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
• Court: National Court
• Citation: (2011) N4450
• Date: 18 November 2011
• Docket Number: OS NO 479 Of 2010
• Year: 2011

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

LAND—State Leases—exemption of land from advertisement—Land Act, s69—circumstances in which land can be exempted from advertisement—s69(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—s33(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 s69(2) of the Land Act. If s69(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 s33(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 [1993] PNGLR 215; Hi Lift Co 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 The Honourable Dr Puka 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; WNB Provincial Government v Pepi S Kimas (2009) N3834; Yakananda Business Group Inc v Minister for Lands and Physical Planning (2001) N2159

18 November, 2011

1. CANNINGS J: This case concerns two allotments of land in Wewak, East Sepik Province, s30, 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, s30, 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 s68 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...