Marianne Mosoro and Michael Mosoro v Kingswell Limited and Puka Temu, Minister for Lands and Physical Planning and Pepi S Kimas, Secretary, Department Of Lands and Physical Planning and The Independent State of Papua New Guinea (2011) N4450

• Jurisdiction: Papua New Guinea
• Judge: Cannings J
• Judgment Date: 18 November 2011
• Court: National Court
• Docket Number: OS NO 479 Of 2010
• Citation: (2011) N4450
• Year: 2011
• Judgement Number: N4450

Full Title: OS NO 479 Of 2010; Marianne Mosoro and Michael Mosoro v Kingswell Limited and Puka Temu, Minister for Lands and Physical Planning and Pepi S Kimas, Secretary, Department Of Lands and Physical Planning and The Independent State of Papua New Guinea (2011) N4450

National Court: Cannings J

Judgment Delivered: 18 November 2011

N4450

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

OS NO 479 OF 2010

MARIANNE MOSORO & MICHAEL MOSORO

Plaintiffs

V

KINGSWELL LIMITED

First Defendant

PUKA TEMU, MINISTER FOR LANDS & PHYSICAL PLANNING

Second Defendant

PEPI S KIMAS, SECRETARY,

DEPARTMENT OF LANDS AND PHYSICAL PLANNING

Third Defendant

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

Fourth Defendant

Madang: Cannings J

2011: 17 June, 12 August, 18 November

LAND – State Leases – exemption of land from advertisement – Land Act, Section 69 – circumstances in which land can be exempted from advertisement – Section 69(2)(d): where the State has agreed to provide land – manner of making, executing, evidencing an agreement by the State.

LAND – State Leases – principle of indefeasibility of title – exceptions under Land Registration Act – Section 33(1)(a: in the case of fraud – meaning of fraud.

The Secretary for Lands granted 99-year State Leases to the first defendant over two allotments of land adjacent to an allotment over which the plaintiffs had a State Lease. The plaintiff was aggrieved by the granting of the leases and sought judicial review on various grounds including error of law (constituted by breaches of the Land Act) and breach of the principles of natural justice. The first defendant argued that none of the grounds of review had merit and that it has indefeasible title to the land subject only to actual fraud, which the plaintiff has not proven.

Held:

(1) There must be notice in the National Gazette of all Government land available for leasing unless the land has been exempted from advertisement.

(2) The Minister may only exempt land from advertisement in one of the circumstances prescribed by Section 69(2) of the Land Act. If Section 69(2)(d) is relied on (“where the State has agreed to provide land for the establishment or expansion of a business, project, or other undertaking”), there must be evidence of agreement by the State executed or entered into by an authorised person on behalf of the State.

(3) A decision to grant a State Lease over land that has been unlawfully exempted from advertisement is affected by error of law and is unlawful.

(4) The land was unlawfully exempted from advertisement and therefore the decision to grant the State Leases over it to the first defendant was unlawful.

(5) Given the circumstances in which the State Lease was unlawfully granted it was a case of fraud for the purposes of Section 33(1)(a) of the Land Registration Act. The granting and registration of the Lease were ineffective at law and should not be allowed to stand. Declarations and orders made accordingly.

Cases cited

The following cases are cited in the judgment:

Dale Christopher Smith v Minister for Lands (2009) SC973

Emas Estate Development Pty Ltd v John Mea & Ors [1993] PNGLR 215

Hi-Lift Company Pty Ltd v Miri Setae [2000] PNGLR 80

Isaac Lupari v Sir Michael Somare (2008) N3476

Koitachi Ltd v Walter Schnaubelt (2007) SC870

Lae Rental Homes Ltd v Viviso Seravo (2003) N2483

Mudge v Secretary for Lands [1985] PNGLR 387

NCDIC v Crusoe Pty Ltd [1993] PNGLR 139

Ramu Nickel Ltd v Temu (2007) N3252

Steamships Trading Co Ltd v Garamut Enterprises Ltd (2000) N1959

The Papua Club Inc v Nusaum Holdings Ltd (No 2) (2004) N2603

West New Britain Provincial Government v Pepi S Kimas (2009) N3834

Yakananda Business Group Inc v Minister for Lands (2001) N2159

Counsel

B W Meten, for the plaintiffs

P Wariniki, for the first defendant

18 November, 2011

1. CANNINGS J: This case concerns two allotments of land in Wewak, East Sepik Province, Section 30, Allotments 28 and 29, over which the Secretary for Lands and Physical Planning granted State Leases to the first defendant, Kingswell Ltd. The plaintiffs, Marianne and Michael Mosoro, hold a State Lease over an adjoining allotment, Section 30, Allotment 40, and have lived there, in Boram Road, for 23 years. They are aggrieved by the granting of the State Leases to Kingswell, as they had expressed interest in themselves acquiring Allotments 28 and 29 and they object to Kingswell’s proposed use of the land as a fuel depot. They say that the State Leases were granted contrary to the Land Act as the Secretary did not give notice by advertisement in the National Gazette that the allotments were available for leasing. The plaintiffs were granted leave to seek judicial review of the Secretary’s decision to grant the State Leases. This is a trial of the substantive application for judicial review.

2. The plaintiffs put forward six grounds of review but some overlap and others are not supported by the evidence. Grounds (a) and (b) are the most significant, alleging that the granting of the State Leases was contrary to Section 68 of the Land Act as the allotments were not advertised and had been unlawfully exempted from advertisement. Ground (c) alleges that there was no Land Board decision recommending the granting of the State Leases to Kingswell. But this was not the case. There was a Land Board decision, so ground (c) has no substance and is dismissed. Ground (d) alleges that the plaintiffs were denied natural justice as they had applied for a ‘closed tender’ under Section 69(2)(e) of the Land Act. This argument has little substance as there is no provision in the Land Act allowing for the sort of application referred to. Ground (d) is dismissed. Grounds (e) and (f) relate to alleged decisions of the Secretary and the Minister for Lands and Physical Planning to rezone the disputed allotments from residential to light industrial. The evidence required to support these grounds is vague and inadequate. It is not clear how, when or by whom the rezoning was done. Grounds (e) and (f) are dismissed.

3. Only grounds (a) and (b) warrant detailed consideration. They overlap and raise these issues: was the granting of the State Leases affected by error of law, given the circumstances in which the lands were exempted from advertisement? If yes, what are the consequences: what orders should the court make? Before determining those issues there are some preliminary matters raised by the first defendant that need to be addressed.

PRELIMINARY MATTERS

4. Mr Wariniki, for Kingswell, submitted that the application for judicial review was defective and should be refused as it:

(1) seeks review of the decisions to grant the State Leases, rather than the decision-making process;

(2) erroneously refers to “Section 40, Allotments 28 and 29”, as if the allotments were consolidated into one lease;

(3) erroneously refers to the singular expression “State Lease”, when there are two separate State Leases involved;

(4) refers only to “the Land Act”, and it is not clear whether this is a reference to the Land Act Chapter No 185, the Land Act 1996 or the Land Regulation 1999;

(5) refers to a decision “to grant State Lease”, which does not make it clear whether the Lease has been granted, and thus is confusing;

(6) wrongly ‘lumps up’ the second and third defendants, thus presuming that the Secretary has power to grant State Leases when only the Minister has this power;

(7) fails to comply with Order 16, Rules 3(3) and 9(2) of the National Court Rules, in that there is no evidence that the Secretary for Justice was notified of the application;

(8) does not demonstrate that the plaintiffs have a sufficient interest in the subject matter of the proceedings or that they exhausted their administrative remedies.

5. None of these submissions is persuasive. As to (1), this is a judicial review of administrative decisions, and by its nature focuses on reviewing the decision-making process. As to (2) and (3) no confusion arises from the wording of the plaintiffs’ originating statement: it is clear that there are two State Leases and two allotments. Likewise with (4) and (5). Mr Wariniki’s submissions appear calculated to create confusion where none exists. It is clear that the Land Act 1996 is the legislation that is at the centre of this case. There is no uncertainty about granting of the State Leases, on 21 August 2009. As to (6), the ‘lumping up’ of the Minister and the Secretary is justifiable as it is unclear on the facts who actually decided to grant the leases to Kingswell (was it the Minister or the Secretary or some other official?). The leases state that the Minister is granting the leases but are not signed by the Minister; and the person who has signed as a delegate of the Minister is not named. Only a signature appears on the leases. As to (7) there is an affidavit of service on the court file showing that the Secretary for Justice was given notice of the application...