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Pole v Rosso [2025] PGNC 312; N11448 (13 August 2025)

N11448

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

OS (JR) NO. 20 OF 2024

BETWEEN:
DORIGA POLE
Plaintiff

AND:
HON. JOHN ROSSO, MINISTER FOR LANDS & PHYSICAL PLANNING
First Defendant

AND:
BENJAMIN SAMSON, SECRETARY, DEPARTMENT OF LANDS & PHYSICAL PLANNING
Second Defendant

AND:
ALA ANE – ACTING REGISTRAR, DEPARTMENT OF LANDS & PHYSICAL PLANNING
Third Defendant

AND:
DEPARTMENT OF LANDS & PHYSICAL PLANNING
Fourth Defendant

AND:
THE INDEPENDENT STATE OF PAPUA NEDW GUINEA
Fifth Defendant

AND:
SIMON THOMAS
Sixth Defendant

WAIGANI: PURDON-SULLY J
6, 13 AUGUST 2025

JUDICIAL REVIEW – Application for Judicial Review – Validity of State Lease – Whether exemption from advertisement valid – Whether non-compliance a serious breach – Whether non-compliance constitutes constructive fraud – Whether title should be set aside - Indefeasibility of title - Land Act section 60(2)(d) – Land Registration Act, section 33.

Cited cited
Makeng v Timbers (PNG) Ltd [2008] PGNC 78; N3317
Kekedo v Burns Philp Ltd & Ors [1988-89] PNGLR 122
Steamships Trading Co Ltd v Garamut Enterprises Ltd [2000] N1959
JNS Limited v Lae Builders and Contractors Limited [2015] SC1552
WMB Provincial Government v Pepi S Kimas [2009] N3834
Mudge v Secretary for Lands [1985] PNGLR 387
Emas Estate Development Pty Ltd v Mea [1993] PNGLR 215
Hi-Lift Company Pty Ltd v Setae [2000] PNGLR 80
Ramy Nickel Ltd v Temu [2007] N3352
Mosoro v Kingswell Pty Ltd [2011] PGNC 151; N4450
Kaunuba v Rosso [2022] PGNC 533; N10041
PNG Deep Sea Fishing Ltd v Luke Critten [2010] SC1126
Tikili v Home Base Real Estate Ltd [2017] SC1563
Koitachi Ltd v Walter Schnaubelt [2007] SC870
Mapai Transport Ltd v Pat [2017] PGNC 186
Papua New Guinea Air Services Ltd v Wanga [2021] PGNC 286; N8991

Counsel
Mr J Talipan for plaintiff
Ms Mobiha for State parties
Mr D Aigilo for the sixth defendant

1. PURDON-SULLY J: Following a grant of leave on 28 May 2025 the Plaintiff seeks judicial review of the following decisions (the decisions):

1. the decision made by the First Defendant on 30 August 2021 to exempt from advertisement the land described as Allotment 1 Section 11 Magarina, Hela Province contained in State Lease Volume 20 Folio 29 (the land).
2. the decision made by the Papua New Guinea Land Board at Meeting No 01/2022, published in the National Gazette No G179 14 March 2022 as number 93, to recommend the granting of Business (Commercial) Lease over the land to the Sixth Defendant.

100. The granting of State Lease over the land on 30 September 2022 to the Sixth Defendant.

2. Judicial review is a special procedure developed to deal with complaints by persons aggrieved by decisions made by public administrative bodies and persons exercising public powers conferred by statute (Makeng v Timbers (PNG) Ltd [2008] PGNC 78; N3317).
3. It is available where the decision-making authority exceeds its powers, commits an error of law, commits a breach of natural justice, reaches a decision that no reasonable tribunal could have reached or abuses its powers. The purpose of judicial review is not to examine the reasoning of the subordinate authority with a view to substituting its own opinion but to examine the decision-making process (Kekedo v Burns Philp Ltd & Ors [1988-89] PNGLR 122 (see also Order 16 r 13 of the National Court Rules (NCR)).
4. The Plaintiff pleads the following grounds of review:

1. that the Minister acted ultra vires his powers under s 69(2)(d) of the Land Act 1996 (the Land Act) inter alia in exempting the land from advertisement when the State had not agreed to provide the land for the establishment of a business project or other undertaking and where the special reasons for the exemption was for residential purposes when the land was a commercial state lease.
2. Breach of natural justice based on bias where the Sixth defendant was an employee of the Department of Lands and Physical Planning (the Department) for more than 20 years and special reasons for the exemption was a form of compensation for the Sixth Defendant’s long service with the Department

5. The Plaintiff pleads that the special reason under which the First Defendant exempted the land from advertisement and granted the State lease to the Sixth Defendant was constructive fraud not protected by s 33(1)(a) of the Land Registration Act.
6. By Notice of Motion Pursuant to Order 16 Rule 5(1) of the NCR the Plaintiff seeks the following relief:

1. An order in the nature of certiorari squashing the decision of the first defendant made on the 30^th of August 2021 to exempt from advertisement Allotment 1 Section 11 Magarima, Hela Province contained in the state lease Volume 20 Folio 29.
2. An Order in the nature of certiorari quashing the decision of the of the Papua New Guinea Land Board at Meeting No 01/2022, published in National Gazette No G179 14^th March 2022 as number 93, to recommend the granting of Business (Commercial) Lease over Allotment 1 Section 11 Magarima, Hela Province contained in the state lease Volume 20 Folio 29, to the 6^th defendant.

100. A declaration that the granting of State Lease over Allotment 1 Section 11 Magarima, Hela Province contained in the state lease Volume 20 Folio 29, on 30^th of September 2022 to the sixth defendant is null and void and is quashed.

4. An Order in the nature of mandamus directing the sixth defendant to return its owner's copies of the State Leases over Allotment 1 Section 11 Magarima, Hela Province contained in the state lease Volume 20 Folio 29, to the second defendant.
5. An Order in the nature of mandamus directing the second defendant to:

1. execute notices of forfeiture of the State Leases granted over Allotment 1 Section 11 Magarima, Hela Province contained in the state lease Volume 20 Folio 29 to the sixth defendant; and
2. publish the notices of forfeiture in the National Gazette; and
3. forward the notices of forfeiture to the Registrar of Titles.

6. An Order in the nature of mandamus directing the third defendant upon receiving the notices of forfeiture amend the Register of State Leases and all other records of the State under his control to reflect forfeiture of the State Lease.
7. Such further or other relief as this Honourable Court deems fit.
8. Costs be in the cause.

7. The Sixth Defendant who holds title to the land seeks the dismissal of the application for judicial review.
8. The State supports the upholding of the review and the orders sought by relief. It is their case that the special reason upon which the exemption was made did not fall within the ambit of s 69(2)(d) of the Act and that the decisions should be set aside.
9. For the following reasons I uphold the grounds of review and order the relief sought by the Plaintiff.

BACKGROUND

10. The relevant facts either as recorded in the Statement of Agreed and Disputed Facts and Legal Issues filed 9 August 2024 or unchallenged on the evidence are as follows.
11. The Sixth Defendant is a Senior Public Servant employed by the Department as Deputy Chief Physical Planner, Development Control. His length of service in the Department is nearly 23 years.
12. By letter dated 21 June 2021 the Sixth Defendant wrote a letter to the Minister for Lands and Physical Planning seeking an exemption from s 69 of the Land Act.
13. On 30 August 2021 the Minister exempted the land from advertisement.
14. The relevant part of the Notice of Exemption dated 30 August 2021 and signed by the Minister is in the following terms:

LAND ACT 1996

NOTICE UNDER SECTION 69

I, HON JOHN ROSSO, Minister for Lands and Physical Planning by virtue of the power conferred on me by Section 69(2)(d) of the Land Act 1996 and all other powers me enabling under this Division not withstanding that the land has not been offered for lease by tender.

The special reason being that, the Applicant – Simon Thomas (Principal Planner, Development Planning – H & M DLPP) who hails from Magarima District has served this Department for more than twenty (20) years, wishes to reside on this subject land after he retires from active public service duty.

[Emphasis in document]

15. The Land Board recommended the granting of Business (Commercial) Lease over the land to the Sixth Defendant published in the National Gazette No G179 14 March 2022 as number 93.
16. On 30 September 2022 the Sixth Defendant was granted State Lease over the land.

CONSIDERATION

17. The Sixth Defendant raises an issue as to whether the Plaintiff has established an interest in the land and thus has standing.
18. There is no persuasive evidence to conclude that the Plaintiff does not have an interest in the land and thus standing to bring the proceedings. It was not identified as a legal issue requiring determination in the Statement of Agreed and Disputed Facts and Legal Issues. The Sixth Defendant did not raise it as an issue in these proceedings in his affidavit filed 17 July 2024. He had an opportunity to do that in response to the Plaintiff’s deposition in his affidavit filed 2 April 2024 under the heading Standing and Locus Standi. This is not a case where it can be said that the Plaintiff had and then lost standing after the grant of leave. The Plaintiff was granted leave to judicially review the decisions, a requirement for the grant of leave being his locus standi. While the Sixth Defendant was not a party to the ex parte hearing on the grant of leave, the State was a party and it did not seek to challenge the Plaintiff’s standing at the substantive hearing.
19. The principal issue for consideration are whether the decision of the First Defendant to grant the exemption from advertisement under s 69(2)(d) of the Land Act was unlawful, and if it was, whether the exemption and granting of State lease to the Sixth Defendant amounted to fraud such that pursuant to s 33(1)(a) of the Land Registration Act the title in favour of the Sixth Defendant should be set aside.
20. Section 69 of the Land Act states:

DUTY TO ADVERTISE STATE LEASES.

(1) A State lease shall not be granted without first being advertised in accordance with Section 68 unless the land has been exempted from advertisement under Subsection (2).

(2) The Minister may exempt land from advertisement for application or tender–

(a) where the lease is granted to a governmental body for a public purpose; or

(b) where it is necessary to relocate persons displaced as a result of a disaster as defined in the Disaster Management Act 1984; or

(c) where a lessee applies for a further lease; or

(d) where the State has agreed to provide land for the establishment or expansion of a business, project, or other undertaking; or

(e) where the land applied for adjoins land owned by the applicant and is required to bring the holding up to a more workable unit, providing that the claims of other neighbouring landowners are considered and their views taken into account in deciding whether to exempt the land from advertisement in favour of the applicant; or

(f) where the Department responsible for foreign affairs recommends that land be made available to the applicant for consular premises; or

(g) where the land is required for the resettlement of refugees; or

(h) where the applicant has funded the acquisition of the land from customary landowners in order to acquire a State lease over it; or

(i) where a lease is to be granted under Section 99 or 102; or

(j) where a new lease is granted under Section 110, 130 or 131.

[Emphasis added]

21. The relevant provision for consideration is subsection (2)(d) which enables the Minister to exempt land from advertisement or tender “where the State has agreed to provide land for the establishment or expansion of a business, project, or other undertaking”.
22. While there is a dispute about the use to which land was intended, the Plaintiff asserting it was for private purposes and the Sixth Defendant for commercial purposes, it is unchallenged that there is no evidence before the Court that the State had agreed to provide the land for the required purpose, that requirement necessary on a plain reading of the subsection and supported by the authorities.
23. As to the importance of complying with s 69(2)(d) of the Land Act, Sheehan J said in Steamships Trading Co Ltd v Garamut Enterprises Ltd [2000] N1959:

The content and directives of the Act plainly demonstrate that the intention and purpose of the Act is to provide an open transparent system of access to State lands, and an orderly and fair process of disposition of those lands by the Minister on behalf of the State. Citizens given due and adequate notice as to the availability of State Land, are able to compete on an equal footing with one other by public tender for a State lease.

24. The importance of complying with the relevant subsection is underscored here by the contents of the exemption notice which recorded that the special reason for the land not being offered for lease by tender was by reason of the service rendered by the Sixth Defendant to the Department, his retirement and desire to live on the land.
25. In JNS Limited v Lae Builders and Contractors Limited [2015] SC1552 (JNS Limited), the Supreme Court (Davani, Kariko and Murray JJ) reiterated the importance of transparency and accountability on the part of government in such matters when it said at [17]

....There must be transparency and accountability in making government land available equally to all citizens. Indeed, there must be checks against the Minster or his delegate such as the Secretary acting “on a whim” when dealing with land (including the power of exemption from advertisement). We therefore consider that the agreement or the decision agreeing or consenting to exempting land from advertisement must be appropriately recorded...

26. As to the form the agreement should take, and in concluding that it need not follow the formal process outlined by Cannings J in WMB Provincial Government v Pepi S Kimas [2009] N3834, namely an instrument or memorandum of agreement signed by the Head of State acting on the advice of the National Executive Council, the Supreme Court nevertheless stressed at [14] and [17] the importance of evidence of such agreement between the State and the applicant for land and that there must be an act separate from the exemption notice.
27. There is no evidence in the present case, that the agreement or decision agreeing or consenting to the exempting of the land from advertisement was appropriately recorded, a fact conceded by learned Counsel for the Sixth Defendant. That lack of evidence is fatal to the Sixth Defendant’s case to uphold the decisions.
28. In granting the exemption against advertisement the First Defendant Minister exceeded his powers, a circumstance accepted by the Second Defendant at [6] in his affidavit sworn 26 November 2024.
29. Further, the special reason stated in the Notice under Section 69 was not a proper basis for exempting land from advertisement under s 60(2)(d) of the Act. There is no reference to “special reason” in that section.
30. Notwithstanding the Supreme Court’s observations and recommendation at [19] in JNS Limited that the exemption notice form used by the Department should be corrected to be consistent with s 69 of the Act, it appears that it continues to be used in an incorrect form, a circumstance that should be addressed as soon as possible to avoid further potential litigation.
31. A decision-maker exercising public power must understand and exercise his powers as required by law. In making the decision to exempt the First Defendant acted without proper authority and ultra vires his power to exempt under s 69(2)(d) of the Act.
32. This ground of review is upheld.
33. With respect to the ground of fraud, fraud is a statutory ground of review pertaining to decisions on State land and lease. Given that Papua New Guinea has a Torrens Title system of land registration, which vests indefeasible (not forfeitable) title in the registered proprietor of land, a registered title cannot be set aside unless one of the situations listed in s 33 (1) of the Land Registration Act applies, one of those being fraud (s 33(1)(a)) (Mudge v Secretary for Lands [1985] PNGLR 387).
34. The are two school of thought on fraud. The more liberal view is led by the decision of the Supreme Court in Emas Estate Development Pty Ltd v. John Mea & Ors that says, failure to properly follow set procedures for the grant of a State lease under the Land Act and all other relevant and applying legislation can result in the nullification of the title. In the case cited, the majority, Amet and Salika JJ, (as they then were) with Brown J dissenting, held that if a title has been forfeited or issued in circumstances that are so unsatisfactory, irregular or unlawful, that amounts to fraud, warranting the setting aside of registration of title. That decision has been followed in a number of National Court decisions (Steamships Trading Company; Hi-Lift Company Pty Ltd v Setae [2000] PNGLR 80; Ramy Nickel Ltd v Temu [2007] N3352; Mosoro v Kingswell Pty Ltd [2011] PGNC 151; N4450; Kaunuba v Rosso [2022] PGNC 533; N10041). It was also followed by the Supreme Court in PNG Deep Sea Fishing Ltd v Luke Critten [2010] SC 1126; JNS Limited, and in Tikili v Home Base Real Estate Ltd [2017] SC1563.
35. The narrower view taken in the earlier case of Mudge v. Secretary for Lands and reaffirmed by the Supreme Court in Koitachi Ltd v. Walter Schnaubelt stands for the proposition that actual fraud must be brought home to the person who eventually acquired the title.
36. However in PNG Deep Sea Fishing Ltd v Luke Critten [2010] SC1126 at [22], the Supreme Court (Kandakasi J, Hartshorn J & Sawong J) observed that a careful reading of these authorities made it clear that the Supreme Court in Koitachi distinguished the decision in Emas merely by reference to the difference in the facts, namely the fact of forfeiture of title vested in one person and being vested in another, rather than the principles enunciated in that case. The Supreme Court in Emas took into account the process leading to the decision to forfeit title in one person and vesting it in another and said, if forfeiture and transfer of title takes place in circumstances that are so unsatisfactory, irregular or unlawful, that amounts to fraud then title ought to be upset. For that reason, it was the view of the Court that “the principle enunciated in Emas stands”.
37. Relevantly the Court went on to say at [23]

In our view, sense can be made out of the decision in Mudge and Kotachi on the one side and Emas on the other. The decision in Mudge and Kotachi could work well with one complimenting the other. Where title in certain property has passed a number of hands and or a considerable period of time has passed and is hard to trace back what has happened, the need to bring fraud home to the eventual title holder is sensible and could apply. However, where title in a property has not passed hands or the circumstances leading to either grant or transfer of title can easily be traced and established, the requirement to bring fraud as determined by Mudge and Koitachi home to the eventual title holder may be inappropriate. The title holder knowing this position of the law may well have deliberately or by his conduct facilitated a breach or otherwise a failure to follow all relevant processes and requirements for a proper, fair, and transparent grant or transfer of title over State Leases, which may fall short of fraud as held by Mudge and Koitachi to gain from his own illegal, improper, unfair and questionable conduct. This would no doubt run into conflict with well established principles of law which say that, no one can be permitted to gain from his or her own illegal conduct. Against such possibilities, Emas does make sense.

38. It is an approach supported by the later Supreme Court decision of JNS Limited, relied upon by the State parties, where the Court found no error in the primary Judge’s approach in finding constructive fraud. The Court concurred with the primary Judge that non-compliance with s 69(2) amounts to a serious breach of a mandatory provision of the Act and that the requirements of the provision having not been met, there is a presumption of fraud that justified the overturning of a registered title (at [23-25]).
39. Learned Counsel for the Sixth Defendant urges upon the Court the narrow view of fraud. He brought to the attention of the Court the National Court decisions in Mapai Transport Ltd v Pat [2017] PGNC 186 (Mapai) (Mahail J) and Papua New Guinea Air Services Ltd v Wanga [2021] PGNC 286; N8991 (Wanga) (Miviri J).
40. In my view, based on the authorities I have outlined and the principles that emerge thereto, the liberal view is preferable and should be followed. Further, the authorities suggest that in more recent times the Courts have favoured the wider view of the meaning of fraud.
41. The rationale for that view was helpfully articulated in PNG Deep Sea Fishing Ltd v Luke Critten at [25] as follows:

In our view, the principle enunciated in Emas is a necessary safeguard against the abuse of the process prescribed for the proper, fair, transparent and legal allocation of State Leases. In a jurisdiction like PNG where there is ready abuse of legislatively prescribed process particularly over a much sought after resource like land, and other regulatory requirements for safety and welfare of the nation, the decision in Emas becomes very important. The situation in PNG is not the same as in England, Australia or elsewhere, where the state owns most of the land and there is a large supply of land. Also, unlike Australia and England, there is in PNG, a ready resort to abusing legislatively prescribed process particularly in relation to land as much as other important resources. ...

42. No persuasive submissions were advanced as to why I should depart from the approach and reasoning of the more recent Supreme Court authorities.
43. The circumstance of registration in favour of the Sixth Defendant was so unsatisfactory, representing a serious breach of a requirement of the Land Act such that I have concluded that it amounted to constructive fraud for the purposes of s 33(1)(a) of the Land Registration Act.
44. The decisions relied upon by the Sixth Defendant do not alter that conclusion. If it is suggested that Mapai is authority for the proposition that the Minister has an unfettered discretion to grant an exemption from advertisement under the provisions of s 69 of the Land Act, then I respectfully disagree. The Minister must exercise his power to exempt as required by s 69, in this case s 69(2)(d). It is also a proposition at odds with the principles enunciated in the Supreme Court decision if JNS Limited as earlier discussed.
45. Similarly, it is difficult to see how the National Court decision of Wanga assists the Sixth Defendant in light of the principles in JNS Limited.
46. This ground is upheld.
47. The Court’s findings on the grounds of ultra vires and constructive fraud are dispositive of the application for judicial review such that it is not necessary to consider the further ground of review based on a breach of natural justice.
    

RELIEF

48. Turning to the relief sought, the Court finds that the remedial orders in the substantive Notice of Motion filed 25 June 2024 should be made.
49. The land was unlawfully exempted from advertisement and therefore the decision to grant the State Lease over it unlawful and ineffective in law, warranting not only the quashing of the decision but the setting aide of the Sixth Defendant’s title. The registration to the Sixth Defendant cannot stand as it was obtained fraudulently such that he does not hold an indefeasible title.
50. The Sixth Defendant should pay the costs of the Plaintiff. I make no order in favour of the State for two reasons. Firstly, the affidavit of the Second Defendant relied upon by the State and handed up at the hearing was not included in the Review Book. It was a relevant document given it contents, one that appeared to have been sworn by the Second Defendant on 26 November 2024 and yet never filed. It is unclear why this document was relied upon late and not included in the Review Book. While it should have become obvious to the Sixth Defendant the difficulties it created for him, particularly in light of the concession as to a lack of evidence of any agreement by the State to an exemption to advertise, and while I did stand the matter down to enable discussion to take place, the matter remaining unresolved, in my view the Sixth Defendant was entitled to advance submissions on the issue of relief, principally what should flow from upholding the review with respect to his title.

ORDERS

51. The Plaintiff’s application for judicial review is upheld.
1. The Relief sought by the Plaintiff in the Notice of Motion filed 25 June 2025 at (a) to (f) inclusive is granted.
2. The Sixth Defendant pay the Plaintiff’s costs on a party and party basis to be agreed or taxed.
3. The State bare its own costs.
4. Time to Abridge.
   

___________________________________________________________
Lawyers for the plaintiff: Kortal Lawyers & Associates
Lawyers for the sixth defendant: Gibson Bon Lawyers
Lawyers for all other defendants: Solicitor General