from both the affidavits of Agnes Paru sworn of the 25th April 2022 filed the 28th April 2022, Roland Aruo also dated the same filed the same, including David Veveni. All are Executive members of the Moale Gabuna Peace and Good Order Community Association Inc. And all state and deny categorically of ever having to sign a letter in the terms as alleged by Mr Eke Lama. They all did not participate nor was there ever a resolution to have Mr Eke Lama give them 2.7 hectares of the subject land in agreement for the Association to withdraw the appeal lodged that overturned the Judicial review in favour of the plaintiff initially.
  14. Yet a further affidavit relied of Tony Kalam of the 1st December 2021 sets annexure “A” Statement of Chief Sergeant Felix Rayabrum, Document Examiner of the National Forensic Science Centre Gordons Policeman of the Royal Papua New Guinea Constabulary who confirms that, “ there are strong indications to suggest that the Company name and logo together with the signatures appear illegible or faded on most writings on top and bottom page as such creating suspicions of cut and paste or scan and transferred method.”
  15. In my view this is serious evidence that destroys the genuineness of the assertion made by Eke Lama as the Managing Director of Yumi Yet Trading Limited and Yumi Yet Shop Limited. It establishes that he has by fraud tried to entice the MGPGOCA to withdraw the successful appeal that they had lodged in accordance with section 62 of the Land Act that culminated in the decision to rehear the matter before the Land Board hearing. And the genuineness of the Notice of motion for Judicial review. Because what this evidence in aggregate sets out is that Eke Lama as Managing Director of Yumi Yet Trading Limited and Yumi Yet Shop Limited has shown that he is not being affected by the decision-making process set out by section 62 of the Land Act. He himself has by this conduct of fraud committed an error of law.
  16. There cannot be any breach of natural Justice if he is the instigator of a criminal action of fraud as set out above. He has abused his power as director of that company. It means the State Defendants have not exceeded the authority given by section 62 of the Land Act in the decision they have made ordering rehearing of the matter. There is no error in law committed by their actions because there is no breach of natural Justice. And they have not made a decision that no reasonable tribunal would make given the facts. They have not abused their power.
  17. Because section 62 Appeals is in the following terms; “(1) A person aggrieved by a decision of the Land Board may, not later than 28 days after notice is forwarded under Section 58(10), forward a notice of appeal to the Minister.

(2) An appeal shall be accompanied by a deposit of K500.00, which shall, subject to Subsection (3), be refunded when the appeal has been decided.

(3) If the Head of State, acting on advice, thinks that the appeal has been made on frivolous grounds, the Head of State, acting on advice, may reject the appeal and direct that the whole or any portion of the deposit shall be forfeited to the State.

(4) Subject to Subsection (5), the Head of State, acting on advice, shall determine an appeal under this section, and his decision is final.
(5) Where an appeal under this Section is upheld, the Head of State, acting on advice, may refer the matter back to the Land Board for re-hearing.”


  1. There is nothing in the words of this section that gives ground for the assertions that the plaintiff makes against the decision maker here, the Minister and the Governor General or the head of State. It is simply sets out the procedure of getting an appeal going and of the way it is heard and determined. Here the plaintiff has not brought forward any light to the way the Minister has acted in advising the head of State to make the decision he has made. No particulars are supplied by the evidence relied as to the way that the Minister has acted in committing an error of law, abused his discretion, in that he has exceeded his authority by that section. And in so doing together with the head of State have exceeded the authority by that section to do what they did. This is judicial review that has no legs to walk to seek out the hand of Justice as the allegation are made without the evidentiary basis to sustain the law. He who asserts must prove. The balance is simply not discharged. It is a mere allegation without any evidence to sustain it in favour of the plaintiff.
  2. Yumi Yet Trading Limited filed these proceedings on the 22nd January 2021 challenging the decision of the Minister to uphold the appeal of the MGPGOCA the fifth defendant and directing a rehearing before the land Board. And on the 13th August 2021 leave was granted by the Court to remove the original plaintiff, Yumi Yet Trading Limited and substitute it with Yumi Yet Shop Limited as Plaintiff. And on the 23rd August 2021 leave for Judicial Review was granted by the Court to Yumi Yet Trading Limited, which party was removed as a party to the proceedings by order of the Court on the 13th August 2021.
  3. On the 07th September 2021 Yumi Yet Shop Limited filed its substantive notice of motion under Order 16 Rule 5 of the National Court Rules. And on the 23rd September 2021 interim injunction was granted Yumi Yet Trading Limited. On the 12th November 2021 MGPGOCA applied to join the proceedings as a defendant. And that was granted it becoming the fifth defendant by way of the notice of motion it filed of the 1st April 2022. There it also prayed for summary dismissal of the proceedings for being an abuse of the process of court. That was adjourned but the joinder was granted on the 08th April 2022.
  4. The application for dismissal by the fifth defendant is supported by the affidavits relied of; Tony Kalem sworn of the 14th and filed of the 17th October 2022. Another of the 28th March and filed the 1st April 2022. Still yet another sworn of the 1st and filed of the 2nd December 2021. And still yet another sworn and filed of the 18th November 2021. Yet again another of this witness sworn of the 13th and filed the 14th December 2021. And yet another of one Zebedee Pang sworn of the 22nd and filed the 28th of April 2022. Another one of one Roland Aruo sworn of the 22nd and filed also of the 28th April 2022. Yet another of one Agnes Paru sworn of the 25th and filed of the 28th April 2022. Which is the same for the witness David Veveni also of the same date. I have set out the particulars relevant to establish the assertion of abuse by the Managing Director of Yumi Yet Trading Limited and Yumi Yet Shop Limited, Eke Lama. He has by fraud tried to get MGPGOCA to abandon their appeal so he reverts to his position in the decision of this Court earlier. This cannot be attained when the evidence is against his assertions.
  5. Some of which are cross referenced in the overall context and purpose of the following affidavits; Affidavit of Terence Tarakam Soweni sworn of the 09th and filed the 22nd January 2021. Affidavit of Bill Toraso sworn on the 09th and filed also on the 22nd January 2021 and the affidavit of Benjamin Samson sworn of the 04th and filed the 08th November 2021.
  6. In my view the answer to the question are these evidence abuse of process of Court by the plaintiff must be answered in the affirmative. Because the plaintiff is named in the annexure “B” National Gazette No. G731 of the 2nd November 2020 to the affidavit of Tony Kalem at page 3. There the land Board Meeting No. 5 of 2018 recommended that a State Lease over the subject land Portion 2699, Granville, Moresby, NCD was granted to “Yumi Yet Trading Limited.” Which itself is a separate Legal entity to Yumi Yet Shop Limited. Both are not the one and the same. And cannot be interchangeably the same. And this is clear from the evidence of Eke Lama of the 05th August 2021 filed 10th August 2021. He owns both companies who are part of the Yumi Yet Real Estate Ltd Group of Companies. And that due to the confusion brought about by He and his officers, the names were interchangeably used. And that the Company interested in the subject land is Yumi Yet Shop Limited and therefore Yumi Yet Trading Limited was incorrectly used plaintiff and party.
  7. The fact remains by the Gazettal that it is Yumi Yet Trading Limited who was gazetted in G731 on the 02nd November 2020. That is the day it was gazetted it is conclusive evidence of that fact when viewed in the light of section 52 of the Evidence Act. Yumi Yet Trading Limited was the successful applicant of the State Lease granted and gazetted. And pleading number 4 here for mandamus be granted directing the Second defendant to issue a lease over portion 2699, Granville, Port Moresby pursuant to the PNG Land Board Decision in meeting No 5 of 2018 as conveyed to the Plaintiff by the Chairman of the PNG land Board in his letter dated the 14th November 2018. That decision does not award the land to Yumi Yet Shop Limited. It is to Yumi Yet Trading Limited. Both are two different persons in law and cannot be the same persons who are the subject of the land Board decision No. 5 of 2018 conveyed to the Plaintiff. And publication and Notice to successful Applicants in accordance with sections 74, 75 and 76 of the Land Act is breached with the substitution of the parties in the cause of action. It is clearly not Yumi Yet Shop Limited who is granted the subject lease, but Yumi Yet Trading Limited.
  8. It is the plaintiff who was granted leave for Judicial review not Yumi Yet Shop Limited because that is not the company that was awarded the State Lease initially. The action stems against Yumi Yet Trading Limited not Yumi Yet Shop Limited. The allegation of application of Judicial review remedies is against the party who has been affected by the appeal now lodged by MGPGOCA, Yumi Yet Trading Limited, not Yumi Shop Limited. So, it is abuse of the process of Court within the ambit seen in Pruaitch v Manek [2019] PGSC 123; SC1884 (6 December 2019). Because it simply does not have any a proper basis in law to run the mile to sustain Judicial review. Where MGPGOCA has followed the letter of the law to get an appeal it is not equitable and invoking the discretionary hand of equity where the Plaintiff's hand is dirty with trying to get a letter against MGPGOCA in its favour to abandon the appeal on promise to get 2.7 of the land it has to revert to the National Court decision it initially obtained.
  9. The way or the process that the plaintiff has sought to run Judicial review in his favour is by fraud particulars set out above. He has not sought the hand of equity in that he has found favour with the law, but rather he has run against the law. And that is not in accordance with Kekedo v Burns Philp (PNG) Ltd [1988-89] PNGLR 122. And given in my view he does not make out the remedies due, because the facts are not there to invoke the discretion to give him the remedies he seeks: Asiki v Zurenuoc, Provincial Administrator [2005] PGSC 27; SC797 (28 October 2005). What is here is abuse that cannot be tolerated nor allowed to run its course. It is in similar vein as Wabia v BP Exploration Operating Co Ltd [1998] PNGLR 8 and suffers the same, in that it is dismissed because it is frivolous and vexatious action intended to get a course that will defeat the hand of the law. Equity heeds law does not derail the law. This application in aggregate is without the balance to be maintained because it is without integrity in the way it is sought to be attained in breach of the law, Attorney General v Hamidian-Rad [1999] PNGLR 278 and will suffer the same fate, it will be dismissed with costs because Judicial review is not made out. It is an abuse of process to be maintained in the records of court.
  10. The formal orders of the Court are:

Orders Accordingly.

__________________________________________________________________

Ketan Lawyers : Lawyers for the Plaintiff

Office of the Solicitor Generals : Lawyers for State defendants

Vijay & Co Lawyers : Lawyers for the Fifth Defendants

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