N10093
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS NO. 497 OF 2016

BETWEEN
CATHOLIC ARCHDIOCESE OF PORT MORESBY BOARD OF TRUSTEES
Plaintiff

AND
THE PUBLIC CURATOR OF PAPUA AND NEW GUINEA AS ADMINISTRATOR OF THE ESTATE OF THE LATE PAUL PORA
Defendant

Waigani: Shepherd J
2017:  8th September
2023:  3rd January

APPEALS – forfeiture of Mission Lease – mode of challenging Minister’s decision to forfeit State Lease – appeal to National Court under Land Act, Section 142(1)(b) – appeal must be made within 28 days of date of forfeiture or within such further time as National Court for special reason allows - Land Act, Section 142(2) – if right of appeal lost, an interested person can proceed by way of judicial review procedure under National Court Rules Order 16.

PRACTICE AND PROCEDURE – originating summons filed by plaintiff to challenge forfeiture – relief sought by originating summons was judicial declaration that plaintiff has indefeasible title – no appeal to National Court under Land Act, Section 142(1)(b) – no application made under Land Act, Section 142(2) for extension of time to file appeal – incorrect mode of commencing suit by originating summons seeking judicial declaration and associated orders - application by defendant to dismiss proceedings pursuant to National Court Rules, Order 12 Rule 40(1) – incorrect mode of commencing suit in these circumstances is failure to disclose reasonable cause of action and abuse of process – application to dismiss proceedings granted under National Court Rules, Order 12 Rule 40(1)(a) and (c). 

Cases Cited:
Karmally v Tibu (2009) N3646
Kekedo v Burns Philp (PNG) Ltd [1988-89] PNGLR 122
Lae Bottling Industries Ltd v Lae Rental Homes Ltd (2017) SC1641
Lavongai Equities Ltd v Allan (2016) N6362

Legislation:
Land Act 1996: s.122 (1), (2), (3) and (4); s.142 (1), (2), (3) and (4)
National Court Rules: Order 12 Rule 40(1)(a), (b) and (c); Order 18 Rule 12(1)

Counsel
Mr Allan Mana, for the Plaintiff
Mr Herbert B. Wally, for the Defendant

DECISION

3rd January, 2023

1.	SHEPHERD J:   This case concerns disputed title to a rural property known as Portions 68 and 607 (Consolidated), Milinch of Goldie, Fourmil of Moresby, Central Province (the Property).
 
BACKGROUND

2.	The plaintiff board is a statutory corporation that was incorporated under the name of the “Catholic Archdiocese of Port Moresby Board of Trustees” by s.4(1) of the Roman Catholic Archdiocese (Port Moresby) Act Chapter No. 1011.  Section 4(2) of that Act provides that the Board as a corporation has power to “acquire, hold, manage and control ... property of any kind” and that it may sue and be sued in its corporate name.
 
3.	It is not in dispute that the plaintiff board in this proceeding is suing on behalf of the Catholic Archdiocese of Port Moresby (the Plaintiff) as successor to the Roman Catholic Mission (Port Moresby).

4.	The Defendant, the Public Curator of Papua and New Guinea (the Public Curator), is the Court-appointed administrator of the estate of the late Paul Pora who died intestate on 22 October 2010.  Letters of administration in respect of the Estate were formally granted by the National Court to the Public Curator in proceeding WPA No. 1 of 2014 on 10 June 2014.
 
5.	Shortly prior to Papua New Guinea’s independence, the former Roman Catholic Mission (Port Moresby) was issued with Mission Lease Volume 26 Folio 6449 in respect of the Property, which has an area of almost 20 hectares of agricultural land. The Mission Lease was issued under Section 66 of the pre-Independence Land Act 1962-1973 by a delegate of the Minister for the House of Assembly for Lands for the High Commissioner of Papua New Guinea on 17 April 1975.

6.	A second title for the Property was registered some 32 years later, namely Agricultural Lease Volume 31 Folio 205, which was granted to the late Paul Pora by the then Minister for Lands and Physical Planning (the Minister) under Section 87 of the Land Act 1995 and registered by the Deputy Registrar of Lands on 9 October 2007. The Agricultural Lease was granted by the Minister in 2007 after the Plaintiff’s Mission Lease was allegedly forfeited at some point in time before the Property was advertised for closed tender in favour of the late Paul Pora in National Gazette No. 199 dated 19 October 2006.

7.	The Plaintiff challenges the validity of the Agricultural Lease. The Plaintiff asserts that there were serious irregularities in the statutory process for the forfeiture of the Mission Lease. In short, the Plaintiff contends that the Catholic Archdiocese of Port Moresby (the Archdiocese) was never served with a second notice to show cause as to why the Mission Lease should not be forfeited for alleged failure by the Archdiocese to have complied with covenants in that Lease. The Plaintiff impugns the whole of the forfeiture process which allowed the disputed Agricultural Lease to be granted by the Minister for Lands to the late Paul Pora.

8.	The principal relief sought by the Plaintiff is a judicial declaration to the effect that the Archdiocese has indefeasible title to the Property by virtue of the Mission Lease. In the alternative, the Plaintiff seeks an order that any purported transaction having the effect of displacing the Mission Lease be rectified so that the Archdiocese’s title to the Property is undisturbed. The Plaintiff seeks a consequential order that the Public Curator and various others give up vacant possession of the Property to the Archdiocese.

THE EVIDENCE

9.	The Plaintiff relies on two affidavits, the affidavit of Archbishop John Ribat (now Cardinal Ribat) filed on 10 August 2016 and the affidavit of Peter Kavana, a former officer of the Department of Lands and Physical Planning, filed on 19 December 2016.
 
10.	Archbishop Ribat (as he then was) has deposed in his affidavit that in 1998 the Minister or his Delegate issued a notice to show cause why the Mission Lease should not be forfeited on the ground of non-compliance with improvement covenants. Archbishop Ribat’s predecessor Archbishop Brian J. Barnes responded to the notice to show cause by letter dated 28 June 1998 which explained that the improvement covenants had in fact been complied with by the Archdiocese because residential buildings and workshops had been constructed on the Property.  There was no response by the Minister or his Delegate to Archbishop Barnes’ letter of explanation in reply to the notice to show cause.

11.	A second notice to show cause against forfeiture of the Mission Lease, addressed to the Archdiocese, was apparently signed by then Secretary of the Department of Lands and Physical Planning Mr Pepi S. Kimas on 17 June 2003.  However, Archbishop Ribat says in his affidavit to the effect that there is no record held by the Archdiocese that the second notice to show cause against forfeiture of the Mission Lease was ever served on the Archdiocese.  Archbishop Ribat states at para 12 of his affidavit:

 “	12.	I have been prompted to bring this matter to the court’s attention because I have recently become aware that the defendant purports to have a State Lease for Agricultural purposes supposedly over the same land – Portion 68 and 607 (consolidated), Kuriva, Milinch of Goldie, Fourmil of Port Moresby, Central Province. ”

12.	Mr Kavana, in his affidavit, deposes that, because of his experience as a former officer of the Department of Lands and Physical Planning, his services include searches of title and consultations with persons and organisations in connection with land issues.  Mr Kavana states in paragraph 2 of his affidavit: 
 
        “	2.	On 11 December 2015, the Catholic Archdiocese of Port Moresby Board of Trustees engaged my services and authorised me to conduct searches in the office of the Department of Lands and Physical Planning, to establish the latest status of the property belonging to the plaintiff and also confirm for them, especially the latest dealing on the said property and any forfeiture of the subject lease.”

13.	It is clear, therefore, that Archbishop Ribat and the Plaintiff only became aware for the first time towards the end of 2015 of the existence of the Agricultural Lease granted to the late Paul Pora in 2007.  No explanation has been given by Archbishop Ribat in his evidence to this Court as to why it took so long for himself and the Archdiocese to realise that it was the position of the Department of Lands and Physical Planning that the Mission Lease had been forfeited in or about late 2003 after issuance of the second notice to show cause dated 17 June 2003 and that an Agricultural Lease of the Property had subsequently been granted by the Minister to the late Paul Pora and registered in 2007, thereby replacing the Mission Lease.
  
14.	However, Mr Kavana’s evidence does tend to support the Plaintiff’s position that the second notice to show cause was never served on the Archdiocese.  Mr Kavana deposes at paragraphs 5 to 9 of his affidavit:

      “	5.	As a former Supervision Draftsman within [the] Southern Region office of the Department of Lands and Physical Planning in the 1980’s, I am familiar with the procedures involved in the process of allocating leasehold land.

	6.	Firstly, a Notice to Show Cause heralds the process of forfeiting land before re-allocation.  According to my search, there is evidence in file 03112/0068 that the first Notice was issued to the Catholic Church in 1990’s, more particularly in 1998.  A reply to the Notice was compiled by the then Archbishop Brian J. Barnes DRM, KBE, MBE, DD dated 28 June 1998. The content of the reply was self-explanatory.  In the reply, he objected as to the issue of the Notice in the first place. The Church maintained that there was nothing to show cause, and that the improvement covenants were met, especially the erection of the residential buildings on the subject land – Portion 68, Milinch of Goldie, Fourmil of Moresby, Kuriva, Central Province.

	7.	Nothing further came out of that process, the inference being sufficient cause was shown by Archbishop Barnes.

	8.	There was a further copy of another Notice to Show Cause signed by Mr Pepi S. Kimas dated 17 June 2003.  There is no indication of the date this notice was sent out and whether by registered post and [whether] the Catholic Church received it or not.  My conclusion is that the notice was signed but never dispatched.  After all, this is a mission lease, not an agriculture or business lease – given the humanitarian pursuits of the Church, the Department is typically circumspect in its approach.

	9.	There is also no evidence whatsoever that the land was forfeited.”

15.	Mr Kavana then deposes in his affidavit that in addition to there being no evidence in the Departmental records for the Property which he searched in late December 2015 of proof of service of the second notice to show cause on the Archdiocese back in 2003, there is also an issue with the late Paul Pora’s Agricultural Lease registered in 2007 in that it contains a wrong plan for survey plan catalogue number 68/160, a procedural irregularity.

16.	In response to the Plaintiff’s evidence, the Public Curator relies on his own two affidavits respectively filed on 3 October 2016 and 21 November 2016, as well as the affidavit of Acting Registrar of Titles Mr Henry Wasa filed on 5 September 2017.

17.	 In his first affidavit, the Public Curator deposes to the effect that the widow of the late Paul Pora and their children have been residing on the Property for many years. The Public Curator says that he had actually been to the Property in 1989 at a time when the late Paul Pora was married to the daughter of the late Bernard Solien, the caretaker of the Property (presumably as caretaker of the Property for the Archdiocese), the inference being that the late Paul Pora’s wife has been residing on the Property since 1989, and that she and her children continued to occupy the Property subsequent to the late Paul Pora’s death on 22 October 2010 up to the date of trial and continuing.
 
18.	Annexed to the Public Curator’s first affidavit and marked “B” is a copy of an advertisement of notice of closed tender of the Property published in National Gazette No. G199 on 19 October 2006.  Extracts from the text of that advertisement are as follows:

       “	Tender No. 120/2006 – Milinch: Goldie, Fourmil: Moresby – Central Province – (Southern Region) Agricultural Lease
Location:  Portions 68 & 607 (Consolidated) Milinch Goldie, Fourmil Moresby, Central Province.
Area: 19.99.5400 Hectares
Annual Rent: K250.00
Improvements and Conditions:  The lease shall be subject to the following conditions:

(a)	Survey;
(b)	The lease shall be bona fide for Agricultural purpose;
(c)	The lease shall be for a term of Ninety-nine (99) years;
(d)	Rent shall be paid at the rate of five (5%) per centum per annum of the unimproved value of the land for the first ten (10) years of the term.  The unimproved value of the land shall be re-assessed every ten (10) Years calculated from the date of grant of the lease and the rent shall be determined at five (5) per centum per annum of the unimproved value assessed:
...
The advertisement only allows for Paul Pora and not open to the general public due to the improvement [sic] of the land erected by Paul Pora. ”

19.	The remainder of the Public Curator’s evidence in his first affidavit details the documentation and compliance by the Land Board and the Department of Lands and Physical Planning (the Department) with the statutory procedures under the Land Act which resulted in the allocation of the Agricultural Lease in favour of the late Paul Pora, none of which evidence is seriously challenged by the Plaintiff.

20.	As to the Public Curator’s second affidavit, this largely relates to matters in connection with an ex parte interim restraining order which was granted by the Court on 18 August 2016 on application by the Plaintiff.  The interim order restrained the Public Curator “or any other person” from trespassing on or interfering with the Property or entering into any transactions in connection with title to the Property, including transfer of title of the Property.  The Public Curator’s second affidavit also makes mention of the “closed tender process” advertised in National Gazette No. G199 referred to in paragraph 15 of the Plaintiff’s first affidavit but invites the Court to nevertheless infer that there was no fraud involved in the issuance of the Agricultural Lease to the late Paul Pora.
 
21.	There is one substantive issue on which both the Plaintiff and the Public Curator agree is properly in dispute.  As was stated by the Public Curator in paragraph 27 of his first affidavit, the “sticking point” is whether, the title to the Property was properly forfeited before it was placed on public tender prior to issuance of the Agricultural Lease to the late Paul Pora. 
 
22.	This issue was alluded to by Mr Kavana at paragraph 9 of his affidavit in support of the Plaintiff’s position where he deposes that there is no evidence that the land was forfeited. Mr Kavana’s averral in this regard is based on the results of his search in late December 2015 of the Department’s records for the Property, which had disclosed that those records contained no proof of service on the Archdiocese of the second notice to show cause.

23.	As to Mr Kavana’s technical objection to the validity of the Agricultural Lease because it contains a mistaken copy of survey catalogue number 68/160, Acting Registrar of Titles Mr Wasa says at paragraph 7 of his affidavit to the effect that there was no error in the reference in the Agricultural Lease to survey catalogue number 68/160, only that a copy of a wrong survey plan was attached to the Agricultural Lease, a mistake which can be rectified by administrative action.

ISSUES

24.	Having considered the totality of the evidence adduced by both parties in this proceeding and having heard the submissions of each counsel, there is one threshold issue that is separate from the substantive issues which the parties have outlined for determination by the Court in their statement of facts and issues filed by consent on 13 June 2016.
   
25.	In his submissions for the Public Curator at trial, counsel Mr Wally referred the Court to the fact that it is the position of the Public Curator that this proceeding should be summarily dismissed pursuant to Order 12 Rule 40(1) of the National Court Rules because the Plaintiff commenced suit by a wrong mode of originating process. Mr Wally relied in this regard on issue 5 set out in paragraph 3 of his written extract of submission filed on 7 September 2017, a copy of which written extract was furnished by Mr Wally to the Plaintiff’s counsel Mr Mana shortly before trial.  The Public Curator’s issue 5 is reproduced below:

      “	5.	Whether the proceeding and the claims as set out in the Originating Summons of the Plaintiff filed on 10th August 2016 should be dismissed in its entirety for being misconceived and for showing no cause of action and for being frivolous and vexatious pursuant to Order 12, Rule 40 of the NCR”.

26.	At trial Mr Wally referred the Court to the Public Curator’s notice of motion filed on 21 November 2016 which sought dismissal of this proceeding under Order 12 Rule 40(1)(b) (frivolous or vexatious proceedings) and Order 12 Rule 40(1)(c) (proceedings which are an abuse of process), but which motion had not previously been heard and ruled on by the Court. Mr Wally made it clear that the Public Curator was relying at trial on the two grounds in Order 12 Rule 40(1)(b) and (c) in support of the Public Curator’s threshold submission for dismissal of this proceeding.  Mr Wally then applied at trial for leave to amend the Public Curator’s notice of motion so that it also included reference to Order 12 Rule 40(1)(a) (no reasonable cause of action).  This is what the transcript of the trial shows at page 21:

“ MR WALLY:	Your Honour would note that some time back in last year [2016] the defendant filed a notice of motion to dismiss under Order 12 Rule [40] which he wished to move [to] have these proceedings dismissed.  ... It is in document number 9.  We will be relying on this document. ...  Your Honour, at this juncture I would like to seek leave that Rule 40 – Order 12 Rule 40 inclusive of ... Subrules (a), (b) and (c) are to be included as part of this motion on the grounds that we will be standing on to ask the Court to dismiss these proceedings in its entirety. ”

27.	Mr Mana made no objection at trial to Mr Wally’s oral application for leave to include the additional ground based on Order 12 Rule 40(1)(a) (no cause of action) as a component of the Public Curator’s argument for dismissal of this proceeding.  The trial therefore proceeded on the basis that quite apart from the substantive issues referred to in the parties’ statement of facts and issues, the Public Curator would be relying on all three of the grounds set out in Order 12 Rule 40(1) of the National Court Rules in support of its threshold argument that this proceeding should be dismissed.
   
28.	I accordingly find that the issues that fall for consideration by the Court are these:

(1)	Should this proceeding be dismissed pursuant to any or all of the alternative grounds set out in Order 12 Rule 40(1) of the National Court Rules?

(2)	If not, does the evidence support the Plaintiff’s claims for the substantive relief it seeks in its originating summons filed on 10 August 2016?

CONSIDERATION

Issue 1:	Dismissal pursuant to Order 12 Rule 40(1) of the National Court Rules
29.	Section 122 (1) of the Land Act states that the Minister may, by notice in the National Gazette, forfeit a State lease on various grounds, including if a covenant or condition of the lease has not been complied with.  However, Sub-sections 122(2) and (3) of the Act provide as follows: 
S. 122(2)	Before forfeiting a State lease under Subsection (1), the Minister—
	(a)	shall serve notice on the lessee calling on him to show cause, within a period specified in the notice, why the lease should not be forfeited on the ground or grounds specified in the notice; and
	(b)	may, whether or not cause has been shown in accordance with a notice under Paragraph (a), serve on the lessee a notice requiring him, within a period specified in the notice, to comply with covenants or conditions of the lease or the provisions of this Act.

(3)	The Minister shall not forfeit a lease under this Section unless—
	
	(a)	the lessee has failed to comply with a notice under Subsection (2)(a) or (b); or
	(b)	the lessee has failed to show good cause why the lease should not be forfeited.

(4)	Copies of a notice of forfeiture and a notice under Subsection 2(a) or (b) shall be served on all persons who, to the knowledge of the Departmental Head, have or claim to have a right, title, estate or interest in, to or in relation to the land, or such of them as can with reasonable diligence be ascertained and found.
		
30.	Section 142 of the Land Act created a right of appeal to the National Court against any forfeiture of a State lease by the Minister.  Section 142 relevantly provides:
142.	Appeal to National Court
(1)	An interested person may appeal to the National Court on—
(a)	...
(b)	the forfeiture of a lease. 
(2)	An appeal under Subsection (1) shall be made within 28 days after the matter complained of, or within such further time as the National Court for any special reason allows.
(3)	Where an appeal is made under Subsection (1), the matter complained of has no effect until—
	(a)	the National Court has decided the appeal; or
	(b)	where no further appeal is made to the Supreme Court—the period prescribed for making the appeal has expired; or
	(c)	where a further appeal is made to the Supreme Court—the Supreme Court has decided the appeal,
	and, subject to Subsection (4), a lessee may in the meantime continue lawfully to occupy the land the subject of the appeal and to exercise his rights, and shall fulfil his obligations under the lease.
(3)	When an appeal is made under Subsection (1)(a) the decision of the National Court or of the Supreme Court shall be deemed to operate as from the date of the matter complained of.

31.	Where a person or entity aggrieved by the Minister’s forfeiture of a State lease wishes to appeal that forfeiture, s.142 (2) stipulates in mandatory terms that an appeal to the National Court “shall be made within 28 days after the matter complained of, or within such further time as the National Court for any special reason allows”. 

32.	The leading authority on the effect of s.142 of the Land Act is the Supreme Court decision in Lae Bottling Industries Ltd v Lae Rental Homes Ltd (2017) SC1641 (David J, Murray J, Pitpit J).

33.	The facts in the Lae Bottling Industries case are similar to those presented in the case now before this Court.  There the plaintiff at first instance, being aggrieved by the forfeiture of its State lease, had commenced National Court proceedings by way of originating summons challenging the forfeiture and seeking declaratory relief.  The Court ordered that the case continue by way of pleadings.  The defendants then filed a motion seeking an order for dismissal of the proceedings under all of the grounds specified in Order 12 Rule 40 of the National Court Rules, including the ground that the proceedings were an abuse of process of the Court as the case was not an appeal and had been instituted contrary to s.142 of the Land Act.  The National Court dismissed the motion by the defendants, who then appealed to the Supreme Court.
 
34.	The principal ground of appeal to the Supreme Court in the Lae Bottling Industries case was that the National Court had erred in ruling that “an interested person”, on being aggrieved by a forfeiture of a State lease has a choice of the three modes of proceedings to challenge the forfeiture.  The National Court found that an aggrieved person could: (1) appeal the forfeiture to the National Court under s.142 of the Land Act, or (2) file either a writ of summons or an originating summons seeking relief, or (3) apply for judicial review of the Minister’s forfeiture decision under the provisions of Order 16 of the National Court Rules.
 
35.	The appeal was convincingly upheld by the Supreme Court.  After reviewing earlier case law, the Supreme Court said this at para. 35 regarding s.142 of the Land Act: 

       “	35.	It is our respectful view that the correct interpretation of the phrase “may appeal” in Section 142(1) would be that submitted by the appellants, which we accept, and that is that it gives an interested person an option or discretion as to whether, or not, to appeal the decision to forfeit the lease.  So, an interested person who decides to challenge the forfeiture of his or her lease must do so within 28 days, but if out of time, then he or she may seek an extension of time under Section 142(2) demonstrating special reasons within which to lodge an appeal.  We agree with the appellants’ counsel that if we accept the reasoning of the National Court’s interpretation of Section 142(1), then not only will subsections (2) and (3) of Section 142 become meaningless, but also the whole provision will have no meaning and application to circumstances that this provision of law seeks to protect. ”

36.	The Supreme Court continued at paras. 37 and 38:

      “	37.	Section 142 is silent on how the appeal ought to be commenced in the National Court and prosecuted or progressed to a hearing and bearing in mind that the National Court, by that provision, is vested with an appellate jurisdiction. To remedy that lack of procedure, we consider that the procedure under Order 18 of the National Court Rules should be adopted, as was suggested by Salika DCJ in Nambawan Super Ltd v Pepi S. Kemas (2013) N5062.  This is what His Honour said ... “I am of the view that an appeal under s.142(1)(a) and (2) of the Land Act 1996 should be by way of a rehearing, based on reconsideration of the material that was before the Minister, under Order 18 [of the National Court Rules]... this to me, would be the fairest thing to do to achieve justice.”

	38.	We endorse those observations.”

37.	The Supreme Court concluded that, where no appeal is made to the National Court under s.142 of the Land Act, then the protection is lost, unless the interested person subsequently seeks redress in the National Court by the residual process of judicial review. However, the Supreme Court ruled that the appeal process must be invoked first.  This is what the Supreme Court held at para. 41:
  
   “	41.	The right of appeal created by Section 142, in our opinion, cannot be sidestepped.  It is a process that must be invoked where one is aggrieved by a decision forfeiting his or her lease and wants to challenge it.  However, when an interested person loses his or her right of appeal due to non-compliance with the time limitation of 28 days or not applying for an extension of time, then the only remedy available to him or her is by way of judicial review under Order 16 of the National Court Rules through the National Court’s powers under Section 155(3)(b) of the Constitution because the decision to forfeit a lease is made by the Minister for Lands and Physical Planning or his delegate, which is an administrative decision by an administrative or public body: Premdas v The Independent State of Papua New Guinea (1979) PNGLR 329; Michael Gene v Hamidian -Rad [1999] PNGLR 444. ”
 
38.	The Supreme Court in Lae Bottling Industries quashed the National Court decision because the plaintiff had failed to utilise the correct mode of proceedings to challenge the forfeiture of the State lease by way of an appeal under s.142 of the Land Act.  The plaintiff, having failed to apply to the National Court under s.142(2) for an extension of time to appeal and having then failed to commence proceedings in the National Court for judicial review under Order 16 of the National Court Rules was not entitled to pursue a challenge to the Minister’s forfeiture decision by the mode of commencing suit it had chosen. The plaintiff’s proceedings in the National Court whereby declaratory and other relief had been sought by way of ordinary originating summons, later converted to a pleadings program, was an abuse of process which the Supreme Court ruled did indeed warrant dismissal under Order 12 Rule 40 of the National Court Rules.

39.	As to a successful proceeding correctly instituted as an appeal pursuant to Section 142 of the Land Act against forfeiture of a State Lease, see Lavongai Equities Ltd v Allan (2016) N6362 (Makail J).

40.	Reverting to the circumstances of the present case, this Court is bound by the decision of the Supreme Court in the Lae Bottling Industries case.  Schedule 2.9 (1) of the Constitution provides that all decisions of law by the Supreme Court are binding on all other courts, which perforce includes the National Court.  Therefore, this Court has no discretion in this matter and is required, by the principle of stare decisis enshrined in Schedule 2.9 (1) of the Constitution, to apply the decision of law in Lae Bottling Industries to the circumstances now presented in OS No. 497 of 2016.

41.	This Court accordingly finds that this proceeding was wrongly commenced. The Plaintiff should at first instance have applied to the National Court pursuant to s.142(2) of the Land Act by way of originating summons for grant of extension of time to appeal the decision of the Minister or his Delegate to forfeit the Mission Lease.
  
42.	The procedure for applications for extension of time to appeal is clearly set out in Order 18 Rule 12(1) of the National Court Rules, which states:

12 (1)	Applications for extension of time to appeal or dispensation or waiver of any condition precedent to the right of appeal prescribed by statute must be instituted by Originating Summons and made ex parte.

43.	In this instance, if the Plaintiff had applied to the National Court pursuant to s.142 (2) of the Land Act for extension of time to appeal, but the application was refused, the Plaintiff could then have applied to the National Court under Order 16 of the National Court Rules for leave for judicial review of the Minister’s forfeiture decision, because by that stage the Plaintiff would have exhausted its right of appeal under s.142 of the Land Act.  Exhaustion of appeal rights is a prerequisite for judicial review save in the most exceptional of circumstances: Kekedo v Burns Philp (PNG) Ltd [1988-89] PNGLR 122 (Kapi DCJ, Amet J, Cory J); Karmally v Tibu (2009) N3646 (Hartshorn J).
  
44.	No application to amend the Plaintiff’s originating summons in this proceeding could have cured the procedural anomaly that has occurred.  The Court is therefore persuaded for the reasons now given that the Plaintiff failed to utilise the correct mode to challenge the forfeiture of its Mission Lease by way of appeal under Section 142 of the Land Act or, if out of time, by judicial review under Order 16 of the National Court Rules. The Plaintiff’s choice of commencing suit by way of ordinary originating summons seeking a judicial declaration as to the indefeasibility of its title to the Property and associated orders was an improper use of court process, contrary to the procedure for appealing forfeiture of a State lease provided for in Section 142 of the Land Act as approved and endorsed by the Supreme Court in Lae Bottling Industries Ltd v Lae Rental Homes Ltd. 
 
45.	In these circumstances it follows that the Plaintiff’s originating summons in this suit discloses no reasonable cause of action due to an incorrect mode of originating process having been selected and that, in itself is, also an abuse of process. This proceeding must accordingly be dismissed pursuant to Order 12 Sub-rules 40(1)(a) and (c) of the National Court Rules. The interim restraining order made on 18 August 2016 will be discharged with immediate effect.

Issue 2:	If this proceeding is not dismissed, does the evidence support the Plaintiff’s claims for substantive relief?
 	
46.	As Issue 1 has been determined in the affirmative necessitating the dismissal of this proceeding, there would be no utility to be served if the Court were to consider Issue 2.  It is therefore not appropriate for the Court to embark on any consideration of the evidence adduced by the parties for and against the Plaintiff’s claims for substantive relief.
 
CONCLUDING REMARKS

47.	However, all is not necessarily lost for the Plaintiff.  If the Plaintiff should still wish to persevere with its grievance notwithstanding that the late Paul Pora and his family commenced occupying the Property prior to 2003 on some form of de facto basis and thereafter in reliance on the Agricultural Lease granted in 2007, then despite the passage of time the Plaintiff could conceivably recommence action by fresh proceedings in this Court by way of originating summons seeking an extension of time pursuant to s.142(2) of the Land Act to appeal the Minister’s forfeiture decision if the Plaintiff can satisfy the Court that there is “special reason” why it should be allowed to do so.  If that application were to be refused by the National Court, the Plaintiff could either appeal that decision to the Supreme Court if there were meritorious grounds, or the Plaintiff could at that juncture avail itself of the judicial review jurisdiction of the National Court regulated by Order 16 of the National Court Rules.  However, this would be a matter for the Plaintiff to carefully consider after obtaining competent legal advice.
  
48.	I add a cautionary note that the evidence adduced in this case does suggest that the Plaintiff effectively abandoned the Property at some point between when the first notice to show cause was served on the Plaintiff in 1998 and when the Plaintiff, according to Archbishop John Ribat, first became aware in late 2015 that the Mission Lease of the Archdiocese had been allegedly forfeited back in 2003.  One can only speculate as to why it took so long for the Plaintiff to become aware towards the end of 2015 that the family of the late Paul Pora had been occupying the Property for so many years, that occupation having commenced well before 2003, possibly back to 1989, and well before the Agriculture Lease was granted in 2007, an overall period that prior to commencement of this proceeding could have been up to 27 years or more. That delay on the part of the Archdiocese in realising it needed to check the legal status of its title to the Property in late 2015 raises many questions which remain unanswered in this proceeding.  Did the Plaintiff pay the annual State rent required by the Mission Lease for the Property for the years 2003 to 2016?  Did the Plaintiff conduct periodic inspections of the Property during those years?  How is it possible that the Plaintiff did not know that the family of the late Paul Pora had been occupying the Property for so many years prior to 2016?  Did the Plaintiff’s own administration lose its business records that the Plaintiff had a Mission Lease for the Property?  These are all matters showing delay which the Plaintiff would need to satisfactorily address if the Plaintiff were to seriously consider recommencing action by fresh proceedings.
     
49.	There is one further aspect of the present proceeding which requires comment.  Term 3 of the Plaintiff’s originating summons sought an order that “the defendant, his servants, agents, family members and/or tribesmen cease occupation of, vacate and otherwise give vacant possession of the property to the plaintiff forthwith”, in default of which the Police were to be empowered to evict the Defendant and his associated occupants of the Property.  I observe that the Defendant cited in this suit is the Public Curator.  It is not in dispute that the occupants of the Property at time of commencement of suit were the widow and other relatives of the late Paul Pora.  The Public Curator and his family members are not, and never have been, in occupation of the Property or any part of it.  No amendment to term 3 of the Plaintiff’s originating summons was ever sought by the Plaintiff prior to or at trial to rectify this facet of the Plaintiff’s claim for relief, which was mistakenly directed at the Public Curator himself, not the family of the late Paul Pora.

COSTS

50.	Turning to the matter of who should bear the costs of this proceeding, costs usually follow the event.  There is nothing about this case that would suggest departure from the usual order as to costs would be warranted. The Plaintiff shall pay the Public Curator’s party-party costs of this proceeding, such costs to be taxed if not agreed.

ORDER

51.	The terms of the formal order of this Court are:

(1)	The ex parte interim injunction granted on 18 August 2016 is discharged with immediate effect.
(2)	This proceeding is dismissed.
(3)	The Plaintiff shall pay the Defendant’s costs of and incidental to this proceeding on a party-party basis, such costs to be taxed if not agreed.
(4)	The time for entry of this order is abridged to the time of signing by the Court which shall take place forthwith.
Judgment accordingly
__________________________________________________________________
Allan Mana: Lawyer for the Plaintiff
HBest Wally Lawyers:  Lawyers for the Defendant