Simakade Holdings v National Forest Board 2018 N7703
Successful judicial review challenge to the issuing of a Forest Clearing Authority
Logging companies mentioned in this document:
N7703
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
OS (JR) NO. 144 OF 2018
BETWEEN:
SIMAKADE HOLDINGS LIMITED
First Plaintiff
AND
NAI-AI KABOKU INCORPORATED LAND GROUP (ILG REG NO. 725)
Second Plaintiff
AND
LOBOT LOTU, HOSEA KUNAM, JOHNA SURUGA, ORIM KOPMAN
AND THOMAS TURANA as Customary Landowners of the Dengnenge
Resources Area, Open Bay, Lassul, Inland Baining Local Level Government,
East New Britain Province
Third Plaintiffs
AND
NATIONAL FOREST BOARD
First Defendant
AND
PAPUA NEW GUINEA FOREST AUTHORITY
Second Defendant
AND
DENGNENGE RESOURCES DEVELOPMENT LIMITED
Third Defendant
AND
KK CONNECTIONS LIMITED
Fourth Defendant
AND
LALOANI NO. 8 LIMITED
Fifth Defendant
Kokopo: Anis J
2018: 6 December
2019: 22 February
JUDICIAL REVIEW – Application challenging grant of a forest clearing
authority – section 90A(2) & (3) of the Forestry Act 1991 – whether correct
forms were used to obtain consents and ownership of land verifications from the
landowners – Form 276 and Form 253 of the Forestry (Amendment) Regulation
2009 – whether a lands officer is authorised to witness Form 253 – whether there
was breach of natural justice – whether the findings could also constitute
constructive fraud – whether the 1st and 2nd defendants have acted in a way that
was so unreasonable that no reasonable public body would have acted
accordingly – whether the court should exercise its discretion and grant the
relief certiorari
PRACTICE & PROCEDURES – interpretation - section 90A(2) of the Forestry
Act 1991 - whether the consent of the National Forest Board was sufficient
PRACTICE & PROCEDURES – interpretation – section 90A(3)(b) of the
Forestry Act 1991 – whether applicable to landowners where customary land is
involved – whether form 253 would suffice
PRACTICE & PROCEDURES – interpretation – section 90A(3)(f) of the
Forestry Act - authorised persons to give consents and verifications of customary
landowners and their customary land
PRACTICE & PROCEDURES – Order 16 Rule 3(2)(a) and Order 16 Rule 5(1)
of the National Court Rules – relief pleaded in the Statement and relief pleaded
in an application for judicial review
Facts
The plaintiffs challenged a forest clearing authority that was issued to the 3rd
defendant on 9 May 2016. The plaintiffs alleged breach of statute, namely, the
procedures under section 90A (2) & (3) of the Forestry Act 1991, amongst other
grounds, as the reasons why the decision of the 1st and 2nd defendants should be
quashed.
Held
1. Section 90A(2) firstly means generally that no application for a forest
clearing authority can be made over an area that is within a Forest
Management Agreement Area, Timber Rights Purchase Agreement Area or
Local Forest Area. However, the National Forest Board, may override this
requirement and grant the approval. The second exception is this. If the
proposed project of an applicant is over land that is subject to an existing
timber permit, then the consent of the holder of the timber permit would be
required, that is, as a prerequisite to be sought and had, and evidence of
which shall be submitted together with the application for a forest clearing
authority, to the National Forest Board for consideration under sections
90A(3) and 90B of the Forestry Act 1991.
2. Village Court Magistrate or land mediator are the only two types of persons
authorised under statute, in this case, under section 90A(3)(f) of the Forestry
Act 1991, who shall witness consents and land ownership verifications of
customary land, of landowners of a project site.
3. Form 267 was amended by the Forestry (Amendment) Regulation 2009 [No.
2 of 2009]. The correct form that was inserted by the said amended
regulation and which was applicable was Form 253.
4. A relief that is not pleaded under an Order16 Rule 3(2)(a) Statement cannot
be sought on its own in an application for judicial review that is filed under
Order 16 Rule 5(1) of the National Court Rules.
5. A party wishing to amend or insert a new relief can do so by amending the
Statement. If he does so and if an application for judicial review has already
been filed, leave must also be sought to amend the application to include the
new relief. If the applicant ignores these rules, then any relief contained in
his application for judicial review that is not sought in his Statement, shall be
regarded as no relief at all, incompetent and will be discarded by the judicial
review Court.
6. There was evidence of breach of statute and procedures. The procedures set
out under section 90A(3)(b) & (f) of the Forestry Act 1991 were disregarded
by the National Forest Board before it granted the Forest Clearing Authority
No. FCA 15-10 to the 3rd defendant on 9 May 2016.
7. The judicial review was upheld, and the decision of the National Forest
Board made on 9 May 2016 was quashed.
Cases Cited:
Rose Kekedo -v- Burns Philip (PNG) Limited [1988-89] PNGLR 122
Emas Estate Development Pty Ltd v John Mea & Ors [1993] PNGLR 215
PNG Deep Sea Fishing Ltd v Luke Critten (2010) SC1126
Lae Bottling Industries Ltd v Lae Rental Homes Ltd (2011) SC1120
Pius Tikili v Home Base Real Estate Ltd (2017) SC1563
Steamships Trading Company Ltd v Garamut Enterprises Ltd (2000) N1959
Doriga Mahuru v. Hon. Lucas Dekena (2013) N5305
In the Matter Pursuant to section 18(1) of the Constitution, Southern Highlands
Provincial Government v. Sir Michael T Somare and Ors (2007) SC854
Mision Asiki v. Manasupe Zurenuoc (2005) SC797
Tzen Pacific Ltd v. Kanawi Pouru (2016) SC1550
Tzen Pacific Ltd v. Kanawi Pouru (2013) N5156
East New Britain Provincial Government v. The Public Service Commission (2017)
N6706
Joshua Kalinoe v. Paul Paraka (2014) SC1366
Pacific Equities and Investment Ltd v. Don Sawong (2006) N3258
Counsel:
Mr N. Saroa, for the First and Second Plaintiffs
Mr F.U. Cherake, for the Third Plaintiff
Mr S. Mitige, for the First and Second Defendants
Mr T.L. Tape, for the Third, Fourth and Fifth Defendants
JUDGMENT
22nd February, 2019
1. ANIS J: This is judicial review application. It was heard on 6 December
2018. I reserved my decision thereafter to a date to be advised.
2. Parties have been notified so I will rule on it now.
DECISION FOR REVIEW
3. The decision for review is dated 9 May 2016. It is set out in the FURTHER
AMENDED STATEMENT FILED PURSUANT TO ORDER 16 RULE 3(2)(a) OF
THE NATIONAL COURT RULES (the Amended Statement). The Amended
Statement was filed on 5 November 2018. The decision the subject of the review
is stated in the Forest Clearing Authority No. FCA 15-10 (FCA licence), which is
in evidence. It may be summarised as follows:
Pursuant to section 90B(8) of the Forestry Act 1991, and all other
powers it enabling, the Board hereby grants a Forest Clearing Authority
to Dengnenge Resources Development Limited to carry out a large scale
forest clearance for commercial agricultural or other land use
development within the 28,500 hectares of land area of the Gazelle
District in the Inland Lasul, Baining LLG.
BACKGROUND
4. So, the land area concerned is situated in the Baining Local Level
Government, which is part of the Gazelle District, in East New Britain Province
(the Land). The plaintiffs consist of landowners and their entities. They appear to
be landowners of the Land and they want to harvest timber on their customary
land. They have established themselves including setting up their landowner
company and an incorporated land group, namely, the first and second plaintiffs.
They have also chosen their preferred developer assist them. The three Defendants
also consist of landowners from the area where the Land is situated. They also
have similar interest to harvest timber on the Land, but in addition, to engage as
well in agro-forest activities. There had been plans in the past between the two (2)
factions of landowners to work together. But as it turned out, it failed and
eventually in 2013, the two (2) factions took different paths to pursue their
commercial interests.
5. On 9 May 2016, the first and second defendants granted the FCA licence to
the third Defendant. The plaintiffs were aggrieved so they filed this proceeding.
GROUNDS OF REVIEW
6. The Amended Statement contains the grounds of review. I summarise them
as follows: (i), want of consents and land verifications from the landowners of the
Land, or breach of procedures prescribed by statute, namely, section 90A(2) and
90A(3)(b) and (f) of the Forestry Act 1991 (FA), (ii), constructive fraud, (iii),
breach of section 59 of the Constitution, that is, right to natural justice, and (iv),
application of the Wednesbury principle, that is, whether the decision was so
unreasonable that no reasonable person acting reasonably could have made it.
ISSUES
7. The issues of course are whether the plaintiffs have established one or more
of the grounds of review, and if so, whether the plaintiff should be entitled to all,
some, or otherwise none, of the relief that are sought in their application for
judicial review filed under Order 16 Rule 5(1) of the National Court Rules (the
application).
BREACH OF STATUTE /PROCEDURE – S. 90A(2); GROUND 1
8. Let me begin by setting out the relevant provisions of section 90A of the FA.
They are subsections (2) and (3)(b) & (f) of section 90A. They read, and I quote in
part as follows:
90A. A large scale conversion of forest to agricultural or other land
use.
(1) A person may make application in the prescribed form and
accompanied by the prescribed application fee for a forest clearing
authority for the purpose of clearance of natural forest on areas
designated for agriculture or other land use development (other than
roadline clearing on an existing forested area) designated by the relevant
authorities where the size of the area proposed for the natural forest
clearance for the project is greater than 50 hectares.
(2) An application under Subsection (1) shall not be made where
the proposed project is within a Forest Management Agreement Area,
Timber Rights Purchase Agreement Area or Local Forest Area except
with the approval of the Board and, where applicable, the holder of
any relevant Timber Permit.
(3) An application under Subsection (1) shall contain—
.....
(b) a copy of the relevant State Lease or other documentation
relating to other type of land tenure appropriate for the project;
and
.....
(f) a verification of ownership and the consent of each resource
owning clan agent (or incorporated Land Groups if they have
been formed) within the project area, which has been signed in
the presence of a Village Court Magistrate or land mediator in
the prescribed form in relation to customary land, and
9. Ground one (1) of the review may be divided into two (2). The first relates
to interpreting section 90A(2) and determining whether there had been compliance.
The second relates to considering whether there had also been compliances with
sections 90A(3)(b) and (f).
10. Let me firstly deal with section 90A(2) which is the subject of this sub-
heading. It reads, and I quote in part, An application under Subsection (1) shall
not be made where the proposed project is within a Forest Management Agreement
Area, Timber Rights Purchase Agreement Area or Local Forest Area except with
the approval of the Board and, where applicable, the holder of any relevant Timber
Permit (underlining mine). In my view, the provision appears express. What it
firstly means generally is that no application for a forest clearing authority can be
made over an area of land that is within a Forest Management Agreement Area,
Timber Rights Purchase Agreement Area or Local Forest Area. However, the
Board, meaning the National Forest Board (the Forest Board), may override this
requirement (i.e. the requirement against granting a forest clearing authority
application where the proposed project is within a Forest Management Agreement
Area, Timber Rights Purchase Agreement Area or Local Forest Area) and grant the
approval. The other exception is this. If the proposed project of an applicant (who
is applying for a forest clearing authority) is over land that is subject to an existing
timber permit, then the consent of the holder of the timber permit would be
required, that is, as a prerequisite to be sought and had, and evidence of that shall
be submitted together with the other requirements, in the application to the Forest
Board for its initial consideration [section 90B(1)], and later its final approval
[section 90B(7) & (8)].
11. The plaintiffs’ argument on point is this. They say the third defendant had
submitted its proposed project over land which was subject to a Forest
Management Agreement Area. The plaintiffs refer to the Forest Management
Agreement dated 9 February 2012 (the 2012 FMA). They submit that by granting
the FCA licence, the first and second defendants breached section 90A(2) of the
FA, that is, they refer to the actions of the first and second defendants in accepting,
processing and granting the third defendant’s application for a forest cleaning
authority over the Land. Let me summarise the defendants’ arguments in response.
Firstly, they question and deny the validity of the 2012 FMA. They submit that the said agreement did not bear the common seal of the second defendant, and they argue that the agreement was null and void or invalid at the material time. The defendants submit that the Forest Board, by the same provision, that is, section 90A(2), has the power to accept a forest clearing authority application even if a forest management agreement exists over a land that is the subject of such an application. Further, the first and second defendants submit as follows. Without challenging the validity of the 2012 FMA, they acknowledge its existence. But they submit that the third defendant and its group had applied to the Forest Board and the Forest Board had allowed their excision from the 2012 FMA. They submit that the Forest Board’s excision decision also included releasing the third defendant’s 32,970 hectares of land area which had otherwise been part of the 2012 FMA. The first and second defendants submit that it was after that, that the third defendant had applied for a forest clearing authority with them which was subsequently approved. 12. I have considered the submissions and evidence filed by the parties. I will say this. In regard to interpretation of section 90A(2) of the FA, I have already addressed that above in my judgment. The defendants’ submission is in line with the Court’s interpretation. I note that the plaintiffs’ submission was made without considering the exceptions to section 90A(2). In regard to the second argument regarding existence of the 2012 FMA over the land where the application had been based on, I make the following findings. Firstly, I am persuaded by the submissions and evidence disclosed by the first and second defendants. I think counsel’s submissions on point gives a clear picture of what had transpired leading up to the actual application for a forest clearing authority. Mr Mitige’s summary at pages 5 and 6 of his written submission, are supported by evidence of the defendants. May I point to one which is the affidavit of Tunou Sabuin which is marked as Tab 30 to Volume 2 of the RBs. Annexure “G” to the affidavit attaches evidence of the Forest Board’s decision granting the third defendant and its group excision from the 2012 FMA with its 32,970 hectares of land. The plaintiffs have not made any submissions against that with supportive evidence. I am therefore satisfied and assume, based on the evidence presented, that the land which the FCA licence was granted over was outside the land area that was covered by the 2012 FMA. As such, I find no breach under section 90A(2) of the FA. Even if I may be wrong and the facts show that the land was inclusive or within the land areas that were covered by the 2012 FMA, I note that the Forest Board has the power to grant permission to an applicant to apply for a forest clearing authority over a land that may be subject to a Forest Management Agreement Area. Evidence shows, and it may also be presumed, that such a consent would have been obtained because it was the Forest Board that had accepted, processed and granted the FCA licence to
the third defendant on 9 May 2016.
13. I therefore dismiss the plaintiffs’ claim that section 90A(2) of the FA had
been breached or that the procedure that was required therein had not been
observed.
BREACH OF STATUTE /PROCEDURE – S. 90A(3)(b) & (f); GROUND 1
14. Section 90A(3)(b) of the FA reads in part, An application under Subsection
(1) shall contain.....a copy of the relevant State Lease or other documentation
relating to other type of land tenure appropriate for the project.
15. In this case and as I have noted above, the third defendant and its group had
opted out of the 2012 FMA. The 2012 FMA therefore could not have been
attached to the third defendant’s application. So how can the third defendant
explain compliance with section 90A(3)(b)? The third defendant with its group of
landowners, having excised from the 2012 FMA with their 32,970 hectares of their
customary land, had used the said 32,970 hectares customary land to apply to the
Forestry Board for a forest clearing authority. In so doing, and to comply with
section 90A(3)(b), they had to disclose other documentation relating to other type
of land tenure appropriate for the project. This required, in my view, compliance
with section 90A(3)(f) of the FA. In other words, my findings in relation to
compliance of section 90A3(f) will also determine whether section 90A3(b) had
been complied with by the third defendant. The third defendant and its landowner
group, presumably as landowners of the 32,970 hectares of land, had, it seems,
applied on that basis, that is, they had attached the forms 267 as evidence of
compliances with sections 90A3(b) and (f) of the FA. Let me now consider section
90A(3)(f). It reads, and I quote in part:
An application under Subsection (1) shall contain .....a verification of
ownership and the consent of each resource owning clan agent (or
incorporated Land Groups if they have been formed) within the project
area, which has been signed in the presence of a Village Court
Magistrate or land mediator in the prescribed form in relation to
customary land, and otherwise the consent in writing of the Board, lessee
or owner of the land, as the case may be.
16. Before I address arguments of the parties under this sub-heading, let me say
this. Any arguments raised concerning disputes over ownership of customary land
including claims that someone is not a customary landowner, cannot be regarded as
matters that are properly before this Court for determination. In fact, this Court
has no jurisdiction to hear and deal with such allegations. Such matters should be or should have been brought separately before an appropriate forum. This also applies to other allegations such as ‘forged signatures’ or ‘misrepresentations’. This Court is concern only with the decision-making process, not the actual decision itself (see case: Rose Kekedo -v- Burns Philip (PNG) Limited [1988-89] PNGLR 122); in this case, it concerns the grant of the FCA licence to the 3rd defendant, that is, to determine whether the process, as required under section 90A(3) and in particular whether requirements (b) & (f) had been met, before the FCA licence was issued to the third defendant. 17. Based on the Amended Statement, the plaintiffs submit as follows. Firstly, they say that because the third defendant had relied on Dengnege Land Group Incorporated (ILG), it should have but had failed to obtain the consents of all the agents of each of the five (5) clans that were registered under the said ILG. Secondly, they argue that the attesting witness to all the completed forms 267 was not an authorised person. They submit that Sailas Taidang, who had been the witness, was not a Village Court Magistrate or a land mediator. The defendants on the other hand argue that there had been compliances. They furnished their evidence as contained in the RBs. 18. The defendants, in my view, have disclosed substantial material documents in relation to third defendant’s application for the FCA licence. I particularly refer to the affidavits of Aaron Umertmga at Tabs 33 and 37 of the RBs, and the affidavit of Mr Sabuin which I have referred to above in my judgment. With that, I will say this. The plaintiffs’ first argument that the third defendant had relied on the Dengenge ILG to obtain consents and verifications of ownerships of the customary land, is incorrect. In this case, it was the landowners themselves through their agents that had given their consents and land verifications of ownerships of their customary land. If those that had signed were restricted to the agents of the five (5) sub-clans of the Dengnenge ILG, namely, Dengnangi, Gotkka-Mandrabit, Rarki, Kvotka and Aungi-Ranggagi, then it would be fair to assume that only the five (5) sub-clan agents would have given their consents and land verifications. This was not the case. There were more than five (5) in numbers who had given their consents. The second reason is this. The defendants have provided evidence that shows and as explained above in my judgment, that the third defendant and its group of landowners had excised the 2012 FMA. Therefore, any arguments that is raised to tie down the third defendant and its group to the 2012 FMA in my view is baseless. 19. I dismiss the first argument.
20. Let me consider the plaintiffs’ second argument. I draw my attention to the person that had witnessed the landowners’ consents and verification forms. His name is Silas Taidang. I ask myself this question. Who was this person? Mr Umertmga has identified him in his affidavit at Tab 33 of the RBs as, Customary Lands Officer and Land Court Magistrate. However, in all the forms 267 that had been witnessed by Mr Taidang, Mr Taidang signs off as “Land Court Officer”, “Lands Officer” or “Customary Lands Officer”. The stamp that was used alongside his signatures, reads, and I quote in part, “DIVISION OF LANDS ENB PROVINCIAL ADMINISTRATION”. At tab 30 of the RBs and under the attachment titled “INCORPORATED LAND GROUP WITHDRAWAL CONSENT”, Mr Taidang signs of as “Provincial Customary Officer – ENBP”. 21. I have considered all the evidence and there is nothing further to add, apart from the above, to the descriptions that have been labelled to the position held by Mr Taidang at the material time. Therefore, I accept Mr Taidang’s designation as stated in the various forms 267. In my view, whatever way Mr Taidang may describe himself as or may be regarded by others, what is certain is that he was not a Village Court Magistrate, or a land mediator at the material time. Silas Taidang was an employee within the Lands Division of the East New Britain Provincial Government. It is quite clear because he used the Provincial Government Lands division’s stamp, to sign under each of the consents and verification forms. Village Court Magistrate or land mediator are the only two types of persons that are authorised under statute, in this case, under section 90A(3)(f) of the FA, who shall witness consents and land ownership verifications of customary landowners regarding their customary land over a proposed project area. Section 90A(3)(f) is explicit on this and I have already quoted that above in my judgment. Form 267, and I mention the form with qualification because I will deal with its correctness later below in my judgment, is also explicit. At page 2 in brackets under the heading, “Position held by witness:”, it reads, and I quote, “Witness must be a Village Court Magistrate or Land Mediator”. Sailas Taidang is neither one of the two, and he expressly states that himself in all the forms ‘267’ that he witnessed. 22. I uphold the second argument of the plaintiff. 23. The plaintiffs also raise as part of ground 4(i) of their review that the defendants had issued and used the wrong form to complete consents and land ownership verifications, as required under section 90(A)(3)(f) of the FA. According to the plaintiffs, the correct form should have been Form 253 as provided for under the Forestry Regulation 1998 (the Regulation). The forms attached to the third defendants’ application at the material time were all forms 267. The defendants argue otherwise. They say that the landowners had filled out
and filed the correct forms, namely, forms 267.
24. My role here, in my view, is to simply see whether the correct form was
used, filled out and filed at the material time. The best place to begin is to look at
the forms that had been filled out and filed by the landowners that are in evidence.
The forms filed are forms 267. At its top footnotes, Form 267 refers to Regulation
288. The said regulation reads, and I quote in part,
288. Verification of ownership and consent of landowners.
A verification of ownership and consent of landowners under Section
90A(3)(f) and 90D(3)(g) of the Act shall be in Form 267 of Schedule 1
and shall contain those particulars as set out in that Form.
25. When I consider the Regulation, there is no Form 267. In fact, Form 267
has been amended by the Forestry (Amendment) Regulation 2009 [NO. 2 of 2009,
s.6(c)(i)]. The amended or the correct form, that has been inserted by the said
amended regulation, is Form 253. I therefore uphold the plaintiffs’ submission that
forms 267 that had been used or filled out by the landowners through their agents,
with the assistance of the defendants, were incorrect forms.
26. I note that Form 253 also requires a Village Court Magistrate or a land
mediator as authorised person(s) who shall witness consents and land ownership
verifications by landowners over their traditional land that may be the subject of a
forest clearing authority application.
27. In summary, I find under this sub-heading as follows. Firstly, I find that the
third defendant and its landowners had filled out incorrect forms which had been
used to support their application for a forest clearing authority at the material time.
Even if I may be wrong, there would still be a breach. Let me explain. Assuming
that the forms were correct, I would still find that section 90A(3)(f) had been
breached or that its procedure had not been complied. This would be because of
the fact that the attesting witness to all the forms 267 that had been signed, was not
an authorised person as required under section 90A(3)(f) of the FA. I have covered
that above in my judgment. And then this. Because the same forms 267 had been
used by the third defendant to say that it had complied with section 90A(3)(b) and
given my findings that section 90A(3)(f) had not been complied with, the
defendants’ argument would therefore fail. I will obviously reach the same
conclusion, that is, I would also find that the third defendant had also breached or
had failed to meet the requirement of section 90A(3)(b) of the FA. I therefore
uphold the second part of ground 1 of the judicial review.
CONSTRUCTIVE FRAUD 28. The plaintiffs’ arguments on constructive fraud is subject to their arguments on the first ground of review. Constructive Fraud is available, and the plaintiffs are entitled to seek it following the wide view or approach as it is known in the case law. See cases: Emas Estate Development Pty Ltd v John Mea & Ors [1993] PNGLR 215; PNG Deep Sea Fishing Ltd v Luke Critten (2010) SC1126; Lae Bottling Industries Ltd v Lae Rental Homes Ltd (2011) SC1120 and Pius Tikili v Home Base Real Estate Ltd (2017) SC1563. And it need not be sought specifically as a ground of review. See cases: Steamships Trading Company Ltd v Garamut Enterprises Ltd (2000) N1959 and Doriga Mahuru v. Hon. Lucas Dekena (2013) N5305. 29. In my view, however, I see no evidence or reasonable implications that may be drawn, based on my earlier ruling, that would imply constructive fraud on the part of the defendants. In fact, and as I have found above, the defendants, particularly the third defendant, has disclosed evidence which shows that it had substantially complied with the requirements for the grant of the FCA licence. That is, all except the areas where I have covered in my judgment. In my view, filing of a wrong form or failing to get the correct person to witness, could have been committed by normal human errors or oversight. So, unless the plaintiffs can show evidence that would suggest otherwise, I cannot see how I can safely rule or draw an interference that these want of compliances therefore amount to or constitute constructive fraud. I say this keeping in mind the test for finding existence of constructive fraud, that is, where the circumstances of an act or actions, in this case, the granting of the FCA licence, are so unsatisfactory, irregular or unlawful, it is tantamount to fraud. Like I said, the error in the present case, regardless of its seriousness, could have been intentional or unintentional. Because I cannot rule out the unintentional assumption, I therefore am disinclined to give any weight to the constructive fraud allegation. 30. I dismiss this ground of review. RIGHT TO BE HEARD 31. The plaintiffs also allege that the defendants had breached their rights to natural justice, that is, under section 59 of the Constitution, before the FCA licence was granted to the third defendant. Section 59(2) reads, and I quote in part: “The minimum requirement of natural justice is the duty to act fairly and, in principle, to be seen to act fairly”.
32. The plaintiffs claim that no proper notices or awareness were carried out at the material time. They file evidence to give examples of how they were not made aware of the public gathering and so forth. The defendants on the other hand deny that. They submit that due notices were given as required under law. They submit that the venue of the public hearing had been published in the daily newspaper. They say the hearing was held as an open hearing to the public at large, at the project site and they provide evidence to that effect. They say that if the plaintiffs were unhappy about the development then they should have attended and objected at the public hearing. They submit that the plaintiffs had failed to exercise their rights and that they are now complaining belatedly. 33. I uphold the defendants’ arguments under this sub-heading. There are uncontested evidence of the notices being issued by the Department of Agriculture and Livestock as required under section 90A(3)(j) of the FA. There is evidence disclosed of publication in the newspaper of the public hearing, the actual hearing and the record of the hearing. These are all adduced to in evidence. The plaintiffs’ main complaint is that the public hearing was not well communicated to them. As a result, they say that they did not attend the public hearing to express their rights over their customary land. Let me say these. Notice and conduct of public hearing is the responsibility of the Department of Agriculture and Livestock. The plaintiffs, in my view, are also belatedly raising this now against a wrong party and against a party that is not named in this proceeding, and I must also add, before a wrong forum. In my view, to not raise a challenge then against the correct party is detrimental to the plaintiffs’ argument before this Court. As I have stated, this Court is not concerned with the actual occurrence like the sufficiency of the notice of the public hearing. Rather, my role on this point is to see whether the legal process had been observed by the third defendant in its application for a forest clearing authority. The defendants are only required to show evidence of the notice and of a public hearing at the site of the proposed project area. In my view, the third defendant has provided evidence which shows the occurrence of the event. Based on the evidence, I note that the public hearing was actually a big occasion or event which was held on 17 March 2014. The minute of the meeting (see attachments at Tab 30 of the RBs) shows that the public was given the opportunity to speak and there were recordings in the minute of those that had appeared to air their views. Those in attendance include the Provincial Administrator of the East New Britain Provincial Government Mr Wilson Matava who had represented the provincial government. 34. I dismiss this ground of review. WEDNESBURY PRINCIPLE
35. The plaintiffs also allege breach by the defendants of the Wednesbury principle. In the Amended Statement, it reads, and I quote in part: The actions of the First and Second Defendants are against the Wednesbury principles as no reasonable person would exercise a power or usurp that is not within their possession. 36. The defendants challenge the sufficiency of pleading in regard to this ground of review. They submit that it is vague and therefore must be dismissed. 37. I uphold the plaintiffs’ submission on the preliminary challenge. I find the particular pleading sufficient. The plaintiffs have, in my view, identified the ground. Secondly, they have qualified and pleaded the specific principle under the Wednesbury principles, that is, by alleging that the first and second defendants have acted in a way that was so unreasonable that no reasonable public body would have acted in that way. See the case: In the Matter Pursuant to section 18(1) of the Constitution, Southern Highlands Provincial Government v. Sir Michael T Somare and Ors (2007) SC854. There may be a slight difference in the choice of language used by the plaintiffs in the pleading regarding the selected principle, but nevertheless that is what it means. 38. So, having clarified that, the next question to ask is this. Was the decision of the first and second defendants so unreasonable that no reasonable public body would have acted in that way? I would answer in the negative. In my view, the decision of the first and second defendants in granting the FCA licence cannot be regarded in that way, that is, as totally unreasonable. The Forest Board was the body that had made the decision to grant the FCA licence [section 90B (1), (7) & (8)] to the third defendant. Its decision was also based on recommendations by the East New Britain Provincial Forest Management Committee (PFMC). The errors identified by this Court, in my view, relate to the use of incorrect forms and the use of an unauthorised witness to witness the signatures. I would therefore not, based on these errors even though the errors may have serious consequences which I will later consider, categorise or qualify the actions of the first and second defendants as so unreasonable that no reasonable public body would have acted in that way. One of the possibilities, as explained above in my judgment, could be that there may have been an oversight on the part of those that were involved. Of course, details of these are not the subject of this proceeding so I could only comment on or make assumptions. Similarly, it may very well also have been that it was a deliberate act by the defendants at the material time, and so on. 39. I therefore dismiss this ground of review.
OTHE CONSIDERATIONS
40. Other purported grounds of review for example ultra vires raised by the
plaintiffs and any others, that have not been pleaded in the Amended Statement are
discarded by the Court. As such, it is pointless to address them, so I will move on.
SUMMARY
41. I uphold part of ground 1 of the application for judicial review. I find that
the defendants had breached and had failed to meet the requirements set out under
sections 90(A)(3)(b) & (f) of the FA, that is, before the FCA licence was granted.
The provisions are mandatory so failure to comply means that the third defendant’s
application at the material time did not meet all the mandatory requirements under
section 90A(3) of the FA. That being the case, the Forest Board, in accepting the
application under section 90B(1), and later in accepting the recommendations of
the PFMC under section 90B(7), and in proceeding to approve it under section
90B(8) of the FA, was erroneous. The Forest Board’s approval was given despite
notable breaches of statute and want of compliances with the mandatory
procedures that were required of an applicant for a forest clearing authority,
namely, under section 90A(3)(b) & (f) of the FA. These breaches, in my view,
were overlooked by the Forestry Board when it approved the FCA licence in
favour of the third defendant.
RELIEF
42. Granting of relief in judicial review proceedings is discretionary. It is not
automatic upon upholding one or more of the grounds of review. I refer to the case
of Mision Asiki v. Manasupe Zurenuoc (2005) SC797. The Supreme Court held,
and I quote in part:
It is one thing to establish an error of law or a breach of natural justice and for
the court to uphold an application for judicial review. It is another, separate,
step to establish a case for a remedy. In judicial review proceedings the
remedies to be granted are at the discretion of the court. As Sheehan J stated in
Tohian v Geita and Mugugia (No 2) [1990] PNGLR 479, National Court:
... in judicial review, even though the court might find there has been an
error, even an error affecting matters of jurisdiction, the court would not
thereby be obliged automatically to quash the ... proceedings. The remedies
available under judicial review remain always at the discretion of the court
and will only be granted to avoid injustice.
The court must therefore look at all the circumstances of the case and decide
whether it is appropriate to grant a remedy; and if it is, what the remedy should
be. It is not a formality. The court should generally only consider granting a
remedy that has been specifically sought by the applicant for review or that
would serve a useful purpose. Examples of cases where the court upheld an
application for judicial review but did not grant a remedy are: Albert Karo v
Ombudsman Commission SCA No 89 of 1995, 07.04.95, unreported, Supreme
Court, Amet CJ, Los J, Sheehan J; John Mua Nilkare v Ombudsman
Commission (1996) SC498, Supreme Court, Amet CJ, Kapi DCJ, Los J, Injia J;
and Allan Pinggah v Margaret Elias, Peter Tsiamalili, Public Services
Commission and The State (2005) N2850, National Court, Injia DCJ.
43. I adopt these as my own herein. So I am now at the second stage, that is, to
consider whether I should grant the relief sought by the plaintiffs. But before I do
so, let me address a preliminary matter. The defendants submit that the application
did not plead any of the relief that were sought in the Amended Statement. As
such, they submit that none of the relief in the application should be granted if the
Court were to uphold one or more of the grounds of judicial review.
44. I refer to the Amended Statement. It is document number 77 in the Court
file. In regard to the relief, it reads, and I quote in part:
(i)A Declaration that the said decision of the First and Second Defendants
to grant a Forest Clearing Authority under section 90B(8) of the Act is
ultra vires, invalid, null and void ab initio.
(ii) A Declaration that the FCA issued was ultra vires and not in
compliance with sections 90A(2) and 90A(3) of the Forestry Act 1991.
......
(v) An order of certiorari quashing the decision of the Fist and Second
Defendants on 9 May 2016 in granting the Forest Clearing Authority to
the Third Defendant.
(vi) An Order for Damages for the illegal felling of logs to be calculated
in accordance with the stumpage and records held and mentioned by the
Second Defendants.
(vii) An Order pursuant to the inherent jurisdiction of this Honourable
Court for any machinery owned by the Third Defendants, its servants
and agents and contractors KK Connections Limited and Laloani No. 8
Limited to be held in custody until further order or pending
determination of the proceedings herein whichever shall occur first.
.....
45. The application may be found at Tab 20, Volume 1 of the RBs. Its main
relief read, and I quote in part:
1. A Declaration that the said decision of the First and Second
Defendant to grant a Forest Clearing Authority under section 90B 8 of
the Forestry Act 1991 is ultra vires. invalid, null and void ab initio as
there exist no provision under section 90(B) to grant a Forest Clearing
Authority except section 90B(22) of the Act.
2. A Declaration that the FCA issued was ultra vires and not in
compliance of sections 90A and 90B(1)(a), (b) and (c), 90B(2)(a), (b)
and (c) and 90B(3) and 90B(4) of the Forestry Act 1991.
3. A Declaration that the FCA was granted contrary to regulation 270 of
the Forest Regulation 1998 as it failed to be in the prescribed Form 249
Forest Clearing Authority;
4. A Declaration that the FCA was granted in the wrong prescribed
Form 242 under Regulation 263 which provides for “Board’s
recommendation to Minister to recommend to the National Executive
Council to endorse an application for a large scale conversion of forest
to agriculture or other land use” and not applicable to a Forest Clearing
Authority.
5. An Order of Certiorari quashing the decision of the First and Second
Defendants on 9 May 2016 in granting the Forest Clearing Authority to
the Third Defendant.
6. An Order for Damages for the illegal felling of logs to be calculated
in accordance with the stumpage and records held and mentioned by the
Second Defendants
7. An Order pursuant to the inherent jurisdiction of this Honourable
Court for any machinery owned by the Third Defendants, its servants
and agents and contractors KK Connections Limited and Laloani No. 8
Limited to be held in custody until further order or pending
determination of the proceedings herein whichever shall occur first
.....
46. Only the relief sought in the application are before this review Court for
consideration. These relief shall mirror or consist of those that are pleaded in the
Amended Statement of the plaintiffs. Let me elaborate. Relief that is pleaded in an Order 16 Rule 3(2)(a) Statement which is also pleaded in an Order 16 Rule 5(1) application for judicial review, are properly before a judicial review Court, and the Court may grant them after it upholds one or more of the grounds of review. See cases: Tzen Pacific Ltd v. Kanawi Pouru (2016) SC1550; Tzen Pacific Ltd v. Kanawi Pouru (2013) N5156; East New Britain Provincial Government v. The Public Service Commission (2017) N6706. In other words, any relief that is not pleaded in an Order 16 Rule 3(2)(a) Statement shall not be sought on its own in an Order 16 Rule 5(1) application for judicial review. A plaintiff who wishes to amend or insert a new relief into his judicial review application may do so by seeking leave of the Court to amend the Statement. If he does so and if an application for judicial review has been filed, he must also seek leave of the Court to amend the application to include the new relief. If the applicant ignores these rules, then any relief contained in his application for judicial review that is not sought in his Statement, shall be regarded as no relief at all, incompetent and will be discarded by the judicial review Court. 47. In this case, it is obvious that the plaintiffs may have breached the said requirements. So, let me see. I note that the plaintiffs had, in the weeks leading up to the hearing, applied for leave to amend their earlier amended Statement. The reason given then was that the provisions of the FA which had been pleaded were from the repleaded FA. Leave was granted by consent for the plaintiffs to amend and file the Amended Statement. However, I note that the plaintiffs did not also seek leave of the Court to amend the application. So, it is obvious that the plaintiffs should have but had failed to also seek leave to amend the application. As a result, the application may contain relief that had been extracted from the earlier Statement which had been amended. 48. I have considered the relief in the application, and I have compared them with the relief that were pleaded in the Amended Statement. My conclusions and findings are as follows. I find relief 1, 2, 3 and 4 in the application incompetent or invalid so I will refrain from considering or granting them. These relief were extracted from an earlier amended Statement which has been replaced with the present Amended Statement, and the plaintiffs have not sought leave of the Court to also amend the application to seek those amended relief. Having said that, the only relief I find that is pleaded in both the Amended Statement and the application, is relief five (5), that is, An Order of Certiorari quashing the decision of the First and Second Defendants on 9 May 2016 in granting the Forest Clearing Authority to the Third Defendant. The relief is also a primary relief. As such, it is properly before the Court for consideration. See cases: Joshua Kalinoe v. Paul Paraka (2014) SC1366; Pacific Equities and Investment Ltd v. Don Sawong (2006)
N3258. 49. Should I therefore grant the relief in this judicial review application? Let me consider the breach of statute or procedures as this Court has found against the defendants. The breach concerns the application process itself by the third defendant, that is, what it had compiled, as required by law, before submitting to the Forest Board. The actual breach relates to the requirements under section 90A(3)(b) & (f). The section required the third defendant to submit duly filled forms 253 under the Regulation. As noted by this Court, the third defendant submitted signed forms 267. The submitted forms 267 were not the correct forms as recognised under the FA and the Regulation. Not only that, the person who had witnessed the forms, and if I was to assume that the forms were correct, was not an authorised person to witness the documents, which would have still contravened section 90A(3)(b) & (f). And finally, because the third defendant had also relied on forms 267 to comply with section 90A(3)(b) of the FA, it also means that the third defendant had not met the requirement under section 90A(3)(b). 50. In my view, Form 253 is a critical form. It is the only form where landowners, by filling them, give their consents and their ownership verifications over their customary land, to pave way for a forest clearing authority to be issued by the Forest Board over their customary land. Consequently, and in this case, consents and ownership verifications of customary land by the landowners were crucial at that material time. Failure to comply with section 90A(3)(b) & (f) of the FA rendered the application defective or void and therefore it should not have been accepted by the Forest Board, that is, despite the recommendation by the PFMC to do so. The Forest Board’s decision to accept the recommendation of the PFMC fails to recognise the breach of statute and of the want of compliance of the procedures. This Court therefore cannot and will not turn a blind eye to this. To refuse exercise of my discretion accordingly, in my view, would no doubt be detrimental to the landowners and their interests over their customary land. 51. I am inclined therefore to grant the primary relief sought in this judicial review. CONSEQUENTIAL RELIEF 52. The plaintiffs have also sought damages. I note that the relief was pleaded as a ground of review in the Amended Statement. I firstly find it to be incompetent. In my view, claim for damages should have been properly pleaded with proper particulars. Order 16 Rule 7 of the National Court Rules is relevant in this case. I read it in part as follows:
7. Claim for damages. (UK. 53/7)
(1) On an application for judicial review the Court may, subject to Sub-
rule (2), award damages to the applicant if —
(a) he has included in the statement in support of his application for leave
under Rule 3 a claim for damages arising from any matter to which
the application relates; and
(b) the Court is satisfied that, if the claim had been made in an action
begun by the applicant at the time of making his application, he
could have been awarded damages.
(2) Order 8, Division 2, shall apply to a statement relating to a claim for
damages as it applies to a pleading.
53. I also find that the said rule has not been duly observed by the parties in this
regard when they filed their pleadings. I see no proper foundation in place for the
relief to be properly considered and determined by this Court. That said, I note
that the plaintiffs are at liberty to commence separate proceedings if they so desire
to seek damages or otherwise, after this proceeding.
54. Because I have refused the relief damages on competency reasons, relief six
(6) in the application will not be granted. Relief seven (7) in the application is an
interim relief which was sought alongside with relief six (6). I will also refuse to
grant it.
CONCLUSION
55. I will grant the primary relief sought in this judicial review which is that I
will make an order of certiorari quashing the decision of the First and Second
Defendants on 9 May 2016 in granting the Forest Clearing Authority to the Third
Defendant. In other words, the FCA licence granted to the third defendant on or
about 9 May 2016 is invalid or void.
COST
56. An order for cost is discretionary. I will order the cost of the proceeding to
follow the event on a party/party basis to be taxed if not agreed.
THE ORDERS OF THE COURT
57. I make the following orders:
1. The plaintiffs’ application for judicial review is granted.
2. An order in the nature of certiorari is granted quashing the decision of the
first and second Defendants made on 9 May 2016 which granted the
Forest Clearing Authority to the third Defendant.
3. For clarity, the Forest Clearing Authority No. FCA 15-10 is invalid or void.
4. The defendants shall pay the plaintiffs’ costs of the proceeding on a party/
party basis which may be taxed if not agreed.
5. Time for entry of these orders is abridged to the date of settlement by the
Registrar of the National Court which shall take place forthwith.
The Court orders accordingly.
________________________________________________________________
Nelson Lawyers: Lawyers for the First and Second Plaintiffs
Cherake Lawyers: Lawyers for the Third Plaintiff
In-house lawyer: Lawyers for the First and Second Defendants
Kandawalyn Lawyers: Lawyers for the Third, Fourth & Fifth Defendants
