Benjamin Samson and Others v Dr Eric Kwa and Others

• Jurisdiction: Papua New Guinea
• Court: Supreme Court
• Judge: Frank J,Anis J,Dowa J
• Judgment Date: 30 July 2026
• Neutral Citation: SC2871
• Docket Number: SC REV. NO. 4 OF 2024, and SC REV. NOs. 5, 6, 7, 8, 9, 10, 11, 12 and 13 of 2024 (IECMS) (Joined Hearings)
• Date: 30 July 2026
• Counsel: G Gogora with counsel assisting C H Winduo, for the applicants,G Akia with counsel assisting Z Joel, for the first and second respondents,M Wapi, for himself and J Wapi, the third respondents,No appearance by Mary Pala, Fourth Respondent in SC REV. 5/24,J Hombiwanga, for the fourth respondent in SC REV. 6/24,E Kasi, for the fourth respondent in SC REV. 7/24,C Kalu, for the fourth respondent in SC REV. 8/24,No appearance by Makus Bingomalo in SC REV. 10/24,S Liria, for the fourth respondent in SC REV. 12/24,No appearance by Morobe First Investments Limited in SC REV. 13/24,Counsel,No appearance by Bob Kitnamini in SC REV. 9/24 & SC REV. 11/24

SC2871

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

SC REV. NO. 4 OF 2024, and SC REV. NOs. 5, 6, 7, 8, 9, 10, 11, 12 and 13 of 2024 (IECMS) (Joined Hearings)

Benjamin Samson, Secretary Department of Lands and Physical Planning

First Applicant

Ala Ane, Registrar Department of Lands and Physical Planning

Second Applicant

Hon. John Rosso, MP Minister for Lands and Physical Planning

Third Applicant

v.

Dr Eric Kwa, Secretary for Justice and Attorney General Norminal Defendant for the Gonvenor General or Head of State

First Respondent

Independent State of Papua New Guinea

Second Respondent

Michael Wapi and Jensiana Wapi

Third Respondents

Mary Pala (SC REV. 5/24), Andro Holdings Limited (SC REV. 6/24), Investpac Limited (In SC REV. 7/24), Total E & P PNG Limited (SC REV. 8/24), Bob Kitnamini (In SC REV. 9/24 & SC REV. 11/24), Makus Bingomalo (In SC REV. 10/24), Magalona Estates Limited (SC REV. 12/24), and Morobe First Investments Limited (SC REV. 13/24)

Fourth Respondents

WAIGANI: Frank J, Anis J, Dowa J

23 & 30 July 2026

REVIEW UNDER SECTION 155(2)(b) — CONSTITUTION — Review against final decision of Judicial Review Court made ex-parte — whether the trial judge erred in the judicial process before arriving at his decision — whether the applicants were denied their rights to be heard — whether the applicants were notified of the hearing date and time — s.59 of the Constitution — whether the third respondents also misled the Court at the material time — whether the standard pre-requisites for conducting a hearing ex-parte or a hearing were observed and implemented by the trial Judge — if procedural failures occurred, whether they also amount to irregularities — consideration — ruling

Facts

The Third Respondents were Plaintiffs in 10 judicial review proceedings which they filed against the Applicants, the State and Fourth Respondents. They sought to challenge the decisions of the Minister for Lands & Physical Planning over 10 appeals that they had filed before him under s.62 of the Land Act 1996 where he had ruled against them. Between 2016 and 2019, the Third Respondents lodged various applications in response to public tenders over state lands that were issued by the Department of Lands & Physical Panning. Their applications were considered and determined by the Land Board. They were aggrieved by the Land Board's decisions on their 9 various applications, so they appealed to the Minister.

When their appeals were dismissed, they lodged a total of 10 judicial review proceedings against the Minister's decision. From the 10 applications that went before the Land Board, 1 of their applications was successful but was later overturned on appeal (to the Minister) in favour of Andro Holdings Limited who is named as the Fourth Respondent in SC REV. 6/24. Thus, the Applicants also applied for judicial review against the Minister's said decision which explains the increase from 9 to 10 judicial review challenges.

On 9 January 2023, after the Court had granted leave to review, the substantive hearing proceeded ex-parte. The trial Court, in a summary manner, granted the 10 judicial review applications. Its primary orders were to refer the Third Respondents' 10 rejected applications back to the Land Board, and for the Land Board to reconvene and reconsider them together with the others who had also applied for those state lands concerned.

The Applicants were aggrieved and filed these reviews.

Held:

1. Unlike normal appeals that are filed as of right or with leave of the Court under the abbreviation SCA, reviews may be likened with judicial reviews. The Court is tasked to consider and make findings not on the actual decision itself, but rather, on the decision-making process that was applied by a trial judge to arrive at his or her decision.

Moi Avei & Electoral Commission v Charles Maino [2000] PNGLR 157, Anisi v. Aimo (2013) SC1237 and Waranaka v. Dusava (2009) SC980 applied.

2. Misleading a trial Court that causes or results in breach of practice and procedures may constitute a valid reason to uphold a review premised on (i) error(s) of law on the face of the record and (ii) procedural irregularity or irregularities.

Anthony Waira and Ors v. Samuel Penias and Ors (2025) SC 2828 and John Jimberi Jr v. Thomas Yetuin (2025) SC2707 at pp. 50–53 referred to.

3. When a matter is set down for hearing and one of the parties is not present on the date of hearing, a trial Court's duty in observance of fairness under s.59 of the Constitution include:

(i) satisfying itself that the party concerned was notified of the hearing or obtaining an explanation as to why the party concerned was not present;

(ii) checking whether a notice of hearing was filed and served on all the parties, or if directions had been issued then checking whether they had been complied with in full; and

(iii) satisfying itself with cogent evidence such as an affidavit of service to consider whether to proceed with a trial or not, and not to totally rely on word of mouth or oral explanations (especially from a party that has competing interest in a matter concerned).

4. The trial judge was misled by the Third Respondents in granted them leave to proceed ex-parte because, contrary to what Mr. Wapi had told the Court on 9 January 2023, the Applicants and none of the other respondents attended Court on 19 December 2022, and they also did not agree with the Third Respondents to set the matter down for hearing at 1:30pm on 9 January 2023.

5. Proceeding to hear the matter ex-parte on 9 January 2023 constituted (i) an error of law on the fact of the record, that is, contrary to s.59 of the Constitution of the right to natural justice of the Applicants, and (ii) irregularities which included proceeding to hearing without the presence of the Applicants, the First and Second Respondents and the Fourth Respondents; and proceeding without evidence to show that notices of hearing had been filed and served or without receiving any evidence at all such as an affidavit of service to prove that all the parties had been notified of the hearing date.

6. The reviews were upheld and orders made that included referring the matter back to the National Court for a re-hearing of the 10 judicial review proceedings.

Cases cited

Moi Avei & Electoral Commission v Charles Maino [2000] PNGLR 157

Anisi v. Aimo (2013) SC1237 and Waranaka v. Dusava (2009) SC980

Erie Ovako Jurvie v. Bonny Oveyara & Electoral Commission (2008) SC935

Application by Ben Semri (2003) SC723)

Anthony Waira and Ors v. Samuel Penias and Ors (2025) SC 2828

John Jimberi Jr v. Thomas Yetuin (2025) SC2707 at pp. 50–53

Counsel

G Gogora with counsel assisting C H Winduo, for the applicants

G Akia with counsel assisting Z Joel, for the first and second respondents

M Wapi, for himself and J Wapi, the third respondents

No appearance by Mary Pala, Fourth Respondent in SC REV. 5/24

J Hombiwanga, for the fourth respondent in SC REV. 6/24

E Kasi, for the fourth respondent in SC REV. 7/24

C Kalu, for the fourth respondent in SC REV. 8/24

No appearance by Bob Kitnamini in SC REV. 9/24 & SC REV. 11/24

No appearance by Makus Bingomalo in SC REV. 10/24

S Liria, for the fourth respondent in SC REV. 12/24

No appearance by Morobe First Investments Limited in SC REV. 13/24

Lawyers for the applicants: Holingu Lawyers

Lawyer for the first and second respondents: Solicitor General

Lawyer for the third respondents: M Wapi, third respondent, in person

No appearance by Mary Pala: Fourth Respondent in SC REV. 5/24

Lawyers or the fourth respondent in SC REV. 6/24: Kipes Lawyers

Lawyers for the fourth respondent in SC REV. 7/24: Sarenga & Associate

Lawyers for the fourth respondent in SC REV. 8/24: Dentons

No appearance by Bob Kitnamini: Fourth Respondent in SC REV. 9/24 & SC REV. 11/24

No appearance by Makus Bingomalo: Fourth Respondent in SC REV. 10/24

Lawyers for the fourth respondent in SC REV. 12/24: Liria Lawyers

No appearance by Morobe First Investments Limited: Fourth Respondent in SC REV. 13/24

1. Frank J: I have read the draft judgment proposed by my brother judges. I agree that the orders of the trial judge be quashed or set aside and for the consequential orders also proposed for reasons as to the law and the ground discussed in the joint reasons upon which these reviews are to be determined. I add a few remarks to the reasons in the joint judgment and comment on the other grounds of review.

2. The background is set out in the joint judgment. These reviews arise from orders issued on 9 January 2023 in Order 16 judicial review proceedings, in which the third respondents sought to review the recommendations of the Papua New Guinea Land Board (“Board”) and the determinations of appeals against those recommendations for 10 different state lease land that were made available for lease for which they had applied and in which, ultimately, they were not successful in any.

3. In the notices of motion for judicial review, the common grounds raised (rephrasing the review grounds) were that trial judge erred in law and mixed fact and law when he –

(a) determined that the third respondents were denied natural justice because:

(i) the Board and the Head of State were not obliged to provide reasons for their recommendations or determinations as the case may be;

(ii) the third respondents were invited to participate at the Board hearings;

(iii) the Board provided reasons for its recommendations; and,

(iv) the third respondents were given the opportunity when their appeals were considered and determined by the Head of State pursuant to section 62 of the Land Act 1996 (“Act”);

(b) allowed and heard, in breach of section 59 of the Constitution, the motion for judicial review in the absence of the defendants in the judicial review proceedings;

(c) allowed and heard the motion for judicial review without affording the defendants in the judicial review proceedings the opportunity to make oral submissions as it constituted a procedural...